People v. Cabrera

Opinion

5~

."5 \ k FI LED CLERK GF OF CQURT COURT 292 Aus 29 202li AUG I: 38 PH 1=3B 29 PH 3U§§3é3 COURT.A , (} SUPER:OR QQQQQT IN THE THE SUPERIOR SUPERIOR COURT COURT OF OF GUAM GUAM OFGUi\M go sg va ~ PEOPLE OF GUAM GUAM CRIMINAL CASENO: CRIMINALCASE CF0439-24 NO:CF0439-24 GPD GPDReport ReportNos. Nos.24-14956; 24-14957 24-14956; 24-14957 vs. DECISION DECISION AND AND ORDER JAMIELYNN JAMIEL PANGELINAN CABRERA, DENYING DENYING OAG'S OAG'S STATEMENT STATEMENT OF (aka Jamie Marie Pangelinan Cabrera) (aka Jamie Cabrera) OBJECTION DOB: 04/08/1982 DOB:04/08/1982

Defendant.

This matter matter is before before the the Honorable Dana A. Gutierrez Honorable D,ana Gutierrez for the purpose of .limited purpose the limited

the Attorney reviewing the Office of the Attorney General's Statement of Obj "OAG") Statement General's (the "OAG") Objection action

("Obi action"), in which ("Objection"), the OAG objects to the which the the Honorable Alberto E. Honorable Alberto E. Tolentino Tolentino ("Judge ("Judge

presiding over the above-captioned matter Tolentino") presiding due to his relationship with Attorney matter due

General Douglas Moylan General Douglas ("Moylan"). Upon consideration Moylan ("Moylan"). the arguments and applicable of the consideration of

Guam law, the Court hereby DENIES the QAG"s Objection. For the OAG's this reason, Judge Tolentino For this

may continue to preside over over this matter. matter.

FACTUAL BACKGROUND a

The following following facts facts are are undisputed: Doris L:G. undisputed: Doris Tolentino("Doris") L.-G.Tolentino and Moylan were ("Doris") and

married and had married and hadtwo children-Brandon (born two children-Brandon 1990) and (born 1990) Angela (born and Angela (the "Moylan 1992) (the (born 1992)

Children"); Children"); Doris Dorisand and Moylan 1997;Judge divorcedinin1997; Moylandivorced Tolentinoand JudgeTolentino Dorismarried andDoris in2005 married'm and 2005 aNd

remain maniedtoday; remain married today; as as such, such, Judge stepfather of the Moylan the stepfather Judge Tolentino is the Children. See Moylan Children.

Answer Answer to to Statement Statement of ofObjection Objection("Answer") ("Answer")at at ,r,r 14-15 111] 29, 2024). 14-15 (July 29,

As recently As recently as as October Judge Tolentino 2022, Judge October 2022, himself from sponte disqualified himself sua sponge Tolentino sue cases from cases

in which Moylan Moylan appeared becauseof counsel because appeared before him as private counsel his relationship of his with Moylan relationship with Moylan DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People of ofGuam v. v. Jamielynn Jamielynn Pangelinan Pangelinan Cabrera, Cabrera

as the stepfather as stepfather or Moylan Children. of the Moylan Children. See 'il 3, See Id. atat 1] 3; see see also also Statement of of Objection Objection

("Objection") b ject ion") ata t Ex. x . A-MM (J (July 226, 6 , 22024) 0 2 4 ) (p(providing examples r oviding ex a of JJudge les of u dge TTolentino's olent ino'

disqualifications in cases involving Moylan from 2014 to 2022).

In 2022, Moylan was elected Attorney General of of Guam and was scheduled scheduled to take office

in January January 2023. 'il 5.5. InIn December 2023. Answer at 1] December 2022, 2022, Judge Judge Tolentino Tolentino and and Moylan Moylan met with

various other staff members various other of the OAG and members of and the the Superior Superior Court Court of ofGuam Guam totodiscuss discuss Judge Judge

Tolentino's previous Tolentino's previous disqualification disqualification in Moylan's 'il According to Judge Tolentino cases. Id. atat 1]6. Moylan's cases.

undisputed by the OAG, and undisputed OAG, Moylan Moylan "assured "assured [Judge [Judge Tolentino] olentino] and and the the other members in

t enda nce that a ttendance t ha t he he perceived per ceived no no conflict conflict in in his election his elect ion a s tthe Attorney he At General t or ney Gener a l a nd tthe he

prosecution of criminal cases cases before before [Judge [Judge Tolentino]." Tolentino]." Id. 'il Id at1]7.

During and after January January 2023, 2023, Judge Judge Tolentino Tolentino presided presided over many cases involving the

OAG without OAG without objection objection from from the the OAG. OAG. See See Answer 'il (stating Answeratat 114 (stating that that Judge Judge Tolentino's Tolentino's docket

consists mostly of criminal matters brought brought by by the the People People of Guam through the OAG).

However, beginning in April of 2024, 2024, three Supt-:rior Superior Courtt of Gua Guam Judges Judges issued issued

Decisions and Or Decisions Orders aaddressing Judge TTolentino ddr essing whether Judge was olentino wa disqualified s disqua from ma lified fr matters tter

involving involving Moylan Moylan due to his relationship with Moylan and the Moylan Children.

