People v. Cruz, S.R.

Opinion

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4 IN THE SUPERIOR COURT OF G?l'A. M 5 PEOPLE OF GUAM, ) CRIMINAL CASE NO: CF0320-18 ) GPD Report No.: 18-14611 6 PLAINTIFF, )

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7 )

vs. )

8 ) DECISION AND ORDER RE: PEOPLE'S ) MOTION TO DISMISS WITHOUT 9 ) PREJUDICE SHERWIN RAMOS CRUZ, )

10 DOB: 10/31/1971, )

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11 DEFENDANT. )

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13 Introduction

14 This matter came before the Honorable Maria T. Cenzon on November 21, 2019 for a 15 Motion Hearing on the People of Guam's ("People") Motion to Dismiss Without Prejudice. 16 Defendant Sherwin Ramos Cruz ("Defendant") was present and represented by Attorney 17 William Pole. Attorney Basil O'Mallan was present for the People. Defendant did not oppose the 18 People's Motion. Having heard from the parties, the Court orally GRANTED the Motion and 19 ordered the matter DISMISSED WITHOUT PREJUDICE pursuant to 8 GCA § 80.70. The Court 20 further ORDERED that the matter be expunged due to the People's decision not to prosecute the 21 case, pursuant to 8 GCA § 11.10. The Court now issues this Decision and Order memorializing 22 its oral ruling. 23 Background 24 Defendant is charged with First Degree Criminal Sexual Conduct (As a First Degree 25 Felony) and Second Degree Criminal Sexual Conduct (As a First Degree Felony). Indictment 26 (Jun. 7, 2018). Both charges contained a Vulnerable Victim Special Allegation. Id. 27

28 People v. Cruz; CF0320-18 D&O re: People's Motion for Dismissal Without Prejudice Page 1 of 5 1 On Gctober 31, 2019, the Court held a Continued Pre-Trial Conference for this matter. 2 Minute Entry (Oct. 31, 2019). During the Conference, the People expressed concerns about the 3 alleged victim's ability to testify on the stand during trial. Id. The People requested more time to 4 work with the alleged victim in order to determine whether she would be able to or desired to 5 testify. Id. Defendant agreed to give the People more time to speak with the alleged victim and 6 her family in preparation of trial. Id. Subsequently, the Court vacated the upcoming Jury 7 Selection and Trial date and set the matter for a Further Proceedings. Id. 8 On November 15, 2019, the People filed the above Motion to Dismiss Without Prejudice. 9 People's Mot. to Dismiss Without Prejudice (Nov. 15, 2019). 111 their Motion, the People 10 indicated that during a meeting, the alleged victim had difficulty recalling specific details about 11 the alleged incident, including those that formed the basis of the complaint. Id. at 1. The alleged 12 victim's mother indicated that she believed her daughter, a minor, had "moved on" from the 13 incident. Id. The mother indicated that she did not want to re-traumatize her daughter by forcing 14 her to testify, and requested that the People dismiss thecase without prejudice. Id. 15 On November 19, 2019, Defendant filed a response to the Motion. Partial Non-Opp'n to 16 Mot. for Dismissal Without Prejudice (Nov. 19, 2019). In the response, Defendant stated that he 17 did not oppose the People's Motion to Dismiss. Id. at 2. However, Defendant additionally asked 18 the Court to expunge his records in this matter pursuant to 8 GCA § 11.10. Id. 19 The Court held a hearing on the Motion on November 21, 2019. Minute Entry (Nov. 21, 20 2019). At the hearing, the People restated the basis for their Motion. Id. Defendant did not 21 object, and requested the Court expunge his records. Id. The People did not object to expunging 22 his records due to their decision not to prosecute the case. Id. 23 Discussion 24 1. People's Motion to Dismiss Without Prejudice 25 When considering a Motion to Dismiss brought by the People under 8 GCA § 80.70(a), 26 the Court adopts the "presumption that [the prosecutor] is acting in good faith and in the proper 27 discharge of his duties." People of Guam v. Gutierrez, 2005 Guam 19 qt 51 (quoting U.S. v.

