c:rc~)~"~ """" IN THE SUPERIOR COURT O,E'SUkM 2 THE PEOPLE OF GUAM, ) CRIMINAL~CASENO. CF0731-12 3 ) 4 ) vs. ) 5 ) DECISION AND ORDER ) (Motion to Dismiss Indictment) 6 RICARDO BLANCO BANIAGA, ) 7 ) Defendant. ) 8
10 INTRODUCTION
II This matter comes before the Honorable Judge Michael J. Bordallo on Defendant's 12 Motion and Memorandum of Points and Authorities to Dismiss Indictment. Defendant Ricardo 13 Blanco Baniaga ("Defendant") is represented by Assistant Public Defender Maria G. 14 Fitzpatrick. The People of Guam ("The People") are represented by Assistant Attorney 15
16 General Sean E. Brown. After reviewing the pleadings and arguments, the Court now issues
17 the following Decision and Order DENYING Defendant's Motion to Dismiss. 18
19 BACKGROUND
20 On January 8, 2013, Defendant was indicted on charges of Family Violence (As a third 21 Degree Felony) and Aggravated Assault (As a Third Degree Felony). The First Charge alleges 22 that on or about October 8, 2012, Defendant committed Family violence in that he recklessly 23
24 placed Rechie Baniaga ("Victim") in fear of bodily injury. Indictment at 1. The Second
25 Charge alleges that on or about October 8, 2012, Defendant committed Aggravated Assault in 26 that he recklessly caused or attempted to cause serious bodily injury to Victim with a deadly 27 weapon or knife. Indictment at 1-2. 28
Pagel of6
People v. Baniaga Decision & Order (Motion to Dismiss) Criminal Case No. CF073l-l2 On May 13, 2013, Defendant filed Motion and Memorandum of Point and Authorities to 2 Dismiss Indictment ("Motion to Dismiss"). The People filed People's Opposition to Motion to 3 Dismiss ("Opposition") on May 22, 2013. 4
5 DISCUSSION 6 Defendant requests dismissal of the Indictment based upon the following points: (1) 7 Officer Atoigue made misstatements in his testimony as to what statements were made by a 8
9 material witness; (2) Victim was never interviewed by police, and no testimony was presented
10 to the Grand Jury showing Victim was placed in fear of bodily injury or that Defendant II threatened Victim; and (3) there was no evidence Defendant recklessly caused or attempted to 12 cause bodily injury to Victim. 13
14 An indictment should not be dismissed "if there is some rational ground for assuming
15 the possibility that an offense has been committed and the accused is guilty of it." Guevara v. 16 Superior Court, 62 Cal.App.4th 864, 869 (Cal.Ct.App.l998) (citation omitted). Title 8 GCA § 17 50.54(b) provides that "[t ]he grand jury shall find an indictment when from the evidence 18 presented, there is reasonable cause to believe that an indictable offense has been committed 19
20 and that the defendant committed it." 8 GCA § 50.54(b) (2013). "Reasonable cause amounts
21 to evidence such that a man of ordinary caution or prudence would be led to believe and 22 conscientiously entertain a strong suspicion of the guilt of the accused." People v. Graio, 1987 23 WL 109393 at* 2 (D. Guam 1987) (citations omitted). 24 The grand jury should receive only competent evidence. See 8 GCA § 50.42 (2013). 25
26 Competent evidence is evidence that a reasonable person would rely upon in conducting his or
27 her daily affairs. See People v. Quidachay, 815 F.2d 1311, 1313 (9th Cir. 1987). Title 8 GCA 28 § 50.46 states that "[t]he grand jury shall receive only evidence presented to it by the
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People v. Baniaga Decision & Order (Motion to Dismiss) Criminal Case No. CF0731-l2 prosecuting attorney but the prosecuting attorney shall submit any evidence in his possession 2 which would tend to negate guilt and the grand jury shall weigh all the evidence submitted." 8 3 GCA § 50.46 (2013) (emphasis added). In Brady v. Maryland, 373 U.S. 83, the Supreme Court 4 held that "the suppression by the prosecution of evidence favorable to the accused upon request 5
6 violates due process where the evidence is material either to guilt or to punishment. ... " 373
7 U.S. at 87. "Mistakes in testimony, misstatements, or the failure to prevent exculpatory 8 evidence will not serve as grounds to dismiss an indictment where they do not 'amount to 9 flagrant deception or overreaching of a grand jury."' People v. Palomo, 1993 WL 129624 * 5 10
II (D. Guam 1993) (quoting United States v. Fritz, 852 F.2d 1175, 1178 (9th Cir. 1988)).
