Bejarano v. State

146 P.3d 265 (2006) John BEJARANO, a/k/a Juan Munoz, a/k/a John Bejarno, Appellant, v. The STATE of Nevada, Respondent. No. 44297. Supreme Court of Nevada. November 16, 2006. *268 Franny A. Forsman, Federal Public Defender, and David S. Anthony, Assistant Federal Public Defender, Las Vegas, for Appellant. George Chanos, Attorney General, Carson City; Richard A. Gammick, District Attorney, and Gary H. Hatlestad, Deputy District Attorney, Washoe County, for Respondent. Before the Court En Banc. OPINION ROSE, C.J. In this appeal, we decide whether this court's 2004 decision in McConnell v. State[1] retroactively applies to appellant John Bejarano's final conviction and sentence of death. We hold that McConnell set forth a new rule of substantive law that must be given retroactive application. Applying our holding to Bejarano's case, we conclude that the robbery felony aggravator found by the jury is invalid pursuant to McConnell. Because the receiving-money aggravator also found by the jury was based on the robbery, it too is invalid. We strike them both and reweigh. After doing so, we conclude that any effect these two aggravators had on the jury's decision to impose a death sentence was harmless beyond a reasonable doubt. We affirm the district court's order denying Bejarano post-conviction relief. FACTS On March 2, 1987, Reno taxicab driver Roland Wright was found dead, shot twice in the head at point-blank range with a sawed-off rifle and robbed of about $100 to $250. Bejarano was later arrested and charged with the following crimes: murder with the use of a deadly weapon, robbery with the use of a deadly weapon, being an ex-felon in possession of a firearm, possession and disposition of a sawed-off rifle, possession of a stolen motor vehicle, and carrying a concealed weapon. The murder count charged in pertinent part that Bejarano "did willfully, unlawfully, and with malice aforethought, deliberation, and premeditation, and during the course and commission of a robbery, kill and murder [Wright]." The State later filed a notice of intent to seek death, alleging the following six aggravating circumstances: (1) Bejarano was under a sentence of imprisonment pursuant to NRS 200.033(1), i.e., probation from a 1985 misdemeanor conviction in Idaho for battery on a police officer; (2) he had a previous felony conviction involving the use or threat of violence pursuant to NRS 200.033(2), i.e., a 1979 conviction for aggravated assault in Idaho; (3) he had a previous felony conviction involving the use or threat of violence pursuant to NRS 200.033(2), i.e., a 1981 conviction for aggravated assault in Idaho; (4) the murder was committed during the commission of a robbery pursuant to NRS 200.033(4); (5) the murder was committed to avoid or prevent a lawful arrest pursuant to NRS 200.033(5); and (6) the murder was committed for the purpose of receiving money or any other thing of monetary value pursuant to NRS 200.033(6). *269 A six-day jury trial began in March 1988, after which the jury found Bejarano guilty of all charges. After the ensuing penalty hearing, the jury imposed a …