137 Nev., Advance Opinion 14
IN THE SUPREME COURT OF THE STATE OF NEVADA
THE STATE OF NEVADA, No. 80093
Petitioner,
vs.
THE FOURTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF ELKO;
AND THE HONORABLE NANCY L.
PORTER, DISTRICT JUDGE, FEB 2 5 2021
Respondents, ELIZAB
CLEF)( 0
and BY
HIEF DEPUTY CLER(
ANTHONY CHRIS ROBERT
MARTINEZ,
Real Party in Interest.
Original petition for a writ of mandamus or prohibition
challenging a district court order granting a motion to consolidate counts.
Petition denied.
Aaron D. Ford, Attorney General, Carson City; Tyler J. Ingram, District
Attorney, and Daniel M. Roche, Deputy District Attorney, Elko County,
for Petitioner.
Matthew Pennell, Public Defender, Elko County,
for Real Party in Interest.
BEFORE THE COURT EN BANC.
SUPREME COURT
OF
NEVADA
7.11- VS 73
(0) 1947A 44SPOP
OPINION
By the Court, PICKERING,
NRS 202.360(1)(b) makes it illegal for a convicted felon to
possess "any firearm." This raises the question whether a felon who
possesses five firearms at one time and place commits a single violation of
NRS 202.360(1)(b) or five separate violations. The rule of lenity resolves
such unit-of-prosecution questions in favor of the defendant where, as here,
the statute's text is ambiguous and conventional tools of statutory
construction leave the matter in doubt. Consistent with the rule of lenity
and the cases construing the similarly ambiguous federal felon-inpossession statute, 1.8 U.S.C. § 922(g)(1) (2018), we hold that the State
properly charges a defendant with only a single violation of NRS •
202.360(1)(b) when it alleges, without more, that the defendant is a felon
who possessed "any firearm"—that is, one or more firearms—at one time
and place.
The police arrested real party in interest Anthony Martinez
after he shot at two individuals in West Wendover, Nevada. They recovered
five firearms at - the scene, four from Martinez's car and the fifth—the gun
Martinez allegedly used to fire the shots—from beside the car. The State
charged Martinez with 15 felonies, -including two counts of attempted
murder. Among the 15 counts the State charged Martinez with were five
counts of violating NRS 202.360(1)(b)—possession of a firearm by a person
previously convicted of a felony offense—one count per firearm possessed:-
Martinez filed a motion to consolidate the five felon -inpossession counts into a single count. Martinez argued'that, because _the
State alleged that he possessed these five firearms at.one tirne and place,
SUPREME COURT
OF
NEVADA
2
(0) 1947A agSPOD
he committed, at most, a single violation of NRS 202.360(1)(b). The district
court agreed and granted Martinez's motion to consolidate.
11.
The State brings the disput6 to this court on a pretrial petition
for extraordinary writ relief. 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 an arbitrary or capricious exercise of
discretion. Walker v. Second judicial Dist. Court,• 136 Nev., Adv. Op. 80,
476 P.3d 1194, 1196 (2020). A district court manifestly abuses its discretion
if it bases its ruling on a clearly erroneous application of law. State v.
Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 932, 267 P.3d 777,
780 (2011). But writ relief does not lie when the petitioner has 'a plain,
speedy and adequate remedy in the ordinary course of law." NRS 34.170.
The State's petition qualifies for extraordinary writ review. It
challenges as clear legal error the district court's interpretation an.d
application of NRS 202.360(1)(b). While NRS 177.015 gives the State
certain rights of appeal in criminal cases, those rights are limited and do
not reach a pretrial order consolidating counts. And the unit of prosecution
that NRS 202.360(1)(b) allows in felon-in-possession cases presents an
unsettled legal issue of statewide significance. For these reasons. although
we ultimately deny the petition, we undertake merits-based writ. review.
