People v. Cruz

Opinion

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4 IN THE SUPERIOR COURT OF GUAM ' ,_ ~ • e

6 ) CRIMINAL CASE NO. CM767-12 PEOPLE OF GUAM ) 7 ) ) DECISION AND ORDER 8 ) v. ) (Defendant's Motion to Dismiss for 9 ) Insufficient Probable Cause) JOSEPH ROJAS CRUZ ) 10 ) DOB: 02/27/1959 ) Defendant. ) 11 ____________________________) 12

13 INTRODUCTION 14 This matter came before the Honorable Anita A. Sukola on January 16, 2013, on Joseph 15 Rojas Cruz's ("Defendant") Motion to Dismiss for Insufficient Probable Cause. Assistant 16 Public Defender Jocelyn M. Roden represented Defendant. Assistant Attorney General Jesse 17

18 J.N. Nasis represented the People of Guam ("the People"). Following the hearing, the Court

19 took the matter under advisement. Upon review of the evidence, oral and written arguments, and 20 legal authorities presented by both parties, the Court issues its Decision and Order DENYING 21 Defendant's motion. 22

23 BACKGROUND

24 A Complaint was filed on August 29, 2012, against Defendant charging him with the 25 following: Violation of a Guam Port Authority Regulation (as a Misdemeanor). Complaint 26 (Aug. 29, 2012). An arraignment was scheduled for October 3, 2012, however, Defendant was 27 not present. Consequently, a Bench Warrant was issued on October 3, 2012, with bail fixed at 28

People v. JOSEPH ROJAS CRUZ (CM767-12) Page I of4 Decision and Order Defendant's Motion to Dismiss for Insufficient Probable Cause $1,000 cash. On October 5, 2012, Defendant appeared in court for a Return of Bench Warrant 1

2 Hearing, was released on personal recognizance, and ordered to return for arraignment on

3 October 24, 2012. On October 24, 2012, Defendant was arraigned, pled not guilty, requested a 4 trial of six, and waived his right to a speedy trial. Super. Ct. of Guam Minute Entry Log No. 5 102541 (Oct. 24, 2012). 6 The instant Motion to Dismiss for Insufficient Probable Cause was filed on October 8, 7

8 2012. The People subsequently filed their opposition on October 11, 2012.

9 DISCUSSION 10 Defendant moves the court to dismiss the Complaint herein because it "fail[s] to 11 establish probable cause." Def's. Mot. to Dismiss for Insufficient Probable Cause at 2 (Oct. 8, 12 2012). Defendant specifically argues that "[n]either the Complaint nor the Declaration alleges 13

14 what kind of net was used or the location within or around the Marina Channel Defendant [sic]

15 where Defendant was using the net." /d. Defendant further cites to 8 GCA §15.20, asserting 16 that "the complaint and affidavits must show 'that there is probable cause to believe an offense 17 has been committed and that the defendant committed it."' !d. Defendant also contends that 18

19 "[t]he fishing regulations specifically allow angling and cast-net fishing." !d. He goes on to

20 argue that "[i]f [he] was angling or cast-net fishing, no crime was committed under the statute." 21 !d. 22 In their opposition, the People argue that "the court previously determined there was 23 probable cause in the instant matter, as it issued an initial summons based upon the facts alleged 24

25 in the Complaint and sworn declaration." People's Opp'n Mot. at 2 (Oct. 11, 2012). The

26 People also contend that "the defendant admitted that 'he knew it was wrong to fish in the 27 Marina."' /d. at 3. The People further contend that "[a)s the defendant correct[ly] pointed out, 28

People v. JOSEPH ROJAS CRUZ (CM767-12) Page 2 of4 Decision and Order- Defendant's Motion to Dismiss for Insufficient Probable Cause l

23 GARR § 4152 permits 'angling,' i.e., fishing with a hook and line, and 'cast-net (talaya)' 1

2 fishing; however, § 4153 specifically prohibits 'net and trap devices of all kinds' within the

3 Marina." !d. 4 The Court recognizes that violations of Port Authority of Guam regulations alleged in 5 the Complaint are spelled out in 12 GCA § 10112. It provides: 6 Every person who violates, causes or permits to be violated, or fails or refuses to 7 comply with any rule or regulation adopted pursuant to this Article, is guilty of a 8 misdemeanor.

9 12 GCA § 10112 (2005). 10 Next, because the alleged violation occurred at the "Agana Marina," the Court looks to 11 rules and regulations affecting the Agana Boat Basin. The Guam Administrative Rules and 12 Regulations provide that "[t]he rules and regulations for Agana Boat Basin are incorporated 13

14 herein by reference." See 10 GAR§ 5100. The Court notes that the Declaration of probable

15 cause stated that "several Territorial Conservation Officers had observed a male individual set a 16 fishing net inside a prohibited area within the Agana Marina channel." The applicable 17 administrative rule provides: 18

19 Net and trap devices of all kinds shall not be used for fishing in the area within one hundred fifty (150) yards of the shoreline surrounding the Agana Small Boat 20 Basin and the Paseo de Susana Shoreline adjacent to the channel. 21 23 GAR§ 4153. 22 Based on the plain meaning of "net and trap devices" and the Conservation Officers' 23 observation of Defendant, the Court finds that the Complaint articulated sufficient probable 24

25 cause to charge the Defendant with the offense alleged in the instant case.

26 Ill 27 Ill 28

People v. JOSEPH ROJAS CRUZ (CM767-12) Page 3 of4 Decision and Order- Defendant's Motion to Dismiss for Insufficient Probable Cause CONCLUSION 1

2 By preponderance of the evidence and based on the foregoing reasons, the Court

3 DENIES Defendant's Motion to Dismiss for Insufficient Probable Cause. 4

5 Further Proceedings is scheduled for 7 /B/13 Q~ /0 ·!Ill._ G(_ SO ORDERED this d_day of APRIL, 2013. 6

12 Judge, Superior Court of Guam

People v. JOSEPH ROJAS CRUZ (CM767-12) Page 4 of4 Decision and Order- Defendant's Motion to Dismiss for Insufficient Probable Cause