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131 Nev., Advance Opinion 11 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

ERNESTO MANUEL GONZALEZ, 

Appellant, 

vs. 

THE STATE OF NEVADA, 

Respondent. 

No. 64249 

DEC 3 1 2015 

Tfic; 

CT. 

;Hit F DEFE Dy LTRK ---- 

Appeal from a judgment of conviction, pursuant 't o a jury 

IE K. LINDEMAN 

FASIAP3/44.E.E. ct;i5 

verdict, of one count each of conspiracy to engage in an affray, carrying a 

concealed weapon, discharging a firearm in a structure, murder in the 

first degree with the use of a deadly weapon with a gang enhancement, 

and conspiracy to commit murder. Second Judicial District Court, Washoe 

County; Connie J. Steinheimer, Judge. 

Reversed and remanded. 

Richard F. Cornell, Reno, 

for Appellant. 

Adam Paul Laxalt, Attorney General, Carson City; Christopher J. Hicks, 

District Attorney, and Terrence P. McCarthy, Deputy District Attorney, 

Washoe County, 

for Respondent. 

BEFORE THE COURT EN BANC. 

OPINION 

By the Court, SAITTA, J.: 

In the instant case, appellant challenges his conviction 

arguing that the district court abused its discretion when it refused to 

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answer two questions from the jury during deliberations, when it gave a 

defense-of-others jury instruction that was unduly confusing and not 

supported by the evidence, when it refused to give his proffered 

accomplice-distrust jury instruction, and when it refused to bifurcate the 

gang-enhancement portion of the trial from the guilt phase. We agree 

with appellant in several respects and hold that in situations where a 

jury's question during deliberations suggests confusion or lack of 

understanding of a significant element of the applicable law, the judge has 

a duty to give additional instructions on the law to adequately clarify the 

jury's doubt or confusion. We also hold that, to provide the defendant with 

a fair trial, the guilt phase of trial must be bifurcated from the gangenhancement phase. Because the district court failed to answer the jury's 

question regarding a significant element of conspiracy, refused to bifurcate 

the guilt and gang-enhancement portions of Gonzalez's trial, and 

committed other errors, we hold that the cumulative effect of these errors 

deprived appellant of his right to a fair trial. We therefore reverse 

Gonzalez's judgment of conviction and remand for a new trial. 

FACTUAL AND PROCEDURAL HISTORY 

In 2011, a brawl between members of two motorcycle gangs, 

the Vagos and the Hell's Angels, occurred in a Sparks casino. The fight 

was instigated by Stuart Rudnick, a member of the Vagos. During the 

fight, another member of the Vagos, appellant Ernesto Manuel Gonzalez, 

shot and killed Jethro Pettigrew, a member of the Hell's Angels. 

Rudnick was initially charged as a coconspirator, but he 

pleaded guilty to reduced charges and ultimately testified against 

Gonzalez. Although Rudnick pleaded guilty prior to Gonzalez's trial, he 

was not sentenced until after he testified against Gonzalez. At trial, 

Rudnick testified that he and Gonzalez had a meeting prior to the fight 

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with the president of the international chapter of the Vagos. Rudnick 

further testified that the president put out a "green light" on Pettigrew, 

meaning that Pettigrew was to be killed, and that Gonzalez said he would 

kill Pettigrew. No other witnesses testified to the existence of this 

conspiracy to kill Pettigrew. 

The jury found Gonzalez guilty on all counts. The district 

court merged the convictions of challenge to fight resulting in death with 

the use of a deadly weapon and second-degree murder with the conviction 

of first-degree murder with the use of a deadly weapon. Although the jury 

found the alleged deadly-weapon and gang enhancements, the district 

court only imposed sentences for the weapons enhancement. See NRS 

193.169(1) (providing that additional enhancement sentence may be 

imposed for only one enhancement "even if the person's conduct satisfies 

the requirements for imposing an additional term of imprisonment 

pursuant to another one or more" of the enhancement statutes). 