First, on April First, on April 5, 2024, 2024, the Honorable Honorable Joseph Joseph N. Camacho, Camacho, presiding as Judge presiding as Judge Pro \ Tempore, Tempore, issued a Decision and Order in People People of Guam Guam v.v. Nakita Nikita TT Aguon, analyzing whether

Judge Judge Tolentino Tolentino was was disqualified from cases disqualified from cases involving involving Moylan Moylan pursuant to 77 GCA pursuant to GCA §§ 6105(a), 6105(a),

which which states tes that "Judge shallll disqualify tha t a "Judge disqua lify himself himself in in any a ny proceeding pr oceeding in in which which his her his or her

impartiality mi~ht might reasonably be questioned" unless both parties agree to have the judge judge continue

Aguon, CM0145-21 to sit in the proceedings. Aguon, at 7 CM0145-21 at 7 (Super. Ct. Guam (Super. Ct. Guam April April 5, 5, 2024); 2024), 77 GCA GCA §§ I,

6105(a).). Judge 6105(a Judge Camacho found tha ma cho found that "a "a 'rreasonable sona ble person question whether son could question whether Judge Judge

r

2 0 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People of ofGuam v. v. Jamielynn Jamielynn Pangelinan Pangelinan Cabrera

Tolentino could be impartial in a case case proceeding at the the direction direction of [AG] Moylan" due to their

continuing relationships with continuing relationships with the the Moylan Moylan Children. Children. Id Id at at 8. 8. Thus, Thus, the court court held that, that, "[a]t a

minimum, itit would would have have been been prudent prudent for for Judge Judge Tolentino Tolentino to to disclose disclose these these relationships relationships to the

parties." Id Id

Next, on June 4, 2024, the Honorable Elyze Elyse M. M. Iriarte issued a Decision and Order Order as the

recusal judge in recusal judge People of Guam in People Guam v. v. Carina Corina Jamel Jamel Taitingfong, Taitin_gfong, et et al., CF0024-24 CF0024-24 (Super. (Super. Ct.

Guam June 4, 4, 2024). 2024). In that that case, defendant objected case, the defendant objected to to Judge Judge Tolentino Tolentino presiding over the

case, and Judge Iriarte Iriarte held that Judge Tolentino was disqualified from the matter. Taitingfong Taitingfong,

CF0024-24 CF0024-24 at at 10. Judge Iriarte 10. Judge reasoned that Iriarte reasoned pursuant to that pursuant to 77 GCA GCA §§ 6105(a), 6105(a), aa reasonable reasonable question question

exists regarding regarding Judge Judge Tolentino's impartiality impartiality toward Moylan due to to their their mutual mutual relationship relationship

with Judge Tolentino's Tolentino's stepchildren stepchildren and due to the fact fact that Judge Tolentino had previously sua sue

sponte disqualified sponge himself from disqualified himself from all all matters matters involving involving Moylan Moylan while while Moylan was in in private private

practice. Id. Id. at 5. 5. Further, Further, Judge Judge Iriarte Iriartedetermined determined that that the the proper proper procedure procedure would would have been for

Judge Tolentino to sit only in matters where both both parties parties had waived their right to object to his

the case. presiding over the case. Id Id at at 8. 8. Because the defendant defendant objected objected and and clearly clearly did not not waive that

right, Judge Iriarte Iriarte held held that thatJudge JudgeTolentino Tolentinowas wasdisqualified disqualifiedfrom fromsitting sittingononthe thecae. case. Id at at 8-9. 8-9.

Lastly, Lastly, on June 12, 12, 2024, the Honorable Maria T. T. Cenzon issued a Decision and Order Order

Denying the OAG's OAG's Statement of Objection Statement of Objection in in People of of Guam v. v. Richard Richard KY Ybanez, Ybanez, CF0447-

23 (Super. Ct. Ct. Guam June 12, 2024). In that case, case, on May 1, 2024, 2024, the the OAG objected for the first

time to Judge Tolentino Tolentino presiding over the matter due due to to his his aforementioned aforementioned relationship relationship with

Moylan and the Moylan Children. Ybanez, Ybanez, CF0447-23 at 5-6. Sitting as the the recusal judge, judge, Judge

Cenzon found that that Judge Tolentino Tolentino is not compelled compelled to to disclose disclose his his relationship relationship with Moylan Moylan

under 77 GCA under GCA §§ 6105(a) 6105(a) or or any any other other section section of ofthe the recusal recusal statute. statute. Id. Id. at at 12-17. 12-17.

3 DECISION AND ORDER DENYING OAG'S 0AG'S STATEMENT STATEMENT OF OBJECTION CF0439-24,'People CF0439-24,· People of ofGuam v..lam Guam v. ielynnPangelinan Jamielynn PangelinanCabrera Cabrera

Judge Cenzon provided several several reasons justifying justifying Judge Judge Tolentino's omission, including

(1) that Moylan admitted during during the the meeting meeting with Judge Tolentino and other staff staff members that

he perceived perceived no continuing continuing conflict conflict requiring requiring Judge Judge Tolentino's Tolentino's disqualification, disqualification; (2) (2) that that

Moylan's and Moylan's and Doris's Doris's relationship, relationship, which ended in in 1997, 1997, ended ended sufficiently sufficiently far far in the past past as to

currently be not culTently be aa concern concern when when viewed viewed objectively; objectively, (3) that the Moylan Children, who are Judge

Tolentino's stepchildren, Tolentino's stepchildren, are all adults living on their own; own, and (4) in the small legal community

himself in all cases involving Moylan would be "(a) of Guam, for Judge Tolentino to disqualify himself "(a)

impractical to enforce, (b) negatively impact the administration of justice, and (c) the efficient administration ( lead

to judge-shopping judge-shopping and/or overburden other judges judges in the same court." court." Id. Id at at 17. 17.

