People v. Anderson, J.

Opinion

I

FELED SUPERIOR COURT UI' GUAH ZQIQDEC 16 PH P\19 SLERKGEEGURT ft H a I

IN THE SUPERIOR CQURT OF GUAM

PEOPLE OF GUAM, CRHVIINAL CASE no. CF0288-19

vs.

Jos1AH JAMES ANDERSON, DECISION AND ORDER DOB: 10/21/2001

Defendant.

INTRODUCTION This matter came before the Honorable Arthur R. Barcinas on September 26, 2019, upon

the Defendant's Motion to Transfer [to Family Court] Pursuant to 19 GCA § 5l06(d) filed

August 15, 2019 ("Motion"). Defendant Josiah James Anderson ("Defendant") is represented by

Attorney Douglas B. Moylan. Assistant Attorney General Christine S. Tenorio represented the

People of Guam ("the People"). Having reviewed the pleadings and having heard oral

arguments in this matter, the Court issues the following Decision and Order.

BACKGROUND On May 21, 2019, a grand jury returned an indictment and charged the Defendant with:

1) Burglary (as a Second Degree Felony), 2) Criminal Mischief (as a Misdemeanor), 3)

Criminal Trespass (as a Petty Misdemeanor); and 4) Theft (as a Petty Misdemeanor). See

Indictment (May 21, 2019). According to the Indictment, on or about April 4, 2019, the

Defendant allegedly entered the property of Simon Sanchez High School and damaged certain

property on the premises. Further, the Defendant is also alleged to have taken certain movable property belonging to Simon Sanchez High School.- On August 15, 2019, the Defendant filed Decision and Order Criminal Case No. CF0288- I9, People v. Josiah James Anderson

the instant Motion to Transfer [to Family Court] pursuant to 19 GCA § 5106(d). The People

filed their Opposition on August 30, 2019, and the Pefendant filed his Reply on September 25,

2019. On September 26, 2019, a hearing was held on the instant motion and the Court

subsequently took the matter under advisement.

DISCUSSION Title 19 GCA § 5106 provides the mechanism by which the Superior Court can obtain

"adult" jurisdiction over a minor. People v. Gomia, 2017 Guam 3 'll 10. The statute reads, in

relevant part, " . [a] child who is sixteen (16) years of age or older at the time he committed

the offense for which he is charged shallautomatically be charged as an adult for any act which

would constitute a felony of the first or second degree along with any acts which are

misdemeanors or felonies of the third degree which are part of the same scheme of criminal

activity as the felony." 19 GCA § 5106(a) (emphasis added). Notwithstanding the mandates of

19 GCA § 5106(a), Guam law also authorizes courts to transfer the matter to the jurisdiction of

the Family Court. 19 GCA § 5106(d). Transfer or decertification to Family Court is permissible

upon a finding based on "clear and convincing evidence that the best interest of the minor

would be amendable to the care, treatment, and training programs available through the

facilities of the juvenile court " In evaluating whether transfer to Family Court is

proper, the Court should consider the following factors:

(1) the age of the minor, (2) the history of the minor, including: (A) any previous delinquent or criminal history of the minor, (B) any previous abuse or neglect history of the minor, and (C) any mental health, physical or educational history of the minor, or a combination of these factors, (3) the circumstances of the offense, including: (A) the seriousness of the offense, (B) whether the minor is charged through accountability; (C) whether there is evidence the offense was committed in an aggressive and premeditated manner, (D) whether there is evidence the offense caused seriously bodily harm, and (E) whether there is evidence the minor possessed a deadly weapon;

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(4) the advantages of treatment within the juvenile justice system including, whether there are facilities or programs, or both, particularly available in the juvenile system, (5) whether the security of the public requires sentencing under Title 9, Chapter 80 of the Guam Code Annotated, (6) the minor's history of services, including the minor's willingness to participate meaningfully in available services, (7) whether there is a reasonable likelihood that the minor can be rehabilitated before the expiration of the juvenile court's jurisdiction, and (8) the adequacy of the punishment or services. Further, in considering the factors above, the Court shall give greater weight to the

seriousness of the alleged offense and the minor's history of juvenile delinquency than any

other factor. (emphasis added).