28 People v. Cruz; CF0320-18 D&O re: People's Motion for Dismissal Without Prejudice ' Page 2 of 5 1 Greater Blouse, Skirt & Neckwear Contractors Association, 228 F. Supp. 483, 486 (S.D.N.Y. 2 1964)). Defendant did not object to the People's Motion to Dismiss without prejudice. The 3 record does not reflect any basis for finding the People's Motion was brought in bad faith or 4 emblematic of any harassment requiring judicial or statutory protection. See Gutierrez at '}[ 49 5 (quoting Rinaldo v. United States, 432 US 22, 32 (1977) ("The principal object of the 'leave of 6 court' requirement is apparently to protect a defendant against prosecutorial harassment,e.g., 7 charging, dismissing, and recharging, when the Government moves to dismiss an indictment 8 over the defendant's objection.")). 9 The Court must address the concern that the People filed the Motion near the 10 commencement of triatl.l The Court is required to ensure that the dismissal was not employed by 11 the People as a tactic aimed at gaining an unfair advantage over the Defendant by jury shopping, 12 or to lay further groundwork for a pattern of harassment. If charges are repeatedly brought but 13 then dismissed essentially on the eve of trial, the Defendant could be deprived of the opportunity 14 for vindication by an acquittal. See Gutierrez 'H 53-54 (citing cases where prosecutorial actions 15 evidenced these two scenarios and supported finding the prosecution acted in bad faith when 16 seeking dismissal). 17 Here, the Court is not concerned about the People's timing of tiling. The People raised 18 the issue regarding the alleged victim's proposed testimony at an October 31, 2019 Pre-Trial 19 Conference. The Court vacated the trial dates, and soon after, the People tiled their Motion to 20 Dismiss. The People met with the alleged victim during the interim, and questioned the alleged 21 victim's ability to testify. Further, the alleged victim's mother requested dismissal on the matter 22 due to serious concerns about the alleged victim's mental well-being if forced to testify. The 23 Court accepts the People's explanation for seeldng dismissal near the commencement of trial. 24 The Court's examination of the record does not reveal any other possible basis for disturbing the 25 presumption of good faith.

26 1 Trial in this matter was originally scheduled to begin on November 4, 2019. However, due to the People's request 27 for more time, the Court vacated the upcoming Jury Selection and Trial. The Court set a Further Proceedings in the matter for December 10, 2019, but the People tiled their Motion to Dismiss before that date.

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People v. Cruz; CF0320-18 D&O re: People's Motion for Dismissal Without Prejudice . Page 3 of 5 '

1 When the Court has no evidence of prosecutorial bad faith or even the allegation of such 2 by Defendant, then it stands that the presumption of good faith alone "permits the [C]ourt to 3 dismiss without prejudice." People of Guam v. Flores, 2009 Guam 22 '}[ 29 (quoting U.S. v. 4 Olson, 846 F.2d 1103, 1114 (7th Cir. 1988)). With the good faith presumption unchallenged by 5 Defendant, the statute generally limits the Court to "two options: grant or deny the motion to 6 dismiss the indictment." Gutierrez at '][ 64 (quoting U.S. v. Salinas, 693 F.2d 348, 351 (5th Cir. 7 1982)). 8 Importantly, no prejudice will attach here by the Court granting the Motion. The law in 9 Guam does not generally authorize "trial courts to sue sponge dismiss indictments with 10 prejudice" when considering an 8 GCA § 80.70(a) Motion. Gutierrez at 'll 69. Any collateral 11 prejudice suffered by Defendant due to a dismissal without prejudice may be cured in a separate 12 expungement proceeding when appropriate. The Court in granting the instant Motion does not 13 foreclose this remedy. 14 Because there is no basis for abandoning the presumption of prosecutorial good faith, the 15 Motion to Dismiss Without Prejudice is GRANTED. 16 2. Defendant's Request for Expungement 17 Under 8 GCA § 11.10, a defendant's records shall be expunged "when the prosecuting 18 attorney decides not to prosecute the offense." Because the Court is granting the People's Motion 19 to Dismiss, the Court accepts the People's decision to not prosecute the matter. When discussed 20 on record at the November 21 hearing, the People did not have an objection to the expungement 21 of Defendant's records. 22 Thus, the Court FURTHER ORDERS that the Clerk of the Superior Court of Guam, the 23 Office of the Attorney General of Guam, and the Guam Police Department ("GPD") shall 24 expunge their records of Sherwin Ramos Cruz in Criminal Case No. CF0320-18 and GPD 25 Report No. 18-14611, under 8 GCA §§ 11.1.0 and 11.11. All other local and .federal law 26 enforcement agencies to which GPD reports shall seal any records of the above from public 27

28 People v. Cruz; CF0320-18 D&O re: People's Motion for Dismissal Without Prejudice " Page 4 of 5 1 inspection and refuse to admit the existence of such records. to persons not entitled to examine 2 them. . 3 Conclusion and Order

4 Based on the reasons provided above, the Court hereby ORDERS CF0320-18 5 DISMISSED WITHOUT PREJUDICE pursuant to 8 GCA § 80.70 upon the People's voluntary

6 dismissal. The Court vacates any conditional release orders and restrictions which Defendant is 7 ordered to follow in this case. The Court further ORDERS the above matter be EXPUNGED as 8 set forth herein and in 8 GCA §§ 11.10 and 11.11. 9

10 SO ORDERED this DEC 20 2019

9 nuns pro tune November 21, 2019.

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13 HON BLE MARIA T. CENZON 14 JUDGE, SUPERIOR COURT OF GUAM 15

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23 SERVICE VIA COURT BOX 24 I acknowledge that a copy of the original hereto was placed in the 25 AG €~%~

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27 My Date: Ti

Deputy Clem, Sure Court of Guam 28

People v. Cruz; CF0320-18 D&O re: People's Motion for Dismissal Without Prejudice Page 5 of 5 '