People v. Acosta

Opinion

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6 IN THE SUPERIOR COURT OF GUAM 7

8 THE PEOPLE OF GUAM, CRIMINAL CASE no. CF0640-18 9 vs. 10 DECISION AND ORDER

BRANDON MICHAEL ACOSTA, 12 Defendant. 13

14 INTRODUCTION 15 This matter came before the Honorable Vemon P. Perez on March 28, 2019, for hearing 16 on Defendant Brandon Michael Acosta's ("Defendant") Motion to Dismiss Special Allegation 17 of the Use of a Deadly Weapon for Charges One and Two, and on May 15, 2019, for hearing on 18 Defendant's Motion to Dismiss the Special Allegations of Felony While on Felony [Release] or 19 [Bifurcate] the Charge. Defendant was present with counsel, William B. Pole, and Assistant 20 Attorney General Jeremiah B. Luther was present on behalf of the People of Guam ("the 21 Government"). Having reviewed the pleadings, the arguments presented, and the record, the 22 Court now issues the following Decision and Order. 23 BACKGROUND 24 On October 29, 2018, Defendant was indicted with the following charges: (1) 25 Aggravated Murder (As a First Degree Felony); (2) Murder (As a First Degree Felony), and (3) 26 Home Invasion (As a First Degree Felony). (Indictment, Oct. 29, 2018). Each felony charge 27 also has an attached Special Allegation: Possession or Use of a Deadly Weapon in the 28

People v. Acosta Case No. CF0640-18 Decision and Order

Page 1 of 9 1 Commission of a Felony, and Notice: Commission of a Felony While on Felony Release. Id.

2 These charges stem from allegations that Defendant caused the death of Timicca Nauta in her

3 home on or about June 16, 2018 during the commission of a burglary. (Decl. of Jeremy S.

4 Kemper, Magistrate's Con pl., Oct. 20, 2018). Prior to the Grand Jury indicting Defendant in

5 the instant matter, Defendant faced criminal charges in Superior Court of Guam Criminal Case

6 No. CF0015-18. In that matter, Defendant was charged with Family Violence (As aThird

7 Degree Felony), and was released with conditions on January 9, 2018. See Order of Conditional

8 Release and AppearanCe Bond, Jan. 9, 2018,. Indictment, Jan. 29, 2018. On June 18, 2018,

9 Defendant entered into a plea of guilty to the offense of Family Violence (As a Misdemeanor).

10 The Notice: Commission of a Felony While on Felony Release references Defendant's pre-trial

11 felony release status in CF0015-18 at the time of the alleged offenses in the instant matter.

12 On February 19, 2019, Defendant filed a Motion to Dismiss the Special Allegation of

13 the Use of a Deadly Weapon for Charges One and Two ("First Motion to Dismiss"). On March

14 27, 2019, the Government tiled its Opposition to the First Motion to Dismiss, and on March 27,

15 2019, Defendant tiled his Reply. On March 28, 2019 at the scheduled Motion Hearing, the

16 parties rested on their briefs, and the Court placed the matter under advisement.

17 On April 4, 2019, Defendant tiled a Motion to Dismiss the Special Allegations of Felony

18 on Felony [Release] or [Bifurcate] the Charge ("Second Motion to Dismiss"). On April 17,

19 2019, the Government filed its Opposition to the Second Motion to Dismiss, No Reply was

20 filed. On May 16, 2019, the Court heard arad arguments on the Second Motion to Dismiss and

21 subsequently placed the matter under advisement.

22 DISCUSSION

23 I. Motion to Dismiss Special Allegation of the Use of a Deadly Weapon in the Commission

24 of a Felony

25 In his First Motion to Dismiss, Defendant moves the Court to dismiss the Special

26 Allegation: Possession or Use of a Deadly Weapon in the Commission of a Felony attached to

27 the First and Second Charge. Defendant argues that the Special Allegation attached to these

28 two charges should be dismissed because neither charge "sUpport[s] that the Defendant has the

r Page 2 of 9 1 specific intent to use a weapon in a deadly manner." See First Mot. Dismiss at 1, Feb. 19, 2019.

2 The Government opposes, arguing that Defendant "wrongfully equates the specific intent mens

3 Rea applicable" to the sentence enhancement with the recklessness mens Rea applicable to the

4 root charges, and that it is within the Grand Jury's purview to determine whether probable cause

5 existed based on evidence presented to it to indict Defendant with the sentencing enhancements.

