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14
2
3 3 8?8?'§?£iG?f SUPERIORQQUIZQK'
COURT mf OFGl.§?€a~§ GUf\.J,.-q 4
5 IN IN THE THE SUPERIOR SUPERIOR COURT COURT OF GUAM 6 ) CRIMINAL CRIMINAL CASECASE NO. CF0014-23 7 1 PEOPLE OF GUAM, ) GPD GPD Report No. 23-00397 23-00397 )
8 vs. )
)
9 ) DECISION DECISION & ORDER )) RE. JOINDERS JOINDERS IN IN MOTION MOTION FOR 10 SANDERAWENY, AWENY, )) DECERTIFICATION DECERTIFICATION AND AND TRANSFER DOB: DOB: 10/21/2006 10/21/2006 TO FAMILY COURT 11 11 ALAS ONICHY, JEREMALAS )
DOB:
)
DOB: 05/28/2006 05/28/2006 12 12 ))
Defendant.
)
13 Defendant. ) 14 I
15 15 This matter came camebefore before the theHonorable Honorable Alberto Alberto E. Tolentino Tolentino on on February February 7 and March 12 16 0f2024, of2024, throughjoinders throughjoinders filed filedby byDefendant Defendant Sander Aweny ("Defendant Sander Aweny ("Defendant Sander") and Defendant 17 Jerem Alas Jerez AlasOnichy Onichy("Defendant ("DefendantJerem").
Jerem"). The The court court held held aa Motion Motion Hearing Hearing on on March March 12, 12, 2024, 2024, 18 18 19 addressoral to address oral arguments argumentsfor forthe themotion motionthe theDefendants Defendantsjoined:
joined:Defendant DefendantAlex AlexAweny'
Aweny's Motion s Motion 19
20 for Decertification Decertificationand and Transfer Transfer to to Family FamilyCourt.
Court.At Atthe thehearing, hearing, the the court court took tookthe the matter matter under
21 advisement pursuant to advisement pursuant to Supreme SupremeCourt Courtof ofGuam GuamAdministrative Administrative Rule Rule 06-001, 06-001, CVR CVR 7.l(e)(6)(A)
7.I(e)(6)(A)
22 and CR 1.1 1.1 of of the Local Local Rules of the Superior Court of of Guam.
Guam.
23 23 On August 6, 2024, 2024, the thecourt court granted grantedDefendant DefendantAlex AlexAweny'ss Motion Motion for for Decertification Decertification 24 24
25 and Transfer Transfer to to Family Family Court without ruling ruling on on the joinders jointers for forDefendant DefendantSander Sander and and Defendant
26 26 Jerem. Having duly considered Jerem. Having considered the parties' briefs, oral oral arguments, arguments, and the applicable law, the 27 court now issues issuesthis thisDecision Decision and andOrder OrderDENYING DENYING Defendant Defendant Sander Aweny's and Sander Aweny's and Defendant 28 Jerem Alas Onichy's Jerem Alas Onichy's Decertification Decertification and and Transfer to Family Court.
Court.
Decision& Decision Order Joindersin Order Re. Joinders inMotion Motion forDecertification andTransfer Transferto toFamily FamilyCourt Peoplev.
v. Aweny &&Onichy, Onichy, CF0014~23 CF0014-23 Page Page 1of 1 11 ll
BACKGROUND l
2 Based on events that that occurred occurred on on or or about about January January4, 2023, Defendants Jerem Jerem Alas Alas Onichy Onichy
3 and SanderAweny and Sander Aweny were were charged chargedwith withthe thefollowing followingoffenses:
offenses:(1)
(1)ATTEMPTED ATTEMPTED HOME HOME 4 .
INVASION(As INVASION (AsaaFirst First Degree Felony);
Felony); (2)
(2) ATTEMPTED BURGLARY(As ATTEMPTED BURGLARY (AsaaSecond Second Degree Degree 5 Felony); (3) CRIMINAL Felony); (3) CRIMINAL MISCHIEF MISCHIEF (As (As aa Third Third Degree Degree Felony), Felony); and (4) CRIMINAL and (4) CRIMINAL 6
7 MISCHIEF MISCHIEF(As Misdemeanor). 1kxdictment (AsaaMisdemeanor).I Indictment (Jan.
(Jan. 13, 13, 2023).