Finally, on July 18, 2024, 2024, the the Supreme Court of Guam issued an Opinion in In re Arthur

U San San Agustin Agustinv. v. Superior Superior Court Courtof ofGuam, Guam, et et al., al., 2024 2024 Guam2, disqualifying Judge Tolentino 2, disqualifying Tolentino in

matter, but that matter, but on grounds grounds that are unrelated to his his relationship relationship with Moylan. Moylan. The The Suprerne Supreme

Courtt of Gua Guam noted noted tha thatt they they fir st issued first issued their their Or der disqua Order lifying Judge disqualifying Judge TTolentino olentino on

December 5, 2023, December 2023, but Stated that their stated that their July 18, 18, 2024 Opinion Opinion supersedes supersedes that that Order. Order. San

Agustin, 2024 Guam 22 at Agustin, ,r 8. The at 118. The San Agustin Court noted that Judge Tolentino had previously

disqualified himself himself in that matter because "he, his wife, and his chamber chamber clerk have or had close

relationships with San Agustin and Nadean, Nadeau, [a [a real party in interest], concluding this could create

,r at 114. The matter was then reassigned to the Honorable Presiding Judge Alberto a conflict." Id. at

C. Lamorena III, and the defendant defendant objected to Presiding Judge Lamorena presiding over the

matter. Id. at ,r 5. The issue of Presiding Judge Lamorena's Lamorena's recusal recusal was then assigned to Judge

Tolentino, and Judge Tolentino Order concluding that Presiding Judge Tolentino issued a Decision and Order

Lamorena was not disqualified. ,r 6.6. Ultimately, Id atat 1] disqualified. Id. Ultimately, the the Supreme Supreme Court Court of Guam held that that

beca use Judge because Judge Tolentino olent ino had ha d disqua lified himself disqualified himself in in the he under lying matter, underlying t er , he he was aalso lso

4 DECISION AND ORDER DENYING DENYINGOAG'S STATEMENT OF OBJECTION CF0439-24,' CF0439-24; People of Guam Guam v.v. Jamielynn JamielynnPangelinan Pangelinan Cabrera Cabrera

from sitting as the recusal judge disqualified Hom judge and, therefore, vacated his decision and disqualified

him from from the thematter matterentirely. entirely.IdIdat at ,r,r 40, 54. 1111 54. The San San Agustin Agustin Court clarified clarified the proper proper

when aa party procedure when party seeks seeks to to challenge challengeaa recusal recusal judge judgefor forcause. Idatat1],r 34. cause. Id

PROCEDURAL BACKGROUND

The instant matter matter was was initiated initiated on on June June 27, 27, 2024, 2024, when when the OAG filed filed aa Magistrate's Magistrate's

Complaint, la int , accusing ccu s ing Jamielynn J a mielynn Pangelinan P a ngelina n Cabrera C a b r er a ("Defendant") ("D efenda nt ") of of two charges: wo cha (1) ges : (1

of a Schedule II Possession of II Controlled Controlled Substance Substance (As 3rd Degree (As aa 3rd Degree Felony); Felony), and (2) Display or

rd Possession of a Fraudulent License License Plate Plate (As (As aa 33rd Degree DegreeFelony). Felony). On July l, 1, 2024, 2024, the matter

wasassigned was.assigned to to Judge Judge Tolentino.

On July 26, 2024, the OAG OAG filed filed their their Objection, Objection, stating stating that that "disqualification of of Judge

Tolentino Tolentino from from this and any other other matter involving Moylan Moyian is is required" required" due due to to their their familial familial

relationship. Objection at relationship. Objection at 7. 7. The The OAG argues that "[a] reasonable reasonable person would presume presume that that

Judge dge TTolentino's ent i no' s personal er s ona l relationship r el a t i ons hi pwith wi t h [AG] [ AG ] Moylan M oyl a n and a nd his pprior ri yea years sspent p ent

disqualifying himself from disqualifying himself from any matters matters involving Moylan would would raise raise aa reasonable reasonable question question

about his impartiality and and necessitates necessitates his disqualification." Id his disqualification." at 6. Id at

The Court notes that the the OAG has filed numerous identical objections to Judge Tolentino

presiding over over many many criminal matters. 1 However, criminal matters.l However, the the Court Courttakes takes judicial notice 2 of judicial noticed of the the fact fact that,

1 1 This Court has been This Court been assigned assignedtotohear hearthe therecusal recusalof JudgeTolentino ofJudge Tolentinoin inseveral severalcases casesininwhich whichthe theOAG OAG has filed has filed identical statements of identical statements of objection, objection, including, including, but but not not limited limited to, thefollowing: to, the People of following: People v. Guam v. ofGuam Pangelinan Reyes Peter Pangelinan Reyes Jr., CF0419-24 (Super. (Super. Ct. Guam Aug.. Aug. 5, 2024); People 5, 2024), People of Guam v. v. Mark Anderson Anderson Paulino, (Super. Ct. Paulina, CF0482-24 (Super. Ct. Guam Guam July 30,30, 2024), and People 2024); and People ofof Guam v. Jake v. Brian Jake Cepeda Alano, CF04l1-24 CF0411-24(Super (Super Ct. Ct. Guam Guam July July 25, 25, 2024). 2024). 2 Guam Rules Rules ofof Evidence Evidence("GRE") ("GRE") Rule 201201 governs governsjudicial judicial notice noticeof of adjudicative adjudicativefacts. facts."A "Ajudicially judicially noticed fact must be one one not not subject subjecttoto reasonable reasonabledispute disputeininthat thatititisiseither either(1) (1)generally generallyknown knownwithin within the territorial jurisdiction jurisdictionofofthe thetrial trialcourt courtoror(2) (2)capable capableofofaccurate accurateandand ready ready determination determination by resort to sources whose whoseaccuracy accuracycannot cannotreasonably reasonablybe bequestioned." questioned."GREGRE 201(b). 201(b).

