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r~ SUPERIOR COURT 0i CUAM 1 2OI9SEP2t~ p~t~t~7 2 CLERIK OF CO.URi
IN THE SUPERIOR COURT OF GUAM 5 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0478-18 6 ) 7 PLAINTIFF ) v. ) DECISION AND ORDER RE: DEFEDANT’S 8 ) MOTION TO DISMISS INDICTMENT SUNG HEE HONG, ) V
.9 V ) 10 DEFENDANT. ) 11 V ) 12 13 Introduction 14 This matter came before the Honorable Maria T. Cenzon on Defendant Sung Hee Hong’s 15 (“Defendant”) Motion to Dismiss the Indictment in the above captioned matter. Defendant is 16 represented by Arriola, Cowen & Arriola. The People of Guam (“People”) are represented by the 17 Attorney General of Guam, through Chief Prosecutor J. Basil O’Mallan III. Defendant filed the 18 pending Motion on June 13, 2019. The People filed an opposition to the Motion on August 1, 19 2019. This Motion was heard by the Court on August 5, 2019, after which the Court took the 20 issue under advisement. After review, the Court issues the following DECISION and ORDER 21 denying the Motion to Dismiss.’ 22 \\ 23 \\ V
24 25 ‘A Superseding Indictment in this matter was filed on August 23, 2019, after the filing of the pending Motion to Dismiss the Indictment. However, the Superseding Indictment only added a second count to the charge of Forgery 26 (As a 3~ Degree Felony) against. Defendant. The present charge of Forgery (As a 3’~’ Degree Felony) questioned by Defendant’s Motion to Dismiss still stands. Thus, because nothing substantive with regards to this Motion was put 27 into question by the Superseding Indictment, it bears no effect on this Court’s present decision on the Motion. See
28 Superseding Indictment, pp. 1-2.
People v. Hong.; CF0478-18 Decision & Order Page 1 of 5 1 Background 2 The People commenced this action on August 10, 2018, when they indicted Defendant 3 with Forgery (As a 3id Degree Felony) in violation of 9 GCA §~ 46. 10(a)(1), (a)(5), and (c). See 4 Indictment pp 1-2 (Aug 10, 2018) The alleged Victim in the case, Defendant’s father, named 5 Defendant as his Power of Attorney (“POA”) on July 20, 2011. See Mot. to Dismiss Indictment, 6 Ex. B. That POA was set to terminate on October 27, 2017. See id., Ex. C. The POA granted 7 Defendant in part the ability “[t]o carry on the business of any nature presently conducted by [the 8 Victim] under the trade name Base Corporation...” See id., Ex. B. 9 The People allege that on or about August 12, 2015, Defendant committed thecrime of 10 Forgery, in that she did utter a written instrument she knew to have been forged. See id. at p. 2. 11 The written instrument, in question was the. Resolution of the. Board of Directors and 12 Shareholders to Amend the Articles of Incorporation of Base Corporation, executed on August 5, ‘13 2015. See id. The People allege that Defendant signed this document in front of a Notary, forging 14 the signatures of the Victim and his wife, Defendant’s mother. See People’s Opp. to Mot. to 15 Dismiss Indictment, p. 2. The document allegedly would have transferred all of the shares of 16 Base Corporation from the Victim to Defendant. Id. According to the People, ‘Defendant did not 17 indicate on the document that she was signing as the Victim’s POA. Id. Rather, Defendant signed 18 for both the Victim and his wife, which the People argue was outside of the power granted to her 19 through the POA. Id. 20 In support of her Motion to Dismiss, Defendant argues that the People had a copy of the’ 21 full POA more than six (6) months before the ‘Grand Jury Proceeding on August 10, 2018. See 22 Mot. to Dismiss Indictment, p. 5. However, the People did not present evidence of the POA at 23’ said proceeding. Id. The Defendant argues that evidence of the POA between the Victim and 24 Defendant constitutes exculpatory evidence. Id. Thus, the People had a duty to disclose such 25 evidence at the proceeding. By not presenting this evidence, the People did not satisfy their duty 26 of disclosure, and the Indictment must be dismissed. 27 ‘