DISCUSSION 

On appeal, Gonzalez argues, among other claims, that the 

district court abused its discretion: (1) when it refused to answer two 

questions from the jury during deliberations, (2) when it gave a defense-ofothers jury instruction that was unduly confusing and not supported by 

the evidence, (3) when it refused to give his proffered accomplice-distrust 

jury instruction, and (4) when it refused to bifurcate the gangenhancement portion of the trial from the guilt phase. 

The district court's refusal to answer jury inquiries during deliberations 

This court reviews the refusal to respond to jury inquiries for 

an abuse of discretion. Tellis v. State, 84 Nev. 587, 591, 445 P.2d 938, 941 

(1968). 

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During jury deliberations, a juror sent two questions to the 

district court judge. The first question stated: 

Legal Question: 

Looking at Instruction no. 17: If a person 

has no knowledge of a conspiracy but their actions 

contribute to someone [else's] plan, are they guilty 

of conspiracy? 

The second question stated: 

People in here are wondering if a person can 

only be guilty of 2nd degree murder or 1st. Can it 

be both? 

Both Gonzalez's attorney and the State agreed that the 

answers to both questions were no. The district court refused to answer 

the first question, instead stating: 

It is improper for the Court to give you additional 

instruction on how to interpret Instruction no. 17. 

You must consider all the instructions in light of 

all the other instructions. 

The district court also refused to answer the second question, 

stating: 

You must reach a decision on each count separate 

and apart from each other count. 

We create an exception to the rule in Tellis in situations where the 

jury's question suggests confusion or lack of understanding of a 

significant element of the applicable law 

The current law regarding a judge's duty to answer a jury's 

questions was promulgated in Tellis: 

The trial judge has wide discretion in the manner 

and extent he answers a jury's questions during 

deliberation. If he is of the opinion the 

instructions already given are adequate, correctly 

state the law and fully advise the jury on the 

procedures they are to follow in their deliberation, 

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his refusal to answer a question already answered 

in the instructions is not error. 

84 Nev. at 591, 445 P.2d at 941. 

Here, because Gonzalez does not allege that the given jury 

instructions were inadequate or incorrectly stated the law, under our 

decision in Tellis, the district court did not abuse its discretion by refusing 

to answer the jury's questions. However, we are of the opinion that Tellis 

does not go far enough in describing a judge's duty to answer questions 

from the jury during deliberations. 

We do not wish to completely overturn Tellis. However, we 

believe that there should be an exception to the bright-line rule in Tellis 

regarding situations where the jury's question suggests confusion or lack 

of understanding of a significant element of the applicable law. See 

United States v. Southwell, 432 F.3d 1050, 1053 (9th Cir. 2005) ("Because 

it is not always possible, when instructing the jury, to anticipate every 

question that might arise during deliberations, the district court has the 

responsibility to eliminate confusion when a jury asks for clarification of a 

particular issue." (internal quotations omitted)); see also Harrington v. 

Beauchamp Enters., 761 P.2d 1022, 1025 (Ariz. 1988) (holding that when 

jurors "express confusion or lack of understanding of a significant element 

of the applicable law, it is the court's duty to give additional instructions 

on the law to adequately clarify the jury's doubt or confusion"); State v. 

Juan, 242 P.3d 314, 320 (N.M. 2010) ("[W]hen a jury requests clarification 

regarding the legal principles governing a case, the trial court has a duty 

to respond promptly and completely to the jury's inquiry."). In such 

situations, the court has a duty to give additional instructions on the law 

to adequately clarify the jury's doubt or confusion. See Southwell, 432 

F.3d at 1053; Harrington, 761 P.2d at 1025; Juan, 242 P.3d at 320. This is 

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true even when the jury is initially given correct instructions. People v. 

Brouder, 523 N.E.2d 100, 105 (Ill. App. Ct. 1988); see also Harrington, 761 

P.2d at 1025 (holding that the court has a duty to respond to the jury even 

when "the original instructions were complete and clear"). 

