Moran (Marvin) v. Dist. Ct. (State)

 603-04, 637 P.2d 534, 536 (1981); see State v. Eighth Judicial District Ct.
(Armstrong), 127 Nev. „ 267 P.3d 777, 780 (2011) (defining
arbitrary and capricious exercise of discretion). Mandamus is an
extraordinary remedy, and it is within the discretion of this court to
determine if a petition will be considered. See Poulos v. Eighth Judicial
Dist. Court, 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982); see also State ex
rd. Dep't Transp. v. Thompson, 99 Nev. 358, 360, 662 P.2d 1338, 1339
(1983).
Petitioner argues that NRS 205.060(4) is unconstitutional
because it improperly expands the crime of burglary to include crimes that
occur after entry is completed in violation of NRS 205.070 and this court's
jurisprudence. Relying primarily on Carr v. State, 95 Nev. 688, 601 P.2d
422 (1979), he argues that the "use of a weapon, after completion of the
burglary, cannot be used to enhance the crime of burglary." However,
several years later, the Legislature amended the burglary statute to
address the concerns raised in Carr, see 1989 Nev. Stat., ch. 568, § 1, at
1207, and petitioner has failed to demonstrate that the statute is
unconstitutional on this basis. Therefore, extraordinary relief is not
warranted on this ground.
Petitioner also argues that the State inaccurately instructed
the grand jurors regarding dual liability for murder and first-degree
kidnapping. The grand jury's primary function is to determine whether
there is probable cause to show that a crime has been committed and that
a particular person committed it. Schuster v. Eighth Judicial District Ct.,
123 Nev. 187, 192, 160 P.3d 873, 877 (2007). To assist the grand jury in
that endeavor, the prosecution is required to instruct the grand jury on
the elements of offenses alleged. NRS 172.095(2). Whether a defendant
SUPREME COURT
OF
NEVADA
2
(0) 1947A
may incur convictions for murder and kidnapping is unrelated to the
elements of those offenses or the grand jury's probable cause
determination and therefore any error in the dual liability instruction does
not affect the probable cause determination. Accordingly, extraordinary
relief is not warranted on this basis.
Petitioner next argues that the State failed to produce
sufficient evidence at the grand jury to establish probable cause for the
charged offenses. Our review of a pretrial probable cause determination
through an original writ petition is disfavored, see Kussman v. District
Court, 96 Nev. 544, 545-46, 612 P.2d 679, 680 (1980), and petitioner has
not demonstrated that his challenge to the probable cause determination
fits the exceptions we have made for purely legal issues, see Ostman v.
Eighth Judicial Dist. Court, 107 Nev. 563, 565, 816 P.2d 458, 459-60
(1991); State v. Babayan, 106 Nev. 155, 174,787 P.2d 805, 819-20 (1990).
Having considered petitioner's arguments and concluded that
he has not demonstrated that the district court manifestly abused its
discretion by denying his pretrial habeas petition, we
ORDER the petition DENIED.
9
Pickering
J.
ParraguIrre
J.
Saitta
SUPREME COURT
OF
NEVADA
3
(0) 1947A e
cc: Hon. Douglas Smith, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
4
(0) 1947A e