28 Peopley. Hong.; CF0478-18 Decision & Order~ -- ~ .
Page 2of5 1 The People argue in reply that evidence of the POA does not constitute exculpatory 2 evidence. See People’s Opp. to Mot. to Dismiss Indictment, pp. 1-2. While the People do not 3 contest the existence or legitimacy of the POA, the People argue that Defendant was acting 4 outside the bounds of the POA when she committed the crime of forgery. See id. Thus, existence 5 of the POA would not negate the guilt of Defendant, and the People did not have an affirmative 6 duty to disclose such evidence to the Grand Jury. 7 Discussion 8 “A felony prosecution requires an indictment upon a probable cause determination by a 9 grand jury.” People v. Villapando et al., 1999 Guam 31. Under Guam law, the People have an 10 affirmative duty to submit “any evidence in his possession which would tend to negate guilt” of 11 the Defendant at a Grand Jury Proceeding. 8 GCA §50,46; see also People v. Sablan, D.C. Crim. 12 No. 85-0024A, 1986 WL68900 a *3 (D. Guam App. Div. Oct. 24, 1986). However, an 13 indictment will be dismissed only if the People’s failure to disclose exculpatory evidence “results 14 in substantial prejudice.” People v. Becerra, 165 Cal. App. 4th 1064, 1070 (2008). 15 When a defendant challenges a Grand Jury indictment before trial, the court must 16 determine whether a reasonable probability exists that “a properly informed jury would have 17 declined to find probable cause to indict had it known of the omitted evidence.” Berardi v. 18 Superior Court, 149 Cal. App. 4th 476, 495 (2007). If based on all evidence presented at the 19 proceeding, there is reasonable cause to• believe that the Defendant committed an indicatable 20 offense, the Grand Jury shall find an indictment. 8 GCA § 50.54. 21 This Motion to Dismiss comes down to whether the existence of the POA would negate 22 the guilt of the Defendant, making it exculpatory evidence. If the existence of the POA is 23 exculpatory, then the People had an affirmative duty to disclose its existence pursuant to 8 GCA 24 § 50.46. In other terms, if the POA granted the Defendant the power to sign the alleged forged 25 document which transferred all shares of Base Corporation, then there is no reasonable cause to 26 believe that Defendant committed forgery. See 8 GCA § 50.54. Thus, the indictment would be 27 dismissed. 28 People v. Hong.; CF0478-18 Decision & Order Page 3 of 5’ 1 However, Defendant has not provided enough evidence to prove that the existence of the 2 POA would negate Defendant’s guilt. The People argue that Defendant acted outside the bounds 3 of the power granted to her via the POA. While this Court acknowledges the broad nature of the 4 POA in question, the Court finds compelling that 1) the POA applied only to Victim, and not his 5 wife, 2) Defendant did not indicate that she was signing as a POA on the document in question, 6 and 3) the action of alleged forgery involved the transfer of all shares in Base Corporation from 7 Victim and his wife to Defendant. Nowhere in the POA does it grant Defendant the power to 8 sign for Victim’s wife, nor transfer all shares in Base Corporation to Defendant. See Mot. to 9 Dismiss Indictment, Ex. B. This Court further agrees with the People that the existence of a 10 re~yocation of the POA tends to show that Victim did not intend to hand over all shares of the 11 corporation to Defendant. See Mot. to Dismiss Indictment, Ex. C. Read in the light most 12 favorable to the non-movant, this evidence would tend to support an Indictment. 13 It may be that the Defendant acted within her power as a POA during the alleged act of 14 forgery. However, that question must be reserved for trial given the evidence presented on the 15 Motion.
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V~...
