Perez (Juan) v. Dist. Ct. (State)

district court for trial. Petitioner later appeared in district court for the
appointment of counsel after his retained attorney withdrew from
representation. After petitioner thanked the district court for appointing
new counsel, the district court informed the petitioner, "You're remanded.
Thank you. An attitude like that, you can sit in jail." Petitioner remained
in jail for fifteen days without bail. Upon petitioner's motion for setting of
reasonable bail, the district court reiterated that petitioner had a "terrible
attitude in court." Petitioner apologized. The district court then denied
petitioner's request for bail citing his prior narcotics-related convictions,
failure to appear in court twelve years earlier in a different case, and prior
use of multiple social security numbers and aliases. After petitioner's
court appointed public defender made a second request for bail to be set,
the district court set bail at $1,000,000. At a subsequent hearing to stay
the proceedings so that the petitioner could file this petition, the district
court instructed petitioner's counsel to make sure to inform this court
about petitioner's "attitude" in district court.
The Nevada Constitution guarantees the people of Nevada the
right to bail in non-capital offenses and prohibits the district court from
imposing excessive bail. See Nev. Const. art. 1, §§ 6 and 7; see also NRS
178.484(1) ("[A] person arrested for an offense other than murder of the
first degree must be admitted to bail." (emphasis added)); St. Pierre v.
Sheriff, 90 Nev. 282, 286, 524 P.2d 1278, 1280 (1974) ("[O]ur Constitution
does not encompass inclusion of a non-capital offense as non-bailable.").
"This traditional right to freedom before conviction permits the
unhampered preparation of a defense, and serves to prevent the infliction
of punishment prior to conviction." Stack v. Boyle, 342 U.S. 1, 4 (1951). In
deciding a reasonable amount for bail the district court may consider "the

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11,
nature of the offense charged, the penalty which may be inflicted, the
probability of the appearance of the accused, his pecuniary condition, his
character and reputation, and the circumstances surrounding the case
relative to the likelihood of conviction." Ex parte Jagles and Varnes, 44
Nev. 370, 195 P. 808 (1921); see also NRS 178.498; NRS 178.4853.
However, "Po] ail must not be. . . more than the accused can reasonably be
expected under the circumstances to give, for if so it is substantially a
denial of bail." Ex parte Malley, 50 Nev. 248, 253, 256 P. 512, 514 (1927).
Our review of the record reveals that the district court
violated the Nevada Constitution in two ways. It denied the petitioner
bail for fifteen days and then imposed a bail amount which greatly
exceeded the amount the petitioner could reasonably be expected to pay.
As the real party in interest notes in its answering brief, the district court
imposed a bail amount that was fifty times greater than the Clark County
standard bail schedule for category B felonies. In light of the district
court's failure to consider all of the relevant factors, see NRS 178.498, its
stated reason for remanding petitioner to custody, petitioner's indigent
status, and the amount of bail, we can only conclude that the district court
was attempting to punish petitioner for his attitude without utilizing the
procedures provided for in Nevada law. See NRS 22.030(1) (explaining
when a person may be punished summarily for contempt); NRS 22.010
(defining contempt). For these reasons, we conclude that the district court
manifestly abused its discretion by remanding petitioner to custody
without bail for fifteen days and imposing excessive bail. See State v.
Dist. Ct. (Armstrong), 127 Nev. , 267 P.3d 777, 779-80 (2011)
(discussing when a writ of mandamus will issue). We therefore

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ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its order setting bail at $1,000,000, set bail at the
original amount imposed by the justice court, and recuse itself from
presiding over this matter. 1

Hardesty

cc: Chief Judge, Eighth Judicial District
Hon. Doug Smith, District Judge
Clark County Public Defender
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk

'The State is free to file a motion to increase bail, if warranted. See
NRS 178.499 (requiring good cause).

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