IN THE SUPREME COURT OF THE STATE OF NEVADA
RURI ANIVAR DE SANTIAGO-ORTIZ, No. 67424
Appellant,
vs. FILED
THE STATE OF NEVADA, FEB 1 9 2016
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a judgment of conviction, pursuant to a
guilty plea, of battery with substantial bodily harm. First Judicial District
Court, Carson City; James E. Wilson, Judge.
Appellant Run De Santiago-Ortiz and his brother, Alfredo
, Santiago, visited friends and drank beer in the parking lot of their friends'
apartment complex. Although uninvited, Leon Arellano-Pacheco, the
victim, joined the men and drank beer with them. Shortly thereafter,
Santiago-Ortiz and Arellano-Pacheco argued. The argument escalated
into a physical confrontation when Arellano-Pacheco charged at Santiago-
Ortiz with a machete. Santiago-Ortiz hid behind his car and the other
men forced Arellano-Pacheco to drop the knife and fall to the ground.
Once Arellano-Pacheco was lying unconscious on the ground, Santiago-
Ortiz left his hiding place, kicked Arellano-Pacheco in the head, and fled
the scene with his brother. Arellano-Pacheco was rushed to the hospital
where he died the next day due to the injuries he sustained to his brain
and spinal cord.
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The State subsequently charged Santiago-Ortiz and Alfredo by
criminal complaint with involuntary manslaughter, battery causing
substantial bodily harm, and conspiracy to commit a crime.
Santiago-Ortiz waived his preliminary hearing and accepted a
negotiated settlement. He pleaded guilty to one count of battery causing
substantial bodily harm, a category C felony. See NRS 200.481(2)(b). The
plea memorandum, which Santiago-Ortiz signed, documented that the
district court could sentence him to imprisonment for one to five years and
could order him to pay restitution. Prior to sentencing, Santiago-Ortiz
filed a sentencing memorandum in which he provided an offense synopsis
that minimized his culpability and requested that the court suspend the
prison sentence and place him on probation.
In calculating restitution during the sentencing hearing, the
district court ruled out funeral expenses, but it determined that the
victim's medical expenses were appropriate for restitution. Accordingly,
the court ordered Santiago-Ortiz to pay restitution of $59,301.45, jointly
and severally with Alfredo. The district court also sentenced Santiago-
Ortiz to five years imprisonment with parole eligibility after two years.
On appeal, Santiago-Ortiz argues that the district court
abused its discretion during sentencing. Specifically, he argues that the
court abused its discretion because it 1) relied upon "impalpable or highly
suspect evidence" in the presentence investigation report (PSI) in violation
of Stockmeier v. State, Board of Parole Commissioners, 127 Nev. 243, 248,
255 P.3d 209, 213 (2011) (internal quotation omitted), when it sentenced
him; 2) refused to consider the victim's history of violence; 3) sentenced
him to the maximum allowable term of incarceration despite his reduced
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culpability; and 4) ordered restitution for the victim's medical expenses
without setting an evidentiary hearing and applying civil theories of
recovery.
We conclude that the district court did not abuse its discretion
because 1) Santiago-Ortiz has not demonstrated that the court relied upon
impalpable or highly suspect evidence in sentencing him; 2) the lower
court considered the victim's history of violence, but concluded that it was
not relevant; 3) the court sentenced him to a term of incarceration which
complies with Nevada law; and 4) Nevada law does not permit the
procedure that Santiago-Ortiz seeks for setting restitution.
Standard of review
We review a trial court's sentencing decision for an abuse of
discretion. Houk v. State, 103 Nev. 659, 664, 747 P.2d 1376, 1379 (1987).
Unless the trial court record shows "prejudice resulting from consideration
of information or accusations founded on facts supported only by
impalpable or highly suspect evidence," we will not disturb a district
court's sentencing order on appeal. Silks v. State, 92 Nev. 91, 94, 545 P.2d
1159, 1161 (1976).
Reliance upon impalpable or highly suspect information in the PSI
Santiago-Ortiz claims that the district court relied upon highly
suspect information in the PSI when it sentenced him. Unfortunately,
Santiago-Ortiz did not make a proper record for this court to review the
issue because he did not provide this court with the relevant portion of the
PSI. See Greene v. State, 96 Nev. 555, 558, 612 P.2d 686, 688 (1980) ("The
burden to make a proper appellate record rests on appellant."). Pursuant
to NRAP 30(b)(6), the appellant must file a motion with this court's clerk
for an order directing the district court to transmit the PSI report in a
sealed envelope when the report is necessary for our resolution of issues
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on appeal and the report cannot be included in the appendix. Santiago-
Ortiz failed to make such a motion or include the relevant portion of the
report in his appendix. Thus, we cannot conclude that the district court
relied upon impalpable or highly suspect evidence in the PSI.