5 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People of ofGuam v.v. Jamielynn Jamielynn Pangelinan Pangelinan Cabrera Cabrera

to date, date, the the OAG has not filed tiled objections in all of of its cases before Judge Tolentino, and instead is . . . 3 proceeding in certain matters. matters.3

response to the OAG's Objection, In response Judge Tolentino Objection, Judge Tolentino issued issued his his Answer on July July 29, 29,

2024, denyiNg denying that that his his disqualification was required in this this case. case. Answer ,r 35. In support of Answer atat 1] of

position, Judge his position, Judge Tolentino olentino cites cites to to the the meeting meeting that he and and Moylan Moylan had had r regarding egar ding their their

potential conflict, and the fact that Moylan stated that he perceived perceived no no disqualification. Id atat1i,r 7. disqualification. Id

Further, Further, Judge Judge Tolentino Tolentino states states that that the the Moylan Moylan Children Children have have "reached majority and adulthood

and have been residing at their their own own residences." residences." Id Id

This matter was This matter was assigned to this assigned to this Court Court on July July 30, 30, 2024, 2024, for the limited limited purpose purpose of of

recusal. On August 5, 2024, deciding Judge Tolentino's recusal. 2024, the Court issued an Order for for Further Further

Briefing, requiring the OAG to explain their position position on whether the OAG has objected to Judge Judge

Tolentino presiding over cases Tolentino cases "involving "involving Moylan" Moylan" atat the theearliest earliest practicable practicable opportunity, opportunity, as as

required by Title required Title 7, Guam Code Code Annotated Annotated ("GCA"), ("GCA"), Section Section 6107, 6107, considering considering Moylan has

been in office since January 2023. The TheCOUIT Court permitted, but did not require, the Defendant to

respond to the same question. On August 12, 2024, 2024, the OAG filed their Response, arguing that

their objection timely. 4 The objection was ti1nely.4 The Defendant Defendant filed filed aa Response Response to to Government's Statement Statement of of

Objection on Objection August 12, on August 12, 2024, sta ting that 2024, stating tha t (1) (1) the the factual ctua l claims cla ims put put forth for th in in the the OAG's

not constitute a disqualification, Objection do not the Defendant waives any conflict, disqualification; (2) the and (3) the conflict; ·and

33 According According to to the the Superior Superior Court Courtofof Guam's Guam's We~kly Weeldy Calendar Calendar for for the the week week of August26, 26, 2024, 2024, Judge Tolentino continues to have a full calendar ofcases cases moving forward which list the OAG as counsel. Judge Tolentino Tolentino remains scheduled scheduled to' to hear progress progress hearings, hearings, status status hearings, hearings, further further proceedings, proceedings, motion hearings, pre-trial conferences, hearings, pre-trial conferences, change change ofof pleas, pleas, return return of warrants, and jury warrants, and jury selections selections and trials trials in criminal matters involving the OAG. The Superior Court of Guam's Weeldy Weekly Calendar Calendar is posted publicly on the Judiciary Judiciary ofofGuam's Guam'swebsite, website,available availableatathttps://www.guamcourts.org/Calendar/images/Weekly- https://www.guamcourts.org/Calendar/images/Weekly- AET.pdf. . 4 4 The OAG's The OAG's Response didnot Response did not raise raise any anynew newarguments argumentsnot notstated statedinintheir their Objection. Objection.

6 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People of ofGuam v. v. Jamielynn Jamielynn Pangelinan Pangelinan Cabrera Cabrera

OAG failed failed to to object object atat the theearliest earliest practicable practicable opportunity and therefore opportunity and has waived therefore has waived any any

conflict.

DISCUSSION

77 GCA GCA §§ 6105 6105 provides provides the the substantive substantive grounds grounds for for judicial judicial disqualification in Guam. disqualification in Guam. 77

GCA GCA §§ 6105(a) 6105(a) states in full: states in full:

shall disqualify himself Any Judge shall himself or herself in any proceeding in which his oror her her impartiality impartiality might reasonably reasonably be questioned, questioned, but if, following complete disclosure to all all parties in the proceeding of of the reasons for disqualification, the reasons disqualification, all all parties parties agree agree to to having having the Judge continue dge cont inu e to t o sitit in in the pproceedings, oceedings , he he oror she he need not not disqualify himself himself or herself.

