                             IN THE SUPREME COURT OF THE STATE OF NEVADA


                   LEONARDO CARDOZA,                                     No. 66463
                   Appellant,
                   vs.
                   THE STATE OF NEVADA,
                   Respondent.
                                                                           FILED
                                                                           APR 1 4 2016
                                                                           TRACE K LNDPMAN
                                                                        CLERK OF SUPREME COURT
                                                                       BY _StYyttle____
                                                                          DEPUTY CLER

                              ORDER AFFIRMING IN PART, REVERSING IN PART
                                           AND REMANDING
                                This is an appeal from a judgment of conviction, pursuant to a
                   jury verdict, of first-degree murder with the use of a deadly weapon and
                   attempted murder with the use of a deadly weapon. First Judicial District
                   Court, Carson City; James E. Wilson, Judge.
                                First, appellant Leonardo Cardoza contends that the
                   information was not adequate to charge first-degree murder. He argues
                   that the charging document failed to allege that the murder was
                   premeditated or that Cardoza deliberated. We disagree. The challenged
                   information included "a statement of the acts constituting the offense in
                   ordinary and concise language" and put Cardoza on notice of the State's
                   theory of prosecution.   Viray u. State, 121 Nev. 159, 162, 111 P.3d 1079,
                   1082 (2005) (quoting Jennings v. State, 116 Nev. 488, 490, 998 P.2d 557,
                   559 (2000)). An open murder charge need not specify the degree of
                   murder. See, e.g., Biondi v. State, 101 Nev. 252, 255, 699 P.2d 1062, 1064
                   (1985).


                        'Cardoza also contends that the State engaged in prosecutorial
                   misconduct for drafting the inadequate charging document. As we
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                              Second, Cardoza contends that the State engaged in
                 prosecutorial misconduct in successfully seeking a cause challenge to a
                 Native-American venireperson and using peremptory challenges to
                 dismiss two Hispanic venirepersons in violation of Batson v. Kentucky, 476
                 U.S. 79 (1986). We conclude that this argument lacks merit. As Cardoza
                 did not raise a Batson objection in the district court, he waived it.    See

                 Dias v. Sky Chefs, Inc., 948 F.2d 532, 534 (9th Cir. 1991) (concluding that
                 Batson challenge was untimely where objection to peremptory strikes was
                 made after excluded jurors dismissed and jury had been sworn); see also
                 Watson v. State, 130 Nev., Adv, Op. 76, 335 P.3d 157, 166 (requiring
                 objecting party to establish a prima facie case of discrimination under
                 first-step of Batson analysis in the district court).
                              Third, Cardoza contends that the district court erred in
                 permitting him to testify without adequately instructing him on his right
                 to remain silent. We discern no plain error.       See NRS 178.602; Green v.

                 State, 119 Nev. 542, 545, 80 P.3d 93, 95 (2003). The district court twice
                 informed Cardoza of his right to testify or remain silent and these
                 colloquies clearly indicated that the decision to testify rested solely with
                 Cardoza. See generally Phillips v. State, 105 Nev. 631, 632-33, 782 P.2d
                 381, 382 (1989) (discussing the privilege against self-incrimination and the
                 right to testify).
                               Fourth, Cardoza contends that the district court erred in
                 instructing the jury on the elements of involuntary manslaughter and



                 ...continued
                 conclude that the information was not inadequate, Cardoza failed to
                 demonstrate prosecutorial misconduct.

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                               "AF4.4"PrOk% t :A3i
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                felony murder. 2 We discern no plain error. The challenged instruction
                accurately states Nevada law. See NRS 200.070.
                               Fifth, Cardoza argues that the district court plainly erred in
                instructing the jury on the elements for first-degree murder, See Valdez v.
                State,    124 Nev. 1172, 1190, 196 P.3d 465, 477 (2008) (reviewing
                unobjected-to error for plain error affecting substantial rights). In Byford
                v. State, this court disapproved of the Kazalyn instruction 3 on its
                description of the mens rea required for a first-degree murder conviction
                based on willful, deliberate, and premeditated murder, and provided the
                district courts with instructions to use in the future. 116 Nev. 215, 233-
                37, 994 P.2d 700, 712-15 (2000). Specifically, this court concluded that the
                Kazalyn      instruction, by defining only premeditation, impermissibly
                conflated the concepts of deliberation and premeditation and thus blurred
                the distinction between first- and second-degree murder.          Id. at 235, 994
                P.24 at 713. Accordingly, this court set forth instructions that defined



                         2 Instruction   20 reads as follows:

                                     Involuntary manslaughter is the killing of a
                               human being, without any intent to do so, in the
                               commission of an unlawful act, or a lawful act
                               which probably might produce such a consequence
                               in an unlawful manner.
                                    Where the involuntary killing occurs in the
                               commission of an unlawful act, which, in its
                               consequences, naturally tends to destroy the life of
                               a human being, or it is committed in the
                               prosecution of a felonious intent, the offense is
                               murder.
                         3Kazalyn   v. State, 108 Nev. 67, 825 P.2d 578 (1992).