8 On January 22,2024, January 22, 2024,Defendant Defendant AlexAweny Alex Aweny("Defendant ("DefendantAlex")
Alex") filed filed a Motion for
9 Decertification Decertificationand and Transfer Transfer to Family Court ("Motion").
("Motion"). On OnFebruary February7,7,2024, 2024, Defendant Defendant Sander Sander IO 10 filed filed his jointer in his joinder inthe the Motion, Motion, arguing arguing that "virtually "virtually every every point point made in in Alex's Alex's Motion Motion applies applies II with equal with force to equal force to him."
him." Joinder Joiner (Feb.
(Feb.7,7,2024). Afterhearing 2024). After hearing oral oral arguments on the arguments on the Motion Motion on on 12
13 13 March March 12, 12, 2024, 2024, the the court court then then took tookthe the matter matterunder under advisement.
advisement. That That same same day, Defendant
14 14 Jerez filedhis erem filed his jointer joinderininthe theMotion, Motion,arguing arguingthat that "the "thefacts facts in in his his case case closely closely resemble resemble those those 15 15 that areset setout outininsaid saidmotion."
motion."Joinder Joiner (Mar.
(Mar. 12, 2024).
that are 12, 2024).
16 On August 6, 2024, court issued 2024, the court issued its its Decision Decision and and Order Order granting granting the the Motion Motion and 17 17 transferred Defendant transferred Defendant Alex Alex to Family Family Court.
Court. However, However, the the court court did did not notaddress address whether whether the the 18
19 transfer to Family Family Court Court would wouldalso alsobe begranted granted for forDefendants DefendantsSander Sanderand and Jerem.
Jerem. On October 9,
20 2024, Defendant Sander 2024, Defendant Sanderrenewed renewedhis hisMotion Motion for for Decertification and Transfer to and Transfer to Family Court.
21 The People subsequently subsequently filed filed its Opposition to Defendant Sander's renewed renewed Motion Motion on on October 22 22 22, 2024.
23
24 24 \\\ 25 25 \\ \\
26 26
27 27 I1 Defendant Defendant Sander Sanderwaswasonly onlycharged with charged ATTEMPTED with ATTEMPTEDHOME INVASION (As HOME INVASION Degree Felony)
FirstDegree (AsaaFirst Felony) and and 28 ATTEMPTEDBURGLARY ATTEMPTED BURGLARY (As (As a Second a Second Degree Degree Felony) as as Felony) listed listed as as chargesfive charges fiveand andsix sixininthe theIndictment.
Indictment.
Indictment (Jan. Indictment (Jan. 13, 13, 2023).
2023).
Decision & Order Order Re.
Re. Jointers Joinders in Motion for for Desertification Decertification and Transfer Transfer to Family Court Court People v. Aweny & Onichy, Onichy, CF0014-23 CF00l4-23 Page 2 o f ll Page2ofll
DISCUSSION l
2 In In deciding deciding whether to transfer Defendants Sander Sander and andJerem Jerez to to Family Family Court, 19 GCA
3 5106 guides §§ 5106 guides the thecourt's court's decision decision to to do do so asitit did so as did for for Defendant Alex. The Defendant Alex. The statute statute states in states in 4 relevant part:
part:
5 (a) AAchild childwho whoisissixteen sixteen(16) (16)years yearsofofage ageororolder olderatatthe the time time he he committed committed the 6 offense offense forforwhich whichhe he isis charged charged shall automatically automatically be be charged charged as an an adult adult for for any actact which would constitute a felony of the first or second felony of the first or second degreedegree along 7 7 with any actsacts which are misdemeanors misdemeanorsor or felonies felonies ofof the third degree which s8 are part of the same scheme of criminal activity of the same scheme of criminal activity as the as the felony.
felony. If If a child is under sixteen sixteen years ofof age age at the time he committed committed the the offense offense for for which he 9 is charged, and if the charged, and the conduct conduct would constitute constitute an an offense under under 9 GCA 10 Chapter Chapter 16 16 (Homicides), (Homicides), and and if if the court after full investigation investigation deems deems it contrary to the best best interest interestof ofsuch suchchild childororof ofthe thepublic publictotoretain retainjurisdiction, jurisdiction, 11 11 the court may,may, in in its its discretion, discretion, certify certify such such child child for proper proper criminal criminal proceedings to to any any court court which which would would have have trial trial jurisdiction jurisdiction ofofsuch such offense 12 ififcommitted committed by an adult.
13 13 19 19 GCA GCA §§ 5106(a).