When grounds When grounds for for disqualification exist, 77 GCA disqualification exist, GCA §§ 6106 requires aa judge 6106 requires judge to to disclose disclose any any

facts that facts that disqualify disqualify him him under Section 6105. 6105. If a judge fails fails to to declare declare his his disqualification disqualification as

required, any required, any party party may file file aa statement statement of of objection, objection, setting setting forth forth the the facts facts constituting constituting the

grounds of grounds of disqualification disqualification of of such judge. 77 GCA such judge. GCA §§ 6107. 6107. 77. GCA GCA §§ 6107 6107 mandates, mandates, in in part: part:

The statement of a party objecting objecting to to the the Justice Judge on the Justice or Judge ground of his ground his or or her herdisqualification disqualification shall shall be be presented presented at the earliest practicable practicable opportunity opportunity after after his or her her appearance appearance and discovery discovery of the facts constituting constituting grounds gr ounds of of the the Justice's Justice's or or Judge's disqualification, and in any event before the commencement commencement of ofthe the hearing hearing of of any any issue issue of of fact fact in in the the action action or proceeding before suchJustice Justice or Judge.

77 GC GCAA §§._6107 6107 (empha is aadded). (emphasis dded). If If aa pa r t y fafails party ils t oto object object a tatt he the"ea r lies t prpracticable "earliest a ct ica ble

opportunity" after discovery of opportunity" of the the facts facts which which disqualify disqualify a judge, that failure "constitutes "constitutes a· .

waiver." Dox v. Superior Court waiver." Van Dox Court of ofGuam, Guam, 2008 Guam Guam 77,r 'H 45. 45. As such, when when aa party remains

silent on a known disqualification pursuant pursuantto GCA § to77 GCA § 6105(a), 6105(a), the party waives their right to

later object to the judge judge presiding. presiding. People of ofGuam v. Win, Wia, 2020 Guam 17 1]28. 17,r

"The rule "The rule that that aa request request for for disqualification disqualification should should be be submitted submitted prior to any any hearing in

the matter before before the the challenged challenged judge judge 'rests on the principle that a party party may may not gamble on a

7 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People of ofGuam v. v. Jamielynn Jamielynn Pangelinan Pangelinan Cabrera

favorable decision' favorable decision' .... .. . Thus, a statement of objection is normally timely if if it is submitted prior

to any any hearing hearing before before the challenged judge in challenged judge in the the matter." matter." Van Van Dox, 2008 Guam ,r 46. Guam 77 1]

(citing to an (emphasis added) (citing an exception exception that that itit is is not not appropriate appropriate to wait until the eve of of trial trial to

request disqualification based on information known known months months earlier). earlier).

Importantly, the recusal statute "is not intended intended to 'bestow veto power power over over judges or to

used as a judge shopping be Lised shopping device. an ,r device."' San Agustin, 2024 .Guam 2 'H 24 (quoting. (quoting_ People v.

Camaddu, 2015 Guam 22'H,r 80). Camaddu, 80). Likewise, courts should Likewise, courts should avoid avoid outcomes outcomes which which lead lead to the

of the criminal manipulation of criminal justice system. See Camaddu, ,r (stating that ifif a Camaddu, 2015 Guam 2 1180

trial court trial court recused reused itself itself "every "every time time ititreceives receives unsolicited unsolicited material material uncomplimentary to a uncomplimentary to

defendant prior to trial trial or sentencing [it] [it] would create an intolerable situation situation which could lead

to a manipulation manipulation of the criminal justice justice system.").

1. The OAG Failed to Object at the Earliest Practicable Practicable Opportunity Opportunitv

As noted, even when when aa judge judge fails fails to to disclose disclose any any potentially potentially disqualifying disqualifying facts, facts, aa party

may object may object to to aa judge judge presiding presiding pursuant pursuant to to GCA GCA §§ 6107 but Must 6107 but must do do so so at at the the earliest practicable earliest practicable

opportunity after discovery discovery of the the facts facts constituting constituting the the ground ground of the the judge's judge's disqualification disqualification or

else that that party party waives waives their their right right to bring an objection.

Here, although Judge Tolentino did not not disclose disclose any any facts, facts, the OAG was was still still required to

bring its objection as soon as as possible possible after after discovery of of the the facts. facts. The Court Court understands understands the

OAG's position OAG's position to be that generally involved that Moylan is generally involved in in the the OAG's cases, cases, even if he is not

lead counsel on a matter. The OAG cites to JUdge Judge Iriarte's Decision in Taitingfong, Taitingfong, in which she

wrote, "Deputy Attorney General Gloria Rudolph clarified wrote, clarified that that Attorney Attorney General General Moylan is

consulted on general case strategy and plea agreements agreements and and that that it would would be incorrect incorrect to say say that

he is not personally involved in this case." Objection at 6. Given that Moylan is the head of the

8 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People of ofGuam v.v. Jamielynn Jamielynn Pangelinan Pangelinan Cabrera Cabrera

OAG, and that he is involved in matters which the OAG prosecutes, prosecutes, the OAG was aware of of the

facts facts regarding regarding Moylan's Moylan's and and Judge Judge Tolentino's Tolentino'srelationship relationshipby byJanuary January2023 2023.

Despite being aware of Despite of Judge Tolentino's Tolentino's and and Moylan's Moylan's relationship relationship by by January January 2023, 2023,

the OAG argues argues two primary reasons reasons for why its Objection was timely: timely: (1) because because the the OAG

filed its Objection prior to to Judge Judge Tolentino hearing the matter and only two weeks after after the case

was initiated; initiated, and (2) (2) because because the the Supreme Court of Guam issued an Opinion in San Agustin on

July 18, 2024 2024 which which provided additional grounds on which to to require require disqualification. Objection

at 5.