Here, the jury's question on conspiracy went to the very heart 

of that offense. Conspiracy is a knowing agreement to act in furtherance 

of an unlawful act. Bolden v. State, 121 Nev. 908, 912, 124 P.3d 191, 194 

(2005). When a defendant does not know that he or she is acting in 

furtherance of an unlawful act, there can be no conspiracy. Because the 

jury's first question suggested confusion or a lack of understanding of this 

central element of the crime of conspiracy, we hold that the district court 

abused its discretion when it refused to answer the question. However, 

because the jury's second question did not suggest confusion or the lack of 

understanding of a significant element of first- or second-degree murder, 

the district court did not abuse its discretion when it refused to answer 

that question. 

The defense-of-others jury instruction 

Whether a jury instruction accurately states the law is 

reviewed de novo. Funderburk v. State, 125 Nev. 260, 263, 212 P.3d 337, 

339 (2009). When the instruction concerns a defendant's right to selfdefense, the issue is of constitutional magnitude. See United States v. 

Sayetsitty, 107 F.3d 1405, 1414 (9th Cir. 1997) (stating that "a defendant 

has a constitutional right to have the jury consider defenses [that] negate 

[criminal liability]"); State v. Walden, 932 P.2d 1237, 1239 (Wash. 1997) 

(indicating that an erroneous instruction on self-defense is an error of 

constitutional magnitude); see also Harkins v. State, 122 Nev. 974, 989-90, 

143 P.3d 706, 716 (2006) (although not identifying the error as one of 

constitutional magnitude, reviewing whether an erroneous self-defense 

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jury instruction was harmless beyond a reasonable doubt, which is a 

review that is performed for constitutional errors). However, if the 

defendant did not object to an instruction, the instruction is reviewed for 

plain error. Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). 

The defense-of-others jury instruction improperly contained an 

instruction on self-defense that was not supported by the record 

The trial court has the duty to instruct on 

general principles of law relevant to the issues 

raised by the evidence and has the correlative 

duty to refrain from instructing on principles of 

law which not only are irrelevant to the issues 

raised by the evidence but also have the effect of 

confusing the jury or relieving it from making 

findings on relevant issues. It is an elementary 

principle of law that before a jury can be 

instructed that it may draw a particular inference, 

evidence must appear in the record which, if 

believed by the jury, will support the suggested 

inference. 

People v. Alexander, 235 P.3d 873, 935 (Cal. 2010) (citations omitted) 

(internal quotations omitted). 

Jury Instruction 34 states: 

The killing of another person in self-defense 

or defense of another is justified and not unlawful 

when the person who does the killing actually and 

reasonably believes: 

1. That there is imminent danger that the 

assailant will either kill him or any other 

person in his presence or company or cause 

great bodily injury to him or any other 

person in his presence or company; and 

2. That it is absolutely necessary under the 

circumstances for him to use in self-defense 

or defense of another force or means that 

might cause the death of the other person, 

for the purpose of avoiding death or great 

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bodily injury to himself or any other person 

in his presence or company. 

A bare fear of death or great bodily injury is 

not sufficient to justify a killing To justify taking 

the life of another in self-defense or defense of 

another, the circumstances must be sufficient to 

excite the fears of a reasonable person placed in a 

similar situation. The person killing must act 

under the influence of those fears alone and not in 

revenge. 

An honest but unreasonable belief in the 

necessity for self-defense or defense of another 

does not negate malice. 

The right of self-defense or defense of 

another is not available to an original aggressor, 

that is a person who has sought a quarrel with the 

design to force a deadly issue and thus through his 

fraud, contrivance, or fault, to create a real or 

apparent necessity for making a felonious assault. 

However, where a person, without 

voluntarily seeking, provoking, inviting, or 

willingly engaging in a difficulty of his own free 

will, is attacked by an assailant, he has the right 

to stand his ground and need not retreat when 

faced with the threat of deadly force. 