r~ SUPERIOR COURT 0i CUAM 1 2OI9SEP2t~ p~t~t~7 2 CLERIK OF CO.URi
IN THE SUPERIOR COURT OF GUAM 5 PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0478-18 6 ) 7 PLAINTIFF ) v. ) DECISION AND ORDER RE: DEFEDANT’S 8 ) MOTION TO DISMISS INDICTMENT SUNG HEE HONG, ) V
.9 V ) 10 DEFENDANT. ) 11 V ) 12 13 Introduction 14 This matter came before the Honorable Maria T. Cenzon on Defendant Sung Hee Hong’s 15 (“Defendant”) Motion to Dismiss the Indictment in the above captioned matter. Defendant is 16 represented by Arriola, Cowen & Arriola. The People of Guam (“People”) are represented by the 17 Attorney General of Guam, through Chief Prosecutor J. Basil O’Mallan III. Defendant filed the 18 pending Motion on June 13, 2019. The People filed an opposition to the Motion on August 1, 19 2019. This Motion was heard by the Court on August 5, 2019, after which the Court took the 20 issue under advisement. After review, the Court issues the following DECISION and ORDER 21 denying the Motion to Dismiss.’ 22 \\ 23 \\ V
24 25 ‘A Superseding Indictment in this matter was filed on August 23, 2019, after the filing of the pending Motion to Dismiss the Indictment. However, the Superseding Indictment only added a second count to the charge of Forgery 26 (As a 3~ Degree Felony) against. Defendant. The present charge of Forgery (As a 3’~’ Degree Felony) questioned by Defendant’s Motion to Dismiss still stands. Thus, because nothing substantive with regards to this Motion was put 27 into question by the Superseding Indictment, it bears no effect on this Court’s present decision on the Motion. See
28 Superseding Indictment, pp. 1-2.
People v. Hong.; CF0478-18 Decision & Order Page 1 of 5 1 Background 2 The People commenced this action on August 10, 2018, when they indicted Defendant 3 with Forgery (As a 3id Degree Felony) in violation of 9 GCA §~ 46. 10(a)(1), (a)(5), and (c). See 4 Indictment pp 1-2 (Aug 10, 2018) The alleged Victim in the case, Defendant’s father, named 5 Defendant as his Power of Attorney (“POA”) on July 20, 2011. See Mot. to Dismiss Indictment, 6 Ex. B. That POA was set to terminate on October 27, 2017. See id., Ex. C. The POA granted 7 Defendant in part the ability “[t]o carry on the business of any nature presently conducted by [the 8 Victim] under the trade name Base Corporation...” See id., Ex. B. 9 The People allege that on or about August 12, 2015, Defendant committed thecrime of 10 Forgery, in that she did utter a written instrument she knew to have been forged. See id. at p. 2. 11 The written instrument, in question was the. Resolution of the. Board of Directors and 12 Shareholders to Amend the Articles of Incorporation of Base Corporation, executed on August 5, ‘13 2015. See id. The People allege that Defendant signed this document in front of a Notary, forging 14 the signatures of the Victim and his wife, Defendant’s mother. See People’s Opp. to Mot. to 15 Dismiss Indictment, p. 2. The document allegedly would have transferred all of the shares of 16 Base Corporation from the Victim to Defendant. Id. According to the People, ‘Defendant did not 17 indicate on the document that she was signing as the Victim’s POA. Id. Rather, Defendant signed 18 for both the Victim and his wife, which the People argue was outside of the power granted to her 19 through the POA. Id. 20 In support of her Motion to Dismiss, Defendant argues that the People had a copy of the’ 21 full POA more than six (6) months before the ‘Grand Jury Proceeding on August 10, 2018. See 22 Mot. to Dismiss Indictment, p. 5. However, the People did not present evidence of the POA at 23’ said proceeding. Id. The Defendant argues that evidence of the POA between the Victim and 24 Defendant constitutes exculpatory evidence. Id. Thus, the People had a duty to disclose such 25 evidence at the proceeding. By not presenting this evidence, the People did not satisfy their duty 26 of disclosure, and the Indictment must be dismissed. 27 ‘
