No. 62361 

FILED 

SUPREME COURT 

OF 

NEVADA 

(0) 1947A -D9MI 

129 Nev., Advance Opinion 2.2 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

LEOPOLDO GONZALEZ, 

Petitioner, 

vs. 

THE EIGHTH JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA, 

IN AND FOR THE COUNTY OF 

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. 

ts.1, 
OPINION 

SUPREME COURT 

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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 

1The information 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 

continued on next page... 

2 

, 
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 issuepreclusion analysis."2Yeager, 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 

2The 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 

3We 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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