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4 IN THE SUPERIOR COURT @~E_GUAM Al @'f:J;UA~~-·w_
5
6 PEOPLE OF GUAM, GUAM, ) CRHVIINAL CRIMINAL CASE
CASE NO.
NO. CF0477-21
CF0477-21
)) GPD no.
GPDREPORTN0.21-23366
7 )
vs. )
8 ) ) DECISION DECISION AND
AND ORDER
ORDER RE.
9 ) MOTION MOTION TO FAMILY
TO REDUCE FAMILY
RONALD WAYNE IGNACIO AVELINO, RONALD WAYNE ) VIOLENCE CHARGE VIOLENCE CHARGE TO A
10 )) MISDEMEANOR DOB:11/21/1985 DOB: 11/21/1985 )
11 11 )
Defendant. Defendant. )
12 ) )
13 13 ___________________\) 14 1. I. INTRODUCTION
INTRODUCTION
15 15
16 This matter matter is before the Honorable Honorable Maria T. Cenzon Cenzon on
on Defendant
Defendant Ronald Wayne
17 17 Ignacio Avelino's Avelino's ("Defendant")
("Defendant")Motion
Motiontotoreduce
reduce the
the two
two counts of the
counts of the Family
Family Violence
Violence (As
(As
18 a 3rd 'd Degree Degree Felony)
Felony) charge to
to misdemeanors
misdemeanors("Motion").
("Motion"). Oral
Oral arguments the Motion arguments on the Motion were 19
20 heard heard on September 26, 2023.
September 26, 2023. The
The Defendant
Defendant was present
present with counsel
counsel Randall
Randall Cunliffe.
20
21 Assistant Attorney General Assistant Attorney GeneralLeah Leah Diaz-Aguon
Diaz-Aguon was
was present
presentfor
for the
the People
People of Guam
Guam (the
(the
22 22 "People").
"People").During Duringthe
thehearing,
hearing,Defendant
Defendantrequested
requested additional
additional time
time and
and opportunity to provide opportunity to
23 the Court with with additional support
support for his Motion.
Motion. The
TheCourt
Courttook
tookthe
thematter
matter under
under advisement
advisement
24 December 29, on December 29, 2023, pursuant pursuant toto Supreme
SupremeCourt
Courtof
of Guam
Guam Administrative 06-001 and Administrative Rule 06-001 and 25
26 CR CR 1.1 1.1 of ofthe
the Local
LocalRules theSuperior Rulesofofthe SuperiorCourt CourtofofGuam.
Guam. Having
Havingduly
dulyconsidered
consideredthe
the parties
parties'
26
27 27 briefs, oral arguments, and the arguments, and theapplicable applicablelaw,
law, the
the Court
Courtnow
now issues
issuesthe
thefollowing
following Decision
28 and Order GRANTING the Defendant's Motion.
Motion.
Decision Decision and
and Order Re.
Re. Motion
Motion to Reduce Family
Family Violence
Violence Charge
Charge to a Misdemeanor
People v.v. Avelino, CF0477-21 lino, CF0477-21
Page Page 1I of9
of 9
1 II. BACKGROUND 11. BACKGROUND AND FACTS
2 On or
or about
about September 25, 2021, September 25, 2021, one
one of
of the
the minor
minor victims, K.T.A. (DOB:
victims, K.T.A. (DOB:
3 03/24/2006), reportedtotoGuam 03/24/2006), reported GuamPolice Police Department ("GPD") that Department ("GPD") that her her father,
father, Defendant
Defendant
4 5 5 Avelino, Avelino, beat beat her
her and
and her brother, K.C.A.T. (DOB:
brother, K.C.A.T. (DOB:12/14/2007), with a· mop 12/14/2007), with mop on the the ~ight
night of
6 September 24, 2021 September 24, 2021("Victim"
("Victim" or "Victims").
"Victims"). Magistrate's
Magistrate's Con pl. Deal., Compl. Deel., Sep.
Sep. 27,
27, 2021.
2021.
7 7 During an interview interview with
with GPD
GPD officers,
officers, Victim K.T.A.
