Righetti v. Eighth Judicial Dist. Court of State
| Decision Date | 16 February 2017 |
| Docket Number | No. 70591,70591 |
| Citation | 388 P.3d 643,133 Nev. Adv. Op. 7 |
| Parties | Javier Righetti, Petitioner, v. 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. |
| Court | Nevada Supreme Court |
Phillip J. Kohn, Public Defender, and Christy L. Craig, Deputy Public Defender, Clark County, for Petitioner.
Adam Paul Laxalt, Attorney General, Carson City; Steve B. Wolfson, District Attorney, Giancarlo Pesci, Chief Deputy District Attorney, and Christopher F. Burton, Deputy District Attorney, Clark County, for Real Party in Interest.
BEFORE THE COURT EN BANC.
The indictment in this case charged petitioner Javier Righetti with murder under three theories. Without any plea negotiations, Righetti decided to plead guilty to murder, but only to two of the three theories alleged. This strategy, if it worked, would eliminate several of the grounds on which the State relied in seeking the death penalty against Righetti. Although the district court initially accepted the plea, problems arose because the defense did not tell the State, and the State did not understand, that Righetti was not pleading guilty to premeditated murder. After the miscommunication came to light, the district court determined that it had lacked authority to accept the guilty plea because it did not conform to the indictment and the State had not consented to amending it. The district court revoked its acceptance of the guilty plea and set the murder count for trial.
Righetti seeks a writ of prohibition or mandamus, directing the district court to enforce his plea. He maintains that he had the right to plead guilty to fewer than all theories alleged and that to force him to trial on a charge to which he has already pleaded guilty will violate the double jeopardy clauses of the United States and Nevada Constitutions. See U.S. Const. amend. V ; Nev. Const. art. 1, § 8. We do not agree. When the charging document alleges multiple theories for a single offense, linking them with "and/or," an accused may not undercut the State's charging decision by pleading guilty to only some of the theories alleged without the State's affirmative consent. The guilty plea was therefore defective and the district court appropriately set it aside. Because jeopardy does not attach to a defective guilty plea, Righetti's trial will not violate constitutional prohibitions against double jeopardy and may proceed.
The grand jury heard evidence that Righetti sexually assaulted a young girl in a tunnel beneath a freeway in Las Vegas, and sexually assaulted, tortured, and killed another young girl some months later near the same tunnel. Based on this evidence the grand jury indicted Righetti for murder, among other felonies, and the State filed a notice of intent to seek the death penalty. The indictment offers three theories to support the murder charge: that the killing was "(1) willful, deliberate, and premeditated, and/or (2) perpetrated by means of torture, and/or (3) committed during the perpetration or attempted perpetration of robbery and/or kidnapping and/or sexual assault."
Initially, Righetti entered a "not guilty" plea. Later, with no plea deal from the State, Righetti filed a written "Motion to Change Plea," supported by a declaration stating that he had "decided to plead guilty to the [indictment] in my case thereby bypassing the guilt phase of my trial and moving to the penalty phase." The motion did not disclose the defense's plan to plead guilty to only two of the three murder theories alleged, thereby abridging the State's proof at the penalty hearing. An on-the-record oral plea canvass followed, where the district court questioned Righetti regarding his understanding of the charges, the rights he was giving up by pleading guilty, and the consequences of his decision. The district court then asked him to give a factual basis for each charge. As for the murder count, the following exchange took place:
The district court accepted Righetti's guilty plea and adjudicated him guilty of murder and all other charges.
Five days later, Righetti filed a "Motion to Strike Aggravating Circumstances and Evidence in Aggravation." Citing McConnell v. State, 120 Nev. 1043, 102 P.3d 606 (2004), and Wilson v. State, 127 Nev. 740, 267 P.3d 58 (2011), Righetti argued that he had only pleaded guilty to two of the theories alleged in the murder charge—the theories that the murder was perpetrated by means of torture and committed during the course of a felony; that he "did not admit to a willful, premeditated, and deliberate killing"; and that this limited the aggravating circumstances the State could use in seeking the death penalty. The State cried foul. It denied knowing about—or agreeing to—a guilty plea that eliminated premeditation and urged the district court to hold Righetti had pleaded guilty to all three theories of murder alleged.
In considering the motion, the district court judge observed that, while she understood Righetti's intentions when he offered his guilty plea, the written record did not establish that the State did. The parties and the district court then looked at the video recording of Righetti's plea canvass to clarify whether, and how, the miscommunication occurred. Apparently, when the district court judge asked Righetti if he had committed a willful, deliberate, and premeditated killing, Righetti's attorney, Christy Craig, interrupted the judge with nonverbal communication the written transcript doesn't capture; Craig and the district court judge make eye contact and Craig shakes her head. The district court judge took this to mean Righetti would be pleading guilty to felony murder and murder by torture but not premeditated murder. When the district court judge asked if the State "was satisfied with that" and the prosecutor replied "[y]es, Judge," the judge believed the State had agreed to Righetti pleading guilty plea to only two of the three theories of murder alleged. But the prosecutor denied having seen the nonverbal communication and averred that he believed Righetti had pleaded guilty to all charges and theories alleged in the indictment. After argument, the district court found that the prosecutor had missed the nonverbal interaction and invited the State to file a motion to set aside the guilty plea.
In its motion to set aside the guilty plea, the State argued that Righetti's right to plead guilty without a negotiation depended on him admitting guilt to the charges as alleged in the indictment. The State also accused the defense of trickery amounting to fraud in not forthrightly stating in its motion to change plea or at the plea canvass hearing that Righetti was not pleading guilty to premeditated murder. The defense responded that the district court accepted the guilty plea knowing it did not conform to the indictment and lacked authority to revoke its acceptance of the plea when the State had not timely objected. Although declining to find fraud, the district court declared it not "fair to hold the State to a burden that the cold record does not reflect" and ruled:
At this time I'm going to reject the guilty plea, make a finding you do have a statutory right to plead guilty, but you don't have a statutory right to plead guilty and carve out a theory that the State has alleged and limit the State in their penalty hearing. So I'm going to reject the plea.
The district court reset the murder count for trial, and this petition followed.
Some background is helpful to place the legal issues presented by this petition in context. In McConnell , we held that if a defendant is found guilty of first-degree murder under a felony-murder theory, the prosecution may not use the same felony underlying the felony-murder as an aggravating circumstance to make him eligible for the death penalty. 120 Nev. at 1069, 102 P.3d at 624. In Wilson, we clarified that the rule announced in McConnell did not apply where a defendant pleaded guilty to a murder count alleging both felony-murder and premeditated murder. 127 Nev. at 744, 267 P.3d at 60. Righetti interpreted these holdings to create a loophole: If he pleaded guilty to felony-murder but specifically did not plead guilty to premeditated murder, his case would fall outside of Wilson and he could take advantage of the rule in McConnell.1 But to advance his reading of McConnell and Wilson, Righetti first had to enter a guilty plea to only two theories of first-degree murder when three were charged. Righetti concluded that so long as he pleaded guilty to the murder count he was free to select the theories of murder upon which to base his guilty plea, regardless of whether the State consented—the position he advances before this court.
Although the facts of this case are unusual, the legal issues are straightforward.
In our adversarial system, the State has an almost exclusive right to decide how to charge a criminal defendant, Parsons v. Fifth Judicial Dist. Court , 110 Nev. 1239, 1244, 885 P.2d 1316, 1320 (1994), overruled on other grounds by Parsons v. State, 116 Nev. 928, 936, 10 P.3d 836, 841 (2000) ; see also ...
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