In re Venencia

• Court: Superior Court of Guam
• Decided: July 1, 2013
• Docket: SP-0136-12
• Status: Unknown

Opinion

IN THE SUPERIOR COURT OF GUAM

2 In the Matter of the Application of ) Special Proceeding Case No.: SP-::0136:-12 : >">:_ 3 ) ) 4 ANTHONY T. DE VENENCIA, .. ) DECISION & ORDER Pet1t10ner,) 5 ) For a Writ of Habeas Corpus ) 6

8 This matter came before the Honorable Maria T. Cenzon on January 25, 2013, o 9 Petitioner Anthony T. De Venencia's ("De Venencia") Amended Petition for a Writ of Habe 10

ll Corpus ("Petition"), which was filed on September 12, 2012. De Venencia was represented b

12 Attorney Howard Trapp. The Government was represented by Assistant Attorney General Chuc 13 Kinnunen. A member of the Guam Territorial Parole Board was also present during the hearing 14 but did not advance any position. Having reviewed the pleading filed in this matter, th 15

16 applicable law and heard oral argument at the hearing on the Petition, the Court now issues it

17 Decision and Order DENYING the Amended Petition for Writ of Habeas Corpus. 18 BACKGROUND 19 On January 4, 2012, De Venencia entered a plea of guilty to Burglary (as a 2nd Degre 20 Felony) and on the same day was sentenced according to the terms of his Plea Agreement to 21

22 inter alia, serve eighteen (18) months at the Department of Corrections (with credit for tim

23 served and the balance suspended) and placed on supervised parole for a period of three (3 24 years. See Judgment, CF281-11 (2/27112). On August 16, 2012, De Venencia filed his Petitio 25 against Jose A. San Agustin, as Director of the Department of Corrections ("DOC"), and th 26 Guam Parole Board. However, because De Venencia was not being held at DOC at the time, D 27

28 Venencia filed an Amended Petition on September 12, 2012, against the Chairman and member

Page 1 of8 of the Guam Parole Board asserting that he has been unlawfully restrained of his liberty by bein

2 placed on supervised parole for three (3) years as a provision of his sentence.

3 De Venencia's sole argument in support of his Petition is that his restraint is unlawfu 4 because his conviction of the second charge of the Indictment (i.e. Burglary (As a znd Degre 5 Felony)) is based upon a charge that is not a cognizable offense. The second charge of th 6 Indictment alleges that: 7

8 On or about the 29th day of May, 2011, in Guam, ANTHONY T. DE VENENCIA, did commit the offense of Burglary, in that he 9 did enter in the habitable property of Gerard Belga' s residence on Chalan Paraisu Street, Dededo, with the intent to commit the crime 10 [of] Assault, therein, at a time when the premises were neither II open to the public nor the Defendant licensed or privileged to so enter, in violation of9 G.C.A. §§37.20(a) and 37.20(b). 12 Indictment, Second Charge, CF281-ll (6/10/11). De Venencia argues that "[e]ntering habitabl 13

14 property with the intent to recklessly cause bodily injury to another is not a crime." Mem. 15 Support of Amend. Pet. For Writ of Habeas Corpus, at 1 (9112/12). 16 The Government argues that De Venencia waived habeas review of defects 17 Indictment by failing to raise them prior to fmal adjudication and, even if a writ of habeas corpu 18

19 were the proper method to challenge the conviction, the Government is not required to establis

20 that De Venencia had the mens rea for the particular crime of assault as a material element of 21 charge for Burglary. See People's Mem. of Points and Authorities in Opposition to Pet. for Wri 22 of Habeas Corpus, at 3 (9/28/12). 23

25 II 26 II 27 DISCUSSION 28

Page 2of8 A. Objection to Sufficiency of Indictment in Habeas Corpus Proceeding is Improper.