During an K.T.A. stated stated that
that she allowed two
she allowed two of her
her
8 friends to come inside the the family's
family's home
home to
to get
get out
out of
ofthe
the rain,
rain, while
while the
the Defendant
Defendant was not in
9 the home.
home. Id.
Id. But upon
upondiscovering
discovering that
thatK.
K.T.A.'s
T .A.' s friends
friends were
wereinside
inside the
the home,
home, the
the Defendant
Defendant
10 10
111 became upset and became upset instructedboth andinstructed bothVictims Victimstotoface
face and
and hold
hold the
the couch
couchin
in the
the living room
room as
as
12 12 their father strLlck themwith struck them with aa mop.
mop.Id.
Id. K.T.A.
K.T.A. also
alsoreported
reportedthat
thatthe
the Defendant
Defendanthad
had punched
punched
13 13 K.C.A.T. in in the
the stomach,
stomach, causing
causing him to
to fall.
fall. Id.
Id. Officers
Officersobserved
observedmultiple
multiple horizontal
horizontal
14 14 markings, bruises, and markings, bruises, andabrasions abrasionson
onthe
theVictims'
Victims' legs.
legs. Id.
Id.
15
The Defendant wascharged
Defendant was chargedwith:
with:(1)(1)AGGRAVATED
AGGRAVATED ASSAULT
ASSAULT (As 3rd Degree (Asa a3rd Degree
16 16
17 17 Felony); (2) Two Counts Felony); (2) of FAMILY Counts of FAMILY VIOLENCE VIOLENCE(As 3rd Degree (Asa a3rd Degree Felony);
Felony); and (3) Two
and (3)
18 18 Counts of CHILD ABUSE Counts of ABUSE(As 3rd Degree Felony).
(Asaa3rd Indictment, Oct. 14, 2021.
Felony). Indictment,
19 19 An order An order modifying the Defendant's Defendant's release
release conditions,
conditions, allowing
allowing for supervised
20 20 contact the Victims as authorized contact with the authorizedby by Child
Child Protective Services, was filed tiled on
on March
March 16,
16,
21
22 2022. The Stay-Away Order 2022. The Order was was officially
officiallylifted
liftedon
onDecember
December18,
18,2023
2023.
22
23 23 Pursuant Pursuant toto99G.C.A.
G.C.A. §
§ 30.20(b),
30.20(b the
the Defendant tiled his
Defendant filed his motion motion to
to reduce his family
reduce his family
24 24 violence felony violence felony charge charge to
to aa misdemeanor
misdemeanor on August 11, 2023.The 11, 2023. The People
People filed
filed its Opposition
25 to the Defendant's Motion Motionon
onAugust
August18,
18, 2023,
2023, arguing
arguing that the
the Defendant
Defendant does
doesnot
notqualify
qualify for
26 26 this reduction reduction due
dueto
tobeing
being aarepeat
repeatoffender.
offender.The
The Defendant
Defendantthen
thenfiled
filed aaReply
Reply to
to the
the People's
People's
27 27
28 Opposition on on August
August 22,
22, 2023,
2023, rebutting the Defendant's repeat offender rebutting the offender status status and alleging
Decision Decision and Re. Motion and Order Re. Motion to Reduce Family Violence Violence Charge
Charge to
to aa Misdemeanor
People People v.
v. Avelino,
Avelino, CF0477-21
CF0477-21
Page 2 of9
of
1 that the the People have included expunged expunged information
information within
within their
their Opposition.
Opposition.The
The Court
Court will
will
2 . . .
now analyze whether aa reduction of the the Defendant's Famlly
Family Vlolence
Violence charge to a
3 misdemeanor is appropriate.
appropriate.
4 4
5 III.DISCUSSION
6 Under Under 9
9 G.C.A.
G.C.A. §§30.20(b),
30.20(b), the
the Court
Court has
has discretion
discretion to
to determine
determine whether
whether a
a Family
Family
7 7 Violence Violence felony felonycharge
chargeshall
shallproceed
proceedas
as aa misdemeanor
misdemeanor upon
upon the Defendant's written motion 8 with notice, given given before
before the
the commencement of the
commencement of the trial, as long as the the charge
chargefor
for Third
Third Degree
9 Family Family Violence Violence was
was not
not brought under99G.C.A.
brought under G.C.A. §§ 30.20(a)(3).