5106(a). In In this this case, case, both both Defendants Defendants were were automatically automaticallycharged chargedas as adults, adults, because because 14 they were both sixteen at the time of the the offenses.
offenses. To To grant both both Defendants' transfer to Family 15
16 Court, the court must now determine, determine, based on clear and convincing evidence, evidence, whether the best
17 interests interests of Defendants Defendants Sander and Jerem would be be amenable amenable to to care, care, treatment, treatment, and and training training 18 18 programs offered in in the the juvenile juvenile justice justice system.
system. To do so, the court must must balance balancethe thefollowing following 19 factors : factors:
20
(d) Notwithstanding Subsection(a)
Notwithstanding Subsection (a)ofof this this Section, Section, onon motion motion of either either the the 21 21 prosecutor prosecutor or or defendant, defendant, or or sue sua sponge sponte by by the the Court, the the complaint complaint or 22 indictment may transferred to may be transferred to the thejurisdiction jurisdiction of the Family Court upon a finding finding based based on on clear clear and and convincing convincing evidence evidence that the best interest interest of of the 23 23 minor would would bebe amenable amenable to to the the care, care, treatment, treatment, and and training training programs programs available available through the facilities of the juvenile court based facilities of the juvenile court based on an evaluation an evaluation ofof 24 following:
the following:
25 (1) the the age of the minor;
minor, (2) the the history of of the minor, including:
26 (A)
(A) any previous delinquent delinquent or or criminal criminal history of the minor;
minor, 27 (B) (B) any any previous previous abuse or or neglect neglect history history of the minor;
minor, and (C) any any mental mental health, health, physical physical or or educational history of educational history of the the 28 minor, or a combination of these minor, or a combination of these factors; factors,
Decision & Order Order Re.
Re. Joinders in Motion Joinders in Motion for for Desertification Decertification and and Transfer Transfer to Family Family Court Court People v.v.Aweny& People Aweny &Onichy, CF0014-23 Vichy, CF0014-23 Page Page 3 of 111I
(3) the the circumstances circumstances of of the the offense, offense, including:
l (A) (A) the seriousness seriousness of of the the offense;
offense, 2 (B) whether the minor minor is charged charged through through accountability;
accountability, (C) whether whether there there is is evidence evidence thethe offense waswas committed committed in in an 3 aggressive and premeditated manner, manner;
(D) whether there is evidence evidence the the offense offense caused causedseriously seriously bodily bodily 4 harm; and 5 (E) whether there (E) whether there is evidence evidence the minorminor possessed possessed a deadly deadly weapon, weapon;
6 (4) the the advantages advantages of of treatment treatment within the the juvenile juvenile justice justice system, system, including, whether there including, whether there areare facilities facilities or programs, programs, or both,both, 7 7 particularly particularly available available inin the juvenile system, the juvenile system;
8 (5)
5) whether whether the the security ofof the the public public requires requires sentencing under Title sentencing under Title 9, Chapter 80 of the Guam Code Annotated;Annotated, 9 (6)
6) the the minor's minor's history history of ofservices, services, including the minor's willingness 10 to participate meaningfully in available available services, services;
lO (7) whether there is a reasonable whether there likelihood that the minor can reasonable likelihood can be II 11 rehabilitated before the rehabilitated before the expiration expiration of of the the juvenile juvenile court's court's jurisdiction, jurisdiction; and 12 (8) the the adequacy adequacy of ofthe the punishment or services.
13 13 In considering considering these factors, the these factors, the court court shall shall give give greater weight to the the 14 14 seriousness seriousness ofof the the alleged alleged offense and thethe minor's prior record of of delinquency delinquency than to to the the other other factors factors listed listed in this Subsection.
Subsection.
15
16 16 19 GCA § 19 GCA § 5106(d).
5106(d).
17 (1)
(I) Age of the the Minor Minor 18 18 As to the first factor, the the court must review the age of the minor when considering whether 19 it falls in in favor favor of oftransfer transfer to to Family Family Court.
Court. Although Although both both Defendants are currently Defendants are currentlyeighteen eighteen(18)
(18)
20 20
years years old, both were sixteen (16)
(16) years years old at the time of ofthe the offenses offenses in in this this case.
case. The court 21
22 22 previously previously held held that that Defendant Alex's Alex's age age at the time of the offense weighed weighed in in favor favor of transfer
23 to Family Court.
Court. Decision Decision and and Order at 4 (Aug. 6, 2024).
