Ortega v. Sheriff

OPINION Per Curiam: An information charged Arthur Richard Ortega with (1) five counts of robbery (NRS 200.380); (2) six counts of first degree kidnapping (NRS 200/310); and, (3) having used a deadly weapon in the commission of each of those offenses (NRS 193.165). Ortega petitioned the district court for a writ of habeas corpus contending, inter alia, that the evidence before the magistrate does not support the charges. The district judge denied the habeas challenge and Ortega has appealed. 1. The challenge to the five counts charging robbery with the use of a deadly weapon is without merit. NRS 171.206. See State v. von Brincken, 86 Nev. 769, 476 P.2d 733 (1970). See also Robertson v. Sheriff, 85 Nev. 681, 462 P.2d 528 (1969). At this juncture we are not concerned that the evidence presently in the record may not support a conviction for robbery. See McDonald v. Sheriff, 89 Nev. 326, 512 P.2d 774 (1973). 2. On the authority of, and for the same reasons stated in, our decision in Wright v. State, 94 Nev. 415, 581 P.2d 442 (1978), the kidnapping charges cannot stand. Accordingly, the portion of the district court’s order denying habeas as to charges of robbery with the use of a deadly weapon is affirmed. The portion of the order denying habeas on the kidnapping charges is reversed and the district court is instructed to dismiss those charges from the information.