30.20(a)(3).
10
11 11
9
9 G.C.A.
G.C.A. §§ 30.20(a)
30.20(a) states:
states:
12 12 (a) Any Anyperson
person who
who intentionally,
intentionally, knowingly, knowingly, oror recklessly recklessly commits
commits anan act
act of
family family violence,
violence, asas defined
defined in
in §§ 30.10 of this
30.10 of this Chapter,
Chapter, isis guilty
guilty of
of aa
13 misdemeanor, or of misdemeanor, or of a third degree degree felony, and shall be sentenced and shall sentencedasasfollows:
follows:
14 14 (1) 1) for
forthe
the first
firstoffense,
offense,the thecourt
courtshall
shall impose
impose aa sentence
sentence of
ofno no less
less than
than
15 15 forty-eight forty-eight (48)
(48)hours
hours imprisonment,
imprisonment;
(2) for
for the
the second
second offense,
offense, the
the court
court shall
shall impose
impose aa sentence
sentence of no no less
less
16 16 than thirty
thirty (30) days
days imprisonment,
imprisonment; and and
17 17 (3) for for the
the third
third offense,
offense, the
the offense
offense shall
shall be
be classified
classified as
as aa third
third degree
degree
felony andand the court shall shall impose
impose a sentence
sentence ofof no
no less than
than oneone (1)
(1) year
18 18 imprisonment.
imprisonment. The The person, person, upon
upon conviction,
conviction, shall
shall be
be termed
termed a "repeat
"repeat
offender" offender" and and may
may be be subject
subject toto extended
extended terms
terms pursuant
pursuant toto §§ 80.38
80.38 of of
19 19 Article 2, Article 2, Chapter
Chapter 80 80 ofof this
thisTitle.
Title.
20 20 Here, Here, the
the two counts
counts of the Defendant's Family Violence felony charge Defendant's Family charge were only only
21 22 brought under 9 brought under 9 G.C.A.
G.C.A. §§30.20(a)
30.20(a) generally,
generally, not
not specifically
specificallyunder
undersubsection
subsection (a)(3).
(a)(3).
22
23 23 Although the the charge
charge was not
not filed
filed under
under this
this subsection,
subsection, the Court
Court has
has the
the discretion
discretion on
24 24 whether to proceed with with reducing
reducing the
the felony
felonycharges
chargestotomisdemeanors
misdemeanors.
25 25 A. A. The
The factors
factors under
under 99 G.C.A.
G.C.A.§ §30.20(c)
30.20(c) weigh
weigh in
in favor
favor of
ofreducing
reducing the
the
26 26 Defendant's Family Family Violence
Violence charge
charge to a Misdemeanor.
27 27 In In determining whether to to allow a Family Violence Violencecharge
chargeto
toproceed
proceedas
as aa misdemeanor
misdemeanor
28 rather than than aafelony,
felony, the
the Court must
must consider
consider the
the following factors::
following factors
Decision Decision and
and Order Re.
Re. Motion
Motion to
to Reduce Family
Family Violence
Violence Charge
Charge to a Misdemeanor
People v.v. Avelino, CF0477-21 Aveline, CF0477-21 Page of Page 3 of9
§§ 30.20(
30.20(c). Family Violence.
c). Family Violence.
