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Righetti v. Eighth Judicial District Court of State

Supreme Court of Nevada

February 16, 2017

JAVIER RIGHETTI, Petitioner,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE MICHELLE LEAVITT, DISTRICT JUDGE, Respondents, and THE STATE OF NEVADA, Real Party in Interest.

         Original petition for a writ of prohibition or mandamus directing the district court to reinstate a guilty plea and vacate a trial date.

         Petition denied.

          Phillip J. Kohn, Public Defender, and Christy L. Craig, Deputy Public Defender, Clark County, - for Petitioner.

          Adam Paul Laxalt, Attorney General, Carson City; Steve B. Wolfson, District Attorney, Giancarlo Pesci, Chief Deputy District Attorney, and-Christopher F. Burton, Deputy District Attorney, Clark County, for Real Party in Interest.

         BEFORE THE COURT EN BANC.

          OPINION

          PICKERING, J.

         The indictment in this case charged petitioner Javier Righetti with murder under three theories. Without any plea negotiations, Righetti decided to plead guilty to murder, but only to two of the three theories alleged. This strategy, if it worked, would eliminate several of the grounds on which the State relied in seeking the death penalty against Righetti. Although the district court initially accepted the plea, problems arose because the defense did not tell the State, and the State did not understand, that Righetti was not pleading guilty to premeditated murder. After the miscommunication came to light, the district court determined that it had lacked authority to accept the guilty plea because it did not conform to the indictment and the State had not consented to amending it. The district court revoked its acceptance of the guilty plea and set the murder count for trial.

         Righetti seeks a writ of prohibition or mandamus, directing the district court to enforce his plea. He maintains that he had the right to plead guilty to fewer than all theories alleged and that to force him to trial on a charge to which he has already pleaded guilty will violate the double jeopardy clauses of the United States and Nevada Constitutions. See U.S. Const, amend. V; Nev., Const, art. 1, § 8. We do not agree. When the charging document alleges multiple theories for a single offense, linking them with "and/or, " an accused may not undercut the State's charging decision by pleading guilty to only some of the theories alleged without the State's affirmative consent. The guilty plea was therefore defective and the district court appropriately set it aside. Because jeopardy does not attach to a defective guilty plea, Righetti's trial will not violate constitutional prohibitions against double jeopardy and may proceed.

         I.

         The grand jury heard evidence that Righetti sexually assaulted a young girl in a tunnel beneath a freeway in Las Vegas, and sexually assaulted, tortured, and killed another young girl some months later near the same tunnel. Based on this evidence the grand jury indicted Righetti for murder, among other felonies, and the State filed a notice of intent to seek the death penalty. The indictment offers three theories to support the murder charge: that the killing was "(1) willful, deliberate, and premeditated, and/or (2) perpetrated by means of torture, and/or (3) committed during the perpetration or attempted perpetration of robbery and/or kidnapping and/or sexual assault."

         Initially, Righetti entered a "not guilty" plea” Later, with no plea deal from the State, Righetti filed a written "Motion to Change Plea, " supported by a declaration stating that he had "decided to plead guilty to the [indictment] in my case thereby bypassing the guilt phase of my trial and moving to the penalty phase, " the motion did not disclose the defense's plan to plead guilty to only two of the three murder theories alleged, thereby abridging the State's proof at the penalty hearing. An on-the-record oral plea canvass followed, where the district court questioned Righetti regarding his understanding of the charges, the rights he was giving up by pleading guilty, and the consequences of his decision. The district court then asked Mm to give a factual basis for each charge. As for the murder count, the following exchange took place:

THE COURT: As to Count 10, murder with the use of a deadly weapon, on September 2nd, 2011, in Clark County, Nevada, what did you do that makes you guilty of that offense?
THE DEFENDANT: Well, during the course of the kidnapping, sexual assault, and robbery, I stabbed [A.O.] causing her death.
THE COURT: And did you that-that act was willful, deliberate, and premeditated-it's the other theory-okay, it was perpetrated by means of torture, and/or committed during the perpetration or attempt to perpetration [sic] ...

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