2024). Defendant Jerem Jerez was born bam five five months months 24 24 earlier than Defendant Defendant Sander Sanderwho whoisisDefendant DefendantAlex's Alex's twin brother, which means means they were all all 25
2
sixteen (16)
(16) years years old old at at the the time time of of the offenses.
offenses? Like Defendant Alex, their their susceptibility susceptibility to 26 26
27 27
28 z2 Renewed Renewed Mot.
Mot. (Oct. 9, 2024), 2024); see also also Indictment Indictment (Jan.
(Jan. 13, 2023).
Decision Decision &&Order OrderRe.
Re. Jointers Joinders inin Motion Motionfor forDesertification Decertificationand and Transfer Transfer to Family Court People People v. Aweny Aweny & & Onichy, cF0014.23 CF00l4-23 Page 44of of11 ll
11
influence may be less than than that that of ofayounger youngerteenager teenagerororchild.
child. Nonetheless, Nonetheless, this this first first factor weighs l
2 in favor in ofboth favor of both Defendants'
Defendants' transfer transfer to Family Court.
3 (2) History History of the Minor Minor 4 factor, the Under the second factor, the court must review the history of of the minor, which includes includes 5 minor's previous the minor's previous delinquent delinquent or or criminal criminal history, history;previous previousabuse abuse or orneglect, neglect; and and mental health, 6 7 physical, or educational physical, or history. 19 educational history. 19 GCA GCA § § 5106(d)(2). Notably, aa minor's 5106(d)(2). Notably, minor's prior prior record record of of 7
8 delinquency is a factor that the court shall give delinquency give greater greater weight to compared to other enumerated enumerated
9 factors. 19 factors. GCA §§ 5106(d).
19 GCA 5106(d).
10 10 While this While this factor factor asks asks the court to review review previous previous abuse abuse or neglect of of the the Defendants, no 11 11
record record was made of for the court to consider. In regards to of either being present for to Defendant Defendant Sander's 112
13 13 history, the history, court's records the court's records indicate indicate that that he previously previously attended atte?-ded Tiyan Tiyan High HighSchool Schooland and has has a ninthninth -
14 grade grade education as of November education as November 29, 29, 2021.
2021. He He has has also also previously previously attended attended and and completed completed 15 15 recommended treatments and court-ordered summer summer school school for for his other other juvenile cases. Although 16 Defendant Jerem it is unclear where Defendant Jerem attended attended school, school, the the court's court's records records indicate i!_ldicate that that he he was was_ 17 17
employed with the MongMong-Toto-Maite MongMong-Toto-Maite Mayor's Mayor's Office.
18 18 ' <
19 19 The court previously previously held that Defendant Defendant Alex's Alex's prior prior juvenile juvenilehistory historyweighed weighed against against his
20 20 Family Court.
transfer to_Family Court. Decision Q_ecision and and Order Order (Aug.
(Aug. 6, 6, 2024).
2024). Defendant De~endant Jerem has no Jerem has no criminal 21 21 history aside aside from from this this case.
case. However, Defendant Sander hasaaprior Sander has prior criminal criminal history beginning 222 in 2021 2021 of the the following following charges:
23 23
224 2021: (1) 2021: (1) Aggravated Aggravated Assault, Assault, Possession Possession and and Use of a Deadly Weapon in the Commission of aa Felony, Commission Felony; (2)
(2) Assault, Assault; (3)
(3) Criminal Criminal Trespass, Trespass; (4)
(4) Underage Underage 25 Consumption of Consumption ofAlcohol;
Alcohol; (5) Disorderly Conduct, Conduct; and (6) Possession and Use of Tobacco Products Underage 226
27 2021: 2021: (1)
(!) Assault Assault on aa Peace Peace Officer, Officer; (2)
(2) Resisting Resisting Arrest, Arrest; (3)
(3) Underage Underage Consumption of of Alcohol;
Alcohol, and (4)
(4) Disorderly Conduct 228
Decision Decision &&Order OrderRe.
Re. Joinders Joinders in in Motion Motion for for Decertification Decertification and and Transfer to Family Transfer to Family Court Coup People People v. Aweny& v. Aweny & Onichy, CF0014-23 Onichy,CF0014-23 Page Page 5 ofof 11
2023: (!)
(1) Third Third Degree Degree Robbery; and (2) Conspiracy 1
2 While Defendant Defendant Alex Alex had had two twoprior priorcriminal criminalcases, cases,Defendant Defendant Sander Sander previously previously
3 3 accumulated threejuvenile accumulated three juvenile matters mattersinin addition addition to to this criminal criminal one. Like Like Defendant Defendant Alex, 4 . . . . . . . .