2 (b) (b) In
In determining
determining whether
whether aa felony
felony charge
charge filed
filedpursuant
pursuant to
to this
this §§ 30.20,
30.20, other
other
3 than than aa felony
felony charge
charge filed
filed pursuant to §
pursuant to § 30.20(a)(3), 30.20(a)(3), should
should bebe reduced
reduced toto aa
misdemeanor, misdemeanor, thethe court courtshall
shallconsider
considerthe
thefollowing
following factors, among others:
others:
4
(1) the
the extent
extent or
or seriousness
seriousness ofof the victim's injuries, injuries;
5 (2) the
the defendant's
defendant's history
history of violence
violence against
against the
the same
same victim
victim whether
whether
6 charged or or uncharged, uncharged;
(3) (3) the
the use
use of
ofaa gun
gun or
or other
other weapon
weapon by the
the defendant,
defendant;
7 (4) 4) the
the defendant's history, defendant's prior criminal history;
8 (5) (5) the
the victim's
victim'sattitude
attitude and
and conduct regarding the incident;
incident,
(6) the
the involvement
involvement ofofalcohol
alcoholororother
othersubstance,
substance, and
and the
thedefendant's
defendant's
9 history of ofsubstance substance abuse as reflected abuse as reflected in
in the
the defendant's
defendant's criminal history and other sources,
sources; and
10 10 (7) (7) the
the defendant's
defendant's history ofofand and amenability to counseling.
11 11 Moreover, Moreover, in in ruling
ruling on
on Defendant's
Defendant's Motion,
Motion,the
theCourt
Courtshall
shall assume
assume all allegations set forth in 12 the Indictment the Indictment and and Magistrate's
Magistrate's Complaint
Complaint and
and accompanying
accompanying Declaration
Declaration as
as true.
the. The Court
Court
13 13
14 14 will now will now address address each factor in tum.
tum.
15 15 1.
1. The
TheExtent
Extentor
orSeriousness
Seriousness of the Victim's Victim's Injuries.
16 For the first factor,
the first factor, GPD
GPD Officers
Officers observed
observed that
thatthe
thetwo
twoVictims
VictimsK.T.A.
K.T.A. and
andK.C.A.T.
K.C.A.T.
17 17 markings and bruising
had multiple horizontal markings bruising on the fronts and backs of both thighs, of both thighs, slight
slight
18 18 19 abrasions on some abrasions on some of of these markings, bruising on her right wrist, and markings, bruising redness on both and redness both of
of her
19
20 20 shins. Magistrate's Comal.
shins. Magistrate Comp!. Deal., Deel., Sep.
Sep. 27, 2021. When the Defendant Defendant was interviewed about about
21 21 the the incident, he indicated that incident, he that this this "disciplining"
"disciplining" occurred
occurred in
in the
the kitchen
kitchen area
area and
and lasted
lasted for
22 22 three hours.
hours. Id.
Id. K.T.A. demonstrated
demonstrated toto GPD
GPD officers that,
that, during
during these three
three hours,
hours, the
23 23 Defendant had beaten Defendant had beaten them them with
with the
the mop.
mop. Id. K.T.A. also
also reported
reported that the
the Defendant
Defendant
24
z5 25 continued continued to beat them, to beat them,kicking
kickingboth
boththeir
theirshins
shinsand
andsaying,
saying,"I'll
"I'll use
usemy
my forceful
forceful leg
leg on you
26 guys" and and "I'11 break both
"I'll break both your
your legs."
legs." Id. She
She reported
reported at
at one
one point
point that
that he had lifted her chin 27 27 and stated, stated, "I "I can kill you."
you."She
Shealso
alsoreported
reportedthat
thatthe
theDefendant
Defendantslapped
slappedher
her so
so much
much that
that her
28 28 Id K.T.A.
"ears were ringing." Id K.T.A.also alsoreported
reportedthat
thatthe
theDefendant
Defendant punched
punched her
her brother
brotherK.C.A.T.
K.C.A.T.
Decision Decision and Order Re.
Re. Motion
Motion to Reduce Family
Family Violence
Violence Charge
Charge to a Misdemeanor
People v. Avelino, People CF0477-21 Aveline, CF0477-21 Page Page44 of9
of 9
1 in the stomach, which caused him to fall. Id. Moreover, in addition to the physical harm, there 2 the incalculable is the incalculable injury injury to
to the
the childrens'
childrens' emotional
emotional wellbeing.
wellbeing. Therefore,
Therefore, the extent
extent or
or
3 seriousness of the the Victims'
Victims' injuries weighs against granting the Defendant's Motion.