6 See Opp'n, Mar. 27, 2019.

7 The Special Allegation attached to the First Charge alleges that:

8 On or about June 16, 2018, in Guam, BRANDON MICHAEL ACOST A did unlawfully possess or use a deadly weapon, that is a. blade, in the commission of a 9 felony, that is, Aggravated Murder, in violation of 9 GCA § 80.37. 10 (Indictment, Oct. 29, 2018). The Special Allegation attached to the Second Charge similarly 11 alleges that: 12 On or about June 16, 2018, in Guam, BRANDON MICHAEL ACOSTA did 13 unlawfully possess or use a deadly weapon, that is a blade, in.the commission of a felony, that is, Murder, in violation of 9 GCA § 80.37. 14 15 Id. The First Charge of Aggravated Murder alleges that Defendant, with criminal negligence,

caused the death of Timicca Nauta during the commission of or attempt to commit the felony of 16

burglary. Id. The Second Charge of Murder alleges that Defendant caused the death of Timicca 17 Nauta under circumstances manifesting extreme indifference to the value of human life. Id. 18 Defendant argues that the Government cannot show that Defendant knew that a weapon 19 was being used in a deadly fashion in relation to the first two charges in the Indictment because 20 those charges require a negligent intent or recklessness mens Rea. (First Mot. Dismiss at 2-4). 21 Defendant supports this argument by first stating that the Government must show a culpable 22 mental state for a deadly weapon to be found[, that is,] what weapon was used, how it was used, 23

and that it was used in a manner that the Defendant had knowledge that it was capable of 24 causing serious bodily injury or death." Id. at 3. The Government does not dispute that the trial 25 jury must find that a "blade was used in the commission of this crime and that the Defendant 26

had knowledge of its deadly nature." (Opp'n at 3). Deadly weapon is defined under Guarn law 27

as "any firearm," or other weapon, device, instrument, material or substance, whether animate or 28

Page 3 of 9 1 inanimate, which in the manner Ir is used or is intended to be used is known to the defendant to

2 be capable of producing death or serious bodily injury." 9 G.C.A. § 16.10(d) (emphasis added).

3 Defendant next states that a person "cannot intend to use a deadly weapon in a negligent

4 or reckless manner, and therefore there is a missing element to the crime, by law." (First Mot.

5 Dismiss at 4). Defendant appears to ultimately be arguing that one's actions cannot be both

6 negligent or recldess and intentional at the same time. The Government notes that Defendant is

7 not alleged to have used a deadly weapon in a reckless manner per se, only that he intentionally

8 used a deadly weapon one, "during the commission of the crime of burglary and that a causally

9 linked death resulted from that crime" and two, that he "intentionally used a deadly weapon and

10 that the deadly weapon was used during the commission of other acts, recklessly committed, the

11 culmination of which constitute circumstances manifesting extreme indifference to the value of

12 human life, and resulted in the unlawful death of the victim." (Opp'n at 3).

13 The Court does not find that a defendant's actions cannot be both negligent or reckless,

14 and intentional at the same time. As the Government points out, an example of "reckless

15 indifference to the value of human life" is "that of a person pointing a loaded gun into a crowd

16 and pulling the trigger." (Opp'n at 3). Ire that example, it is possible that the individual holding

17 the loaded gun understands that the gun is capable of producing death or serious bodily injury,

18 thus a deadly weapon, and intentionally uses the gun to commit a reckless act. Therefore, the

19 Court will not dismiss the Special Allegations of*Possession or Use of a Deadly Weapon in the

20 Commission of a Felony attached to the First and Second Charges of the Indictment.

21 Defendant also moves for the special allegations to be bifurcated from trial on the felony

22 offenses, in the alternative to the special allegations being dismissed. See Reply, Mar. 27, 2019.

