                                                  129 Nev., Advance Opinion   2.2
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                LEOPOLDO GONZALEZ,                                  No. 62361
                Petitioner,
                vs.
                THE EIGHTH JUDICIAL DISTRICT
                COURT OF THE STATE OF NEVADA,
                IN AND FOR THE COUNTY OF                             FILED
                CLARK; AND THE HONORABLE
                MICHELLE LEAVITT, DISTRICT
                JUDGE,
                Respondents,
                   and
                THE STATE OF NEVADA,
                Real Party in Interest.



                           Original petition for a writ of mandamus or prohibition
                challenging a district court order denying a motion to dismiss a criminal
                information.
                           Petition for writ of mandamus granted.


                Legal Defense Group and Michael V. Castillo and Michael L. Becker, Las
                Vegas,
                for Petitioner.

                Catherine Cortez Masto, Attorney General, Carson City; Steven Wolfson,
                District Attorney, and Jonathan E. VanBoskerck, Chief Deputy District
                Attorney, Clark County,
                for Real Party in Interest.



                BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

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                                                                                    -D9MI   ts.1,
                                                  OPINION
                PER CURIAM:
                              At issue in this petition for extraordinary writ relief is the
                proper analysis of a Double Jeopardy Clause claim when it is based upon
                the doctrine of collateral estoppel. We conclude that Ashe v. Swenson, 397
                U.S. 436, 444 (1970), sets forth the proper analysis for determining
                whether an issue of ultimate fact has been decided and cannot be
                relitigated in a subsequent trial: The district court must examine the
                record of the first trial and determine whether a rational jury could have
                grounded its verdict on some other issue of fact. And, in conducting this
                analysis, the district court may not consider the jury's inability to reach a
                verdict on the other counts. Because the district court improperly
                analyzed the petitioner's double jeopardy claim, we grant the petition for a
                writ of mandamus.
                                   FACTS AND PROCEDURAL HISTORY
                              Petitioner Leopoldo Gonzalez was charged with sexual assault
                of a minor under the age of 14 and lewdness with a child under the age of
                14. During the trial that followed, the jury acquitted Gonzalez of the
                lewdness count and deadlocked on the sexual assault count. The district
                court declared a mistrial on the sexual assault count and set a date for a
                new trial. Gonzalez subsequently moved to dismiss the information,
                arguing in relevant part that the Double Jeopardy Clause and collateral
                estoppel rule prohibit a second trial for sexual assault because he was
                acquitted of lewdness and both offenses were based upon the same event. 1


                      1 Theinformation alleged that Gonzalez committed sexual assault by
                "placing his mouth and/or tongue on or in the [victim's] genital opening,"
                and he committed lewdness "by licking the [victim's] genital area." It is
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                                                                                                ,
                The State opposed the motion, asserting that lewdness and sexual assault
                are not the same offense for double jeopardy purposes and the collateral
                estoppel rule was not implicated because the jury did not necessarily
                determine an issue of ultimate fact as to the sexual assault count when it
                acquitted Gonzalez on the count of lewdness with a child. The district
                court heard argument and denied the motion based on the jury's inability
                to reach a verdict on the sexual assault count. This original petition for a
                writ of mandamus or prohibition followed.
                                                DISCUSSION
                            Gonzalez argues that he is entitled to relief from the district
                court order denying his motion to dismiss the information because the
                district court failed to apply the analysis required by Ashe v. Swenson, 397
                U.S. 436 (1970), when determining whether the jury's verdict on the
                lewdness count estopped the State from relitigating the issue of sexual
                touching in the sexual assault count.
                            We have original jurisdiction to issue writs of mandamus and
                prohibition. Nev. Const. art. 6, § 4. A writ of mandamus is available to
                compel the performance of an act that the law requires as a duty resulting
                from an office, trust, or station or to control a manifest abuse of discretion.
                State v. Dist. Ct. (Armstrong), 127 Nev. „ 267 P.3d 777, 779 (2011).
                The writ will not issue if the petitioner has a plain, speedy, and adequate
                remedy in the ordinary course of law. NRS 34.170. And, because a writ of
                mandamus is an extraordinary remedy, the decision to entertain a petition



                ...continued
                clear from the record that both offenses were based on the same act of
                sexual touching.