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                 willfulness, deliberation, and premeditation.      Id. at 236-37, 994 P.2d at
                 714-15.
                             We conclude that the district court erred in instructing the
                 jury. The given first-degree murder instruction referred to the "willful,
                 deliberate and premeditated' elements," and instructed that they exist
                 where "there was a determination and design to kill, distinctly formed in
                 the mind at any moment before the act that caused death was committed."
                 It did not provide a definition of deliberation. Thus, the given instruction
                 was essentially the Kazalyn instruction which this court rejected in
                 Byford, 14 years before Cardoza's trial.
                             This error was also plain.      See Patterson v. State, 111 Nev.
                 1525, 1530, 907 P.2d 984, 987 (1995) (providing that plain error must be
                 "so unmistakable that it reveals itself by a casual inspection of the
                 record"). As first-degree murder was the most severe charge Cardoza
                 faced, this instruction was arguably the most prominent. Further, this
                 court specifically set forth an instruction for district courts to follow over a
                 decade before trial. Byford, 116 Nev. at 236-37, 994 13 .2d at 714-15. In the
                 years since Byford, this court has repeatedly reaffirmed the Byford
                 instruction as the proper instruction to use after that decision.    See Nika v.
                 State, 124 Nev. 1272, 1283-87, 198 P.3d 839, 847-50 (2008); Rippo v. State,
                 122 Nev. 1086, 1096-97, 146 P.3d 279, 286 (2006); Randolph v. State, 117
                 Nev. 970, 985-86, 36 P.3d 424, 434 (2001); Leonard v. State, 117 Nev. 53,
                 74-75, 17 P.3d 397, 410-11 (2001).
                              Lastly, we conclude that this error prejudiced Cardoza's
                 substantial rights. See Valdez, 124 Nev. at 1190, 196 P.3d at 477 ("[Amn
                 error that is plain from a review of the record does not require reversal
                 unless the defendant demonstrates that the error affected his or her

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                substantial rights, by causing actual prejudice or a miscarriage of justice."
                (internal quotation marks omitted)). "A plain error affects substantial
                rights if it had a prejudicial impact on the verdict when viewed in context
                of the trial as a whole." Miller v. State, 121 Nev. 92, 99, 110 P.3d 53, 58
                (2005) (internal quotation marks omitted). The evidence of deliberation is
                not overwhelming. Cardoza had been drinking alcoholic beverages
                throughout the afternoon and evening. His blood alcohol content was over
                the legal limit several hours after the incident. Further, Cardoza's
                inexplicable behavior after he struck the victim—wandering around
                outside his vehicle, fleeing in his vehicle, crashing into a fence, and
                stumbling back to the victim's home—is not emblematic of a willful,
                deliberate, and premeditated murder. Considering this evidence, the jury
                may not have found Cardoza guilty of first-degree murder had it been
                instructed that he must have weighed the reasons for or against his action
                and that an unconsidered and rash act is not deliberate. Byford, 116 Nev.
                at 236, 994 P.2d at 714. We therefore reverse the first-degree murder
                conviction and remand for a new trial on that charge. 4




                      4 Cardoza  also contends that the State engaged in prosecutorial
                misconduct for arguing in support of the challenged instructions. As this
                argument did not occur in the presence of the jury, Cardoza failed to
                demonstrate that the any alleged misconduct "so infect[ed] the proceedins
                with unfairness as to make the results [of the trial] a denial of due
                process." Browning v. State, 124 Nev. 517, 533, 188 P.3d 60, 72 (2008)
                (internal quotation marks omitted).

                       Cardoza also contends that cumulative error warrants reversal of
                his convictions. Other than the first-degree murder instruction, Cardoza
                failed to demonstrate error, therefore, there is nothing to cumulate.

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                              Having considered Cardoza's contentions and concluded that
                  relief is warranted, we
                              ORDER the judgment of conviction AFFIRMED IN PART
                  AND REVERSED IN PART AND REMAND this matter to the district
                  court for proceedings consistent with this order.


                                                                         1           , J.
                                                               Douglas




                  cc: Hon. James E. Wilson, District Judge
                       Allison W. Joffee
                       Attorney General/Carson City
                       Carson City District Attorney
                       Carson City Clerk




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