A. T he C o urt V iewss t he O Court AG's O OAG's bj ect io n in Objection in tthe he CContext o nt ext ooff JJudge udg e Tolentino's Relationship with Moylan Movlan

First, First, the OAG OAG cites cites to Van Van Dox, Dox, quoting quoting in part, part, that that a statement of objection statement of objection is

"normally" timely when when submitted submitted prior prior to a hearing by the challenged challenged judge and and also also that the

timeliness requirement should be "liberally construed" to promote justice. Response timeliness Response at 2. The

OAG provides provides an an accurate accurate timeline of of the the procedural procedural posture posture in in this this matter, matter, including that the

OAG filed filed its its Objection less than one month month after after the the matter matter was assigned assigned to Judge Tolentino Tolentino

and before Judge Tolentino ever ever set the matter to be heard. heard. Id. Id at at 3.

However However, , despite des p it e the t he Court's r t 's Order der that ha t the he OAG OAG ex p la whet explain whether itit bbrought r ou itits

Objection at the earliest practicable practicable opportunity, opportunity, "considering "considering Attorney Attorney General Moylan has been

in office since January 2023," the January 2023," the OAG failed failed to address address the timeline of of its Objection in the

broader context broader context of of the the history history between between Judge Judge Tolentino Tolentino and and Moylan. Moylan. In In doing doing so, so, the the OAG

seemingly seemingly would would have have the the Court Court view view this this matter matter as as an an isolated isolated objection objection rather rather than in the larger

context ofMoylan's Moylan's relationship with Judge Tolentino.

Thus, hus, the the Cour Court must first st analyze whether it is appr analyze whether iate to appropriate to view view this this matter matter in

isolation or to isolation or to consider the larger consider the larger context context of the the history history of of the the relationship relationship between Judge Judge

9 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People 0f ofGuam v.v. Jamielynn Jamielynn Pangelinan Pangelinan Cabrera

Tolentino and Tolentino and Moylan Moylan since sinceand andprior priorto to January January2023 2023.

i. Van Dox Standard Is Not Applicable The Van

When the Supreme Supreme Court Court of Guam announced announced in in Van Van Dax Dox that a statement statementof of objection objection is

"normally timely "normally timely if it is is submitted submitted prior to to any hearing hearing before before the challenged judge in the challenged judge

matter," it cited a California case case in support: support: Hollingsworth v. Superior Court, Court, 191 191 Cal. App. 3d ad

22, 236 Cal. Rptr. Rptr. 193 (Ct. (Ct. App. 1987). In Hollingsworth, Hollingsworth, the California Court of Appeals found

that that counsel presented its statement statement of of disqualification disqualification at the the earliest earliest practicable practicable oppomlnity opportunity

because because the the case case had only recently been assigned to the challenged judge, and the Court found

that it would be unreasonable and impracticable to require a party to to challenge a judge prior to

knowing which knowing which judge judge will will hear hear the matter. Hollingsworth, Hollingsworth, 236 Cal. Rptr. 193, 196.

Further, ther , when when the the Va Van Dox Dox Cour Court wr ote tha wrote that the the timeliness timeliness rrequirement equir should should be

"liberally "liberallyconsoled construedtotopromote promotejustice," justice,"ititcited citedtotoanother another California Californiacase: case: Eagle Maintenance Maintenance & &

Supply Co. v. Superior Court, 16 Cal. Rptr. 745 Court, 16 745 (Dist. (Dist. Ct. Ct. App. App. 1961). 1961).111 thatcase, In that case, the the California California

Court of Appeals notes that the matter had been assigned assigned to aa department department of of the the superior superior court, court, \I

but not yet to a specific judge. Eagle Maintenance, Maintenance, 16 16 Ca. Rptr. 745, 747. Thus, the court stated, stated,

place an undue hardship upon a litigant or his "it would place his counsel counsel to to compel compel him to know before

first scheduled the first scheduled trial trialsetting, setting,what whatjudge judgewould wouldbe beassigned assignedtototry tryhis hiscase case.... ...." Id Id.

Thee llogicc iin Hollingsworth llingsworth and and Eagle Eagle Maintenance Maintenance whic whichh ma es aa lib mandates er a liberal

construction of the timeliness standard does not apply apply to the unique unique situation situation before this this Court.

While While the may the OAG ma not ha y not have ve known known tha t Judge that Judge TTolentino olentino would would be be aassigned ssigned the the aabove- bove-

captioned matter, matter, it it was was aware aware by January January 2023 2023 that Judge Judge Tolentino Toientino would be assigned assigned some

P

10 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People of ofGuam v.v. Jamielynn Jamielynn Pangelinan Pangelinan Cabrera

cases involving cases involving the the OAG, OAG, considering considering Judge Judge Tolentino Tolentino isis one one of of four four criminal judges5 in the criminaljudges

Superior Court of Guam OAG files Guam and the OAG files aa significant significant number number of of criminal criminal cases. cases. Further, Further, the

facts that facts that give give rise rise to to the the OAG's OAG's Objection have remained remained the the same same since since prior prior to to January January 2023

and remain the same in all cases involving Judge Tolentino and and Moylan. Moylan. Therefore, Therefore, this is not a

circumstance in which a party must wait to see which judge is "normal" circumstance is assigned assigned and then, if if

there is a conflict, conflict, challenge challenge that judge. judge.

