Original petition for a writ of habeas corpus or,
alternatively, a writ of mandamus in a criminal matter.
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.
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.
THE COURT EN BANC.
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.
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.
appeal to the district court,  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.
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.
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.
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.
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."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)." 2015 ...