F
201'1!"'! 70 PM 1:2
CLEFi., IN TH E S UP E R IO R C O UR T O F GUAM 4
5 THE PEOPLE OF GUAM, CRIMINAL CASE NO. CF0137-14 6 V. DECISION AND ORDER 7 JASON JESUS CRUZ, 8 D efendant.
10 This matter came before the HONORABLE VERNON P. PEREZ o n J une 1 8 , 2 0 1 4 o n 11
Defendant ' s Motion to Dismiss the Indictment . Alternate Public Defender Ana Maria C. Gayle 12 represented the Defendant, who was present , and Assistant Attorney General Nicole D . Driscoll 13 represented the People . T h e Cou rt took the matter under advisement and n o w issues the 14 following Decision and Order. 15 BACKGROUND 16 Defendant is charged with Burglary as a second degree felony and Theft of Property as a 17 misdem eanor. T h e charges st e m fr om a M a r c h 2 8 , 2 0 1 4 incident w her ein the D efendant 18 allegedly entered the manager's office of the 671 Game Room in Mon gmon g an d removed the 19 manager's bank deposit bag. 20 O n A p r i l 14, 2014, Defendant filed a Motion to Dismiss the First Charge of Burglary 21 challenging the sufficiency of the evidence presented to the Grand Jury to establish reasonable 22 cause for th e ch arge. O n A p r i l 2 9 , 2014, the People filed an Op p osition to the Motion to -23 D i sm i ss t h e F i r st C h a r g e . O n J u ne 17, 2014, a Decision and Or der was issued denying the
Peo p l e v. Cru z Case No. CF0137-14 Decision and Order
Page I of 5 I I I I motion. Defendant then filed a Mo tion to Dismis s the Indictment and an Addend um to the
2 Motion to Dismiss.
3 DISCUSSION
4 Defendant moves to dismiss this case on two grounds: first, that the prosecutor failed to
5 allege facts or offer evidence tying the Defendant to the charges; and second, that the premises
6 Defendant entered were open to the public, thereby providing a complete defense to burglary.
7 Def.'s Notice of Mot. at 1; Addendum to Def.'s Notice of Mot. at 1. D uring the mo tion hearing
8 the People indicated that they consider these new motions to be an extension of the Defendant's
9 first motion and, therefore, maintain their opposition. Record Log at 10:24:14, June 18, 2014.
10 A s previously presented i n t he Ju ne 1 7 , 2 0 1 0 D ecision a n d O rder, dismissal o f a n
11 indictment is considered a "drastic step" and is generally disfavored as a remedy. G u a m v .
12 Mu n a , 9 9 9 F.2 d 3 9 7 , 3 9 9 (9 th Cir. 1 9 9 3 ) (citing Un ite d S ta te s v . Ro g e rs, 751 F.2d 1074, 1076-
13 7 7 (9 th Cir. 1985)). O n c e a n indictment is retu rned, a p a r t y challenging i t b e a r s a he avy
14 burden-"he must demonstrate that the prosecutor engaged in flagrant misconduct that deceived
15 the grand jury or significantly impaired its ability to exercise independent judgment." U nited
16 States v. Al Mud arris, 695 F.2d 1182, 1185 (9th Cir. 1983) (citing United States v. Wright, 6 6 7
17 F.2d 793, 796 (9th Cir. 1982)). Otherwise, a reviewing court should uphold an indictment if
18 there is some rational ground for assuming the possibility t h a t a n o ffe n se h a s b e e n c o m m i t t e d
19 and that the accused is guilty of it. Grajo, 1987 WL 109393 at *2 (emphasis in original) (citing
20 Ke tc h e l, 381 P.2d at 409).
21 D efendant argues that a n individual's m e r e presence at the scene o f a c r i m e is
22 insufficient proof of liability. Def.'s Notice of Mot. at 2-3. Defendant supports this argument
23 with the assertion that he was merely a patron of the 671 Game Room and that other than being
24 present in the g a m e r o o m a n d entering a n d exit ing thro ugh a d o o r mar ked " e x i t " a n d Peo p l e v. Cru z Case No. CF0137-14 Decision and Order
Page 2 of 5 I "employees only," there is no connection tying him to the alleged stolen property. Id. a t 2 .