Actual danger is not necessary to justify a 

killing in self-defense or defense of another. A 

person has a right to defend from apparent danger 

to the same extent as he would from actual 

danger. The person killing is justified if: 

1. He is confronted by the appearance of 

imminent danger which arouses in his mind 

an honest belief and fear that he or another 

in his presence, is about to be killed or suffer 

great bodily injury; and 

2. He acts solely upon these appearances and 

his fear and actual beliefs; and 

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3. A reasonable person in a similar situation 

would believe himself or another in his 

presence to be in like danger. 

The killing is justified even if it develops 

afterward that the person was mistaken about the 

extent of the danger. 

If evidence of self-defense, or defense of 

others is present, the State must prove beyond a 

reasonable doubt that the defendant did not act in 

self-defense or defense of others. If you find that 

the State has failed to prove beyond a reasonable 

doubt that the defendant did not act in selfdefense or defense of others, you must find the 

defendant not guilty. 

Thus, the defense-of-others instruction contained both an 

instruction on defense of others and an instruction on self-defense. 

However, Gonzalez never attempted to assert that he acted in self-defense 

when he shot Pettigrew, and the evidence in the record does not support 

that defense. No evidence was submitted at trial to support a finding that 

Gonzalez was in, or believed he was in, imminent danger of serious bodily 

harm or death when he shot Pettigrew. See NRS 200.200 (defining selfdefense). Therefore, we hold that because the included self-defense 

instruction was irrelevant to the issues raised by the evidence and had the 

effect of confusing the jury, it was erroneous. See Alexander, 235 P.3d at 

935. 

Intertwining the self-defense and defense-of-others instructions was 

unduly confusing to the jury 

Jury instructions that are unduly confusing may be erroneous. 

United States v. Kalama, 549 F.2d 594, 596 (9th Cir. 1976). 

Here, instructions on self-defense and defense of others were 

bizarrely combined into a single instruction in a way that could be 

confusing to the jury. By intertwining the two defenses, the instruction 

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was made unwieldy and unnecessarily confusing for the jury who was then 

expected to untangle the resulting amalgamation. It could also have 

misled the jury as to what defense Gonzalez was actually asserting. 

Therefore, we hold that because the defense-of-others instruction was 

unduly confusing, it was erroneous. 

The district court did not commit plain error 

However, Gonzalez failed to object to the defense-of-others 

jury instruction. Therefore, we must review this instruction for plain 

error. See Green v. State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). 

Plain error review considers "whether there was 'error,' 

whether the error was 'plain' or clear, and whether the error affected the 

defendant's substantial rights." Id. Here, while we find that the given 

defense-of-others instruction was erroneous, we are not convinced that it 

amounted to plain error. The given jury instruction, while confusing, does 

not appear to be an incorrect statement of Nevada law. Therefore, we hold 

that the district court did not commit plain error by giving its defense-ofothers jury instruction. 

The district court abused its discretion by refusing to give an accomplicedistrust instruction 

The district court is required to give a cautionary jury 

instruction when an accomplice's testimony is uncorroborated. Howard v. 

State, 102 Nev. 572, 576, 729 P.2d 1341, 1344 (1986). If the testimony is 

corroborated, a cautionary instruction is favored, but failure to grant it is 

not reversible error. Id. An accomplice-distrust instruction "advises the 

jury that it should view as suspect incriminating testimony given by those 

who are liable to prosecution for the identical charged offense as the 

accused." Riley v. State, 110 Nev. 638, 653, 878 P.2d 272, 282 (1994). 

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At trial, Gonzales proffered the following jury instruction with 

regard to the State's witness, Rudnick. 

You have heard testimony from , a 

witness who had criminal charges pending against 

him. That testimony was given in the expectation 

that he would receive favored treatment from the 

government in connection with his case; 

For this reason, in evaluating the testimony 

of , you should consider the extent to 

which or whether his testimony may have been 

influenced by this factor. In addition, you should 

examine the testimony of with greater 

caution than that of other witnesses. 

The district court rejected the instruction, stating that it was 

"unnecessary given [the jury instruction on the duty of weighing the 

witnesses' credibility]" and it is "inappropriate to single out any one 

witness, especially in a case where most of the witnesses, the lay 

witnesses certainly had interests other than solely being a lay witness 

here." 

