People v. Cruz

Opinion

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6 IN THE SUPERIOR COURT OF GUAM 7

8 THE PEOPLE OF GUAM, CRIMINAL CASE NO. CF0123-20

10 vs. DECISION AND ORDER 11

12 JONATHAN WALTER CRUZ, 13 Defendant.

14 ________________________________________________ ________________________________________________

15 INTRODUCTION 16 This matter came before the Honorable Vernon P. Perez on October 29, 2020, for remote 17 hearing on Defendant Jonathan Walter Cruz’s (“Defendant”) Motion to Dismiss the Indictment 18 (“Motion to Dismiss”). Present via teleconference were Defendant with counsel, Assistant 19 Alternate Public Defender Brycen J. Breazeale, and Assistant Attorney General Richelle Y. 20 Canto on behalf of the People of Guam (“the Government”). Having reviewed the pleadings, 21 the arguments presented, and the record, the Court now issues the following Decision and 22 Order. 23 BACKGROUND 24 On February 25, 2020, Defendant was indicted with the following charges: (1) 25 Attempted Burglary (As a Second Degree Felony); (2) Family Violence (As a Misdemeanor); 26 (3) Attempted Criminal Trespass (As a Misdemeanor); and (4) Criminal Trespass (As a Petty 27 Misdemeanor) - 2 Counts. (Indictment, Feb. 25, 2020). These charges stem from allegations 28 that on or about January 2, 2020, Defendant entered his ex-girlfriends residence without her

People v. Cruz Case No. CF0123-20 Decision and Order

Page 1 of 9 1 permission and attempted to punch her when she entered. (Deci. of Sean E. Brown, 2 Magistrate’s Compi., Feb. 21, 2020). After Ms. Philips blocked the punch, Defendant pulled 3 her hair, and she had to fight to prevent him from gaining access to the inside of her residential 4 unit. Id. GPD officers searched the area for Defendant but could not locate him. Id. Earlier 5 that night, Ms. Philips and Defendant got into an argument at her residence, and GPD had been 6 alerted. Id. The GPD officer who responded counseled both Ms. Philips and Defendant. Id. 7 The GPD officer told Defendant he had to leave, which he appeared to do so. Id. Later that 8 night, GPD received a call from Ms. Philips who reported that Defendant was again in the 9 fenced area connected to her residential unit. Id. 10 On March 11, 2020, Defendant asserted his right to a speedy trial.’ 11 Jury Selection and Trial was set to commence on April 22, 2020, but was vacated due to 12 the closure of non-essential government operations due to the COVID-19 (coronavirus) [3 pandemic. 14 On October 7, 2020, Defendant filed the instant motion. On October 14, 2020, the 15 Government filed its Opposition, and on October 22, 2020, Defendant filed his Reply. 16 On October 29, 2020, the Court heard oral arguments from the parties and subsequently 17 placed the matter under advisement. The Court also requested that Defendant submit for its 18 review the police reports referenced in the Motion under seal. On November 3, 2020, 19 Defendant filed under seal GPD Report No. 20-00239. 20 DISCUSSION 21 Defendant moves the Court to dismiss the Indictment because (1) it is defective as to 22 the Attempted Burglary and Attempted Criminal Trespass Charges; (2) it is defective as to the 23 Criminal Trespass Charge; and (3) the Family Violence Charge must be dismissed because the 24 Government withheld exculpatory evidence from the grand jury. See generally, Mot. Dismiss, 25 Oct. 7, 2020. 26

27 Defendant’s asserted status has been tolled since March 16, 2020, pursuant to the Supreme Court of Guam’s Administrative Orders ADM2O-207 through ADM2O-413 in light of the current COVID-19 (coronavirus) 28 pandemic.