23 Defendant argues that there is no purpose for the special allegations attached to the Aggravated

24 Murder and Murder charges other than to prejudice Defendant, and that "the Court should

25 bifurcate the special allegations and reserve on whether the charges will be presented to the Jury

26 until after the close of trial." Id. at 1-2. It is not clear to the Court how bifurcating the special

27 allegations of possession or use of a deadly weapon would eliminate further prejudice to

28 Defendant, or how they present Defendant as "habitually criminal." Evidence of a deadly

People v. Acosta ' Case No. CF0640-18 Decision and Order

r Page 4 of 9 1 weapon, a blade, will likely be presented during the Government's case in chief regardless of

2 whether or not the Special Allegation of Possession or Use of a Deadly Weapon is sent to the

3 jury. Further the Third Charge of Home Invasion (As a First Degree Felony) also includes the

4 Special Allegation of Possession or Use of a Deadly Weapon, and Defendant has not moved for

5 that attached special allegation to be bifurcated. Accordingly, the Court will not bifurcate the

6 Special Allegations of Possession or Use of a Deary Weapon attached to the First and Second

7 Charges, and denies Defendant's First Motion to Dismiss.

8 II. Motion to Dismiss Special Allegations of Felony While on Felony Release or Bifurcate

9 the Charge

10 In his Second Motion to Dismiss, Defendant moves the Court to dismiss the Notice:

Commission of a Felony While on Felony Release attached to each felony charge.l Defendant

12 argues that the Notice should be dismissed because one, there is "no rationale between the

13 sentencing enhancement statute and the enhancement in this case" aS it deals with recidivism

14 and two, it should be considered De minims because Defendant plead down to a misdemeanor

15 in the prior felony case before the instant felony case was charged out. See generally, Second

16 Mot. Dismiss, Apr. 4, 2019.

17 The Government opposes, arguing that Guam law does not "require that an individual

18 actually be convicted of the underlying felony for which they are on release in order to be

19 legally liable for violating the conditions of release by committing another felony" and that

20 while Defendant may have plead to a misdemeanor offense in CF0015-18 two days after the

21 alleged offenses occurred in the instant matter, that does not mean he can "avoid the clear and

22 unambiguous consequences set forth in 9 GCA § 80.37.l." See Opp'n, Apr. 17, 2019.

23 Title 9 G.C.A. section 80.37.1 provides in relevant part that:

24 Whoever commits a felony punishable under the laws, of Guam while on release on a felony charge pursuant to Chapter 40 (Criminal Procedure) of Title 8, Guam 25 Code Annotated, shall, in addition to the sentence imposed for the crime 26

27 1 The Court notes that while Defendant's pleadings refer to the Felony While on Felony Release sentencing 28 enhancement as a Special Allegation, it is referenced as aNotice in the Indictment. See Indictment, Oct. 29, 2018.

People v. Acosta CaseNo. CF0640-18 Decision and Order

Page 5 of 9 0 _llllllll II I I'll I HH ml l H Lu l

committed while on release, be imprisoned for a term of not less than five (5) 1 years nor more than twenty-five (25) years.

2 9 G.C.A. § 80.37.l(a). This section is similar to the federal "felony on felony release" statute, 3 18 U.S.C. § 3147, with the exception that section 3147 permits sentencing enhancements for

4 release on any offense, not only felony offenses. Title 18 U.S.C. section 3147 provides: 5 A person convicted of an offense committed while released under this chapter 6 shall be sentenced, in addition to the sentence prescribed for the offense, to - 7 (1) a term of imprisonment of not more than ten years if the offense is a felony, or (2) a term of imprisonment of not more than one year if the offense is a 8 misdemeanor. 9 A term of imprisonment imposed under this section shall be consecutive to any 10 other sentence of imprisonment. ll 18 U.S.C. § 3147. 12 Courts looking at this statute and similar ones have held that a defendant does not need 13 to be actually convicted of the underlying felony for which he or she is on pre-trial release in 14 order to be subject to a sentencing enhancement for violating said conditions of release by 15 committing another felony. Section 3147 "simply mandates an enhanced sentence for someone 16 who commits an offense while released on bail. There is nothing exceptional about the statute, 17 nor is it vague or ambiguous. The language is plan and the meaning is clear." United States v. 18 Patterson, 820 F.2d 1524, 1526 (9th Cir. l987). "Indeed, a defendant who commits a felony 19 offense while released on bond with respect to a pending federal offense is subject to a 20 mandatory minimum enhancement ... and this enhancement applies even if the defendant is 21 acquitted of the initial offense for which he had been placed on bond." United States v. Jones, 22 2011 WL 5075672 at *7 (E.D. Mich. May 9, 2011). Section 3147 "is concerned solely with 23 whether a person released on bail in connection with a federal criminal charge takes action in 24 violation of federal law while on pretrial release. By its terms, the statute regulates the conduct 25 of individuals deemed fit for pretrial release during their time under judicial supervision. In this 26 instance, the defendant was indicted for conduct committed while under such supervision, 27 accordingly, whether he ultimately was acquitted of the charge giving rise to the initial 28 provision of bail is irrelevant." United States v. Davis, 114 F.3d 400 (2d Cir. 1997).

