People v. Chiguina

Opinion

r I LED E CLEm{53? CLERK COURT OF CON?Ti?

202llSEP 202~ SEP 3SD 0 A2=H1: AM 11 : Il`l7 SUPE§l%U§8€ (_,GE_fF8T

IN THE THE SUPERIOR SUPERIOR COURT COURT OF OF GUAM GUAM oF Gum 5

PEOPLE OF GUAM GUAM CRIMINAL CRIMINALCASE CASENO:NO:CF0330-23 CF0330-23 Police Police Report Report No. No. 23-12196 23-12196 vs.

DEVIN DEVIN JABO CHIGUINA CHIGUINA DOB: DOB:03/22/1994 03/22/1994 DECISION AND ORDER DENYING OAG'S STATEMENT OF ROSE ROSE LIN BACA BACA OBJECTION DOB: DOB:09/24/1981 09/24/1981

Defendants. Defendants.

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

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

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

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

General General Douglas Douglas Moylan ("Moylan"). ("Moylan").Upon consideration ofofthe Uponconsideration arguments and thearguments applicable and applicable

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

may continue to preside over over this matter. matter.

FACTUAL BACKGROUND

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

manned andhad married and hadtwo twochildren-Brandon children-Brandon (born (born 1990) 1990) and and Angela (born 1992) Angela (born (the "Moylan 1992) (the "Moylan

Children"), Children"); Doris Dorisand and Moylan Moylandivorced divorcedinin1997, Tolentinoand Judge Tolentino 1997;Judge Dorismarried andDoris in 2005 married in and 2005 and

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

Answer Answer to Statement of of Objection action("Answer") ("Answer") at ,r,r14-15 at W 28, 2024). (August 28, 14-15 (August DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People of a/Guam v. Devin Jabo Jato Ch iguina and Chiguina and Rose Lin LinBoca Baca

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

in which Moylan appeared before him as as private counsel because of of his relationship with Moylan

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

("Objection") at ("Objection") a t Ex. (August 23, Ex. A-MM (August 23, 2024) 2024) (pr (providing examples oviding exa of Judge mples of Judge TTolentino's olentino's

disqualifications in cases involving Moylan from 2014 2014 to 2022).

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

January 2023. in January ,r 5.5. InIn December 2023. Answer at 11 December 2022, 2022, Judge Judge Tolentino Tolentino and and Moylan Moylan met with with

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

Tolentino's previous Tolentino's previous disqualification disqualification in Moylan's cases. Id. atat ii,r 6. According to Judge Tolentino Moylan's cases.

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

attendance t enda nce that t ha t he he perceived per ceived no no conflict conflict in his elect in his election ion as tthe At Attorney t Generall and tthe Gener

of criminal prosecution of criminal cases cases before [Judge [Judge Tolentino]." Id.atat1],r 7. Tolentino]."Id

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

without objection OAG without objection from from the the OAG. OAG. See See Answer ,r (stating Answer atat 114 (stating that that Judge Judge Tolentino's Tolentino's docket

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

However, beginning However, beginning in April of of 2024, 2024, three three Superior Superior Court of of Guam Guam Judges Judges issued issued

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

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

First, on First, 2024, the Honorable April 5, 2024, on April Honorable Joseph Joseph N. Camacho, Camacho, presiding presiding as as Judge Judge Pro

Tempore, issued a Decision and Order in People of Guam Tempore, 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 tha t aa "Judge "Judge shallll disqualify disqua lify himself himself in in any a ny proceeding pr oceeding in in which which his her his or her

impartiality might might reasonably be be questioned" unless both parties patties agree to have the the judge judge continue

2 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People of of Guam v.v. Devin Devin Jabo Jato Chiguina Chiguinaand andRose Rose Lin Boca Baca

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

6105(a 6105(a).). Judge Judge Camacho ma cho found found that "a "a rreasonable ea sona ble per person could could quest question whet whether Judge Judge

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

continuing relationships continuing relationships with with the the Moylan Moylan Children. Children. Id. at 8. Id at 8. Thus, Thus, the the court court held held that, that, "[H]t "[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 Blyze M. M. Iriarte issued a Decision and Order Order as the

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

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

case, and Judge Iriarte Taitingfong, Iriarte held that Judge Tolentino was disqualified from the matter. Tatting/"ong

CF0024-24 CF0024-24 at at 10. 10. Judge Iriarte reasoned Judge Iriarte that pursuant reasoned that pursuant to to 7 7 GCA GCA §§ 6105(a), 6105(a), aa reasonable question reasonable 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 to the fact that Judge Tolentino had previously sua the fact sue

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

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

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

right, Judge Iriarte Iriarte held held that that Judge Judge Tolentino Tolentino was was disqualified from from sitting on the case. case. Id. at 8-9. Id at

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

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

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

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

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

3 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People of ofGuam Guam v. Jato Ch v. Devin Jabo iguina and Chiguina and Rose Rose Lin Boca Baca

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

under under 77 GCA 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.