Consideration of the victim's alleged violent history
Santiago-Ortiz next claims that the district court erred by
failing to consider the victim's violent history when it sentenced him. We
disagree.
The record demonstrates that the district court considered
Arellano-Pacheco's violent history. Although the district court sustained
the State's objection to defense counsel's argument that the victim had a
history of criminal and violent behavior, defense counsel continued to
address the victim's history notwithstanding the court's ruling. Defense
counsel referenced Arellano-Pacheco's convictions for battery, an alleged
history of fighting, and his alleged acts of homicide in Mexico. Counsel
also stated that Santiago-Ortiz was acquainted with Arellano-Pacheco and
that Santiago-Ortiz believed that Arellano-Pacheco intended to kill him
After listening to defense counsel's argument (and in spite of sustaining
the objection earlier), the district court determined that the victim's
history was irrelevant because the victim had been disarmed and rendered
unconscious before Santiago-Ortiz kicked Arellano-Pacheco in the head.
We therefore conclude that the district court did not abuse its discretion in
determining that the victim's history was not relevant in this case.
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Term of incarceration
Santiago-Ortiz further claims that the district court abused its
discretion by sentencing him to the maximum allowable term of
incarceration. Again, we disagree.
"A district court has wide discretion in imposing a prison term
and this court will not disturb the sentence absent a showing of abuse of
such discretion." Tanksley u. State, 113 Nev. 844, 848, 944 P.2d 240, 242
(1997). Battery causing substantial bodily harm, the crime to which
Santiago-Ortiz pleaded guilty, is punishable by a prison sentence of one to
five years. The district court sentenced Santiago-Ortiz to five years in
prison, with the possibility of parole after two years. While a five-year
sentence is at the high end of the statutorily-prescribed range, it is clearly
within that range. Accordingly, we conclude that the district court did not
abuse its discretion when it sentenced Santiago-Ortiz to a five-year term
of imprisonment.
Restitution
Santiago-Ortiz claims that the district court erred by setting
restitution without conducting an evidentiary hearing and applying civil
recovery principles. Santiago-Ortiz also claims that the district court
erred in ordering that he pay restitution jointly and severally with Alfredo
because, Santiago-Ortiz alleges, he was only responsible for a small
portion of the victim's injuries. We conclude that the district court did not
abuse its discretion in its restitution order.
"If a sentence of imprisonment is required or permitted by
statute, the court shall. . [i]f restitution is appropriate, set an amount of
restitution for each victim of the offense." NRS.176.033(1)(c). "On appeal,
this court generally will not disturb a district court's sentencing
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determination so long as it does not rest upon impalpable or highly
suspect evidence." Martinez v. State, 115 Nev. 9, 12-13, 974 P.2d 133, 135
(1999).
"[A] defendant may be ordered to pay restitution only for an
offense that he has admitted, [or] upon which he has been found guilty."
Greenwood v. State, 112 Nev. 408, 412, 915 P.2d 258, 260 (1996) (quoting
Erickson v. State, 107 Nev. 864, 866, 821 P.2d 1042, 1043 (1991)). A
"victim[s] medical costs for the treatment of [his or her] injuries directly
resulting from the crime are the proper subject of restitution." Norwood v.
State, 112 Nev. 438, 441, 915 P.2d 277, 279 (1996). Medical debt belongs
to the victim and/or the victim's estate, and as such it is an appropriate
award for restitution of such costs. Martinez, 115 Nev. at 11, 974 P.2d at
134.
The district court did not abuse its discretion by setting
restitution without conducting an evidentiary hearing and using civil
recovery principles. Santiago-Ortiz urges this court to require evidentiary
hearings and adopt civil principles in setting restitution, however, the
authorities to which he cites for support come from jurisdictions with a
statutory or state constitutional basis for applying recovery principles.
Nevada does not have such statutory authority, so unless and until the
Legislature chooses to create such a right, a district court is not required
to hold an evidentiary hearing or apply civil recovery theories in
calculating restitution. Moreover, when Santiago-Ortiz pleaded guilty, he
admitted to the facts contained in the State's charging document and
waived his right to argue another set of facts or reduced culpability or to
raise affirmative defenses such as self-defense.
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Conclusion
Because the Santiago-Ortiz's ultimate sentence was clearly
within the range specified by law, the district court was within its
discretion to conclude that the victim's history was irrelevant, and because
the district court did not err in setting restitution, we conclude that the
district court did not abuse its discretion at sentencing. Accordingly we
ORDER the judgment of conviction AFFIRMED.
e,a ,72
c ra-5 J.
Hardesty Douglas
erry Saitta
J.
Gibbons
cc: Hon. James E. Wilson, District Judge
State Public Defender/Carson City
Attorney General/Carson City
Carson City District Attorney
Carson City Clerk
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