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                  for the writ lies within our discretion. Hickey v. District Court, 105 Nev.
                  729, 731, 782 P.2d 1336, 1338 (1989). In deciding whether to exercise that
                  discretion, we may consider, among other things, whether the petition
                  raises an important issue of law that needs clarification. Armstrong, 127
                  Nev. ,267 P.3d at 779-80.
                              Here, Gonzalez asserts that the district court failed to apply
                  the controlling legal authority. If true, this is a classic example of a
                  manifest abuse of discretion that may be controlled through a writ of
                  mandamus. See id. at , 267 P.3d at 780 (explaining that "[a] manifest
                  abuse of discretion is a clearly erroneous interpretation of the law or a
                  clearly erroneous application of a law or rule" (internal quotation marks
                  and brackets omitted)). Although Gonzalez has another remedy because
                  he could raise the double-jeopardy issue on appeal from a judgment of
                  conviction, NRS 177.015; NRS 177.045, that remedy is not adequate to
                  protect the right afforded by the Double Jeopardy Clause—to not be placed
                  twice in jeopardy. And the petition raises an important issue of law that
                  needs clarification. Accordingly, we exercise our discretion to consider the
                  merits of the petition.
                              "[C]ollateral estoppel in criminal trials is an integral part of
                  the protection against double jeopardy guaranteed by the Fifth and
                  Fourteenth Amendments." Harris v. Washington, 404 U.S. 55, 56 (1971);
                  see Ashe, 397 U.S. at 445-46. "[W]hen an issue of ultimate fact has once
                  been determined by a valid and final judgment' of acquittal, it 'cannot
                  again be litigated' in a second trial for a separate offense." Yeager v.
                  United States, 557 U.S. 110, 119 (2009) (quoting Ashe, 397 U.S. at 443).
                  An "ultimate fact" is "[a] fact essential to the claim or the defense."
                  Black's Law Dictionary 671 (9th ed. 2009). The defendant has the burden

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                to demonstrate that the issue of fact that he seeks to foreclose from
                consideration was actually decided by the jury in the first trial. Dowling
                v. United States, 493 U.S. 342, 350 (1990).
                              To determine whether an issue of ultimate fact was decided by
                the jury during the first trial, the court must "examine the record of [the]
                prior proceeding, taking into account the pleadings, evidence, charge, and
                other relevant matter, and conclude whether a rational jury could have
                grounded its verdict upon an issue other than that which the defendant
                seeks to foreclose from consideration." Ashe, 397 U.S. at 444 (internal
                quotation marks omitted); see also Yeager, 557 U.S. at 119-20 (same);
                Dowling, 493 U.S. at 350 (same). The court may not consider a jury's
                inability to reach a verdict on some of the counts; "[b] ecause a jury speaks
                only through its verdict," its inability to reach a verdict is a "nonevent,"
                and "consideration of [the] hung counts has no place in the issue-
                preclusion analysis." 2 Yeager, 557 U.S. at 120-22.
                              The district court order denying Gonzalez's motion to dismiss
                the information does not contain any findings of fact or conclusions of law.
                However, it is clear from the transcript of the hearing on the motion that
                the district court erroneously based its analysis of the collateral estoppel
                claim on the jury's inability to reach a verdict on the sexual assault count.
                Because the district court's decision to deny Gonzalez's motion was clearly
                based on an incorrect interpretation or application of controlling legal




                      2 The Supreme Court now generally uses the term "issue preclusion"
                instead of "collateral estoppel." See Taylor v. Sturgell, 553 U.S. 880, 892
                n.5 (2008).

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authority, we conclude that extraordinary relief in the form of a writ of
mandamus is appropriate. See Armstrong, 127 Nev.            , 267 P.3d at 780. 3
                               CONCLUSION
             We grant the petition and direct the clerk of this court to issue
a writ of mandamus instructing the district court to vacate its order
denying petitioner's motion to dismiss and reconsider the motion based on
the controlling legal authority as set forth in this opinion.



                         Hardesty




      3 We  have stated that a writ of prohibition will be issued to preclude
a retrial that would violate the Double Jeopardy Clause. Glover v. Dist.
Ct., 125 Nev. 691, 701, 220 P.3d 684, 692 (2009). Here, however, we
cannot determine on the record before us whether retrial is precluded.
The issue is better resolved in the first instance by the district court,
applying the controlling legal authority. For this reason, we deny
Gonzalez's alternative request for a writ of prohibition.



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