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

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

he per ceived no perceived no continuing continuing conflict conflict r requiring equir ing Judge Judge TTolentino's olentino's disqua lifica tion, (2) tha disqualification; that

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

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

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

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

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

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

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

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

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

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

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

Agustin, 2024 Guam 22 at Agustin, ,i 8.8. The at 'H The San San Agustin Court noted that Judge Tolentino had previously

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

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

a conflict." Id. Id atat 1] ,i 4. 4. The The matter matter was was then then reassigned reassigned to to the the Honorable Presiding Judge Alberto

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

matter. Id. matter. ,i 5. .The at 'll Id at Theissue issueof of Presiding PresidingJudge Judge Lamorena's Lamorena's recusal recusal was was then assigned to Judge

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

4 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; CF0330-23; People of ofGuam v. Devin ./Abo Chiguina and Jabo Chiguina and Rose Lin Lin Baca Boca

Lamorena was not not disqualified. ,r 6.6. Ultimately, disqualified. Id atat 11 Ultimately, the the Supreme Supreme Court Court of Guam held that that

beca us e Judge because udge Tolentino olent ino hadd disqualified qua lified himself hims elf in in the he under lying matter, underlying t er , he he wa was aalso ls

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

him from from the the matter ,r,r 440, entirely. Id aatt W matter entirely. 0 , 554. h e SSan 4 . TThe Agustin a n Ag u s t i Court clarified clarified the proper proper

when aa party seeks to challenge aa recusal judge for cause. Id at procedure when ,r at 1]34.

PROCEDURAL BACKGROUND

The instant matter matter was was initiated initiated on on May May 9, 2023, 2023, when the OAG OAG filed filed aa Magistrate's Magistrate's

Complaint, accusing Defendant Devin Jabo Chiguina ("Defendant Chiguina") Chiguina") of of three three charges: charges:

(1) Possession of of a Schedule II Controlled Substance (As a 3rd Degree Felony), Felony); (2) (2) Assault on a

Peace Officer (As a 3rd Felony), Felony); and (3) Violation of of a Court Court Order (As a Misdemeanor), Misdemeanor); and

Defendant Rose Lin Back Baca ("Defendant Boca") Baca") of one charge: charge: (1) (1) Possession of of a Scheduled II

Controlled Substance Substance (As (As a 3rd 9, 2023, 3rd Degree Felony). On May 9, 2023, the matter matter was assigned assigned to

eventually indicted Judge Tolentino. Both were eventually on May indicted on May 15, 15, 2023.

assigned this case, Judge Tolentino held Since being assigned held at at least seven seven hearings hearings in in this matter.

On July 31, 2023, Judge Tolentino issued a Criminal July 31, Criminal Trial Trial Scheduling Scheduling Order Order ("CTSO") ("CTSO") for for

Defendant Chiguina, setting jury selection and trial trial for for January 17, 2024. After issuance of the January 17,

CTSO, the records reflect that that Defendant Defendant Chiguina's of the Chiguina's counsel was negotiating a resolution of

matter with the OAG. While Defendant Defendant Chiguina Chiguina was was attempting attempting aa resolution resolution of of this matter and

appearing in appearing in front front of Judge Judge Tolentino, Tolentino, Defendant Baca Boca was was on bench warrant for most of the

time time prior ior to OAG's Objection. to the OAG's Objection. On May May 9, 9, 2024, 2024, Judge Judge TTolentino olentino issued an Amended

Criminal Trial Scheduling Criminal Trial Scheduling Order Order setting setting jury jury selection selection and trial trial for Defendant Chiguina on

August 26, 2024.