2 In general, every person unlawfully imprisoned or restrained of his liberty may prosecut

3 a writ of habeas corpus to inquire into the cause of such restraint. 8 G.C.A. § 135.10. 1 4 Ignacio v. People, the Guam Supreme Court enumerated the factors which a defendant mus 5 satisfy in order to support the issuance of a writ of habeas corpus: 6 A defendant has the burden of proving plain error by showing '(1) 7 that there has been a violation of a legal rule, not waived, during 8 court proceedings; (2) the error must be plain in that it is 'clear' or 'obvious' under current law; and (3) the plain error must have 9 affected [defendant's] substantial rights.' 10 2012 Guam 14

13 did not waive his right to challenge the sufficiency of the Indictment by failing to raise th

14 objection prior to his conviction. The Government argues that De Venencia has waived the righ 15 to challenge any defects in the indictment under 8 G.C.A. § 65.15. De Venencia contends that 16 waiver would generally apply under Section 65.15, except where the jurisdiction of the Court i 17 lacking or where the indictment fails to charge an offense. Pet. Response to Attorney General' 18

19 Opp. to Pet. for Writ of Habeas Corpus at 2 (12112/12).

20 It is well settled that objections to an indictment should be made prior to trial i 21 accordance with 8 G.C.A. § 65.15(b), and that such failure to object constitutes a waiver in th 22 absence of a showing by the defendant of good cause. See Guam v. Jones, 2006 Guam 13

25 1 Although the language of section 135.10 implies that habeas corpus review is reserved for those in th 26 physical custody of the State, modem cases have extended such review to parolees. See, e.g., Jones v. Cunningham, 371 U.S. 236, 242 (1963) ("the custody and control of the Parole Board involves significan 27 restraints on petitioner's liberty because of his conviction and sentence, which are in addition to tho imposed by the State upon the public generally."); see also Carafas v. LaVallee, 391 U.S. 234, 237 (1968 28 (court allowed the writ even though the defendant, incarcerated at the time the writ was filed, finished hi sentence during the proceedings).

Page3of8 (citing People v. White, 2005 Guam 20 114). As De Venencia notes, two statutory exceptions t

2 this general rule are: if the indictment fails to show jurisdiction in the court or to charge

3 offense. See 8 G.C.A. § 65.15(b) (2005). 4 While the Court agrees that the two exceptions cited in Section 65.15(b) allow for 5 defendant to challenge whether an indictment charges an offense at a time other than prior t 6 trial, it is improper for De Venencia to raise the challenge in this case for the first time in 7

8 habeas proceeding. See Crutchfield v. U.S., 142 F.2d 170, 176 (9th Cir. 1943) ("It has bee

9 uniformly held by this court that the sufficiency of an indictment cannot be reviewed in habea 10 corpus proceedings."); Goldsmith v. Sanford, 132 F.2d 176 (5th Cir. 1942) (habeas corpus is no 11 a remedy to test question of whether indictment sufficiently charged offenses under statute no 12

13 claimed to be invalid); People ex rei. Chapman v. LaClair, 882 N.Y.S.2d 758 (N.Y.A.D. 2009

14 (Habeas corpus is not appropriate remedy for raising claims that could have been raised on direc 15 appeal or motion to vacate judgment of conviction even if claims are jurisdictional in nature). 16 In this instance, the Court fmds no justification to depart from the traditional order! 17 procedure governing challenges to the sufficiency of an indictment. As such, De Venencia' 18

19 Amended Petition for Writ of Habeas Corpus is denied.

20 B. The Indictment Was Sufficient to Charge a Cognizable Crime. 21

22 Even assuming that De Venencia did not waive his right to challenge the sufficiency o

23 the burglary charge in the Indictment, which he clearly did by failing to raise the issue until th 24 instant petition, the Indictment was sufficient to place De Venencia on notice of the essenti 25 elements of the offenses with which he was charged. 26 An indictment which tracks the words of the statute charging the offense is sufficient 27

28 long the words unambiguously set forth all the elements of the offense. Guam v. Jones, 200

Page 4of8 Guam 13 123 (citing United States v. Givens, 767 F.2d 574, 584 (9th Cir. 1985)). 9 G.C.A.

