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Andersen v. The Eighth Judicial District Court of State

Supreme Court of Nevada

September 12, 2019


          Original petition for a writ of habeas corpus or, alternatively, a writ of mandamus in a criminal matter.

          The Pariente Law Firm, P.C., and Michael D. Pariente and John G. Watkins, Las Vegas; Kheel & Kheel Legal Services, PLLC, and David D. Kheel, Las Vegas, for Petitioner.

          Aaron D. Ford, Attorney General, Carson City; Bradford R. Jerbic, City Attorney, and Carlene M. Helbert and Stephen Rini, Deputy City Attorneys, Las Vegas, for Real Party in Interest.



          STIGLICH, J.

         We are asked whether the offense of misdemeanor battery constituting domestic violence is a serious offense such that the right to a jury trial is triggered. While we previously addressed and answered this question in the negative in Amezcua v. Eighth Judicial District Court, 130 Nev. 45, 319 P.3d 602 (2014), recent changes by our state legislature demand reconsideration. Because our statutes now limit the right to bear arms for a person who has been convicted of misdemeanor battery constituting domestic violence, the Legislature has determined that the offense is a serious one. And given this new classification of the offense, a jury trial is required. Accordingly, we grant the requested writ.


         Petitioner Christopher Andersen was arrested and charged with first-offense battery constituting domestic violence (domestic battery), a misdemeanor pursuant to NRS 200.485(1)(a), and simple battery. Before the municipal court, Andersen made a demand for a jury trial, arguing that a conviction for domestic battery was a serious offense and thus compelled, a jury trial. After the municipal court denied the demand for a jury trial, Andersen entered a no contest plea to the domestic battery charge, and the charge of simple battery was dismissed.

         On appeal to the district court, [1] Andersen's sole contention was that he was erroneously denied the right to a jury trial. The district court disagreed and affirmed the conviction. Andersen then filed the instant writ petition.


         "This court may issue a writ of mandamus to compel the performance of an act which the law requires as a duty resulting from an office or where discretion has been manifestly abused or exercised arbitrarily or capriciously." Redeker v. Eighth Judicial Dist. Court, 122 Nev. 164, 167, 127 P.3d 520, 522 (2006), limited on other grounds by Hidalgo v. Eighth Judicial Dist. Court, 124 Nev. 330, 341, 184 P.3d 369, 377 (2008); see also NRS 34.160. However, this court will not issue a writ of mandamus where the petitioner has "a plain, speedy and adequate remedy in the ordinary course of law." NRS 34.170. For this reason, this court will generally not consider a writ petition that seeks review of a district court decision made within the court's appellate jurisdiction, "unless the petitioner demonstrates that the district court has improperly refused to exercise its jurisdiction, has exceeded its jurisdiction, or has exercised its discretion in an arbitrary or capricious manner" or "the petition present[sl a significant issue of statewide concern that would otherwise escape our review." Amezcua, 130 Nev. at 47, 48, 319 P.3d at 603, 604 (internal quotation marks omitted); see also Redeker, 122 Nev. at 167, 127 P.3d at 522 (explaining that this court may "exercise its discretion to grant mandamus relief where an important issue of law requires clarification"). It is this latter situation-the need to clarify our caselaw concerning the right to a jury trial for misdemeanor domestic battery charges in light of legislative amendments-that renders district court appellate review an inadequate legal remedy and compels the consideration of Andersen's petition for a writ of mandamus.[2]

         It is well established that the right to a jury trial, as established by the Sixth Amendment of the United States Constitution and Article 1, Section 3 of the Nevada Constitution, does not extend to those offenses categorized as "petty" but attaches only to those crimes that are considered i "serious" offenses. See Blanton v. City of N. Las Vegas, 489 U.S. 538, 541 (1989); Duncan v. Louisiana, 391 U.S. 145, 159 (1968); see also Blanton v. N. Las Vegas Mun. Court, 103 Nev. 623, 628-29, 748 P.2d 494, 497 (1987) ("[T]he right to a trial by jury under the Nevada Constitution is coextensive with that guaranteed by the federal constitution."), aff'd sub nom. Blanton, 489 U.S. 538. In determining whether a particular offense is petty or serious, this "court must examine objective indications of the seriousness with which society regards the offense," and "[t]he best indicator of society's views is the maximum penalty set by the legislature." United States v. Nachtigal, 507 U.S. 1, 3 (1993) (internal quotation marks omitted). The; word "penalty" encompasses both a term of imprisonment as well as other penalties proscribed by statute, but "[p]rimary emphasis . . . must be placed on the maximum authorized period of incarceration." Blanton, 489 U.S. at 542; see also Nachtigal, 507 U.S. at 3. To that end, the United States Supreme Court has established that an offense with a maximum authorized period of incarceration of six months or less is presumptively petty. Blanton, 489 U.S. at 543. To overcome this presumption, and to demonstrate that an offense rises to the level of seriousness to warrant a jury trial, a defendant must "demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of . incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a serious one." Id. (internal quotation marks omitted). With this framework in mind, we turn to the offense at issue in this matter.[3]

         First-offense domestic battery is a misdemeanor crime, with a maximum authorized period of incarceration of six months. NRS 200.485(1)(a)(1). Thus, pursuant to Supreme Court precedent, there is a I presumption that the offense is petty and that the right to a jury trial does I not attach. Andersen does not appear to take issue with this presumption I but argues the additional penalties elevate domestic battery to a serious I offense.

         We previously considered the additional penalties imposed by the offense of first-offense domestic battery and concluded that those penalties did not "clearly indicate a determination by the Nevada Legislature that this is a serious offense to which the right to a jury trial attaches."[4]Amezcua, 130 Nev. at 50, 319 P.3d at 605. However, just over one year after our decision in Amezcua, the Legislature amended the penalties associated with a conviction under NRS 200.485(1)(a). Specifically, NRS 202.360-a statute that prohibits the possession or control of firearms by certain persons-was amended to criminalize possession or control of a firearm in this state by a person who "[h]as been convicted in this State or any other state of a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 921(a)(33)."[5] 2015 ...

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