28 Peopley. Hong.; CF0478-18 Decision & Order~ -- ~ .
Page 2of5 1 The People argue in reply that evidence of the POA does not constitute exculpatory 2 evidence. See People’s Opp. to Mot. to Dismiss Indictment, pp. 1-2. While the People do not 3 contest the existence or legitimacy of the POA, the People argue that Defendant was acting 4 outside the bounds of the POA when she committed the crime of forgery. See id. Thus, existence 5 of the POA would not negate the guilt of Defendant, and the People did not have an affirmative 6 duty to disclose such evidence to the Grand Jury. 7 Discussion 8 “A felony prosecution requires an indictment upon a probable cause determination by a 9 grand jury.” People v. Villapando et al., 1999 Guam 31. Under Guam law, the People have an 10 affirmative duty to submit “any evidence in his possession which would tend to negate guilt” of 11 the Defendant at a Grand Jury Proceeding. 8 GCA §50,46; see also People v. Sablan, D.C. Crim. 12 No. 85-0024A, 1986 WL68900 a *3 (D. Guam App. Div. Oct. 24, 1986). However, an 13 indictment will be dismissed only if the People’s failure to disclose exculpatory evidence “results 14 in substantial prejudice.” People v. Becerra, 165 Cal. App. 4th 1064, 1070 (2008). 15 When a defendant challenges a Grand Jury indictment before trial, the court must 16 determine whether a reasonable probability exists that “a properly informed jury would have 17 declined to find probable cause to indict had it known of the omitted evidence.” Berardi v. 18 Superior Court, 149 Cal. App. 4th 476, 495 (2007). If based on all evidence presented at the 19 proceeding, there is reasonable cause to• believe that the Defendant committed an indicatable 20 offense, the Grand Jury shall find an indictment. 8 GCA § 50.54. 21 This Motion to Dismiss comes down to whether the existence of the POA would negate 22 the guilt of the Defendant, making it exculpatory evidence. If the existence of the POA is 23 exculpatory, then the People had an affirmative duty to disclose its existence pursuant to 8 GCA 24 § 50.46. In other terms, if the POA granted the Defendant the power to sign the alleged forged 25 document which transferred all shares of Base Corporation, then there is no reasonable cause to 26 believe that Defendant committed forgery. See 8 GCA § 50.54. Thus, the indictment would be 27 dismissed. 28 People v. Hong.; CF0478-18 Decision & Order Page 3 of 5’ 1 However, Defendant has not provided enough evidence to prove that the existence of the 2 POA would negate Defendant’s guilt. The People argue that Defendant acted outside the bounds 3 of the power granted to her via the POA. While this Court acknowledges the broad nature of the 4 POA in question, the Court finds compelling that 1) the POA applied only to Victim, and not his 5 wife, 2) Defendant did not indicate that she was signing as a POA on the document in question, 6 and 3) the action of alleged forgery involved the transfer of all shares in Base Corporation from 7 Victim and his wife to Defendant. Nowhere in the POA does it grant Defendant the power to 8 sign for Victim’s wife, nor transfer all shares in Base Corporation to Defendant. See Mot. to 9 Dismiss Indictment, Ex. B. This Court further agrees with the People that the existence of a 10 re~yocation of the POA tends to show that Victim did not intend to hand over all shares of the 11 corporation to Defendant. See Mot. to Dismiss Indictment, Ex. C. Read in the light most 12 favorable to the non-movant, this evidence would tend to support an Indictment. 13 It may be that the Defendant acted within her power as a POA during the alleged act of 14 forgery. However, that question must be reserved for trial given the evidence presented on the 15 Motion. The Court cannot hold with any certainty that evidence of the POA presented at the 16 proceeding would have resulted in the Grand Jury failing to find probable cause to indict 17 Defendant. Rather, the POA’ s existence presents two different theories regarding a piece of 18 evidence. Defendant is free to raise her theory to the ultimate factfinder. 19 The People argue that Defendant acted outside of the power granted to her in the POA. 20 The mere existence of the POA does not destroy the People’s theory, nor with certainty negate 21 Defendant’s guilt. Thus, evidence of the POA is not exculpatory evidence, and the People had no 22 duty to disclose that evidence at the Grand Jury Proceeding. Therefore, the Motion to Dismiss 23 the Indictment is DENIED. 24 \\ 25 \\ 26 27
28 People v. Hong.; CF0478-18 Decision & Order Page4of5 1 Conclusion 2 For the foregoing reasons, Defendant’s Motion to Dismiss the Indictment is DENIED. 3 4 SO ORDERED this SEP 24 2019
8 T CENZON JUDGE,SUPERIQR COURT OF GUAM 9 10 11
12 13 14 15 16 17 18 19 20 21 22 SERVICE VIA COURT BOX 23 I acknowledge that a copy of the original hereto was placed in the 24 ~
Date ____ _____
Deputy Clerk Superior Cou~ of Guam 27 28 People v. Hong.; CF0478-18 Decision & Order Page 5 of 5