12 "Dismissal of an indictment is a disfavored remedy." ld. (citing United States v. Rogers, 751 13 F.2d 1074, 1076-1077 (9th Cir.1985)). 14 Title 9 GCA § 30.1 O(a) defines "Family Violence" as follows: 15 As used in this Chapter: 16
17 (a) Family violence means the occurrence of one (1) or more of the following acts by a family or household member, but does not include acts of self-defense or 18 defense of others: 19 (1) Attempting to cause or causing bodily injury to another family or 20 household member;
21 (2) Placing a family or household member in fear of bodily injury. 22 9 GCA § 30.10(a) (2013) (emphasis added). Title 9 GCA § 30.20(a) states that "[a]ny person 23 who intentionally, knowingly, or recklessly commits an act of family violence, as defined in § 24 30.10 of this Chapter, is guilty of a misdemeanor, or of a third degree felony." 9 GCA § 25
26 30.20(a) (2013) (emphasis added).
27 Title 9 GCA defines "Aggravated Assault" as follows: 28 § 19.20. Aggravated Assault; Defined & Punished.
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People v. Baniaga Decision & Order (Motion to Dismiss) Criminal Case No. CF073l-12 (a) A person is guilty of aggravated assault if he either recklessly causes or attempts to cause: 2
3 (1) serious bodily injury to another in circumstances manifesting extreme indifference to the value of human life; 4 (2) serious bodily injury to another; 5
6 (3) bodily injury to another with a deadly weapon.
7 9 GCA § 19.20(a) (2013) (emphasis added). Title 9 GCA defines "Attempt" and provides: 8 § 13.10. Attempt: Defined. 9 A person is guilty of an attempt to commit a crime when, with intent to engage in 10 conduct which would constitute such crime were the circumstances as he believes them to be, he performs or omits to perform an act which constitutes a substantial II step toward commission of the crime. 12 9 GCA § 13.10 (2013) (emphasis added). 13
14 First, Defendant argues the Indictment should be dismissed, since Officer Atoigue's
15 testimony to the Grand Jury was inconsistent with Gerald Baniaga's statement made to police. 16 Motion to Dismiss at 4. The People contend that even if Officer Atoigue made an error 17 attributing one witness's statement to another witness, an indictment is not void where there is 18 sufficient competent evidence to indict. Opposition at 2. The People note Defendant's 19
20 neighbor, Charo Obra, reported she witnessed Defendant chase Victim while carrying a knife
21 and screwdriver. Jd 22 The Court agrees with the People and finds sufficient competent evidence to support 23 the charges of Family Violence and Aggravated Assault. During the Grand Jury proceeding, 24 Officer Atoigue testified that Gerald Baniaga reported to have seen his father, Defendant, chase 25
26 his mother, Victim, with a knife and screwdriver. In contrast, Officer Cabe's police report
27 states Gerald Baniaga witnessed his parents arguing, saw Defendant approach Victim with a 28 knife and screwdriver, and overheard Defendant ask Victim, "What are you going to the
Page 4 of6
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c:rc~)~"~ """" IN THE SUPERIOR COURT O,E'SUkM 2 THE PEOPLE OF GUAM, ) CRIMINAL~CASENO. CF0731-12 3 ) 4 ) vs. ) 5 ) DECISION AND ORDER ) (Motion to Dismiss Indictment) 6 RICARDO BLANCO BANIAGA, ) 7 ) Defendant. ) 8
10 INTRODUCTION
II This matter comes before the Honorable Judge Michael J. Bordallo on Defendant's 12 Motion and Memorandum of Points and Authorities to Dismiss Indictment. Defendant Ricardo 13 Blanco Baniaga ("Defendant") is represented by Assistant Public Defender Maria G. 14 Fitzpatrick. The People of Guam ("The People") are represented by Assistant Attorney 15
16 General Sean E. Brown. After reviewing the pleadings and arguments, the Court now issues
17 the following Decision and Order DENYING Defendant's Motion to Dismiss. 18
19 BACKGROUND
20 On January 8, 2013, Defendant was indicted on charges of Family Violence (As a third 21 Degree Felony) and Aggravated Assault (As a Third Degree Felony). The First Charge alleges 22 that on or about October 8, 2012, Defendant committed Family violence in that he recklessly 23
24 placed Rechie Baniaga ("Victim") in fear of bodily injury. Indictment at 1. The Second
25 Charge alleges that on or about October 8, 2012, Defendant committed Aggravated Assault in 26 that he recklessly caused or attempted to cause serious bodily injury to Victim with a deadly 27 weapon or knife. Indictment at 1-2. 28