I. Age and History of the Minor

At the time of the alleged offense, the Defendant was seventeen years old and

approximately five months away from turning eighteen. Therefore, at the time the Defendant

committed the alleged offense, the Defendant was properly charged as an adult pursuant to the

Family Court Act. See 19 GCA § 5l06(a) (a child who is sixteen (16) years of age or older at

the time of the alleged offense shall automatically be charged as an adult for any act which

would constitute a felony of the first or second degree).

The Defendant has one prior juvenile case, JDOl78-15, in which the Defendant was

charged for touching other minors. The Defendant's juvenile case was closed in 2017. Further,

in addition to the instant matter, the Defendant has one other active criminal case, CF0278-19.

In that felony case, the Defendant is being charged with Theft of a Motor Vehicle (as a Second

Degree Felony), Burglary to a Motor Vehicie (as a Second Degree Felony), Criminal Mischief

to a Motor Vehicle (as a Third Degree Felony), and Theft (as a Petty Misdemeanor). The

Defendant was also properly charged in CF0278-19 as an adult pursuant to 19 GCA § 5i06(a)I The Court also notes that in both active felony cases, CF0288-19 and CF0278-19, a First

Violation Report was filed on June 27, 2019, indicating that the Defendant failed to obey his

1 A similar Motion to Transfer to Family Court was tiled in CF0278-19 before the Honorable Maria T. Cenzon. That motion is currently under advisement.

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house arrest conditions. The Defendant was subsequently taken into custody at the Department of Youth Affairs. On July 3, 2019, at the hearing on the Return of Warrant for the First Violation Report,

defense counsel requested that the Defendant undergo a Forensic Evaluation due to a possible

mental disease or defects. On September 26, 2019, at the hearing on the instant motion, the

Defendant's mother, Elmarie Anderson, testified that the Defendant had been enrolled in special education classes up until high school. Further, Jonah Cabiles, a care coordinator at Guam Behavioral Health and Wellness Center ("GBHWC") testified that there is currently a treatment plan in effect for the Defendant and that the Defendant is in process of obtaining such treatment. Thus, in considering the first two factors above, absent any specific finding as to the Defendant's mental health status or history, the Court finds that the Defendant's delinquent criminal history and current second degree felony charges weigh against transferring the Defendant's case to Family Court. II. Circumstances of the Offense Here, the Defendant is being charged with Burglary, Criminal Trespass, Criminal Mischief, and Theft. The Court acknowledges that these charges against the Defendant are neither violent nor particularly heinous. Neither is the Defendant alleged ro have been in possession of a deadly weapon nor is he alleged to have caused bodily harm towards another person. The Court recognizes that trespass, theft, and destruction of property are indeed serious crimes and that there is a great public interest in protecting the public from burglary and theft. However, given the nonviolent nature of the alleged offenses and other circumstances, the Court finds that this factor weighs slightly in favor of decertification to Family Court.

III. Advantages of Treatment in the Juvenile System, the Defendant's History of Treatment, and Likelihood of Rehabilitation. Indeed, there are treatment programs in the Family Court, such as a theft diversion program, available to minors who commit theft crimes. However, although the therapeutic and

z No Forensic Evaluation has been filed in this matter. However, the Court notes that on September 24, 2019, a Forensic Evaluation was filed in CF0278-l9.

Page 4 of 7 Decision and Order Criminal Case No. CF0288-19; People v. Josiah James Anderson

rehabilitative focus of the juvenile system is generally preferred over the harshness of

incarceration and fines imposed in adult criminal courts, the Defendant must also demonstrate a

likelihood of rehabilitation. In other words, it is not enough that the Defendant establish that the

Family Court is preferable, but the Defendant must also convince the Court that he would avail

of such benefits and succeed.