4
5 TheDefendant's
2. The Defendant's History History of
of Violence
Violence against
against the
the Same
Same Victim
Victim Whether
Whether
Charged or Uncharged.
6 The Defendant has no criminal history history of
of violence
violence against either of the Victims. And 7
8 there there has been no no information
information provided to the Court Court about
about any
any uncharged
uncharged violence
violence against
against
9 them. Therefore, Therefore, the
the absence
absence of
of the
the Defendant's
Defendant's violent history against both Victims weighs in
10 10 favor of granting the Defendant's Motion.
11 11 TheUse
3. The UseofofaaGun
Gunor
orOther
Other Weapon
Weapon by
by the
the Defendant.
12 12 The Defendant used the handle of a mop to strike both of the minor Victims during the .
13 13
14 Magistrate's Con pl. Deal., Compl. Sep. 27,
Deel., Sep. 27, 2021.
2021. Although
Although not
not inherently
inherently aa deadly
deadly weapon,
weapon, K.T.A.
15 15 demonstrated to to GPD officers
officers that the Defendant had beaten them with a mop handle, using a 16 downward diagonal swing downward diagonal swing motion motion that
that was
was similar
similar to
to swinging
swinging a bat. Id. As a result bat. Id. result of
of the
the
17 17 Defendant's use of the Defendant's use the mop mop as
as a aweapon
weaponagainst
againstthe
theminor
minorchildren,
children,injuries
injuries resulted.
resulted.
18 18
Therefore, the Defendant's Therefore, the Defendant's use use of a mop handle as
as aa weapon
weapon against
against the
the minor
minor children
children for
19 19
20 20 three hours weighs against the Defendant's Motion.l1
21 21 4. The TheDefendant's
Defendant'sPrior
Prior Criminal
Criminal History.
History.
22 22 Defendant's criminal
criminal history includes includes CM0488-11.
CM0488-l The Defendant's assertion assertion that the
23 23 People have included included expunged
expunged information
information in its
its Opposition
Opposition isis erroneous.
erroneous. In
In CM0488-11,
CM0488-11,
24 24
25 25
26 26 11 See Seethis this Court's
Court's decision
decision in in People of Guam v.
~/Guam v. Bryan K. Mattheus, Criminal Case Matheus, Criminal CaseNo.
No. CF0281-21,
CF028l-21, Decision and
27 Order:
Order: Def's Def's Mot.
Mot. toto Reduce
Reduce Family
Family Violence Charge to Violence Charge to aa Misdemeanor Misdemeanor at at pp.
pp. 4-5,
4-5, fn.
fn. 11 (Dec.
(Dec. 9,
9, 2021)("The
2021)("The
Court has already already determined
determined that,
that, based
basedupon
uponthe
theallegations
allegationsin in the
the Magistrate's
Magistrate's Complaint,
Complaint, an an officer observed observed
28 swelling and and bruising under the Victim's Victim's eye,
eye, swelling
swelling on on the
the back
back ofofher
herhead
head and
and her
her jaw,
jaw, and
and observed
observed the
Victim placing Victim placing ice ice on
on her
her hand.
hand ..... Thus, while
while the Court finds
the Court finds that
that the
the manner
manner in which
which the
the mop
mop and
and cellphone
used against
were used against the theVictim
Victim in this case doesnot case does notrise
riseto
to the
the level
level ofof a "deadly
"deadly weapon," the Court finds that the
Decision Decision and
and Order Re.
Re. Motion
Motion to Reduce Family
Family Violence
Violence Charge
Charge to a Misdemeanor
People v.v. Avelino, CF0477-21 Avelino, CF0477-21 Page 5 of
of9
1 Defendant Avelino Defendant Avelino pled pledGUILTY
GUILTY to FAMILY VIOLENCE to FAMILY VIOLENCE(As
(Asa Misdemeanor)2
a Misdemeanor)2 which
which ·
2 . . .
resulted ininaaJUDGMENT resulted JUDGMENT OF OF CONVICTION for thls
CONVICTION for this come. See, Judgment (March crime. See, (March 14, 14, 2012).
2012).