2 Defendant further argues that the alleged stolen property was never recovered by the police and
3 that the property could have been misplaced by the owner or taken by another person during the
4 six and half hour time frame in which the property went missing. Id. Defendant argues that the
5 police did not review the full six and a half hours of video surveillance footage. Addendum to
6 Def.'s Notice of Mot. at 2. Defendant cites to cases in which convictions were overturned on
7 appeal after a finding that there was no showing of anything more than the defendants' presence
8 at the scene of a crime or association with a criminal or criminal activity. Id. at 2-3.
9 At the June 18, 2014 motion hearing, the People represented to the Court that during an
10 interview with the game room manager, it was revealed that Defendant was the only one present
11 during said time frame. Record Log a t 1 0 :2 5 :4 4 , Ju ne 1 8 , 2 0 1 4 . This new information provides
12 more to consider than Defendant's mere presence at the game room and distinguishes the instant
13 case from the cases cited by Defendant because the defendants in those cases were not the sole
14 persons present at the scene of the crime. Id. a t 2 -3 .
15 Defendant also argues that a showing that the premises in question were open to the
16 public provides a complete defense to the charge of burglary. Addendum to Mot. at 1 (citing
17 State v. Laster, 735 So. 2d 481, 481 (Fla . 1999)). Defendant supports this argument with the
18 assertion that the game room was open to the public and the Defendant entered the game room
19 and used the machines, thus, he was a customer or an invitee of the game room and thereby had
20 a license to remain on the premises. Id. D e fe n d a n t a c k n o wl e d g e s t h a t o n c e i n si d e t h e g a m e
21 room he entered a door marked "exit, " but also marked "employees only. " Id. a t 2 . D efendant
22 argues that no employee forbade him, physically or verbally, from going through this door. Id.
23 a t 2 . During the June 18, 2014 motion hearing, Defendant offered a correction to the record to
24 indicate that Defendant does not admit entering the manager's office, but instead argues that he, People v. Cruz Case No. CF0137-14 Decision and Order
Page 3 of 5 I as an invitee, entered into the room through the door marked "employees only," which was a
2 lounge-type area. Record log at 10:20:37, June 18, 2014.
3 The People do not contest that the game room was open to the public. The People argue
4 that the room through the door marked "employees only" was a separately secured or occupied
5 portion of the game room and was not open to the public. This was clearly communicated by
6 the "employees on ly" sign , d esp ite th er e b ein g an "exit" sign ab ove th e d oor. A d d e nd u m t o
7 P e o p l e 's O p p ' n t o M o t . to D ismiss a t 2 . T h e People further argue that the Defendant had
8 parked his car in the front parking lot and had entered the game room through the front, main
9 entrance; therefore, he had no reasonable motive to enter into the room marked for "employees
10 only," even if it provided an avenue to a rear exit. Id. at 3.
11 While the Florida case cited to by Defendant does support his contention that a person
12 cannot be guilty of burglary if he entered a place open to the public, the holding of La ste r wa s
13 later distinguished. S e e Da v is v .