'The State styles its petition as one seeking a writ of prohibition or
mandamus. "A writ of prohibition arrests the proceedings of a tribunal
when such proceedings are without or in excess of the tribunal's •
jurisdiction." State v. Justice Court of Las Vegas Ttvp., 112 Nev. 803, 806,
919 P.2d 401, 403 (1996). No such jurisdictional excess appears; so we deny
the alternative petition for a writ of prohibition.
A.
Deciding NRS 202.360(1)(13)'s "unit of prosecution presents an
issue of statutory interpretation and substantive law." Jackson v. State,
128 Nev. 598, 612, 291 P.3d 1274, 1283 (2012) (internal quotations omitted).
"As with other questions of statutory interpretation," unit-of-prosecution
analysis "begins with the statute's text." Castaneda v. State, 132 Nev, 434,
437, 373 P.3d 108, 110 (2016). When the text leaves the statute's unit of
prosecution ambiguous, other interpretive resources come into play,
"including related statutes, relevant legislative history, and prior judicial
interpretations of related or comparable statutes." Id. at 439, 373 P.3d at
1.l 1. If, "after all the legitimate tools of interpretation have been applied, a
reasonable doubt persists" as to the statute's unit of prosecution, the rule of
lenity calls the tie for the defendant. Id. (quoting Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts 299 (2012)
(internal quotations omitted)). Under the rule of lenity, "[a]mbiguity in a
statute defining a crime or imposing a penalty should be resolved in the
defendant's favor." Scalia & Garner, Reading Law, supra; at 296.
B.
Nevada's felon-in-possession statute, NRS 202.360(1)(b), reads
as follows:
A person shall not own or have in his or her
possession or under his or her custody or control any
firearm if the person: . .
(b) Has been convicted of a felony in this
State or any other state . . . .
A person who violates the provisions of this
subsection is guilty of a category B felony and shall
be punished by imprisonment in the state prison for
a minimum term of not less than 1 year and a
SUPREME COURT
OF
NEVADA
4
(01 1947A mOMOOD
•:t .i.421 1.$4;1 fie/
maximum term of not more than 6 years, and may
be further punished by a fine of not more than
$5,000.
(emphasis added); see NRS 202.360(3)(b) (As used in this
sectiorr . . . %rearm' includes any firearm that is loaded or unloaded and
operable or inoperable.").
By its terms, NRS 202.360(1)(b) states three main elements:
(1) a status element (the defendant is a person "convicted of a felony"); (.2) a
possession element (who "shall not . . . have in his or her possession"); and
(3) a firearm element ("any firearm"). See Hager v. State, 135 Nev. 246, 249,
447 P.3d 1063, 1066 (2019). Sc, a defendant who is a convieted felon and
possesses one firearm—loaded or working or not—can be charged with and
convicted of one count of violating NRS 202.360(1)(b). From this it does not
follow, though, that a felon• who possesse8 five such firearms at- one tirne
and place can be charged with and convicted (Alive counts of violating NRS
202. 360(1)(b).
The problem stems froni NRS 202.360(1)s use of the word "any''
to modify "firearm." A number •of criminal statutes Use “a..rty" as NR.S
.202.360(1) does: to help define the prohibition the statute states. See
ca.staneda, 132 Nev. at 438, 373 P.3d.at 11.1. But unless otherwise.clarified,
this creates ambiguity as to the statute's Unit of prosecution.• Kg.. Bell v.
United :States, 349 U.S. 81 (1955) (holding that the sirriultaneous
transportatión of two women across state lines constituted one, not two,
violations ot the Mann Act,. which Made it 'a crime to knowingly transPort
"any woman or girr across state linea for immoral purposes; "any'' left the
unit of prosecution ambiguous, so the rule of lenity applied); The ambiguitý
a.rises because "Mlle word 'any' has multiple, cOnflicting definitions;
including -(1) one;. (2) one, some, -or -ali regardless of quantity; (3) great,
5
unrneasured, or unlimited in amount; (4) one or more; and (5) all."