3 3
The victim victim in in CM0488-11
CM0488-11 is
is his
his co-defendant
co-defendant in this case, Krystal this case, Krystal Lyn
Lyn Aguon Takai.
Takai. Plea
4
5 5 at 2. That case
Agreement at case was closed, not dismissed and and expunged
expunged as
as alleged in his
his Reply to
6 Gov 'f's Opp.
Gov 't's to Def Opp. to Mot. to
Def Mot. to Reduce
Reduce Family
Family Violence
Violence Charge
Charge to
to aa Misdemeanor
Misdemeanor Pursuant
Pursuant to
to 9
7 Section 30.20(7J).
GCA Section 30.20(b). See See Order
Order for Closure (Jan.
for Closure (Jan. 24,
24, 2013).
2013). This Court
Court may,
may, therefore,
therefore,
8 consider this prior prior conviction
conviction in ruling
ruling upon
uponDefendant's
Defendant's Motion.
Motion.
9 The Defendant completed counseling counseling in 2012
2012 for
for CM0488-11;
CM0488-11, however, nine
nine (9) years
years
10 10
11 later, he later, he is is charged
charged with
with Family
Family Violence Degree Felony)
Violence (as a Third Degree Felony) upon upon his
his minor
minor children,
children,
12 12 begging the the question
question of
ofeffectiveness
effectiveness and
and resoluteness
resoluteness of
ofhis
his prior
priortreatment,
treatment, including
including his
his
13 1 current treatment as current treatment as submitted submittedtoto the
the Court
Court under
under seal
seal for its
its consideration. Submission of consideration. Submission of 14 Under Seal
Documents Under Seal (Oct.
(Oct. 4,
4, 2023).
2023). Despite
Despite this
this prior
prior criminal history,
history, however, Defendant 15 15
is not ineligible for for probation,
probation, as
as Section
Section 30.20(h)
30.20(h) provides
provides as
asfollows:
follows:
16
17 Probation shall Probation shall not be granted for any person convicted under Subsection (a) (a) of
ofthis § 30.20
this§ 30.20 who
who previously
previously has
has been
been convicted of two (2) or or more
18 18 violations of of such
such Subsection
Subsection (a)
(a) for offenses that occurred within seven (7) years (7) ofthe
years of the most recent conviction.
conviction.
19 19
20 20 Thus, although Thus, althoughthe theDefendant's
Defendant'sprior
priorcriminal
criminalhistory
historyfor
for family
family violence is concerning concerning to the
21 Court, Court, 9 9 GCA
GCA §30.20(h)
§30.20(h)does
doesnot
notbar the Defendant
barthe Defendant from
from participating
participating in
in probation
probation due
due to
to the
the
22 conviction which occurred single conviction occurred more more than
thanseven
seven(7)
(7) years
years ago. This factor
ago. This factor weighs in favor 23 23 of granting gr granting Defendant's Defendant's Motion.
Motion.
24
25
26 26
27 mop and cellphone were used used asasweapons
weaponstotocause
causesomesomephysical
physicalinjury
injurytotothe
thealleged
allegedvictim.
victim. This
This factor weighs
28 against granting themotion.")(citing motion.")(citingDavis
Davisv.v.State,
State, 945 A.2d 1167
945 A.2d (Del. 2008)).
1167 (Del.
2 2 SeePlea See Plea Agreement (Feb. 29, 29, 2012).
2012).
Decision Decision and
and Order Re.
Re. Motion
Motion to Reduce Family
Family Violence
Violence Charge
Charge to a Misdemeanor
People v.v. Avelino, CF0477-21 Avelino, CF0477-21 Page Page 6 of9
TheVictim's
5. The Victim'sAttitude
Attitudeand
andConduct
ConductRegarding
Regardingthe
the Incident.
Incident.
2 Both minor Both minor children
children Victims
Victims have
have been
been reunited
reunited with
with the
the Defendant since 2023.