Defendant Sander's Defendant Sander's poor priorcnmlnal criminalhistory historypresents presents his his mdxfference indifference to to behavioral behavioral consequences consequences 5 for his his actions.
actions. Therefore, this second factor weighs second factor weighs in in favor of ofDefendant Defendant Jerem's Jerem's transfer to 6
Family Family Court Court but but against transfer to against Defendant Sander's transfer to Family Family Court.
7
8 (3) Circumstances Circumstances of the Offense 9 As to the the third third factor, factor, the the court courtreviews reviews several several circumstances circumstances of of the the offense, offense, such such as:
as:
10 seriousness of the seriousness of the offense;
offense, whether whether the minor is charged through throughaccountability;
accountability,evidence evidence of the II offense offense being being committed committed in in an an aggressive aggressive and premeditated manner;
manner, evidence evidenceof of serious serious bodily bodily 12
13 13 harm, and possession harm; and deadlyweapon.
of adeadly possessionofa weapon.1919GCA GCA§ §5106(d)(3). Likethe 5106(d)(3). Like theminor's minor's prior prior record record of of
14 delinquency, delinquency, the the court court shall shall also give greater greater weight to the seriousness of the seriousness of the alleged offense 15 15 compared to the compared to theother otherfactors.
factors.19 19GCA GCA §§ 5106(d).
5106(d).
16 Here, Here, both both Defendants Defendants are charged charged with with firsttirst - and and second-degree felonies, felonies, each each of of which 17 17 are offenses that automatically offenses that certified them automatically certified them to be charged charged as as adults. Although there adults. Although there is no 18
19 evidence of serious bodily harm to the victim, responding police officers noted noted that the victim
20 appeared distraught distraught and and could could barely barely breathe.
breathe. Magistrate's Magistrate's Con pl. at Comp!. at 55 (Jan.
(Jan. 6, 2024).
21 The court previously held that Defendant Defendant Alex's Alex's nonaggressive involvement involvement in in the offense 22 22 -- holding a screen door open screen door open while while two co-defendants attempted attempted to to enter enterthe thevictim's victim's residence--
residence-
23 23
24 weighed in weighed in favor of of transfer transfer to Family Family Court.
Court. Decision Decision & & Order Order (Aug.
(Aug. 6, 6, 2024).
2024). However, However, the 24
25 25 circumstances of the circumstances of for Defendants case for the case DefendantsSander Sanderand andJJerez are different.
erem are different. While While it it is is unclear unclear
26 26 whether the whether the events events occurred occurred in aa premeditated premeditated manner, manner, the Defendants'
Defendants' involvement involvement was was 27 27 aggressive unlike Defendant aggressive unlike Defendant Alex.
Alex. Both joining joining Defendants Defendants allegedly attempted to ''.jump attempted to 'jump inside 28 28
Decision Decision & Order Order Re.
Re. Joinders in Motion Joinders in Motion for for Decertification Decertification and Transferto and Transfer toFamily FamilyCourt Coup People vv.Aweny Aweny & Onichy, Vich y, CFOOI4-Z3 CF0014-23 Page 6 of of 11
II
the residence through the opening between the security security and and main main doors."
doors." Magistrate's Comal.
Comp!. at l
2 5 (Jan.
(Jan. 6, 6, 2023).
2023).Further, Further,Defendant DefendantJerem Jerez allegedly used a metal metal object object to to strike strike a window window of the
3 windshield of the residence and the front windshield the victim's victim's 2010 Toyota Sienna automobile. Id.
4 Based on the the circumstances of the case circumstances of case for Defendants Defendants Sander Sander and and Jerem, Jerem, this factor 5 weighs against against their transfer to Family Court.
6
7 (4) Advantages Advantages of ofthe the Juvenile Juvenile Justice Justice System System
8 8 As As to to the the fourth fourth factor, factor, the the court court must must look look atat the the advantages advantages of treatment treatment facilities or
9 programs that programs that are are particularly particularly available in the available in the juvenile juvenile system. 19 GCA system. 19 GCA §§ 5106(d)(4).