Page 2 of 9 A. Whether the Indictment is Defective as to the First Charge of Attempted Burglary (As a Second Degree Felony) and the Third Charge of Attempted 2 Criminal Trespass (As a Misdemeanor) 3 Defendant first argues that the First Charge of Attempted Burglary (As a Second Degree 4 Felony) and the Third Charge of Attempted Criminal Trespass (As a Misdemeanor) must be 5 dismissed because the Government “failed to allege an essential element” of each charge, to wit, 6 that it was “habitable property.” (Mot. Dismiss at 5-6). The Government opposes, arguing that 7, the Indictment is sufficient as to these two charges as it contains the elements of the crime 8 alleged and adequately informs the defendant of the crime. (Opp’n at 3-4, Oct. 14, 2020). 9 The Indictment alleges as follows: 10 , FIRST CHARGE 11 On or about the 2nd day of January 2020, in Guam, JONATHAN WALTER 12 CRUZ did commit the offense of Attempted Burglary (As a Second Degree Felony), in that he did attempt to enter or surreptitiously remain in the property of 13 Christina Phillips with the intent to commit the crime of assault therein, at a time 14 when the premises were neither open to the public nor the Defendant licensed or privileged to so enter, in violation of 9 G.C.A. §~ 37.20(a) and 37.20(b) and 15 13.10. 16 THIRD CHARGE 17 On or about the 2nd day of January 2020, in Guam, JONATHAN WALTER 18 CRUZ did commit the offense of Attempted Criminal Trespass (As a 19 Misdemeanor), when, knowing that he was not licensed or privileged to do so, he did attempt to enter or surreptitiously remain in the property [sic] Christina 20 Phillips, in violation of 9 GCA §~ 37.30(a) and 13.10, as amended. 21 (Indictment, Feb. 25, 2020). 22 Under Guam law, “[a] person is guilty of burglary if he enters or surreptitiously remains 23 in any habitable property, building, or a separately secured or occupied portion thereof,. . . with 24 intent to commit a crime therein, unless the premises are at the time open to the public or the 25 defendant is licensed or privileged to enter. . .“ 9 G.C.A. § 37.209(a). Habitable Property “has 26 the meaning provided by [section] 34.10 and includes any such property whether or not a person 27 is actually present therein.” 9 G.C.A. § 37.10(a). Section 34.10 defines habitable property as 28

Page 3 of 9 1 “any structure, vehicle or vessel adapted for the accommodation or occupation of persons.” 9 2 G.C.A~34.l0. 3 Generally, an indictment “shall be a plain, concise and definite written statement of the 4 essential facts constituting the offense charge.” 8 G.C.A. § 55.10(a). It is well established that 5 an indictment is sufficient if: (1) it contains the elements of the crime charged; (2) adequately 6 informs the defendant of the crime to allow him to defend against the charges; and (3) is stated 7 with sufficient clarity to bar subsequent prosecution for the same offense. People v. Jones, 8 2006Guam139~l2. 9 Here, it is clear that the Government did not charge Defendant with entering or 10 surreptitiously remaining in any “habitable property,” as the Indictment simply alleges that he ii attempted to enter or surreptitiously remain “in the property of Christina Phillips” for both the 12 First and Third Charges. See Indictment, Feb. 25, 2020. Accordingly, the Court finds that the 13 indictment is defective as to the First Charge of Attempted Burglary (As a Second Degree 14 Felony) and the Third Charge of Attempted Criminal Trespass (As a Misdemeanor), because 15 they do not contain all the essential elements of the crime charged.. 16 B. Whether the Indictment is defective as to the Fourth Charge of Criminal 17 Trespass (As a Petty Misdemeanor) 2 Counts -

18 Next, Defendant moves the Court to dismiss both counts of the Fourth Charge of Criminal Trespass (As a Petty Misdemeanor) because he alleges the Indictment is also defective as to these counts as the Government has failed to allege an essential element: that notice 20

21 against trespass was given to Defendant. (Mot. Dismiss at 6-7). The Government argues that 22 the indictment is sufficient as to this charge because the Indictment clearly “references the 23 allegation that Defendant was on notice that he was not licensed or privileged to enter.” (Opp’n 24 at 5). The Government also sets forth that the “grand jury was presented with evidence that 25 prior to the incident charged, Defendant had been counseled by GPD officers and told to leave the area.” Id.