On August August 2, 2, 2024, 2024, Judge Judge Tolentino Tolentino held held aa Further Further Proceedings Proceedings hearing hearing noting noting that that

5 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; CF0330-23; People of of Guam v.v. Devin Devin Jabo Jato Chiguina Chiguinaand andRose Rose Lin Boca Baca

Defenda nt Chiguina Defendant C higuina was wa s in in cust ody and custody nd had not met wit not met hisa tattorney. h his with t or ney. Judge Judge TTolentino olent ino

remanded remanded him until until the the next next scheduled scheduled hearing. hearing. On On August August 9,9, 2024, 2024, aaFurther Further Proceedings Proceedings

hearing was held. As Defendant Chiguina's attorney was not present and had not met with him,

that the Pretrial Conference would go forward on August Judge Tolentino remanded and noted that

21, 2024. Pretrial Conference, 2024. At the August 21, 2024 Pretrial Conference, Judge Tolentino was informed that a plea

place for agreement was in place for Defendant Defendant Chiguina. Chiguina. As As aa result, result, Judge Tolentino Tolentino vacated the jury

selection and selection and trial date and set a Further Proceedings September 9, 2024. Proceedings hearing for September

August 23, On August 23, 2024, 2024, the the OAG OAG filed filed their theirObjection, Objection, stating stating that that "disqualification of "disqualification of

Judge Tolentino Judge olentino from this and any from this any other other matter matter involving involving Moylan is required" required" due to to their their

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

thatt Judge Judge TTolentino's oientino's personal sona l relationship ela tionship with with [AG] [AG] Moylan Moyla n and his pr nd his prior years spent ior yea spent

disqualifying himself disqualifying himself from 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 filed numerous identical objections to Judge Tolentino

over many presiding over many criminal matters. 1 However, criminal rnatters.l However, the the Court Court takes takes judicial notice2 of judicial noticed of the the fact fact that, that,

to date, the OAG OAG has has not not filed filed obi objections sectionsininall allof ofits itscases casesbefore before Judge Judge Tolentino, Tolentino, and instead is

1 1 This Court has been This Court been previously previously assigned assigned toto hear hearthe recusalof therecusal ofJudge JudgeTolentino Tolentino in several several cases cases in in which which the OAG has filed OAG has filed identical statements of identicalstatements of objection, objection, including, but not limited limited to, to, the thefollowing: of following: People of Guam v. Peter Pangelinan Reyes Reyes Jr., CF0419-24 CF0419-24 (Super. (Super. Ct. Guam Aug. 5, 5, 2024), 2024); People of of Guam Guam v. v. Jamielynn Jamielynn Pangelinan Cabrera, Cabrera, CF0439-24 (Super. (Super. Ct. Ct. Guam July 30, 30, 2024), 2024); and and People People of of Guam v. v. Brian Jake Brian Jake Cepeda Cepeda Alano, CF04l1-24 CF0411-24(Super (Super Ct. Ct. Guam Guam July July25, 25, 2024). 2024). 2 Guam Rules of Evidence ("GRE") Rule 201 governs judicial notice of of adjudicative adjudicative facts. facts. "A judicially noticed fact must be one not subject to to reasonable reasonable dispute dispute in in that that itit isis either either (1) (l) generally known within the territorial jurisdiction jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy accuracy cannot cannot reasonably reasonably bebequestioned." questioned." GRE GRE 201(b). 20l(b).

6 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People 0/'Guam of Guam v. Devin Jabo Jabs Chiguina Chiguina and and Rose Rose Lin Boca Baca . . . 3 in certain proceeding in matters. 3 certain matters.

In response response to the OAG's OAG's Objection, Objection, Judge Tolentino Tolentino issued issued his Answer on on August August 28,

2024, denying that that his his disqualification disqualification was was required required in in this this case. Answeratat1],r 35. In support of case. Answer of

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

potential conflict, and the fact that Moylan stated that he perceived no disqualification. ,r Id atat117. disqualification. Id

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

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

This matter was assigned assigned to this Court on August 29, 2024, for the limited purpose of of

Tolentino's recusal. deciding Judge Tolentino's recusal.