5106( In both In both the the 10 10 Defendants' jointers, joinders, they they generally generally argue argue that that Defendant Defendant Alex's Alex's Motion Motion applies applies equally equally to each II joining Defendants. joining Defendants. In In this Motion, Alexclaimed Defendant Alex Motion, Defendant claimedthat thatthe the juvenile juvenile system system would would better better 12
13 address his educational address his needs,because educationalneeds, becausethethe Department Department of of Youth Youth Affairs("DY Affairs ("DYA") is "more A") is "more akin
14 to aa proper proper scholastic environment compared scholastic environment comparedtoto aa correctional correctional facility"
facility" like Department of Department of 15 15 Corrections ("DOC").
("DOC"). Decision Decisionand and Order Order ate5(Aug.
(Aug.6,6, 2024).
2024). Although Although Defendant Defendant Alex Alex indicated 16 that that he he continues continues to to attend attend school school and and would benefit benefit from from court-ordered court-ordered counseling, counseling, the the same same 17
cannot be said for for Defendants Defendants Sander Sander and and Jerem.
Jerez. Id.
18 18
19 19 Both Defendants provide no Defendants provide no basis basis for for why they they would would benefit benefit from court-ordered
20 20 counseling. And itit is also unclear counseling. And whether there unclear whether there isis aa history history of compliance compliance or participation in al 21 counseling, whether court-ordered or not.
not. On October October 3, 2024, the court issued a bench warrant 22 22 for both both Defendants Defendants Sander Sander and and Jerem.3 Neither warrant Jerem. Neither warrant has has been returned returned since since its its issuance.
issuance. So, 23 itit is is unlikely unlikelythat that both both Defendants Defendants are are currently currently attending attending school school while while there there is is an an active active bench bench 24 24
25 warrant for their their arrest.
arrest. Therefore, this factor weighs against their their transfer transfer to to Family Family Court.
26 26 \\ 27
28 28 3 3 Bench Warrant(Jerem) (Oct. 3, 2024),Bench 2024); Warrant(Sander) (Oct. 3, 2024).
Decision &&Order Decision Order Re.
Re. Joinders Joinders in in Motion for Decertification Motion for Decertification and and Transfer Transfer to to Family Family Court Court People v. Aweny People v. Aweny & & Onichy, CF0014-23 Onichy, CF0014-23 Page Page 77 of o f 11 ll
(5) Security Security of of the Public l
2 This This factor factor asks asks whether whether the Defendants should be sentenced sentencedfor for the the sake sake of of the the public's public's
3 security. In its Decision & Order, security. In Order, the court held that that Defendant Defendant Alex's Alex's conduct did not conduct did not involve 4 4 public at large, because this the public this was was an anattempted attemptedviolent violent encounter encounter over over a personal personal feud feud that that took took 5 place at the victim's victim's residence. Decision and residence. Decision and Order at 5 (Aug. 6, 2024).
6 The People cite a Declaration of of Crime Crime Victim Victim when when reasoning that "the victim has stated 7
8 8 that she that she fears the defendants fears the defendantswill will kill kill her."
her." Opp'n Opp'n at at 33 (Oct.
(Oct. 22, 22, 2024).
2024). However, However, no no such such
9 Declaration was filed Declaration was tiled with the court;
court; only an Affidavit of Probable Cause was attached attached to the the IO 10 Magistrate's Magistrate's Complaint.
Complaint. Despite Despite the the discrepancy, discrepancy, both Defendants are a flight flight risk risk based based on their II warrants, which the active bench warrants, the court issued issued for for their their arrest arrest in in October October of of this this year.
year. Although 12 12
13 13 Defendant Jerez has Defendant Jerem has no no prior priorviolent violent history, history, Defendant Defendant Sander Sander has such such history history as as indicated indicated
14 above. hile the above. While the court court also also held held at at the security security of of the public would not be be benefited benefited by the the 15 increased monitoring of Defendant Alex, the same cannot be said for these increased monitoring joining Defendants.
these joining Defendants.
16 Therefore, this factor weighs against their transfer transfer to toFamily Family Court.
17 17 (6) Minor's Minor'sHistory HistoryofofServices Servicesand and Willingness Willingness to to Participate Participate in in Services Services 18 18
19 19 This factor asks the court to look at the the Defendants'
Defendants' history of of services. While there is no
20 history of ofservices services for forDefendant DefendantJerem, Jerem, Defendant DefendantSander Sander has has attended attended and and completed completed court-
21 ordered summer school and recommended summer school recommended treatment treatmentprograms programsinin his his previous previous juvenile juvenile matter.
matter.
22 Even ifif there there is is no no record record of ofservices, services, this this factor factor also also asks asks the court to look look at at whether whether the the 23 Defendants are are willing willing to "meaningfully "meaningfully participate participate in in available available services."
services." 19 19 GCA 5106(d)(6).
l06(d)(6).