27 The Indictment charges Defendant with Criminal Trespass as follows: 28

People v. Critz Case No. CFOI 23-20 Decision and Order

Page 4 of 9 1 FOURTH CHARGE 2 Count One On or about the 2nd day of January, 2020, in Guam, JONATHAN WALTER CRUZ did commit the offense ‘of Criminal Trespass, when, knowing that he was 4 not licensed or privileged to do so, he did enter or surreptitiously remain in the 5 property of Christina Phillips within the fencing or other enclosure manifestly designed to exclude intruders, in violation of 9 GCA 37.30(b)(3), as amended. 6 Count Two • On or about the 3rd day of January, 2020, in Guam, JONATHAN WALTER 8 CRUZ did commit the offense of Criminal Trespass, when, knowing that he was not licensed or privileged to do so, he did enter or surreptitiously remain in the property of Christina Phillips within the fencing or other enclosure manifestly 10 designed to exclude intruders, in viOlation of 9 GCA 37.30(b)(3), as amended. ii (Indictment, Feb. 25, 2020). 12 Under Guam law, criminal trespass is defined as follows: 13 (a) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any habitable property or any 14 building or any motor vehicle... 15 (b) A person commits an offense if, knowing that he is not licensed or privileged 16 to do so, he enters or remains in any place as to which notice against trespass is given by: 17 (1) actual communication tà the defendant; 18 (2) posting in a manner prescribed by law or reasonably likely to come to the attention of intruders; or 19 (3) fencing or other enclosure manifestly designed to exclude 20 intruders. An offense under this Subsection constitutes a petty misdemeanor if the offender defies an order to leave personally 21 communicated to him by the owner of the premises or other authorized 22 person or a peace officer. Otherwise it is a violation. 23 9 G.C.A. § 37.30(a)-(b). In this case, the Government charged Defendant with Criminal 24 Trespass under section 37.30(b)(3), which requires that Defendant enter or remain in any place 25 “as to which notice against trespass is given by fencing or other enclosure manifestly designed 26 to exclude intruders.” Therefore, while the Government may argue that Defendant was 27 counseled by GPD to leave the area, the provision of Criminal Trespass that Defendant is 28 charged with requires that he enter or remain “in any place as to which notice against trespass is

• Page5of9 i given by fencing or other enclosure manifestly designed to exclude intruders.” 9 G.C.A. § 2 37.30(b)(3). Here, the Indictment does not allege that notice against trespass was given, and is 3 therefore defective. C. Whether the Government failed to present exculpatory evidence to the grand jury as to the Second Charge of Family Violence (As a Misdemeanor)

6 Lastly, Defendant moves the Court to dismiss this matter because the Government failed to present exculpatory evidence to the Grand Jury. (Mot. Dismiss at 7-8). Specifically,

8 Defendant cites to two lines in the police report that the Prosecutor skipped over during the grand jury proceedings referencing the alleged victim’s refusal or medical services when

10 offered and the responding officer’s injury check noting no visible injuries and that the alleged victim did not complain of any injuries upon inquiry.

12 In opposition, the Government sets forth that the “facts that Victim lacked injuries and did not seek medical attention do not tend to negate the allegation that Defendant attempted to

14 cause bodily injury to the Victim. They are not exculpatory evidence and as such, the People 15 were not obligated to disclose such evidence.” (Opp’n at 5-6). The Government further argues 16 that it did “present to the grand jury evidence that Victim lacked injuries,” indicating that the 17 “portion of the police report that stated Victim claimed she did not have any injuries was read to 18 the grand jury at the presentment,” citing the Grand Jury Recording at 2:43:44 2:43:48. Id. at -

6. 19

20 In this case, Defendant is charged with Family Violence (As a Misdemeanor), as follows: 21 SECOND CHARGE 22 On or about the 2nd day of January, 2020, in Guam, JONATHAN WALTER 23 CRUZ did commit the offense of Family Violence (As a Misdemeanor), in that he 24 did recklessly cause or attempt to cause bodily injury to another family member or household member, that is, Christina Philips, in violation of 9 GCA 25 33.10(a)(l) and 30.20(a). 26 (Indictment, Feb. 25, 2020). 27 Under Guam law, “the prosecuting attorney shall submit any evidence in his possession 28 which would tend to negate the guilt and the grand jury shall weigh all the evidence

Page6of9 i submitted.” 8 G.C.A. § 50.46. The Court, after reviewing the grand jury recording and the 2 police report submitted under seal, notes that the lines referencing the alleged victim’s injuries 3 were in fact not read to the grand jury. The Court is concerned that the prosecutor read the 4 entire report, nearly verbatim, to the grand jury, with the exception of two statements 5 referencing the alleged victim’s injuries. The prosecutor read Officer Pewtress’s statement that 6 the officer “inquired if she had any injuries, however she complained she did not have any” then 7 skipped the following line, “She refused medical services when offered.” (Grand Jury 8 Recording at 2:43:44 — 2:44:12). The prosecutor then continued on reading the next statements 9 in the police report, and then skipped the portion stating “I conducted an injury check of 10 Christina but did not notice any visible injuries, nor did she complain of any injuries upon 11 inquiry.” (Grand Jury Recording at 2:44:12 — 2:44:35). 12 The Court is inclined to agree with Defendant that this “is not an instance of oversight 13 on the witnesses’ part or exculpatory evidence unknown to the prosecutor at the time the case 14 was presented to the grand jury.” (Reply at 7). The Court further finds that the statements 15 omitted are exculpatory evidence, as it is evidence that would “tend to negate guilt.” See 8 16 G.C.A. § 50.46. Defendant is charged with family violence in that he either did “recklessly 17 cause or attempt to cause bodily injury to another family or household member.” (Indictment, 18 Feb. 25, 2020) (emphasis added). Thus, any evidence that would negate guilt for either 19 attempting to cause or recklessly causing bodily injury must be presented to the grand jury, 20 should the prosecuting attorney have such evidence in his or her possession. In this case, 21 evidence showing that the alleged victim was not injured, not in pain, and needed no assistance 22 immediately after the alleged altercation was not presented to the grand jury, even though it was 23 in the possession of the prosecutor at the time. The Court’s analysis does not end here, 24 however. 25 The “dismissal of an indictment is considered a ‘drastic step’ and is generally disfavored 26 as a remedy.” People v. Muna, 999 F.2d 397, 399 (9th Cir. 1993). If an error has occurred, the 27 Court’s consideration of the dismissal of an indictment prior to trial must. inquire “whether the 28 defendant has been prejudiced by the error.” Id. “Prejudice is demonstrated if it is established