Pagel of6
People v. Baniaga Decision & Order (Motion to Dismiss) Criminal Case No. CF073l-l2 On May 13, 2013, Defendant filed Motion and Memorandum of Point and Authorities to 2 Dismiss Indictment ("Motion to Dismiss"). The People filed People's Opposition to Motion to 3 Dismiss ("Opposition") on May 22, 2013. 4
5 DISCUSSION 6 Defendant requests dismissal of the Indictment based upon the following points: (1) 7 Officer Atoigue made misstatements in his testimony as to what statements were made by a 8
9 material witness; (2) Victim was never interviewed by police, and no testimony was presented
10 to the Grand Jury showing Victim was placed in fear of bodily injury or that Defendant II threatened Victim; and (3) there was no evidence Defendant recklessly caused or attempted to 12 cause bodily injury to Victim. 13
14 An indictment should not be dismissed "if there is some rational ground for assuming
15 the possibility that an offense has been committed and the accused is guilty of it." Guevara v. 16 Superior Court, 62 Cal.App.4th 864, 869 (Cal.Ct.App.l998) (citation omitted). Title 8 GCA § 17 50.54(b) provides that "[t ]he grand jury shall find an indictment when from the evidence 18 presented, there is reasonable cause to believe that an indictable offense has been committed 19
20 and that the defendant committed it." 8 GCA § 50.54(b) (2013). "Reasonable cause amounts
21 to evidence such that a man of ordinary caution or prudence would be led to believe and 22 conscientiously entertain a strong suspicion of the guilt of the accused." People v. Graio, 1987 23 WL 109393 at* 2 (D. Guam 1987) (citations omitted). 24 The grand jury should receive only competent evidence. See 8 GCA § 50.42 (2013). 25
26 Competent evidence is evidence that a reasonable person would rely upon in conducting his or
27 her daily affairs. See People v. Quidachay, 815 F.2d 1311, 1313 (9th Cir. 1987). Title 8 GCA 28 § 50.46 states that "[t]he grand jury shall receive only evidence presented to it by the
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People v. Baniaga Decision & Order (Motion to Dismiss) Criminal Case No. CF0731-l2 prosecuting attorney but the prosecuting attorney shall submit any evidence in his possession 2 which would tend to negate guilt and the grand jury shall weigh all the evidence submitted." 8 3 GCA § 50.46 (2013) (emphasis added). In Brady v. Maryland, 373 U.S. 83, the Supreme Court 4 held that "the suppression by the prosecution of evidence favorable to the accused upon request 5
6 violates due process where the evidence is material either to guilt or to punishment. ... " 373
7 U.S. at 87. "Mistakes in testimony, misstatements, or the failure to prevent exculpatory 8 evidence will not serve as grounds to dismiss an indictment where they do not 'amount to 9 flagrant deception or overreaching of a grand jury."' People v. Palomo, 1993 WL 129624 * 5 10
II (D. Guam 1993) (quoting United States v. Fritz, 852 F.2d 1175, 1178 (9th Cir. 1988)).
12 "Dismissal of an indictment is a disfavored remedy." ld. (citing United States v. Rogers, 751 13 F.2d 1074, 1076-1077 (9th Cir.1985)). 14 Title 9 GCA § 30.1 O(a) defines "Family Violence" as follows: 15 As used in this Chapter: 16
17 (a) Family violence means the occurrence of one (1) or more of the following acts by a family or household member, but does not include acts of self-defense or 18 defense of others: 19 (1) Attempting to cause or causing bodily injury to another family or 20 household member;
21 (2) Placing a family or household member in fear of bodily injury. 22 9 GCA § 30.10(a) (2013) (emphasis added). Title 9 GCA § 30.20(a) states that "[a]ny person 23 who intentionally, knowingly, or recklessly commits an act of family violence, as defined in § 24 30.10 of this Chapter, is guilty of a misdemeanor, or of a third degree felony." 9 GCA § 25
26 30.20(a) (2013) (emphasis added).
27 Title 9 GCA defines "Aggravated Assault" as follows: 28 § 19.20. Aggravated Assault; Defined & Punished.
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People v. Baniaga Decision & Order (Motion to Dismiss) Criminal Case No. CF073l-12 (a) A person is guilty of aggravated assault if he either recklessly causes or attempts to cause: 2
3 (1) serious bodily injury to another in circumstances manifesting extreme indifference to the value of human life; 4 (2) serious bodily injury to another; 5
6 (3) bodily injury to another with a deadly weapon.
