                                                      130 Nev./ Advance Opinion 7
                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                  SERGIO AMEZCUA,                                     •No. 63724
                  Petitioner,
                  vs.
                  THE EIGHTH JUDICIAL DISTRICT
                  COURT OF THE STATE OF NEVADA,
                  IN AND FOR THE COUNTY OF                             FILED
                  CLARK; AND THE HONORABLE ROB
                  BARE, DISTRICT JUDGE,                                 FEB 1 3 2014
                  Respondents,                                               LINDEMAN

                     and
                  THE STATE OF NEVADA,
                  Real Party in Interest.



                              Original petition for a writ of mandamus or habeas corpus
                  challenging a district court order affirming a judgment of conviction and
                  denial of a motion for new trial.
                              Petition denied.

                  The Pariente Law Firm, P.C., and Michael D. Pariente, Las Vegas,
                  for Petitioner.

                  Catherine Cortez Masto, Attorney General, Carson City; Steven B.
                  Wolfson, District Attorney, and Steven S. Owens, Chief Deputy District
                  Attorney, Clark County,
                  for Real Party in Interest.




                  BEFORE GIBBONS, C.J., and DOUGLAS and SAITTA, JJ.




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                                                  OPINION
                PER CURIAM:
                            The right to a jury trial under the Sixth Amendment to the
                United States Constitution depends on whether an offense is "petty" or
                "serious." In this original proceeding, we consider whether certain
                collateral consequences of a conviction for first-offense domestic battery,
                such as an evidentiary presumption in child custody and dependency
                actions, limitations on the right to possess a firearm, and possible
                deportation, make it a serious offense for which a defendant is entitled to
                a jury trial. We conclude that petitioner Sergio Amezcua has not
                demonstrated that first-offense domesticS battery is a serious offense. He
                therefore was not entitled to a jury trial on the misdemeanor charge of
                domestic battery.
                                    FACTS AND PROCEDURAL HISTORY
                            Amezcua was charged with first-offense battery constituting
                domestic violence in justice court. He filed a timely notice for jury trial
                pursuant to NRS 175.011(2). The justice court denied the motion.
                Amezcua subsequently filed a petition for a writ of mandamus in the
                district court, which was denied. He unsuccessfully challenged the district
                court's denial of that writ petition in a petition for a writ of mandamus or
                habeas corpus filed in this court.    See Amezeua v. Eighth Judicial Dist.
                Court, Docket No. 59868 (Order Denying Petition, February 9, 2012).
                Thereafter, Amezcua was convicted of the charged offense in the justice
                court. On appeal, the district court affirmed the judgment of conviction.
                This petition for extraordinary relief followed.



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                                                 DISCUSSION
                              A writ of mandamus may issue to compel the performance of
                 an act which the law requires "as a duty resulting from an office, trust or
                 station," NRS 34.160, or to control an arbitrary or capricious exercise of
                 discretion, see Round Hill Gen. Improvement Dist. v. Newman,           97 Nev.
                 601, 603-04, 637 P.2d 534, 536 (1981). The writ will not issue, however, if
                 a petitioner has a plain, speedy, and adequate remedy in the ordinary
                 course of the law. NRS 34.170. Here, Amezcua had a plain, speedy, and
                 adequate remedy at law to address his claim. He appealed his conviction
                 to the district court, which enjoys final appellate jurisdiction in cases
                 arising from justice court, Nev. Const. art. 6, § 1, and raised the claim that
                 the justice court erred in denying his request for a jury trial. He may not
                 seek writ relief merely because he disagrees with the district court's
                 determination. See Hosier v. State, 121 Nev. 409, 412, 117 P.3d 212, 213
                 (2005) (declining to exercise original jurisdiction over petition for
                 extraordinary relief challenging the validity of a judgment of conviction);
                 State v. Eighth Judicial Dist. Court (Riker), 121 Nev. 225, 231, 112 P.3d
                 1070, 1074 (2005) (noting that the purpose of the writ is not to correct
                 lower-court decisions that may be error). As a general rule, we will not
                 entertain a writ petition that requests review of a district court decision
                 when that court is acting in its appellate capacity 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." State v. Eighth Judicial Dist. Court
                 (Hedland), 116 Nev. 127, 134, 994 P.2d 692, 696 (2000). The petition filed
                 in this case fits none of those exceptions. In similar circumstances we