Instead, a more relevant case to review in this matter is People of of Guam v. Win. Wia. There,

the Public Public Defender Service Service Corporation Corporation ("PDSC") ("PDSC") ha d rraised a is ed tthe he issue of tthe judge's

disqualification previously disqualification previously in in other cases. cases. Win, Wia, 2020 Guam 17 ,r 27. 17 1] 27. The The Supreme Court of of

Guam found that the defendant was aware aware of the conflict through through his his counsel's involvement in

the other cases, cases, and and the the fact fact that that they they remained remained silent in Win rendered his Wia rendered his objection waived and

untimely. Id. Id

Like in Win, Wia, this matter is more appropriately viewed in its broader context regarding the . .

parties' previous knowledge of of the the facts. facts. Here, the broader context requires the Court to review

Tolentino's and Judge Tolentino's and Moylan's Moylan's relationship relationship as as well well as as the the OAG's OAG'sconduct conductininOther other cases before

Judge Tolentino.

ii. Viewing this Viewing this Matter Matter in in Isolation Isolation Would Would Permit Permit Outcomes Outcomes Contraryto Contrarv to the the Recusal Recusal Statute's Statute's Intended Intended Purpose

The recusal statute statute shall shall not not be be construed construed to to permit permit judge-shopping, judge-shopping, to to bestow bestow veto power

over judges, or to permit manipulation of of the criminal justice system. San Agustin, Agustin, 2024 Guam 2

,r 24, 1[ 24; Camaddu, Camaddu, 2015 Guam ,r 80. Guam 2 1] 80. Thus, Thus, the Court Court must must attempt attempt to to avoid avoid these these undesired undesired

outcomes. outcomes.

55 Pursuant Pursuant to to Supreme Supreme Court Court of of Guam Guam Administrative Administrative Rule Rule No. No. 23-002, 23-002, in in addition addition to to the four criminal judges in the Superior Court of Guam, the Supreme Court of Guam created Court 8, which is comprised of of both criminal and non-criminal non-criminal cases. cases. Court 8 is assigned to the Honorable John C. Terlaje.

11 11 i" DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24,' CF0439-24; People of Guam v.v. Jamielynn JamielynnPangelinan Pangelinan Cabrera Cabrera

First, if First, if the the Court Court disqualified disqualified Judge Judge Tolentino Tolentino in in all all cases cases in in which which the the OAG tiles files an

objection but allowed Judge Tolentino to to sit on any matter in which the OAG did not not object, object, it

would create create a system system in which the OAG OAG could could cheny-pick cherry-pick which which cases cases to to disqualify disqualify Judge Judge

Tolentino. Allowing the OAG to determine which which cases cases itit will permit Judge Tolentino to sit on

would clearly promote judge-shopping. See In re Takeno, BR 15-00108, Takano, No. BR 15-00108, 2016 WL 7384603

(D. Guam Dec. 19, 2016) (opining (D. Guam (opining that allowing a party that allowing party to to "cherry-pick" which ca cases to to

disqualify a judge disqualify judge from from would promote judge-shopping). Unlike a criminal defendant, defendant, who is a

different individual in each ca~e case with the right to decide whether whether to object to aa judge presiding,

the OAG represents represents the People of Guam. Because the People of of Guam cannot cannot object object to Judge

Tolentino presiding over over certain criminal matters but not others, disqualifying disqualifying Judge Tolentino in

some but but not not all ali cases, without further explanation, is inappropriate.

Likewise, permitting the OAG OAG to to sit sit on known known facts facts for for months months and and then then raise raise those facts facts

at any given time to disqualify Judge Toleritino Tolentino could bestow a veto power on the OAG and

allow the manipulation anipul as on of of the the judicial judicial system. system. For example, the OAG could, theoretically, hold

these facts Judge Tolentino's head with facts over Judge with the the constant constant threat threat of of raising them in all all his cases cases

after after any unfavor able decision. unfavorable decision. In In other other words, wor ds, the the ·same same logic that that prevents events a par party fr from

disqualifying disqualifying a judge after an unfavorable unfavorable decision in aa particular particular case likewise prevents the

OAG OAG from disqualifying disqualifying aa judge after an unfavorable decision in any case case involving involving the OAG.

Without speculating about the speculating about the OAG's OAG's motive to bring bring these these recently recently filed objections objections or

why why itit has objected in in some some cases cases but but not not others, others, the the fact fact that the possibility exists that the OAG

could could use use these strategies strategies to to forum-shop forum-shop or manipulate manipulate the the judicial judicialsystem systemnecessitates necessitates that the

Court view the the OAG's OAG's objections objections br oa dly, r ather broadly, ther thann in in isola tion in isolation in the the insta nt ma instant tter . matter.

Consequently, Consequently, the the Court Court declines declines to to find find that that the Objection Objection was was brought brought at at the earliest earliest practicable

12 12 DECISION AND ORDER DENYING DENYING OAG'S STATEMENT OF OBJECTION CF0439-24,' v. Jamielynn CF0439-24; People of Guam v. Jamielynn Pangelinan Cabrera

opportunity oppor t unit y solely solely because beca use itit was wa s filed filed promptly ompt ly after ft er the t he matter t er wass aassigned ssigned to Judge Judge

Tolentino.