2023. During
3 a Motion Motion Hearing Hearing before
before Magistrate
Magistrate Judge
Judge Quan, the Stay-Away Order Quan, the Order was lifted lifted without
without
4
5 objection from objection the People, firm the People, the
the Victims'
Victims' Guardian-Ad-Litem, Guardian-Ad-Litem, or
or Child
Child Protective
Protective Services,
Services,
6 6 allowing the the Defendant
Defendant and the
the Victims to have
have contact. Ord. Mod
contact. Old Mod. Release Release Cond.,
Cord, Dec. 18,
18,
7 7 2023. The Defendant 2023. Defendant also provided provided information
information that
that he has
has completed family counseling counseling with
8 the the co-defendant andVictims co-defendant and Victims in in a related matter in
related matter in family family court. Therefore, the court. Therefore, the Victims'
9 attitude and and conduct
conductregarding
regarding the
the incident
incident weighs
weighs in favor of the Defendant's Motion.
10 10
11 11 TheInvolvement 6. The .ofalcohol Involvement.of alcohol or orother
othersubstance,
substance, and
and the
the defendant's
defendant's history
substance abuse of substance abuse as
as reflected
reflected in defendant's criminal in the defendant's history and criminal history
12 12 sources other sources
13 13 There is
is no
no indication
indication that
that the Defendant was under Defendant was under the
the influence
influence of
of alcohol
alcohol or any
any
14 illegal substance at the substance at the time
time of
of the incident. Therefore, no incident. Therefore, no evidence of ofthe
the Defendant
Defendant being
being
15 15 16 under the the influence
'influenceof
of alcohol
alcohol or illegal
illegal substances
substances weighs in favor of the the Defendant's
Defendant's Motion.
Motion.
16
17 17 TheDefendant's 7. The Defendant's History Historyof
ofand
and Amenability
Amenability to
to Counseling.
Counseling.
18 18 The Defendant Defendant has stated that he stated that he is
is progressing
progressing in counseling counseling for the
the above-captioned
above-captioned
19 19 matter. And matter. the Defendant And the Defendant previously previously completed counseling counseling in his
his prior
prior case
case CM0488-11.
CM0488-11.
20 Letter from Letter Services and from Client Services and Family Counseling Division, Family Counseling Division, Judiciary of of Guam
Guam (Aug.
(Aug. 15,
15,
21
22 2012).
2012). Therefore, the the Defendant's history
history of
ofand
and amenability
amenability to counseling weighs in favor of 22
23 the Defendant's Motion.
Motion.
24 Based on the analysis
analysis of all seven
seven factors,
factors, and
and most notably the successful successful reunification
25 of the family ofthe familyand and attitude
attitude of
ofboth
both children
children Victims
Victimsas
as provided
providedby
bythe
theDefendant
Defendantunder
under seal,
seal, the
the
26 26 Court finds Coult finds that that it is
is appropriate
appropriate to GRANT Defendant's Motion T Defendant's Motion to
to reduce
reduce both
both counts
counts of the
the
27 27
28 28 Defendant's felony charge charge of Family Violence Violence to
to misdemeanor Family Violence.
misdemeanor Family Violence.
Decision Decision and
and Order Re.
Re. Motion
Motion to Reduce Family Violence Violence Charge
Charge to aa Misdemeanor
People People v. Ave/ino, CF0477-21 Avelino, CF0477-21 Page Page 7 of9
of 9
B. B. The
The People
People of
of Guam
Guam did
didnot
notviolate
violate 99G.C.A.
G.C.A.§ §
70.440
70.440regarding
regarding their
their
reference to the Defendant's prior case.
Defendant's prior case.
2
3 Under Under 9
9 G.C.A.
G.C.A. §§ 70.440,
70.440, aa person is guilty person is guilty of
ofaa misdemeanor
misdemeanor if they
they permit
permit to be
4 4 made public or made public or reveals reveals to
to any
any person
personnot the Court, official record of the
any official
review itit any
entitledtotoreview
notentitled
5 5 Attorney Attorney General, General, or
or any
any other
other entity
entity of
ofthe
the government ofGuam,
governmentof whichhas Guam, which been expunged in has been
6 accordance with § 271 accordance with§ 271of of the
theCode
Codeof
of Civil
Civil Procedure or Chapter Procedure or Chapter11
11of
ofTitle
Title 88ofG.C.A.
of G.C.A.