People v. Critz Case No. CF0123-20 ~ Decision and Order

Page 7 of 9 i that the violation substantially influenced the grand jury’s decision to indict, or if there is grave 2 doubt that the decision to indict was free from substantial influence of such 3 violations.” Id. (internal quotation marks and citations omitted). 4 Title 8 G.C.A. section 50.46 is based on proposed section 9299 of the California 5 Criminal Procedure Code and section 939.7 of the California Penal Code. See 8 G.C.A. § 6 50.46, Note. Accordingly, the Court looks to California case law in interpreting section 50.46. In the context of grand jury proceedings, the court must decide whether the record reflects a probability that a properly informed grand jury would not have found 8 probable cause to indict; i.e., whether the grand jury would not have found a 9 strong suspicion of guilt. This analysis requires a consideration of the relative 10 strengths and weaknesses of the evidence supporting the probable cause finding necessary to indict and the undisclosed exculpatory evidence. 11 Berardi v. Superior Court, 57 Cal.Rptr.3d 170, 183 (Cal. App. 2007) (citation omitted). 12 “[I]rregularities at grand jury proceedings should be closely scrutinized because protection of 13 the defendant’s rights is entirely under the control of the prosecution without participation by the 14 defense.” Id. at 184. “[T]he court must evaluate the record as a whole, taking into is consideration all relevant factors,” which include “the strength and nature of both the 16 undisclosed exculpatory evidence and the probable cause evidence that was presented.” Id. 17 Regarding the disclosure errors, pertinent inquiries include the extent of the 18 impact on the grand jury’s independence and the extent to which the material 19 could ‘explain away the charge.’ If the record shows that sufficient evidence of probable cause remains even after considering the undisclosed evidence, this does 20 not end the analysis. The court must still determine if there is ‘such an equal 21 balance of reasonable probabilities as to leave the court in serious doubt’ as to whether a properly informed jury would have declined to find probable cause to 22 indict had it known of the omitted evidence. If so, the defendant has established 23 the requisite substantial prejudice and is entitled to dismissal of the indictment. 24 Id. (internal citation omitted). Absent “grave doubt that the decision to indict was free from the 25 substantial influence,” a dismissal is not warranted. Bank of Nova Scotia v. United States, 487 26 U.s. 250, 256 (1988). 27 The Court is concerned that the grand jury’s decision to indict Defendant on the Family 28 Violence charge may not have been free from the substantial influence of the prosecutor

Page 8 of 9 1 choosing to omit the statements regarding the alleged victim’s injuries or lack thereof. 2 Although there was probable cause for the jury to find that Defendant may have attempted to 3 cause bodily injury to the victim based on the statements that Defendant tried to punch her, 4 pulled her hair, and she fought to keep him out of the residence, “the fact that the record can 5 support a finding of probable cause does not mean there is no reasonable probability the jury 6 would have rejected such a finding,” Berardi, 57 Cal. Rptr. 3d at 185—86, should the grand jury 7 have heard the additional statements in light of Defendant being charged with either recklessly 8 causing bodily injury or attempting to cause bodily injury to the victim. Accordingly, the Court 9 finds that Defendant was prejudiced by the failure of the prosecutor presenting the exculpatory 10 statements to the grand jury, and is entitled to dismissal of this charge. 11 CONCLUSION 12 For the foregoing reasons, the Court hereby GRANTS Defendant’s Motion to Dismiss. 13 All charges set forth in the Indictment filed February 25, 2020 are hereby dismissed without 14 prejudice. 15

16 IT IS SO ORDERED this ~ day ~ 2020. 17

19 HONORABLE VERNON P. PEREZ Judge, Superior Court of Guam 20

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