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                  nevertheless have exercised our constitutional prerogative to entertain a
                  writ petition where the petition presented a significant issue of statewide
                  concern that would otherwise escape our review.        Cf id. at 134, 994 P.2d
                  at 697 (exercising discretion to entertain petition where lower courts had
                  reached different conclusions on significant issues of statewide concern).
                  This petition presents such a situation.'
                               The Sixth Amendment of the United States Constitution
                  guarantees an individual the right to a jury tria1. 2 U.S. Const. amend. VI;
                  see also Duncan v. Louisiana, 391 U.S. 145, 149-50 (1968) (providing the
                  Sixth Amendment right to a jury trial applies to the States through the
                  Fourteenth Amendment). However, that right "does not extend to every
                  criminal proceeding." Blanton v. N. Las Vegas Mun. Court, 103 Nev. 623,
                  629, 748 P.2d 494, 497 (1987), affd sub nom. Blanton v. N. Las Vegas, 489
                  U.S. 538 (1989). The critical distinction is between "petty" and "serious"
                  offenses: the right to a jury trial attaches only to "serious" offenses.   Id.



                         'To the extent that Amezcua seeks relief from this court in habeas
                  corpus, we deny his petition as we will not exercise our original
                  jurisdiction to consider a petition for a writ of habeas corpus challenging
                  the validity of a judgment of conviction. Hosier v. State, 121 Nev. 409,
                  412, 117 P.3d 212, 213 (2005).

                        2The right to a jury trial is also guaranteed by Article 1, Section 3 of
                  the Nevada Constitution. In the context of criminal proceedings, we have
                  held that the right under the state constitution "is coextensive with that
                  guaranteed by the federal constitution." Blanton v. N. Las Vegas Mun,
                  Court, 103 Nev. 623, 628-29, 748 P.2d 494, 497 (1987), affd sub nom.
                  Blanton v. N. Las Vegas, 489 U.S. 538 (1989).



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                               "[T]o determine whether the . . . right to a jury trial attaches
                   to a particular offense, the court must examine 'objective indications of the
                   seriousness with which society regards the offense."        United States v.
                   Nachtigal, 507 U.S. 1, 3 (1993) (quoting Blanton v. N. Las Vegas, 489 U.S.
                   538, 541 (1989)). The best objective indicator of the seriousness with
                   which society regards an offense is the maximum penalty that the
                   legislature has set for it.   Id.   Although a "penalty" may include things
                   other than imprisonment, the focus for purposes of the right to a jury trial
                   has been "on the maximum authorized period of incarceration."              Id.
                   (quoting Blanton, 489 U.S. at 542). Taking this approach, the Supreme
                   Court has held that an offense for which the period of incarceration is six
                   months or less is presumptively a "petty" offense and a jury trial is not
                   constitutionally required.    Id.   We have reached the same conclusion.
                   Blanton, 103 Nev. at 633-34, 748 P.2d at 500-01. The presumption may be
                   overcome "only by showing that the additional penalties, viewed together
                   with the maximum prison term, are so severe that the legislature clearly
                   determined that the offense is a 'serious' one." Nachtigal, 507 U.S. at 3-4
                   (quoting Blanton, 489 U.S. at 543).
                               Under Nevada law, first-offense domestic battery is a
                   misdemeanor that has a maximum term of imprisonment of six months.
                   NRS 200.485(1)(a)(1). First-offense domestic battery therefore is
                   presumptively a petty offense to which no jury-trial right attaches.
                   Amezcua bears the burden of proving that additional penalties, when
                   considered with the maximum term of imprisonment, are so severe that
                   they clearly reflect a legislative determination that first-offense domestic
                   battery is a "serious" offense. Blanton, 489 U.S. at 543.

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                            Amezcua claims that various consequences of a conviction for
                domestic battery reflect a legislative determination that the offense is
                serious: (1) NRS 432B.157 and NRS 125C.230 create a rebuttable
                presumption that he, as a perpetrator of domestic violence, is unfit for sole
                or joint custody of his children; (2) he could lose the right to possess a
                firearm under 18 U.S.C. § 922(g)(9); and (3) a conviction would render a
                noncitizen deportable under federal immigration law. 3 Amezcua contends
                that his interest in raising his child and his right to bear arms are
                important fundamental rights that are significantly affected by his
                conviction, and therefore, this court should consider the conviction's
                impact on these rights in determining whether the offense is "serious." He
                asserts that these additional penalties are more severe than penalties that
                other courts have determined are enough to clearly demonstrate a
                legislative determination that an offense is serious, such as a 15-year
                driver's license revocation.
                            The additional penalties that Amezcua cites do not
                demonstrate a clear determination by the Nevada Legislature that first-
                offense domestic battery is a serious offense to which the jury-trial right
                attaches. The rebuttable presumptions set forth in NRS 432B.157 and
                NRS 125C.230 are concerned with the best interest of a child who is the
                subject of child protection or custody proceedings. 4 As such, they reflect


                      3 Amezcua   concedes that he is a United States citizen.

                      4We note that the presumptions in these statutes do not arise only
                when there has been a conviction. They require a finding after an
                evidentiary hearing that there is clear and convincing evidence that a
                                                                continued on next page...