7
8 The Defendant
Defendant argues
argues that disclosed the the People disclosed
that the Defendant's expunged the Defendant's criminal expunged criminal
9 9 matter in their matter in Oppositionto their Opposition to the
the Defendant's
Defendant'sMotion.
Motion. Reply
Reply to Opp., Aug.
to Gov. Opp., Aug. 22, 2023.
22, 2023.
10 However, However, as as discussed
discussed above,
above, no expungement was included expungement was the Defendant's included in the Plea Defendant's Plea
11 11 Agreement in in CM0488-11. While the People's CM0488-l l. While reference to People's reference Defendant as to Defendant "repeat offender"
as a "repeat offender"
12 12 in in its its Response Response is
is inaccurate under99 GCA inaccurate under GCA §30.20(3)
§30.20(3) defining
defining a
a family
family violence
violence "repeat
"repeat
13 13
14 14 offender," offender," this this characterization doesnot characterization does not invoke invoke the
the criminal
criminalprovisions
provisionsof
of 99 GCA
GCA §§ 70.440.
70.440.
15 15 Moreover, under Moreover, GCA§§30.80 under 99 GCA 30.80 (which (whichisisnot
notinvoked
invokedhere,
here,but
but which
which is
is instructive
instructive under
under the
the
16 16 . . . . . .
entire Family Actstatutory ViolenceAct
Famlly Vlolence scheme),the statutoryscheme), Courtisis permitted theCourt to consider permitted to such deferred consider such
17 17 pleas as "prior offense"
as a "prior offense"in
inthe
theapplication
application of
ofminimum
minimumsentences
sentences (Le.
(i.e. whether
whether defendant
defendant is
18 18 subject to a felony felony or
or misdemeanor See, 99 GCA misdemeanor sentence).See, GCA §30.80 §30.80 ("Offenses
("Offensesdismissed
dismissed under
under
19 19
20 20 this Section Section and/or underaafamily and/or under familyviolence shall count as violence diversion program shall prior offenses as prior offenses in
21 the application of ofminimum
minimum sentences under
underthis
thisChapter.").
Chapter.").
22 22 In In any
any event, the Court finds that the the People did
did not reveal any
any expunged
expunged information
23 23 of of the the Defendant, Defendant, but by reference to to the
the People's
People'scomments
commentsand
and the statute expunging prior the statute
24
25 family violence violence deferred
deferred pleas,
pleas, Defendant
Defendant himself
himselfmay
may have
have revealed
revealed that information in that information this in this
26 public record.
record.
27 27 II // 28 28 II/ /
Decision Decision and Re. Motion and Order Re. Motion to Reduce Family Violence Violence Charge
Charge to
to aa Misdemeanor
CF0477-21
People v. Avelino, CF0477-21 Page 8 of9
of
1 Iv. CONCLUSION IV. CONCLUSION
2 For the reasons
reasonsset
setforth
forthherein,
herein,the
theCourt
Courthereby
herebyGRANTS
GRANTS the
the Defendant's Motion to 3 reduce the two reduce the two counts countsof
ofFamily
Family Violence
Violence (As 3rd Degree (As aa 3rd DegreeFelony)
Felony) charge
chargeto
to Family
Family Violence
Violence
4
5 (Misdemeanor).
6 The Court shall issue trial dates of of this
this matter
matter under separate
separatecover.
cover.
7 ORDEREDthis SO ORDERED 28 th day this28th day of
ofMarch, 2,974.~: --
March,2QZQ. ·::_·:_ · 8 L /_
9
10 10 BLE MARLXIR CENZON Judge uperibr Court Of Guam 11
12 12
13 13
14
15
16 16
17 17
18 18
19 19
20 20
21
22 22
23 23
24
25 25
26 26
27 27
28 28
Decision Decision and
and Order Re.
Re. Motion
Motion to
to Reduce Family Violence Violence Charge
Charge to a Misdemeanor
CF0477-21
People v. Avelino, CF0477-21 Page of Page 9 of9