Page 6 of 9 v 1 Accordingly, the Court does not find that the sentencing enhancement punishes a defendant "to

2 be a repeat offender while on bail" as argued by Defendant, see Second Mot. Dismiss at 3, and

3 will not dismiss the felony while on felony release notice on that ground. 4 Defendant also argues that the felony on felony release sentencing enhancement should

5 be dismissed as De minims because "the Legislature did not intend that a Defendant should be

6 subject to extra punishment if the Defendant has not committed a first and second felony. If the

7 Defendant is not found guilty of the first offense there can be no second offense and vice versa."

8 (Second Mot. Dismiss at 4). Title 9 G.C.A. section 7.67, Appropriateness of Prosecution,

9 provides that:

10 The court shall dismiss a prosecution if, having regard to the nature of the conduct charged to constitute an offense and the nature of the attendant circumstances, it 11 finds that the defendant's conduct: 12 (a) Was within a customary license or tolerance, neither expressly negated by 13 the person whose interest was infringed nor inconsistent with the purpose of the law defining the offense; 14 (b) Did not actually cause or threaten the harm or evil sought to be prevented 15 by the law defining the offense or did so only to an extent too trivial to 16 warrant the condemnation of conviction, or 17 (c) Presents such other extenuations that it cannot reasonably be regarded as 18 envisaged by the Legislature in forbidding the offense. The court shall not dismiss a prosecution under this Subsection without filing a written 19 statement of its reasons. 20 9 G.C.A. § 7.67. Defendant argues that the Legislature could not have envisioned the 21 . procedural steps that occurred in this matter when it passed 9 G.C.A. § 80.37.1(a). (Second 22 Mot. Dismiss at 4). Defendant argues that the Felony While on Felony Release Notice should 23 he considered De minims because Defendant is charged here with acts allegedly occurring on 24 June 16, 2018, only two days prior to the Court accepting Defendant's guilty plea to a 25 misdemeanor offense. Id. 26 The Court does not find that the sequence of events occurring in the instant matter and 27 Defendant's other felony case equate to a set of facts requiring dismissal under Guam's De 28

People v. Acosta Case No. CF0640- 18 Decision and Order

Page'7 of 9 1 minims statute. It is undisputed that Defendant was still technically in pre-trial status on the

2 date of the alleged offenses charged in the instant matter, therefore the Court finds that he was

3 in a special status with regard to the criminal law. A defendant on pretrial release in an

4 unrelated felony case

5 has not simply been accused of another crime, he has been formally arrested, appeared before a magistrate, and had the conditions of his release pending trial 6 for this crime formally determined. Whether or not one in this position is in fact 7 guilty, it is expected that he would, while the question of his guilt is pending, be particularly cautious to avoid commission of another criminal offense.... One 8 demonstrates disdain for the law by committing an offense while on release 9 pending trial of an earlier charge.

10 State v. Webb, 308 S.E.2d 252, 559 (N.C. 1983) (internal citation omitted). Therefore, "the ll enhanced penalty is imposed not for the release status as such, but rather for committing the 12 second offense while on release. It is the commission of the second crime that is being 13 punished." Speight v. United States, 569 A.2d 124, 126 (D.C. 1989). Accordingly, the Court 14 does not find the Notice: Commission of a Felony While on Felony Release to be De minims in 15 this matter, and will not dismiss the notices attached to each felony. The Court will, however, 16 bifurcate the Felony on Felony Release allegations from the felony offenses of Aggravated 17 Murder, Murder, and Home Invasion charged in this matter at jury trial. See People v. Muritok, 18 2003 Guam 21

Page 8 of 9 r 1 Felony Release. The Court will not dismiss the Special Allegations of Felony While on Felony

2 Release, but will bifurcate them from trial on Defendant's other charged offenses.

3 la.. IT IS SO ORDERED thisjl day of June, 2019. 4

8 HONOIMBLE VERNON p. PEREZ Judge, Superior Court of Guam 9

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