2 37.20(a) sets forth the material elements of burglary, to wit: "A person is guilty of burglary ifh

3 enters ... any habitable property ... with intent to commit a crime therein." The charge abou 4 which De Venencia complains clearly tracks the language of section 37.20(a): 5 On or about the 29th day of May 2011, in Guam, ANTHONY T. DE VENENCIA, 6 did commit the offense of Burglary, in that he did enter the habitable property of Gerard Belga's residence on Chalan Paraisu Street, Dededo, with the intent to 7 commit the crime [of] Assault, therein, at a time when the premises were neither 8 open to the public nor the Defendant licensed or privileged to do so, in violation of9 G.C.A. §§37.20(a) and 37.20(b). 9

10 Indictment, Second Charge, CF281-11 (6/10/11 ).

11 As stated above, De Venencia' s sole argument in support of his habeas petition is that hi 12 conviction for the crime of Burglary (As a 2nd Degree Felony) is based upon a charge that is no 13 a cognizable offense. Specifically, De Venencia argues that "[e]ntering habitable property wi 14 the intent to recklessly cause bodily injury to another is not a crime." Mem. In Support o 15

16 Amend. Pet. For Writ of Habeas Corpus, at 1 (9/12/12). The Government argues that th

17 elements of the crime of burglary have been satisfied because the indictment charges D 18 Venencia with assault as specifically contemplated under 9 G.C.A. §§ 19.30(a)(l) and (e). 19 During the January 4, 2012 Change of Plea hearing, De Venencia appeared with hi 20 attorney and "moved to change his plea of NOT GUlLTY to that of GUlLTY of the offense o 21

22 Second Charge of BURGLARY (As a 2nd Degree Felony), in violation of 9 G.C.A. §§ 37.20(b

23 and 4.60." See Judgment (2/27112). During the hearing, and prior to accepting his plea of guilty 24 the Court informed De Venencia of the effect of his guilty plea and asked him whether he insis 25 on his plea or not. De Venencia continued to persist on his plea of guilty and following th 26

27 Court's colloquy and De Venencia' s allocution to the facts constituting the crime of Burgi

28 (As a 2nd Degree Felony), the Court found that the plea was made voluntarily with

Page5of8 understanding of the nature of the charge and consequences of his plea, including his rights t

2 challenge the conviction and sentence and his waiving such rights. Finally, the Court found to i

3 satisfaction that there was a factual basis for his plea as set forth in the Indictment against h' 4 and the Judgment of guilty was entered. See Judgment at 2. 5 Despite the above plea, De Venencia now argues that his conviction and judgment shoul 6 be vacated because one cannot intend to assault, or "recklessly cause ... bodily injury to another,' 7

8 pursuant to 19 G.C.A. §19.30(a)(1)- which is the crime that he is alleged to have intended t

9 commit and which forms the basis for the charge of Burglary (As a 2nd Degree Felony). To th 10 contrary, in order to sustain De Venencia's conviction under Guam's burglary statute, th 11 Government must have proven that De Venencia entered the premises having formed th 12

13 requisite intent to commit a crime therein. See People v. Demapan, 2004 Guam 24 '][ 23 (citin

14 Commonwealth v. Alston, 651 A.2d 1092, 1094 n. 3 (Pa. 1994)) ("The specific intent element· 15 the burglary charge against Demapan is whether he entered with the intent to commit theft."). 16 Had this matter proceeded to trial, the Government would not have been required t 17 prove assault; only that De Venencia intended to commit assault (or any of the other crimes fo 18

19 which he was charged). In Demapan, the Guam Supreme Court affrrmed the jury's conviction o

20 the defendant after the jury had the opportunity to receive and weigh the evidence against th 21 defendant and to consider whether the evidence supported a fmding that he intended to commi 22 theft. See id. Tf24-27. In this case, De Venencia admitted during his plea hearing that he ha 23 intended to assault his victim. It has been held that intent necessary to support a conviction fo 24

25 burglary is rarely capable of direct proof because it is a state of mind particular to the accused

26 and "unless such intent is admitted, it must be shown by circumstantial evidence." Bowman v. 27 United States, 652 A.2d 64, 67 (D.C. Ct. App. 1994). It was, therefore, sufficient that D 28

Page 6of8 Venencia admitted to having the general intent to commit any crime when he entered into th

2 habitable property of his victim at a time when the premises were neither open to the public no