Castaneda, 132 Nev. at 438. 373 P.3d at 1.13 (internal. quotations omitted).
Depending on -the meaning assigned "any," NRS 202.360(1)(b) can support
prosecution either on a per-firearm basis Or on the basis of a 'felon
simultaneously possessing one• or more firearms at one time and place.
Since both readings are reasonable, the statute is ambiguous on its face.
See id. (noting that "the word 'any has typically been fcnind ambiguous in
Connection with the allowable unit •of prosecution, for it contemplates the
plural, rather than specifying the singular") (internal quotations thnitted);
accord Figueroa-Beltrctn v. United- States. 136 Nev., Adv. op. 45,- 467 P.3d
615, 621 (2020); Andrews u. State; 134 Nev. 95, 98-, 412 P.3d 37, 39 (2018).
-C.
Legitimate statutory interpretation tools can resolve textual
ambiguities, see Castaneda, 182 Nev. at 439, 373 P.3d at 111; Scalia &
Garner. Reading Lau), supra, at 299,- but none appears to do so here. Citing
Washington v. State, 132 Nev. 655, :376 P.3d 802 (2016), the State argues
that, since NRS 202.360(1) uses the. singular "firearm" instead of the plural
"firearms," the Legislature must have rneant to create a. per-firearm unit of
prosecution. "Firearms" instead of "firearm" would have made Nevada-s
felfm-in-possession statute clearer, but this does not change the - fact that,
as written. NRS 202.360(1)(b) can reason.ably be read in two.different ways.
And, while Washington held that NRS. 202.285(1) authorizks a pekdischarge unit of prosecution where a defendant "dischargeS a firearni at- or
into any house, room, I-or] apartment," -132 Nev. at 657, 376 P.3d at 805, the
statute's operatiVe words were the verb "diScharges" and its objeet "a
firearm," which 'made a per-discharge Unit of proSecution appropriate. •
The State also makes a public policy argument: 'Ile Legislature
takes!possession of firearins by felons very seriously or it would not have
6
passed NRS 202.360(1)(b) criminalizing such possession, and interpreting
NRS 202.360(1)(b) to authorize per-firearin prosecutions furthers the
Legislature's intent to prevent felons from possessing firearms by making
each firearm possessed a separate crime. As support, the State cites
Andrews, 134 Nev. at 101, 412 P.3d at 41-42, arguing "that everything about
the analysis and ruling in Andrews is applicable to this case." In fact, the
opposite is true. Andrews and this case share one similarity: Both concern
a criminal statute made ambiguous by the word "any." See id. at 98, 412
P.3d at 39-40 (discussing Castaneda, 132 Nev. at 438, 373 P.3d at 111., and
the unit-of-prosecution ambiguity "any" creates).
At issue in Andrews was NRS 453.3385 (2013), criminalizing
possession of "any controlled substance which is listed in Schedule 1, except
marijuana." In Andrews, a divided panel of this court concluded that,
despite the textual ambiguity "any" created, other legitimate tdols of
statutory interpretation supported prosecuting as separate offenses a
defendant's simultaneous possession of several different controlled
substances. Those tools included that NRS 453.3385 is part of Nevada's
Uniform Controlled Substances Act (UCSA), Andrews, 134 Nev. at 99, 41.2
P.3d at 40; that other statutes within the UCSA supported the percontrolled-substance interpretation, id.; that case law interpreting UCSA
provisions also supported this interpretation, id. at 101, 412 P.3d at 41; and
that the legislative history supported the majority's reading of NRS
453.3385, id. at 99-100, 412 P.3d at 40-41. In this case, by Contrast, the
State does not identify or apply any interpretive tools beyond its textual
analysis and assertion respecting . what it perceives the Legislature
intended when it enacted NRS 202.360(1)(b).
SUPREME COURT
OF
NEVADA
7
101 1947A 411024c,
-
• , 1/C"e44 ,
;at