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F
201'1!"'! 70 PM 1:2
CLEFi., IN TH E S UP E R IO R C O UR T O F GUAM 4
5 THE PEOPLE OF GUAM, CRIMINAL CASE NO. CF0137-14 6 V. DECISION AND ORDER 7 JASON JESUS CRUZ, 8 D efendant.
10 This matter came before the HONORABLE VERNON P. PEREZ o n J une 1 8 , 2 0 1 4 o n 11
Defendant ' s Motion to Dismiss the Indictment . Alternate Public Defender Ana Maria C. Gayle 12 represented the Defendant, who was present , and Assistant Attorney General Nicole D . Driscoll 13 represented the People . T h e Cou rt took the matter under advisement and n o w issues the 14 following Decision and Order. 15 BACKGROUND 16 Defendant is charged with Burglary as a second degree felony and Theft of Property as a 17 misdem eanor. T h e charges st e m fr om a M a r c h 2 8 , 2 0 1 4 incident w her ein the D efendant 18 allegedly entered the manager's office of the 671 Game Room in Mon gmon g an d removed the 19 manager's bank deposit bag. 20 O n A p r i l 14, 2014, Defendant filed a Motion to Dismiss the First Charge of Burglary 21 challenging the sufficiency of the evidence presented to the Grand Jury to establish reasonable 22 cause for th e ch arge. O n A p r i l 2 9 , 2014, the People filed an Op p osition to the Motion to -23 D i sm i ss t h e F i r st C h a r g e . O n J u ne 17, 2014, a Decision and Or der was issued denying the
Peo p l e v. Cru z Case No. CF0137-14 Decision and Order
Page I of 5 I I I I motion. Defendant then filed a Mo tion to Dismis s the Indictment and an Addend um to the
2 Motion to Dismiss.
3 DISCUSSION
4 Defendant moves to dismiss this case on two grounds: first, that the prosecutor failed to
5 allege facts or offer evidence tying the Defendant to the charges; and second, that the premises
6 Defendant entered were open to the public, thereby providing a complete defense to burglary.
7 Def.'s Notice of Mot. at 1; Addendum to Def.'s Notice of Mot. at 1. D uring the mo tion hearing
8 the People indicated that they consider these new motions to be an extension of the Defendant's
9 first motion and, therefore, maintain their opposition. Record Log at 10:24:14, June 18, 2014.
10 A s previously presented i n t he Ju ne 1 7 , 2 0 1 0 D ecision a n d O rder, dismissal o f a n
11 indictment is considered a "drastic step" and is generally disfavored as a remedy. G u a m v .
12 Mu n a , 9 9 9 F.2 d 3 9 7 , 3 9 9 (9 th Cir. 1 9 9 3 ) (citing Un ite d S ta te s v . Ro g e rs, 751 F.2d 1074, 1076-
13 7 7 (9 th Cir. 1985)). O n c e a n indictment is retu rned, a p a r t y challenging i t b e a r s a he avy
14 burden-"he must demonstrate that the prosecutor engaged in flagrant misconduct that deceived
15 the grand jury or significantly impaired its ability to exercise independent judgment." U nited
16 States v. Al Mud arris, 695 F.2d 1182, 1185 (9th Cir. 1983) (citing United States v. Wright, 6 6 7
17 F.2d 793, 796 (9th Cir. 1982)). Otherwise, a reviewing court should uphold an indictment if
18 there is some rational ground for assuming the possibility t h a t a n o ffe n se h a s b e e n c o m m i t t e d
19 and that the accused is guilty of it. Grajo, 1987 WL 109393 at *2 (emphasis in original) (citing
20 Ke tc h e l, 381 P.2d at 409).
21 D efendant argues that a n individual's m e r e presence at the scene o f a c r i m e is
22 insufficient proof of liability. Def.'s Notice of Mot. at 2-3. Defendant supports this argument
23 with the assertion that he was merely a patron of the 671 Game Room and that other than being
24 present in the g a m e r o o m a n d entering a n d exit ing thro ugh a d o o r mar ked " e x i t " a n d Peo p l e v. Cru z Case No. CF0137-14 Decision and Order
Page 2 of 5 I "employees only," there is no connection tying him to the alleged stolen property. Id. a t 2 .
2 Defendant further argues that the alleged stolen property was never recovered by the police and
3 that the property could have been misplaced by the owner or taken by another person during the
4 six and half hour time frame in which the property went missing. Id. Defendant argues that the
5 police did not review the full six and a half hours of video surveillance footage. Addendum to
6 Def.'s Notice of Mot. at 2. Defendant cites to cases in which convictions were overturned on
7 appeal after a finding that there was no showing of anything more than the defendants' presence
8 at the scene of a crime or association with a criminal or criminal activity. Id. at 2-3.
9 At the June 18, 2014 motion hearing, the People represented to the Court that during an
10 interview with the game room manager, it was revealed that Defendant was the only one present
11 during said time frame. Record Log a t 1 0 :2 5 :4 4 , Ju ne 1 8 , 2 0 1 4 . This new information provides
12 more to consider than Defendant's mere presence at the game room and distinguishes the instant
13 case from the cases cited by Defendant because the defendants in those cases were not the sole
14 persons present at the scene of the crime. Id. a t 2 -3 .