3 was De Venencia licensed or privileged to enter therein. 2 That he admitted to having th 4 requisite mens rea for the crime of assault is also sufficient to sustain his conviction on th 5 charge of Burglary (As a 2nd Degree Felony). 6 Even if the Government were required to establish the elements of the underlying crim 7

8 of assault based on reckless conduct - which it is not required to do - the fact that the assaul

9 only requires "recklessness" does not make De Venencia's behavior any less criminal. It canno 10 be argued reasonably that De Venencia entered into his victim's home with an innocent state o 11 mind. Under Guam law, "a person is not guilty of a crime unless he acts intentionally 12

13 knowingly, recklessly or with criminal negligence as the law may require, with respect to th

14 conduct, the result thereof or the attendant circumstances which constitute the material element 15 of the crime." 19 G.C.A. §4.25 (emphasis added). A person acts "recklessly" and is therefor 16 criminally culpable "when he acts in awareness of a substantial risk that the circumstances exis 17 or that his conduct will cause the result and his disregard is unjustifiable and constitutes a gros 18

19 deviation from the standard of care that a reasonable person would exercise in the situation."

20 G.C.A. § 4.30(c). 21 The defendant in Guam v. Jones advanced a similar argument on appeal of his convictio 22 for Money Laundering and Continuing Criminal Enterprise ("CCE"). 2006 Guam 13. Charg 23

24 2 An indictment "should be read in its entirety, construed according to common sense, and interpreted t include facts are which are necessarily implied." Jones, 2006 Guam 13 1 12 (citing United States v 25 Givens, 767 F2d 574, 584 (9th Cir. 1985). The Indictment contained several charges against De Venenci 26 in addition to the burglary: Kidnapping (As a 1st Degree Felony), Aggravated Assault (as a 3rd Degr felony) (Special Allegation: Possession and Use of a Deadly Weapon in the Commission of a Felony) 27 Terrorizing (as a 3rd Degree Felony) and Assault (As a Misdemeanor). Although the burglary charg specified that De Venencia intended to commit the crime of assault when he committed the burglary, th 28 Indictment need not have specified which crime among the four other crimes he intended to commit i order for the charge of burglary to be sufficient.

Page7 of8 ··-·. · .. :. ~-. .·· . ' ~- . . .·. ·--. . . ,·': ._ : :, . .

three of the uMnctment against Jones alleged that be' i.-did knowingly receive or acquire nroceec:l!i .. 1 . ·.:-.. · . 2 from transactions that were in violation of the Uniform Controlled Substances Act of ~ ·

3 violation of9 G.C.A. 67.410(a)." /d. 116. Section 67.410(a) (emphasis added) states that"

••-· . penon hall not knowingly or intentionally receive or acquire proceeds or engage in transactl"orut involving proceeds, known to be derived from a violation of the [Guam Uniform Controll 6 Sub tances Act]." Jones contended that the indictment failed to charge him with a aim 1

"" ·.• s "because the indictment did not specifically identify the violation from which the proceeds w 9 derived." /d. t 22. The Supreme Court rejected Jones' argument and ruled that the cbarg 10 against Jones tracked the Language of the statute and was, therefore, suffici~ · /d. !I 22, 11 (holding that the indictment was suffici~nt to charge Jones for ~ylaundering and cQntinuin 12

l3 criminal enterprise charges, affnming convictiC>lt' ~. ~y~~~ cbiJrge~ but re\'~irig '0 ~" •· .· 14. CCE charges for other re~ons) •. .·,.. , . -~·- ... 15 .··.··; _:_ · ... . : . · co 'rtusto . ':•"' .-,':

16 For the reasons set f~ abOve, De V~cia~s Al11endcd P~titiQn for Writof Habeas. n . - . ·. ·-~-·

Corp~ is merltl.· and therefore is nEN!En. 1s :· ,. : ... ··. ·.. ", 19: . SO O~ERED ·.· · ~ 1st day of,uly, .,_. ' 2013 ·. . ·'

. 20 '

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27 Jesse C. Fmnquez · 28 ~llirt.~Cowto{Gowm ·.,..

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