24
25 Despite Despite being counseled counseled several times by Probation, several times Probation, both Defendants Defendants have shown an
26 be unwillingness unwillingness to participate participate in in services services for for this this case. Jerem, several case. For Defendant Jerem, severalviolations violations for for 27 failure failure to to report report to to Probation Probation as hisunwillingness as ordered shows his unwillingness to participate participate in available available services 28
Decision Decision & &Order Order Re.
Re. Jointers Joinders in inMotion Motionfor forDesertification Decertificationand and Transfer Transfer to Family CouN Court People People v. Aweny Aweny & Onichy,CF0014-23 Onichy, CF00l4-23 Page Page 8 of 1I ll within the the juvenile juvenile justice system. 4 Although Defendant Sander justice system.4 meaningfully participated Sander meaningfully participated in 1
2 recommended treatment treatment programs programsin in the thepast, past,his hisunwillingness unwillingness to to participate participate in in services services for for this
3 3 present present case basedon caseisis based on violations violations for for failure failure to report report and and one one for for using using or or consuming consuming 4 5 amphetamines and methamphetamines. amphetamines and methamphetamines.5 Althoughthe Although theDefendants Defendantscould couldbenefit beneilt from from available 5 services in the juvenile justice system, services in their active system, their active bench warrants show bench warrants show that that they they are are still 6 unwilling unwilling to tomeaninghilly meaningfullyparticipate participateininany anyservices, services,because because they they continue continue evade evade the court's 7
8 order to report to Probation. Therefore, this factor weighs against their transfer against their transfer to to Family Family Court.
9 (7) Reasonable Likelihood of Rehabilitation Reasonable Likelihood Rehabilitation 10 This factor would weigh in favor favor of ofthe the Defendants'
Defendants' transfer transfer to Family Court ififthere there is is a 11 reasonable likelihood that reasonable likelihood that the Defendants can be rehabilitated Defendants can before the juvenile court's rehabilitated before court's 12
13 13 jurisdiction expires. jurisdiction expires. 19 19 GCA GCA §§5106(d)(7).
5106(d)(7). As As mentioned mentioned earlier, earlier, both both Defendants Defendants are are currently currently
14 14 eighteen years eighteen old. However, years old. However, 19 19 GCA GCA §§ 5105 5105 allows allows Family Family Court Court to to still still retain jurisdiction until retain jurisdiction until 15 15 Tums twenty-one the Defendant turns twenty-one (21)
(21) depending depending on on the the circumstances.
circumstances. If If the court were to grant 16 the Defendants'
Defendants' transfers transfers to to Family Family Court, Court, Family Family Court Court could could have havejurisdiction jurisdiction until until May 28, 17 17 2027, for Defendant Jerez Jeremand and until untilDecember December 21, 21, 2027, 2027, for for Defendant Defendant Sander.
Sander.
18 18
19 19 Both Defendants Both Defendants have have not been present for for their their court court hearings hearings since since March March 1, I, 2024, 2024,
20 20 although required required to to attend attend all hearings.
hearings. Defendant DefendantJerem Jerem has not reported to Probation since July 21 16, 2024, 6 while 16, 2024,6 while Defendant Defendant Sander Sander last last reported reported to to Probation Probation on May May 13, 2024. 7 Without 13, 2024.7 Without 22 22 maintaining maintainingconsistent consistent contact contact with with the court, it is is unclear how the Defendants can can be berehabilitated rehabilitated 23 23
before before the juvenile court's the juvenile court's jurisdiction jurisdictionexpires expiresinin2027.
2027. So, So, itit is is unlikely unlikelythat that both both Defendants Defendants can 24
25 25
26 26 44 1st Violation Report (Sept. 15, 2023); 2nd Violation Report (Mar, 11, 2024); 3rd Violation !st Violation Report (Sept. 15, 2023); 2nd Violation Report (Mar. 11, 2024); 3rd Violation Report (July 16, 2024);
2024);
27 27 4th Violation Violation Report Report (Oct. 1, 2024).
1, 2024).
55 1st let Violation Violation Report Report (Jan. 2024), 2nd (Jan. 8, 2024); 2nd Violation Violation Report (July 15, 15, 2024).
28 28 s6 3rd 3rd Violation Report (July 16, 2024).
16, 2024).
77 2nd 2nd Violation Violation Report (July 15, 2024).
