Probation in battery with beer can

District Judge Dave Gamble, decrying what he called overzealousness to categorize people, sentenced a 22-year-old Gardnerville man to probation Tuesday for his part in an attack and robbery of two teenagers.

Gamble sentenced Miguel Rubio to 12-30 months in Nevada State Prison, suspended, and placed him on five years probation for battery causing substantial bodily harm.

Co-defendant Andrew William Tagay, 22, was sentenced June 15 by District Judge Michael Gibbons to eight years in prison with a gang enhancement.

Rubio and Tagay were accused of robbing two teenagers on their way home from returning DVDs to a Gardnerville grocery store in March.

Tagay admitted he was a member of the Eastwood Tokers and was sentenced for attempted robbery with the enhancement.

Gamble said Gibbons acted appropriately in sentencing Tagay with the gang enhancement.

"There are certain reasons to prosecute as gang members people who are members of violent street gangs, he said.

Rubio, however, was determined to be more of a gang "wannabe."

"In the last decade or so, there has grown a sense of dividing people - gang enhancements, hate crimes - society has determined to punish someone for who they are or who their victims are rather than for their actions," Gamble said.

Gamble said the trend started out to protect vulnerable people like the elderly and children.

"Today's case is a classic example of this philosophy run amok," he said. "It's contrary to my sense of justice or providing harmony in society."

He rejected a witness's testimony that seven years ago - when he was 15 - Rubio associated himself with the Bulldogs, a California gang out of Fresno. The witness testified he never saw Rubio commit a crime.

"I'd hate to have to defend in 2009 everything I did in 2002," Gamble said. "If we carry this characterization too far, it's unjust. This was a battery with a beer can and a fistfight."

He ordered Rubio to stay away from the victims and forbid him from having any gang paraphernalia or affiliation with gang members.

"I'm just really scared. I want to make changes in my life," Rubio told the judge.

Gamble ordered Rubio to undergo substance abuse evaluation and any recommended treatment. Rubio must refrain from controlled substances, alcohol or weapons during his probation.

"I said a lot which may be interpreted as being supportive of you," Gamble told Rubio. "You need to understand if you come back before me, you will go to prison. You have a lot of tasks to complete. I've trusted you with a lot of things here today. Don't prove me wrong."

Rubio is to perform 40 hours of community service and become current on child support payments.

Rubio spent 56 days in Douglas County Jail after his arrest.

His lawyer, Kris Brown, said Rubio's time in jail began the change in his life.

"He realized his actions had huge, huge consequences. He doesn't want to be an Andrew Tagay," Brown said.

Prosecutor Laurie Trotter said Rubio had numerous misdemeanor charges for prior offenses.

"He continues to violate court orders and probation. This act was very violent and should not be tolerated," she said.

Rubio's victim continues to feel shoulder pain, Trotter said.