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 in states 11111: full:

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

33 According According to to the the Superior Court of Superior Court of Guam's Guarn's Weekly Calendar forfor the week ofof September September 30, 30, 2024, 2024, Judge Tolentino continues to have a full calendar of cases moving forward which list the OAG as counsel. Judge Tolentino remains scheduled to to hear hear progress progress hearings, hearings, further further proceedings, motion hearings, pre- trial conferences, trial change of pleas, conferences, change pleas, return return of of warrants, warrants, and competency competency hearings hearings in in criminal criminal matters matters involving the OAG. The Superior Court of Guam's Weekly Weekly Calendar Calendar is posted posted publicly on the Judiciary of Guam's website, website, available available at https://www.guamcourts.org/Calendar/images/Weeldy-AET.pdf. eek:ly-AET

The Court also notes that in People People of Guam v. v. Martin Martin Park, Park, CMOl98-24, CM0198-24, the the OAG initially initially filed its Statement of of Objection to Judge Tolentino presiding over the case on August 18, 18, 2024. Stmt. Stmt. of Objection (Super. Ct. Guam (Super. Ct. Guam Aug. Aug. 18, 18, 2024). 2024). However, However, after after Judge Judge Tolentino Tolentino filed filed his his Answer to to which the OAG filed a Response, the OAG then filed its Response, the its People's People's Notice Notice ofofWithdrawal Withdrawal of of Objection Objection on on September September 5, 2024. Upon the OAG's filing of its filing of its Notice of Withdrawal of Objection, of Withdrawal of Objection, this Court remanded the case back to Judge Tolentino. Order (Sept. 9, 2024).

7 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23, CF0330-23; People of of Guam v.v. Devin Devin Jabo Jato Chiguina Chiguinaand andRose Rose Lin Boca Baca

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

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

required, 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 Justice or Judge the Justice Judge on the ground of his ground his or or her her disqualification disqualification shall shall be be presented presented at the the earliest practicable opportunity after practicable opportunity after his her appearance his or her appearance and and discovery discovery of the facts constituting constituting grounds gr ounds ofof the Justice's ·or the Justice's or Judge's disqualification, and in any event before the commencement of commencement ofthe the hearing hearing of ofany any issue issue of of fact fact in the the action action or proceeding before such Justice or Judge.

77 GGCA C A §§6 16107 0 7 (emp ha s is a added). (emphasis dded). IfIfa ap aparty r t y fafails ils t otoobobject ject a tat hethe"ea"earliest r lies t p rpracticable a ct ica b le

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

Dox v. Superior Court of waiver." Van Dex of Guam, i! 45. As Guam 77 1145. Guam, 2008 Guam As such, such, when when a party remains

silent silent on on aa known known disqualification disqualification pursuant to 77 GCA pursuant to GCA §§ 6105(a), 6105( a), the the party party waives waives their their right right to to

later object to the judge presiding. presiding. People .of of Guam v. v. Win, Wia, 2020 Guam Guam 17 i/ 28. 17 1128.

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

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

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

to to any hea hearing befor beforee the cha challenged llenged judge in the judge in the ma matter." Guam 7711,i 46. Dox, 2008 Guam tter Van Dox, 46.

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

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

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

be used as a judge shopping used as device." San shopping device."' San Agustin, Agustin, 2024 Guam ,i 24 (quoting Guam 2 'll (quoting People v. v.

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

Camaddu, 2015 Guam 22 ii,i 80 (stating manipulation of the criminal justice system. See Camaddu, (stating that if a

8 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; CF0330-23; People of ofGuam Guam v. v. Devin Jato JaboCh iguina and Chiguina and Rose Rose Lin Boca Baca

trial court trial court recused refused itself "every time itit receives receives unsolicited unsolicited material material uncomplimentary to a uncomplimentary to

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

its Objection, the OAG does not Objection, the not directly directly address address why why this this Court Court should should consider consider its its Objection Objection

timely. Instead, the OAG OAG argues argues that that disqualification disqualification is appropriate because the Supreme Court appropriate because Court

of Guam issued an Opinion in San Agustin on July 18, of 18, 2024 which provided additional additional grounds

on which to require disqualification. Objection Objection at 5.

9 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People of ofGuam Guam v. Devin Jato Jabo Ch iguina and Chiguina and Rose Lin Boca Rose Lin Baca

A. The C o Court V Views tthe OOAG's A G ' OObjection bj io n in tthe CContext o nt ooff JJudge udg Tolentino's Relationship with Moylan Tolentin0's

Not only did the OAG OAG fail fail to to address address the the timeline timeline of ofits its specific specific Objection Objection in in this this case, case,

the OAG also failed to address the timeline of of its Objection in the broader context of of the history

Tolentino and Moylan. between Judge Tolentino Moylan. In doing so, the OAG seemingly seemingly would have have the the Court Court

view tthis view matter his ma t t er aass aan n isisolated objection ola t ed ob ject ion r a ther her than ha n in tthe he lalarger context r ger cont Moylan's of M ex t of oyla n's

relationship with Judge Tolentino.