B. The Supreme The em Courtt of of Guam Guam Issuing Issuing Its Opinion in San San Agustin Does Does Not o t JJustify u s v the OAG's A G ' s FFailure a i l u r e t to o OObject b j e c t aat t t hthe e EEarliest a r l i e s t PPracticable ractica Opportunity ppo v

QAG argues The QAG argues that that their their Objection Objection is timely timely because because itit was was filed filed shortly shortly after after the

Supreme me Court C r t of Guam is issuedd its its Opinion Op in io n in San Agustin on July 118, 2024, and San Agustin

provided ovided additional ddit iona l grounds gr ounds on on which tto r require disqualification. equir disqua lifica t ion. The T he OAG aargued r gued tthat ha

"[e]mploying the "[e]mploying approach set the approach set forth forth by the Supreme Supreme Court, Court, i.e., i.e., knowing facts and knowing all the facts and

understanding the context involving Judge Tolentino's of disqualifying himself Tolentino's history of himself where the

AG was involved, it is clear that Judge Tolentino is a disqualified judge in any case where AG

Moylan is involved. involved. The basis for Judge Tolentino's prior disqualificaticjn disqualification hasn't hasn't changed." 77

Objection Objection at 5.

San Agustin is distinguishable from the instant instant matter matter for for several several reasons. reasons. First, First, that case

did not not addr ess whether an appearance of address of bias exists exists based on Judge Tolentino's relationship relationship

with Moylan. Second, the San Agustin Court held that Judge Tolentino was disqualified in that

matter as the the recusal recusal judge judge because because he disqualified himself in the underlying case. case. Here, Judge

Tolentino has not disqualified himself himself in the underlying underlying matter matter and and he is is not the recusal judge. judge.

Moreover, the Supreme Supreme Court Court of of Guam first first issued its Order in San Agustin on December

5, 2023, 2023, which addressed the same same issues issues related related to to Judge Judge Tolentino's Tolentino's disqualification disqualification as the

recusal judge judge as San Agustin July 18, 2024 Opinion, albeit in less detail. as the San detail. The The OAG does not

distinguish u is h why w the July u ly 18,, 2024 2 0 2 4 Opinion Op in io n in San Agustin triggered triggered its its mass mass objection, but the the

December December 5, 2023 Order did not.

Therefore, the Court Therefore, the Court declines declines to to find find that that the the issuance issuance of of the the Opinion in San Agustin

13 13 »

DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0439-24; People People of ofGuam v. v. Jamielynn Jamielynn Pangelinan Pangelinan Cabre.ra Cabrera

circumstances allowing changed the circumstances allowing the the OAG to timely timely file file numerous numerous statements statements of of objection objection

against Judge Tolentino based on previously known facts. facts.

c. C. The OAG The OAGHas Has Waived Waivedits its Objection Objection by by Silence Silence

As As discussed discussed previously, previously, parties can waive parties can waive aa judge's judge's 77 GCA GCA §§ 6105(a) 6105(a) disqualification by disqualification by

silent after remaining silent after learning of of potentially potentially disqualifying facts. facts. Win, Guam 17 Wia, 2020 Guam ,r This 17 1128.

"silence-as-waiver" rule "silence-as-waiver" rule renders renders an an objection objection as as waived when based on on information information previously previously

known to tthe parties parties through separate separate litigation. litigation. Id. Id. (finding that PDSC waived by by silence

because they had raised the issue of of the jUdge's judge's disqualification in previous cases and, therefore,

were aware of of the issue).

Further, Wia, the Supreme ther in Win, Supreme Court Court of Guam declined declined to answer answer whether whether "the most most

waivable egregious" conflicts are liva through b le t hr ilence, but ou gh ssilence, but found found that, in that case, the si1ence-as- silence-as-

waiver rule applied because because counsel had been aware aware of of the the conflict conflict and waited over a year year to

,r 30. object. Id. atat1]

Here, like m Here, like in Win, Wia, the OAG waited waited over aa year year to to file its its first first objection objection to Judge

Tolentino. olentino. The T he OAG was aware aware of of all all the the facts facts regarding regarding Judge TTolentino's and and Moylan's Moylan's

relationship by relationship by January January 2023, 2023, yet yet waited waited until its first until May 1, 2024 to file its first objection to Judge

Tolentino in Ybanez. Further; the Ybanez. Further, number of the OAG continues to proceed in a number of cases before Judge

without objecting. Tolentino without objecting. Thus, Thus, the Court finds that the silence-as-waiver silence-as-waiver rule applies and the

OAG OAG waived waived its its ability to object to Judge Tolentino based on his relationship with Moylan.

The Court need not answer whether whether Judge Tolentino Tolentino is is disqualified disqualified from hearing hearing matters

involving Moylan because even if if he he is, is, the the OAG OAG has has waived waived its its right right to to object. object. Therefore, Therefore, the

OAG's Objection Court denies the OAG's ObjectionOn on the the basis basis that that itit was was not not brought brought at at the the earliest earliest practicable practicable

opportunity. oppommity.

14 14 3

DECISION AND ORDER DENYING OAG'S STATEMENT STATEMENT OF OF OBJECTION OBJECTION CF0439-24; People of of Guam v.v. Jamielynn Jamielynn Pangelinan Pangelinan Cabrera Cabrera

CONCLUSION

For the the aaforementioned for rreasons, sons, the the Cour Court her hereby DENIES the OAG's OAG's Objection. Objection.

Consequently, Judge Tolentino Tolentino may may continue continue to preside over over the above-captioned matter.

SO ORDERED: A1112'SPY3`?¥?Z

HC A. GUT EZ Jd e. Superior Courlt d>f Guam

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