The district court is incorrect in its belief that it is 

inappropriate to single out any one witness as less reliable than others. 

That is, in fact, the entire purpose behind our requirement that an 

accomplice-distrust instruction be given when the accomplice's testimony 

is uncorroborated. See Riley, 110 Nev. at 653, 878 P.2d at 282. Here, it is 

uncontroverted that Rudnick was an accomplice of Gonzalez's because 

they were both charged with conspiracy to commit the same murder. 

Therefore, if Rudnick's testimony was uncorroborated, the district court 

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was required to give an accomplice-distrust jury• instruction as to his 

testimony, and failure to do so was error. 1 

Rudnick's testimony was uncorroborated 

The State argues that because Rudnick's testimony was 

partially corroborated by such things as the casino video of Gonzalez 

shooting Pettigrew, a cautionary instruction was not required. While it is 

true that parts of Rudnick's testimony were corroborated by the casino's 

video recordings of the fight between the Vagos and Hell's Angels and the 

subsequent killing of Pettigrew by Gonzalez, Rudnick's testimony about 

the alleged conspiracy, which formed the basis for several of Gonzalez's 

convictions, was uncorroborated by any other witnesses or evidence. 

Furthermore, one of the central issues in this case was 

whether Pettigrew's death was part of a premeditated conspiracy or 

occurred in the course of a spontaneous clash between two biker gangs. It 

would be absurd to conclude, as the State urges, that because some of an 

accomplice's testimony is corroborated by video that is publicly known to 

'We agree with the State that Gonzalez's proffered jury instruction 

was broader than the typical accomplice •jury instruction in that it 

cautioned the jury against the testimony of any person with criminal 

charges pending against them in exchange for favorable treatment, and 

not just accomplices. A more appropriate instruction would be one similar 

to that proffered in Howard. 102 Nev. at 576, 729 P.2d at 1344 ("The 

testimony of an accomplice ought to be viewed with distrust. This does not 

mean that you may arbitrarily disregard such testimony, but you should 

give to it the weight to which you find it to be entitled after examining it 

with care and caution and in light of all the evidence in the case." (internal 

quotations omitted)). However, the district court nonetheless has "an 

affirmative obligation to cooperate with the defendant to correct the 

proposed instruction," Carter v. State, 121 Nev. 759, 765, 121 P.3d 592, 

596 (2005) (internal quotations omitted), and the failure to do so in the 

case of an accomplice-distrust instruction is error. 

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exist and is uncontroverted by the defendant, the entirety of the 

accomplice's testimony is considered to be corroborated for the purposes of 

Howard. Therefore, we hold that because material portions of Rudnick's 

testimony were uncorroborated, the district court abused its discretion by 

refusing to give an accomplice-distrust instruction. 

The district court abused its discretion by refusing to bifurcate the 

presentation of gang-enhancement evidence from the guilt phase of the trial 

We normally review decisions regarding bifurcation of 

enhancement portions of a trial for an abuse of discretion. See People v. 

Hernandez, 94 P.3d 1080, 1085 (Cal. 2004) (reviewing district court's 

refusal to bifurcate gang-enhancement portion of trial from guilt phase for 

abuse of discretion). However, we have held that in situations where a 

failure to bifurcate compromises a defendant's right to a fair trial, 

bifurcation is mandatory. See Brown v. State, 114 Nev. 1118, 1126, 967 

P.2d 1126, 1131 (1998) (holding that severance is mandatory in multicount 

indictments where one count is of possession of a firearm by an ex-felon); 

see also Morales v. State, 122 Nev. 966, 970, 143 P.3d 463, 465 (2006) 

(holding that bifurcation procedure accomplishes the same policy goals as 

the severance mandated in Brown). 