The Court finds that the Defendant is not a suitable candidate amenable to treatment in the Family Court system. As aforementioned, in addition to the instant felony case, the

Defendant has another active adult felony case in CF0278-19, which involves similar offenses

to the offenses charged herein. Further, the Court notes that the Defendant was on pre-trial

release in CF0278-19 when the Defendant picked up the new charges in the instant felony

matter. Violation reports were also filed in both felony cases for failure to comply with his pre-

trial release conditions, that is, violating house arrest. Finally, the Defendant has a history of

services in his prior juvenile case, JDOl78-15. Although those services in JDol78-l5 might

differ from the services the Defendant would likely receive for the offenses committed in the

instant felony case, the Defendant was nonetheless afforded the care, treatment, and training

programs of the juvenile court. Since the juvenile matter closed in 2017, and despite treatment

already offered by the Family Court, the Defendant continues to find himself in trouble with the

justice system and managed to obtain two second-degree felony cases. Thus, by his actions, the

Defendant has shown that he is not amenable to obeying the law nor that he actually benefited

from any prior rehabilitation through the Family Court system. Accordingly, this factor weighs

against decertification.

r v. Security of the Public

As determined above, the charges against the Defendant are nonviolent. Certainly, the Court recognizes that the charges against the Defendant are serious crimes and that there is a

great public interest in protecting the public from burglary and theft. Further, as previously

3 In CF0278-19, the alleged incident involved multiple burglary and theft charges involving two motor vehicles. Thus, the charges therein involve a slightly similar set of facts as the instant felony matter currently before this Court.

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1 noted, the Defendant was on pre-trial release in CFQ278-19 when the Defendant was indicted in

2 the instant felony matter. Thus, considering the Defendant's history and the closeness in time

3 between the Defendant's two active felony theft cases, punishment pursuant to Title 9 Chapter 4 80 might be necessary to deter the Defendant from repeating this recent pattern of alleged

5 criminal activity. Accordingly, the Court finds that this factor weighs against transferring the

6 matter to Family Court.

7 V. Adequacy of Punishment

8 If this matter is transferred to Family Court, the Family Court would retain jurisdiction 9 over the Defendant until the Defendant turns twenty-one (21) years old. 19 GCA § 5105. The

10 Defendant is currently eighteen (18) years old. Thus, if the Court chooses to decertify the

11 Defendant, the Family Court would retain jurisdiction for a maximum of tllree (3) years. On

12 the other hand, if convicted of the greatest charge, that is, Burglary (as a Second-Degree

13 Felony), the Defendant would be subject to a minimum sentence of five (5) years without

14 suspension, with a maximum sentence of up to ten (10) years imprisonment. 9 GCA § 37.20(b).

15 The Defendant, however, may also be sentenced as a first-time offender and would receive up to

16 five (5) years imprisonment in lieu of the standard sentencing range. If convicted for the less

17 serious crimes, the Defendant could possibly serve a comparable amount of time as he would

18 spend in the Family Coup system. Therefore, in comparing the Family Court's maximum

19 jurisdiction to the possible sentence that could be imposed if the Defendant is convicted, the

20 Court finds the range is marginally proportional. Accordingly, the Court finds that this factor

21 weighs slightly in favor of decertification to Family Court.

22 Having analyzed the factors above, the Court finds that the factors taken together weigh 23 against decertification and transfer to Family Court. See 19 GCA § 5106(d) (in considering the

24 above factors, the Court shall give greater weight to the seriousness of the alleged offense and

25 the minor's history of juvenile delinquency than any other factor (emphasis added)). The Court 26 does not find that clear and convincing evidence demonstrated "that. the best interest of the

27 minor would be amenable to the care, treatment, and training programs available through the 28

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facilities of the juvenile court." Accordingly, the Defendant's Motion to Transfer [to Family

Court] Pursuant to 19 GCA § 5I06(d) is DENIED.

CONCLUSION For the reasons set forth above, the Defendant's Motion to Transfer [to Family Court]

Pursuant to 19 GCA § 5l06(d) is DE NIE D.

IT IS S0 ORDERED 1`3EC 16Zl19

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HONORABLE ARTHUR R. BARCINAS Judge, Superior Court of Guam

'SERVICE vu EIOURT sox Iacknowledgathat a copy of the original heretics placed In the

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