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

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

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

i. The Van Dox Standard Is Is Not Applicable

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

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

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

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

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

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

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

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

Further, Fur ther , when when the the Va Vann Dox Court wr Dax Cour wrote thatt the ote tha the timeliness timeliness rrequirement equir should be

"liberally construed to promote justice," "liberally justice," itit cited to another another California case: Eagle Maintenance &

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

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

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

10 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People People of Guam v. a/Guam v. Devin Jabo Chiguina Chiguina and and Rose Lin Baca Rose Lin Boca

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

the first first scheduled scheduled trial trial setting, setting, what what judge judge would be assigned to try his case ...."" Id Id.

The h e llogicc iin Hollingsworth Hollingsworth 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 the unique unique situation situation before before this this Court. Court.

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

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

cases involving the cases involving the OAG, OAG, considering considering Judge Judge Tolentino Tolentino isis one one of of four four criminal judges4 in the criminaljudges

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

facts that give facts that 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 Tolentino and and Moylan. Moylan. Therefore, Therefore, this is not a

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

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

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

the he PPublic Defender Service lic Defender vice Corporation or p or a t ion ("PDSC") ("P DS C ") had ha d raised r a is ed the t he issue is s u e of of the ju dge's judge's

disqualification previously disqualification previously in in other cases. cases. Win, Wia, 2020 17 ii,r 27. The 2020 Guam 17 The Supreme Supreme Court 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, and the fact that they they remained silent in Win Wia rendered his objection waived and

untimely. Id. Id

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

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

Judge Tolentino's and and Moylan's Moylan's relationship relationship as as well well as as the OAG's OAG's conduct conduct in in other other cases cases before

44 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 the four criminal judges in the Superior Superior Court of Guam, the Supreme Court of Court of Guam created Court 8, which is comprised of both criminal and non-criminal cases. Court 8 is assigned to the Honorable John C. Terlaje.

11 11 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23,' CF0330-23; People of ofGuam v. v. Devin Jabs Jabo Ch iguina and Chiguina and Rose Lin Baca Rose Lin Boca

Judge Tolentino.

ii. Viewing n g thiss Matter at i in Isolation n I so l at i Would Wo u l d PPermit ermi t OOutcomes u t co mes Contrarv to the Contraryto the Recusal Recusal Statute's Statute's Intended Purpose

The recusal statute shall recusal statute shallnot notbe beconstrued construedtotopermit permitjudge-shopping, judge-shopping,to tobestow bestow veto veto power power

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

1 24; 1] 24, Camaddu, Guam 2211 80. Thus, the Camaddu, 2015 Guam the Court Court must must attempt attempt to to av avoid these undesired oid these undesired

outcomes.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

after any after unfavorable decision. any unfavorable decision. In In other other words, words, the the same that prevents same logic that prevents a party party from from

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

12 12 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; People of of Guam v.v. Devin Devin Jabo Jato Chiguina Chiguinaand andRose Rose Lin Baer Baca

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

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

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 use these strategies strategies to forum-shop or or manipulate the judicial system system necessitates necessitates that the

view tthe C ourtt view he OAG's OAG's object ions br objections oa dly, rrather broadly, a t her tthan ha n in in isola t ion in isolation he inst in t the a nt ma instant t t er . matter.

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

oppor tunity solely opportunity solely because beca use itit was wa s filed filed promptly omptly after fter the the matter tter wass aassigned ssigned to Judge Judge

Tolentino.

