Document Type

Case Summary

Publication Date

8-2-2007

Case Synopsis

Appellant Albert Gallegos was charged under NRS 202.360(1)(b),2 in 2004, with one count of unlawful possession of a firearm after police arrested him at his home in Clark County and found a firearm inside that home. That charge was based on a 1998 felony warrant issued by a California superior court. The California court issued the warrant when Gallegos failed to appear for sentencing after pleading nolo contendere to seven felony charges. At his Nevada trial, Gallegos testified that he did not appear for his sentencing hearing because the California superior court told him when he entered his plea that “he’d recommend me not stepping a foot back in California ever again.” He further testified that he did not know he needed to return for sentencing because when he reported to the probation office shortly after he entered his plea, as directed by the California superior court, that office had no record of Gallegos’s charges in its system. Believing that his case had been resolved, he left California and returned to Las Vegas. Prior to his Nevada trial, Gallegos filed a motion to dismiss the unlawful possession charge, arguing that NRS 202.360(1)(b) is unconstitutionally vague and fails to provide sufficient notice that he cannot possess a firearm because it does not define the term “fugitive from justice.” The court denied the motion and conducted a trial during which the court instructed the jury that “[a] fugitive from justice is any person who has fled from any state to avoid prosecution for a crime.” That instruction was derived from the federal definition of “fugitive from justice” found in 18 U.S.C. § 921(a)(15). At the end of the evidentiary portion of his trial, Gallegos renewed his motion to dismiss the charge on constitutional grounds and the court again denied. The jury found that Gallegos was a “fugitive from justice” and was guilty of unlawfully possessing a firearm in violation of NRS 202.360(1)(b). Gallegos was sentenced to a prison term of 1 to 6 years. This appeal followed. The Nevada Supreme Court performed a Due Process analysis: “A statute is unconstitutionally vague and subject to facial attack if it (1) fails to provide notice sufficient to enable persons of ordinary intelligence to understand what conduct isprohibited and (2) lacks specific standards, thereby encouraging, authorizing, or even failing to prevent arbitrary and discriminatory enforcement.”

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