15 Defendant also argues that a showing that the premises in question were open to the
16 public provides a complete defense to the charge of burglary. Addendum to Mot. at 1 (citing
17 State v. Laster, 735 So. 2d 481, 481 (Fla . 1999)). Defendant supports this argument with the
18 assertion that the game room was open to the public and the Defendant entered the game room
19 and used the machines, thus, he was a customer or an invitee of the game room and thereby had
20 a license to remain on the premises. Id. D e fe n d a n t a c k n o wl e d g e s t h a t o n c e i n si d e t h e g a m e
21 room he entered a door marked "exit, " but also marked "employees only. " Id. a t 2 . D efendant
22 argues that no employee forbade him, physically or verbally, from going through this door. Id.
23 a t 2 . During the June 18, 2014 motion hearing, Defendant offered a correction to the record to
24 indicate that Defendant does not admit entering the manager's office, but instead argues that he, People v. Cruz Case No. CF0137-14 Decision and Order
Page 3 of 5 I as an invitee, entered into the room through the door marked "employees only," which was a
2 lounge-type area. Record log at 10:20:37, June 18, 2014.
3 The People do not contest that the game room was open to the public. The People argue
4 that the room through the door marked "employees only" was a separately secured or occupied
5 portion of the game room and was not open to the public. This was clearly communicated by
6 the "employees on ly" sign , d esp ite th er e b ein g an "exit" sign ab ove th e d oor. A d d e nd u m t o
7 P e o p l e 's O p p ' n t o M o t . to D ismiss a t 2 . T h e People further argue that the Defendant had
8 parked his car in the front parking lot and had entered the game room through the front, main
9 entrance; therefore, he had no reasonable motive to enter into the room marked for "employees
10 only," even if it provided an avenue to a rear exit. Id. at 3.
11 While the Florida case cited to by Defendant does support his contention that a person
12 cannot be guilty of burglary if he entered a place open to the public, the holding of La ste r wa s
13 later distinguished. S e e Da v is v . S ta te , 988 So. 2d 1125, 1127 (Fla. Dist. Ct. App. 2008). Gu ilt
14 for a charge of burglary for entering a place open to the public can still be established by a
15 showing that th e accused entered into a separate portion of said place t h a t wa s secu r ed or
16 occupied, and thus, not open to the public. See id.; e.g., Evans v. State, 677 S.W.2d 814, 816-17
17 ( T e x . C r i m . Ap p . 1984) (holding that a separate office in a cloth in g store op en to th e p ublic
18 qualified under the burglary statute). This is in line with Guam's burglary statute. 9 G . C . A.
19 § 37.20(a) ("A person is guilty of burglary if he enters . .. a separat ely secured or occupied
20 p or t ion . . . . ") . Defendant acknowledges that he entered a separate room through a door marked
21 "employees only," Addendum to Def.'s Notice of Mot. at 2, and that the room he entered was a
22 space for employees, Record Log at 10:22:41, June 18, 2014.
23 After considering the arguments of both parties and the new information provided at the
24 mot ion hearing , the Court finds that these matters are t o b e d e t e r m i n e d b y a j u r y . Un d er the Peo p l e v. Cru z Case No. CF0137-14 Decision and Order
Page 4 of 5 4 1 standard to dismiss an indictment, there is sufficient evidence at this time to establish the
2 possibility that an offense was committed and that the defendant committed it.
3 CONCLUSION
4 For the foregoing reasons, Defendant' s Motion to Dismiss the Indictment is hereby
5 DENIED. The parties are to return on ___ 14 at q_QQ / p.m. for a pretrial conference.
8 IT IS SO O R D E R E D this da y of Ju ne, 2 0 1 4 .
11 HONORABLE VERNON P. PEREZ Judge, Superior Court of Guam 12
SER VIC E VIA COURT 20 I acknewltdgc that a copy o Original hetetO. waa plke*WIha eons ww v p . - ) 21 R . I & A
23 C
24 People v. Cruz Case No. CF0137-14 Decision and Order
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