B B. The The Supreme Court of Guam Issuing Its Its Opinion in San San Agustin Does Does Not Justifv Justify the OAG's OAG's Failure Failure to to Object Object atatthe theEarliest Earliest Practicable Practicable Opportunity Opportunitv

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

Supreme Court of Supreme Court of Guam issued its Opinion in issued its in San San Agustin on July 18, 18, 2024, 2024, and San 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 tthat ha

"[e]mploying the "[e]mp1oying the approach approach set set forth forth by by the Supreme Court, the Supreme Court, i.e., i.e., knowing all the facts knowing all facts and 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 disqualified judge judge in any case case where AG

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

Objection at 5. Objection

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

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

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

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

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

13 13 DECISION AND ORDER DENYING DENYING OAG'S OAG'S STATEMENT STATEMENT OF OF OBJECTION CF0330-23; People of of Guam v.v. Devin Devin Jabo Jato Chiguina Chiguinaand andRose Rose Lin Boca Baca

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

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

recusal recusal judge as the San Agustin July 18, Agustin July 18, 2024 2024Opinion, Opinion,albeit albeitin inless lessdetail. detail.The The OAG OAG does does not

distinguish why the July distinguish why July 18, 2024 2024 Opinion in San San Agustin Agustin triggered its its mass mass objection, but but the

December 5, 2023 Order did not. December not.

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

changed the circumstances changed the circumstancesallowing allowingthe theOAG OAG to timely timely tile filenumerous numerous statements of objection statements of

against Judge Judge Tolentino Tolentino based on previously previously known known facts facts..

c. C. The The OAG OAGHa_s We_iygd_its Has Waived Objectionby its Objection bySilence Sjleng

As discussed As previously, parties discussed previously, partiescan canwaive waiveaajudge's judge's 77GCA GCA § § 6105(a) 6105(a) disqualification by disqualification by

remaining silent after remaining silent after learning learning of of potentially potentially disqualifying facts. facts. Win, Wia, 2020 Guam 17 17 1128. This ~ 28. This

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

known to the known to the parties parties through separatelitigation. through separate litigation.Id. Id.(finding (finding that thatPDSC PDSC waived waived by silence silence

because they had because they hadraised raisedthe theissue issueof ofthe thejudge's judge's disqualification in in previous cases cases and, and, therefore,

were aware of the issue). issue).

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

egregious" egregious" conflicts conflicts are livable waivablethrough through silence, silence, but found that, in that case, case, the silence-as-

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

object. Id Id.atat~ 1130. 30.

Here, Here, like like in m Win, Wia, the the OAG waited waited over over aa year year to to file fileits itsfirst firstobjection objection to to Judge Judge

Tolentino. The Tolentino. The OAG OAG was was aware aware of ofall allthe thefacts factsregarding regarding Judge Judge Tolentino's Tolentino's and and Moylan's Moylan's

relationship by January relationship by January2023, 2023,yet yetwaited waiteduntil untilMay May 1, 1, 2024 2024toto file file its first objection objection to to Judge Judge

Tolentino in in Ybanez. Ybanez. Moreover, Moreover, Judge Judge Tolentino Tolentino was was assigned assigned to to this this matter matter on May May 15, 15, 2023, 2023,

14 14 DECISION AND ORDER DENYING OAG'S STATEMENT OF OBJECTION CF0330-23; CF0330-23; People People ofofGua/11 Guam v.v.Devin DevinJabo Jabs Chiguina Chiguina and Rose Lin Lin Baca Each

and for almost a year Judge Judge Tolentino Tolentino held held numerous numerous hearings in in which the OAG was was involved, involved,

and, in fact, fact, was was scheduled scheduled to to go go to to trial trial with with Defendant Defendant Chiguina Chiguina right right before before the the Objection Objection was was

filed. Further, the OAG Further, the OAG continues to proceed continues to proceed in aa number number of of cases cases before before Judge Judge Tolentino Tolentino

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

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

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

involving Moylan because even ifif he he is, is, the the OAG OAG has has waived waivedits itsright' right' to to object. object. Therefore, Therefore, the the

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

opportunity. oppmtunity.

CONCLUSION

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

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

SEP SO ORDERED: - ' - - ~SEP 33U02825 202!~ ~~---'-=-'----

HONOR NEO D'AN ~R A. GL@1ERREZ REZ Judge, Superior Comt Conn of of Guam

senvlce vIA Sl!llVICI! VIAe-MAIL l!-MAIL acknowledge that an acknow•edge that an elecxromc electroruc. CoD't on Cony r~ orig-na* 0 f the or1g,na 1 wa!> ma,1ea to wasee mauled to

/MI /rob,t f/61 /Jfl) 2 . nA~14f~ \

D,. /J/ • Date "/-Zwf 3d·'JJI fTune. ume./ /I/17

15 15