Pimentel (Luis) v. Dist. Ct. (State) ( 2014 )

 discretion. 2 See Round Hill Gen. Improvement Dist. v. Newman, 97 Nev.
601, 603-04, 637 P.2d 534, 536 (1981). "The State is required to give
adequate notice to the accused of the various theories of prosecution."
State v. Eighth Judicial Dist. Court (Taylor), 116 Nev. 374, 377, 997 P.2d
126, 129 (2000) (citing Alford v. State, 111 Nev. 1409, 906 P.2d 714(1995)). The information "standing alone must contain the elements of the
offense intended to be charged and must be sufficient to apprise the
accused of the nature of the offense so that he may adequately prepare a
defense." Laney v. State, 86 Nev. 173, 178, 466 P.2d 666, 669 (1970); see
also NRS 173.075(1); NRS 173.085; Simpson v. Eighth Judicial Dist.
Court, 88 Nev. 654, 659, 503 P.2d 1225, 1229 (1972).
Petitioner argues that the language in the information
alleging that he committed murder by "shooting at and/or into the body" of
the victim "after challenging [the victim] to a fight" was not sufficient to
adequately inform him of the State's challenge-to-fight theory of first
degreemurder under NRS 200.450. We agree. In order to be found guilty
of murder in the first degree under a challenge-to-fight theory, the State
must prove that (1) petitioner and another person came to previous
concert and agreement to fight, (2) petitioner gave or sent a challenge to
fight to that other person or authorized any other person to give or send
the challenge, (3) a fight actually ensued, (4) and a person died as a result
of that fight. See NRS 200.450; see also The American Heritage Dictionary
of the English Language 656 (5th ed. 2011) (defining fight as "[a]
2We focus on Pimentel's request for a writ of mandamus as he has
not asserted a claim that challenges the district court's jurisdiction. See
NRS 34.320 (providing that writ of prohibition is available to halt
proceedings occurring in excess of a court's jurisdiction).
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confrontation between opposing groups in which each attempts to harm or
gain power over the other, as with bodily force or weapons" (emphasis
added)). The charge contained in the information in this case does not (1)
allege that petitioner entered into an agreement to fight, (2) identify the
other party to that agreement, (3) allege that a fight actually resulted
from petitioner's challenge to the victim, (4) or allege that the victim's
death was a result of such a fight. We conclude that the district court
manifestly abused its discretion by finding the information to be sufficient
and denying petitioner's pretrial petition because the challenged theory of
first-degree murder is not sufficiently plain, concise, and definite to
apprise the petitioner of the nature of the offense and therefore amounts
to surplusage. Accordingly, we
ORDER the petition GRANTED IN PART AND DIRECT THE
CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS
instructing the district court to strike the language "and/or after
challenging ROBERT HOLLAND to a fight" from the information.
J.
Hardesty
cc: Hon. Carolyn Ellsworth, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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