7 9 GCA § 19.20(a) (2013) (emphasis added). Title 9 GCA defines "Attempt" and provides: 8 § 13.10. Attempt: Defined. 9 A person is guilty of an attempt to commit a crime when, with intent to engage in 10 conduct which would constitute such crime were the circumstances as he believes them to be, he performs or omits to perform an act which constitutes a substantial II step toward commission of the crime. 12 9 GCA § 13.10 (2013) (emphasis added). 13
14 First, Defendant argues the Indictment should be dismissed, since Officer Atoigue's
15 testimony to the Grand Jury was inconsistent with Gerald Baniaga's statement made to police. 16 Motion to Dismiss at 4. The People contend that even if Officer Atoigue made an error 17 attributing one witness's statement to another witness, an indictment is not void where there is 18 sufficient competent evidence to indict. Opposition at 2. The People note Defendant's 19
20 neighbor, Charo Obra, reported she witnessed Defendant chase Victim while carrying a knife
21 and screwdriver. Jd 22 The Court agrees with the People and finds sufficient competent evidence to support 23 the charges of Family Violence and Aggravated Assault. During the Grand Jury proceeding, 24 Officer Atoigue testified that Gerald Baniaga reported to have seen his father, Defendant, chase 25
26 his mother, Victim, with a knife and screwdriver. In contrast, Officer Cabe's police report
27 states Gerald Baniaga witnessed his parents arguing, saw Defendant approach Victim with a 28 knife and screwdriver, and overheard Defendant ask Victim, "What are you going to the
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People v. Baniaga Decision & Order (Motion to Dismiss) Criminal Case No. CF0731-12 police?" The police report further states that Gerald Baniaga witnessed Defendant grab Victim 2 and leave the residence in a blue car. The Court does not dispute the inconsistencies in Officer 3 Atoigue's Grand Jury testimony, as Gerald Baniaga reported to have witnessed Defendant 4 approach Victim with a knife and screwdriver but made no mention of a chase. The Court, 5
6 however, notes that it was Defendant's neighbor, Charo Obra, who reported to have witnessed
7 Defendant chase Victim while carrying a knife and screwdriver. Officer Atoigue presented 8 Charo Obra' s statement to the Grand Jury; therefore, the Court determines that Officer 9 Atoigue's misstatement does not warrant dismissal, as there is competent evidence Defendant 10
II chased Victim with a deadly weapon.
12 Second, Defendant argues the First Charge of Family Violence should be dismissed,
13 since there was no evidence presented to the Grand Jury establishing Victim was placed in fear 14 of bodily injury. Motion to Dismiss at 4-5. The People contend Victim was place in fear of 15 bodily injury, and this was exhibited from the fact Victim ran from Defendant. Opposition at 16
17 3.
18 The First Charge alleges that on or about October 8, 2012, Defendant committed 19 Family violence in that he recklessly placed Victim in fear of bodily injury. The Court agrees 20 with The People that Charo Obra's statement indicating Victim fled from Defendant as he 21 chased her with a knife and screwdriver, sufficiently shows Victim was placed in fear of bodily 22
23 injury, and this fact was presented to the Grand Jury.
24 Finally, Defendant argues the Second Charge of Aggravated Assault should be 25 dismissed, because there was no evidence presented to the Grand Jury that Defendant 26 recklessly caused or attempted to cause bodily injury to Victim. Motion to Dismiss at 5. The 27 People argue attempt only requires a substantial step towards the commission of the crime. 28
Opposition at 3. The People indicate Defendant intended to injure Victim and took a
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People v. Baniaga Decision & Order (Motion to Dismiss) Criminal Case No. CF0731-12 substantial step towards committing bodily injury when he chased Victim with a knife and 2 screwdriver. Id 3 The Court agrees with The People and finds there are sufficient facts to charge 4 Defendant with Aggravated Assault. The Second Charge alleges on or about October 8, 2012, 5
6 Defendant committed Aggravated Assault in that he recklessly caused or attempted to cause
7 serious bodily injury to Victim with a deadly weapon or knife. The fact Defendant attempted 8 to cause bodily injury to Victim by chasing her with a knife and screwdriver was presented to 9 the Grand Jury. This constitutes a substantial step towards putting Victim in fear of imminent 10
II bodily injury, since attempt requires that Defendant's act constitutes a substantial step towards
12 the commission of the crime. The crime of Aggravated Assault was completed when 13 Defendant allegedly chased Victim with a knife and screwdriver. 14
15 CONCLUSION 16 For the foregoing reasons, Defendant's Motion to Dismiss is DENIED in its entirety. 17 Further proceedings are set for ~ · f1--- r "lA ( 3. t:t.--C 18
19 SO ORDERED this __s!::_ of September 2013. 20
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People v. Baniaga Decision & Order (Motion to Dismiss) Criminal Case No. CF0731-12