Opinion
82037-COA
09-28-2021
JOSHUA RAY VASQUEZ, Appellant. v. THE STATE OF NEVADA, Respondent.
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
Gibbons, C.J.
Joshua Ray Vasquez appeals from an amended judgment of conviction, entered pursuant to an Alford plea, of battery with the use of a deadly weapon constituting domestic violence. Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.
North Carolina v. Alford, 400 U.S. 25 (1970).
Vasquez argues the district court erred by denying his objections to errors contained within the presentence investigation report (PSI), which resulted in a lower probation success probability (PSP) score. Vasquez argues that the errors will negatively affect his prison classification and parole eligibility. "[A] PST must not include information based on impalpable or highly suspect evidence." Gomez v. State, 130 Nev. 404, 407, 324 P.3d 1226, 1228 (2014) (internal quotation marks omitted). A defendant may object to factual or methodological errors in sentencing forms so long as he does so before sentencing. Blankenship v. State, 132 Nev. 500, 508, 375 P.3d 407, 412 (2016).
Vasquez argues the Division of Parole and Probation (Division) improperly deducted points from his PSP score for sophistication/ premeditation. Vasquez claims the Division relied on an arrest report in which the victim indicated that Vasquez grabbed her from behind while in the hallway, choked her, and dragged her to a bedroom when she tried to leave the apartment. Vasquez contends this constitutes impalpable and highly suspect evidence because, at the preliminary hearing, the victim testified that Vasquez strangled her prior to going to the bathroom, then later grabbed her hair and dragged her to a bedroom when she tried to leave the apartment. The victim testified that, once they were in the bedroom, Vasquez kicked her, pulled her hair, and strangled her again. We are not persuaded that variations in the timing of the strangulation and/or the type of force Vasquez exerted to prevent the victim from leaving the apartment and to allow him to drag her to a bedroom constitutes impalpable or highly suspect evidence. Accordingly, we conclude Vasquez has not demonstrated the district court erred by denying his objection to the PSI on this ground.
Vasquez also argues the Division improperly deducted points from his PSP score for cooffender and attitude/offense. Vasquez does not allege that the factual information relied on by the Division was inaccurate. Rather, he disputes how the Division viewed those facts in determining his PSP scores. Vasquez thus fails to demonstrate that the PSI contained impalpable or highly suspect evidence. Therefore, we conclude the district court did not err by denying Vasquez's objections, and we
ORDER the judgment of the conviction AFFIRMED.
Because we conclude that Vasquez has not demonstrated that his PSI contained impalpable or highly suspect evidence, we do not need to consider whether the alleged errors materially prejudiced his parole eligibility or prison classification. See Gomez, 130 Nev at 408, 324 P.3d at 1229.
Tao, Bulla, J.
Hon. Ronald J. Israel, District Judge