"Mnstitutional values such as judicial economy, efficiency, and 

fairness to criminal defendants often raise competing demands." Brown, 

114 Nev. at 1126, 967 P.2d at 1131. However, in balancing these 

demands, ensuring that a defendant's right to a fair trial is not 

compromised is paramount. Id. We have previously held that when the 

State seeks convictions on multiple counts, including a count of possession 

of a firearm by an ex-felon, the prejudice to the defendant of introducing 

evidence of prior convictions in order to establish that the defendant is an 

ex-felon requires the severance of the counts. Id. 

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The State attempts to distinguish Brown from the current 

case by alleging that evidence of a prior conviction is uniquely prejudicial. 

However, we are not so certain. Is evidence of a prior conviction more 

prejudicial than the evidence presented here by a gang expert—namely, 

that Gonzalez was a member of a criminal gang whose members in 

Arizona commonly sell narcotics, possess stolen property, and commit 

assault and homicide? Is it more prejudicial than the evidence presented 

by another gang expert that Gonzalez is a member of a criminal gang that 

moves firearms, tries to set up robberies on dope dealers, tries to extort 

motorcycles from people, traffics in narcotics, and commits rape? This, 

among other highly prejudicial evidence used to prove the existence of a 

criminal gang, is a type of evidence that would generally not be admissible 

during a guilt phase of a trial but is statutorily admissible in order to 

prove a gang enhancement. See NRS 193.168(7)(a)-(g). 

This is not to say that evidence of gang affiliation is not still 

admissible for other purposes, such as to show motive. See Butler v. State, 

120 Nev. 879, 889, 102 P.3d 71, 78 (2004) ("This court has repeatedly held 

that gang-affiliation evidence may be relevant and probative when it is 

admitted to prove motive."). However, such evidence will not be 

admissible in the guilt phase of a trial solely for the purpose of proving a 

gang enhancement. Here, while some of the evidence admitted to prove 

the gang enhancement would have also been admissible for other purposes 

in Gonzalez's trial, other evidence, such as the evidence discussed above of 

the types of crimes commonly committed by members of the Vagos, would 

not have been. Although the gang enhancement in this case was 

ultimately not imposed, the admittance of this evidence allowed the State 

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to tie Gonzalez to unrelated crimes committed by other members of the 

Vagos. 

Therefore, because the admission of highly prejudicial 

evidence to prove a gang enhancement that would not otherwise be 

admissible to prove the underlying crime compromises a defendant's right 

to a fair trial, we hold that the guilt phase of a trial must be bifurcated 

from the gang-enhancement phase. Thus, we conclude that the district 

court abused its discretion by refusing to bifurcate the guilt and gangenhancement portions of the trial. 

Cumulative error 

"[1]f the cumulative effect of errors committed at trial denies 

the appellant his right to a fair trial, this court will reverse the 

conviction." DeChant v. State, 116 Nev. 918, 927, 10 P.3d 108, 113 (2000). 

"Relevant factors to consider in deciding whether error is harmless or 

prejudicial include whether the issue of innocence or guilt is close, the 

quantity and character of the error, and the gravity of the crime charged." 

Id. (internal quotations omitted). 

Here, the errors directly affected Gonzalez's convictions for 

conspiracy and, by extension, undermined his affirmative defense that he 

was acting in defense of others. Furthermore, the crimes he was convicted 

of were grave. Therefore, we hold that the cumulative effect of these 

errors has denied Gonzalez the right to a fair trial. 

CONCLUSION 

The district court abused its discretion when it refused to 

answer the jury's question that suggested the jury was confused or lacked 

understanding of a significant element of conspiracy to commit murder. It 

also abused its discretion when it refused to give an accomplice-distrust 

instruction regarding Rudnick's uncorroborated testimony and refused to 

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C.J. 

Ha 

J. 

bifurcate the guilt and gang-enhancement phases of Gonzalez's trial. 

Therefore, because the district court's errors cumulatively denied 

Gonzalez of his right to a fair trial, we order his judgment of conviction 

reversed and remand to the district court for a new tria1. 2 

Saitta 

J. 

We concur: 

Parraguirre 

2Because we hold that the district court's errors discussed above 

were enough to cumulatively warrant reversal, we do not reach the other 

issues raised by Gonzalez. 

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