Opinion
No. 57958.
04-06-2011
Edgardo HUERTA–ZAPATA, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, In and for the COUNTY OF CLARK; and The Honorable Linda Marie Bell, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
Clark County Public Defender Attorney General/Carson City Clark County District Attorney
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
ORDER DENYING PETITION
This original petition for a writ of mandamus or prohibition challenges a district court order denying a petition for a writ of habeas corpus in which petitioner argued that the justice court erred by finding that probable cause supported an allegation of open murder. We have considered the petition on file, and we are not satisfied that this court's intervention by way of extraordinary writ is warranted. See Sheriff v. Willoughby, 97 Nev. 90, 624 P .2d 498 (1981) (stating that first- and second-degree murder are not distinct crimes that must be pleaded accordingly and therefore no evidence of first-degree murder is necessary to support open murder charge); Wrenn v. Sheriff, 87 Nev. 85, 482 P.2d 289 (1971) (rejecting claim that accused cannot be held on open murder charge unless some direct and substantial proof of malice aforethought is adduced at preliminary hearing); Thedford v. Sheriff, 86 Nev. 741, 476 P.2d 25 (1970) (stating that “presence of malice is a question of fact which bears directly on the guilt or innocence of a defendant and upon the degree of the crime charged” and “is not a question to be determined by the magistrate at a preliminary hearing” but by trier of fact at trial); see also Howard v. Sheriff, 83 Nev. 150, 425 P.2d 596 (1967). Accordingly, we deny the petition. See NRAP 21(b).
We conclude that this court's decision in Byford v. State, 116 Nev. 215, 994 P.2d 700 (2000), does not alter our prior case law on this issue.
It is so ORDERED.