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                only that concern for the best interest of the child rather than a clear
                legislative determination that first-offense domestic battery is a serious
                offense. And whether those rebuttable presumptions will ever be used
                against a defendant is speculative at best since they would arise only in
                separate civil proceedings. The fact that they are not conclusive or
                automatic indicates that they do not reflect a legislative determination
                sufficient to rebut the presumption that the offense is "petty" based on the
                maximum term of imprisonment.        See Foote v. United States, 670 A.2d
                366, 372 (D.C. 1996) ("Blanton's presumption that offenses carrying no
                more than six months incarceration are petty cannot, in our view, be
                effectively rebutted by reference to the potential remedies in hypothetical
                civil or administrative proceedings which have not been instituted. .").
                The other two "penalties" that Amezcua mentions—restrictions on
                possession of a firearm and deportation—are collateral consequences of a
                conviction: they arise out of federal law, not the Nevada statute that
                proscribes first-offense domestic battery.   See Palmer v. State, 118 Nev.
                823, 826, 59 P.3d 1192, 1194 (2002) ("Direct consequences have an
                automatic and immediate effect on the nature or length of a defendant's
                punishment; collateral consequences do not."); Nollette v. State, 118 Nev.
                341, 344, 46 P.3d 87, 89 (2002) ("Collateral consequences ... do not affect



                ...continued
                parent or other person seeking custody of a child engaged in one or more
                acts of domestic violence against the child, a parent of the child, or any
                other person residing with the child. Therefore, neither statute depends
                on a conviction.



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                 the length or nature of the punishment and are generally dependent on
                 either the court's discretion, the defendant's future conduct, or the
                 discretion of a government agency."). Such collateral consequences of a
                 conviction are not relevant because they do not reflect a determination by
                 the Nevada Legislature that first-offense domestic battery is a serious
                 offense.   See Blanton, 103 Nev. at 633-34, 748 P.2d at 500-01; see also
                 Nachtigal, 507 U.S. at 4 ("[Wie expressly stated [in Blanton] that the
                 statutory penalties in other States are irrelevant to the question whether
                 a particular legislature deemed a particular offense 'serious." (quoting
                 Blanton, 489 U.S. at 545 n.11)); Blanton, 489 U.S. at 543 n.8 ("In
                 performing this analysis, only penalties resulting from state action, e.g.,
                 those mandated by statute or regulation, should be considered."). In this
                 respect, Amezcua's analogy to the 15-year driver's license revocation in
                 Richter v. Fairbanks, 903 F.2d 1202, 1205 (8th Cir. 1990), fails. Unlike
                 the additional penalties identified by Amezcua, the driver's license
                 revocation considered in Richter was included in the Nebraska DWI
                 ordinance. See id. at 1203.
                              The only penalties that NRS 200.485(1) imposes, in addition to
                 imprisonment, are a community-service requirement of not more than 120
                 hours and a fine of not more than $1,000. There is nothing so severe in
                 those penalties, considered together, as to clearly indicate a determination
                 by the Nevada Legislature that this is a serious offense to which the right
                 to a jury trial attaches.   Cf. Nachtigal, 507 U.S. at 5-6 (concluding that
                 federal DUI offense was not serious where maximum imprisonment was
                 six months and statute included additional penalties such as $5,000 fine);
                 Blanton, 489 U.S. at 544-45 & n.9 (concluding that DUI was petty offense

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                under Nevada law where maximum imprisonment was six months and
                statute included additional penalties such as 90-day driver's license
                revocation, alcohol abuse education, and $1,000 fine or 48 hours of
                community service). That the Nevada Legislature did not view this as a
                "serious" offense is further reflected in its decision to afford the trial judge
                discretion to allow the defendant to serve the term of imprisonment
                intermittently. See NRS 200.485(1)(a).
                             We conclude that first-offense domestic battery is a "petty"
                offense to which the right to a jury trial does not attach. The petition
                therefore is denied.



                                                                        , C.J.
                                          Gibbons




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