FILED 

FEB 1 3 2014 

LINDEMAN 

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 

CLARK; AND THE HONORABLE ROB 

BARE, DISTRICT JUDGE, 

Respondents, 

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. 2U.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. 3Amezcua 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 firstoffense 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. 4As such, they reflect 

3Amezcua 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 

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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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