2024).
Decision Decision & Order Order Re. Jointers in Motion for Re. Joinders for Desertification Decertificationand and Transfer Transfer to Family Court People People v.v.Aweny Avery & & Onichy, Vichy, CF0014-23 CF0014-23 Page 9 of l Page9ofll
11
be rehabilitated through the juvenile system's services offered, given juvenile system's given that the court is still unable 1
2 to locate them.
them. Therefore, Therefore, this factor weighs against against their their transfer transfer to to Family Family Court.
3 Adequacy of (8) Adequacy of the Punishment 4 The last last factor factor looks looks at at how how adequate adequate the the punishment or services punishment or would be services would be for the the 5 Defendants. In In this this case, case, the Defendants Defendants face face at at least least fifteen (15) years for the felony offenses they 6
7 7 were charged were charged for allegedly committing. Defendants Jerem and Sander Sander were the ones who allegedly
8 8 attempted to jump inside the victim's residence.
residence. Magistrate's Magistrate's Comal.
Comp!. atat55 (Jan.
(Jan. 6, 6, 2023).
2023). A metal
9 object and what "appeared to also involved, to be a machete" were also involved; however, however, it is unclear unclear which IO Defendant wielded 10 Defendant wielded the the alleged alleged machete machete in the surveillance video or or whether whether the metal object and 11 machete are the machete the same weapon. Id.
same weapon. Id 12
13 13 In In its its Decision Decision &&Order, Order,the the court court reasoned reasoned that punishment through DOC was inadvisable
14 14 for Defendant Defendant Alex, Alex, because because "he did not personally use use the deadly deadly weapon weapon that that was was involved involved in 15 15 39 the commission of of the crime, nor was anybody anybody physically physically harmed as as aa result result of of the the encounter.
encounter."
16 16 Decision Decision and Order at at 6 (Aug. 6, 2024). Unlike Defendant 2024). Unlike Defendant Alex's Alex's involvement involvement in in the the events, events, 17 17 18 Defendants Defendants Jerez J eremand andSander Sander had had a more active participation participation ininthe theevents events that that night night because because they 18
19 19 tried to enter enter the the victim's victim's residence residence themselves.
themselves. In addition, Defendant Jerem Jerez used used a weapon to
20 20 strike the victim's victim's residence and automobile. Because the Defendants cannot adhere to to the the court's court's 21 orders orders on their their own, own, assistance assistance through through further further supervision supervision at at the the Department Department of of Corrections Corrections 22 22 appears adequate and advisable for for both Defendants based on the circumstances. Therefore, this 23
24 factor weighs against transfer to against transfer to Family Family Court.
24
25 After analyzing After analyzing all all factors under 19 factors under 19 GCA GCA § § 5l06(d), 5106( d), the the court court found found only only two two factors factors
26 26 weighed in favor of of Defendant Jerem's transfer transfer to Family Family Court, Court, and only one one for for Defendant Defendant 27 27 Sander's transfer. Therefore, Therefore, the the court court finds, finds, based based on on clear and convincing convincing evidence, evidence, that that the best 28 28
Decision Decision &&Order Order Re.
Re. Joinders in Motion Joinders in Motion for Deceniiication Decertificationand and Transferto Transfer Family Court Court People v. Aweny & Onichy, CF00l4-23 & Oniehy,cF0014.23 Page Page 10 IO of of 1l interests of Defendants Jerem Onichy and Sander Aweny would not be amenable to the care,
2 treatment, and training programs available through the juvenile court system.
3
4 CONCLUSION 5 For the reasons set forth above, the court DENIES Defendant Sander Aweny's Motion 6
7 for Decertification and Transfer to Family Court. The court further DENIES Defendant Jerem
8 Alas Onichy's Motion for Decertification and Transfer to Family Court.
9
10 SO ORDERED this _ _N_O_V_1_8_2_0_24__ II
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15 HONORABLE ALBERTO E. TOLENTINO Judge, Superior Court of Guam 16
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24 SERVICE VIA E-MAIL I acknowledge that an electronic 25 copy of the original was e-mailed to:
· & s. Ter.ti< 26 T. ln'\~lli'l 27 M Date: I\j Ii Time: 2,: 1.-(() fY"l
28 '() Barlene Ml Gatchalian Deputy Clerk, Superior Court of Guam ·
Decision & Order Re. Joinders in Motion for Decertification and Transfer to Family Court People v. Aweny & Onichy, CF0014-23 Page 11 of!!