People v. Cruz

Opinion

r ILED SUPERIOR COURT I OF GUAM 2 20210EC—6 PH 1:29 CLERK OF COURT 4 __ By: 5

6 IN THE SUPERIOR COURT OF GUAM 7

8 THE PEOPLE OF GUAM, CRIIVIINAL CASE NO. CF0580-20 9 vs. 10 DECISION AND ORDER 11 JEROME CAMACHO CRUZ aka Anthony 12 Cruz, 13 Defendant. 14 ________________________________________________ _______________________________________________

15 INTRODUCTION 16 This matter came before the Honorable Vernon P. Perez on August 11, 2021, for hearing 17 on Defendant JEROME CAMACHO CRUZ aka Anthony Cruz’s (“Defendant”) Motion to 18 Dismiss the Second Charge in Favor of the First Charge for Violation of Defendant’s Right Not 19 to Be Placed in Double Jeopardy (“Motion to Dismiss the Second Charge”). Present remotely 20 via Zoom was Assistant Attorney General Sean E. Brown. Present in person were Defendant 21 with counsel, Assistant Alternate Public Defender Heather M. Zona. Having reviewed the 22 pleadings, the arguments presented, and the record, the Court now issues the following Decision 23 and Order. 24 BACKGROUND 25 On November 19, 2020, Defendant was indicted with the follOwing charges: (1) 26 Possession of a Schedule II Controlled Substance with Intent to Deliver (As a First Degree 27 Felony); (2) Possession of a Schedule II Controlled Substance (As a Third Degree Felony); (3) 28 Possession of a Firearm without a Firearm Identification (As a Third Degree Felony); (4)

People v. Cruz Case No. CF0580-20 Decision and Order

Page 1 of 4 I Family Violence (As a Third Degree Felony); and (5) Reckless Driving (As a Misdemeanor). 2 (Indictment, Nov. 19, 2020). 3 On May 25, 2021, Defendant filed the instant Motion to Dismiss the Second Charge. 4 On June 23, 2021, the Government filed its Opposition. On July 19, 2021, Defendant filed his 5 Reply. 6 On August 11, 2021, the Court heard additional arguments on the Motion. At the 7 conclusion of the hearing, the Court gave the parties leave to file further briefing. On August 8 18, 2021, the Government filed its Proposed Findings of Fact and Conclusions of Law.’ On 9 September 3, 2021, Defendant filed his Proposed Findings of Fact and Conclusions of Law. 10 The Court subsequently placed the matter under advisement. 11 DISCUSSION 12 Defendant moves the Court to dismiss the Second Charge of Possession of a Schedule II 13 Controlled Substance (As a Third Degree Felony) in favor of the First Charge of Possession of a 14 Schedule II Controlled Substance with Intent to Deliver (As a First Degree Felony) because it is 15 multiplicitous and violates the Double JeopardyClause of the United States Constitution. See 16 generally, Mot. Dismiss Second Charge, May 25, 2021. 17 The Double Jeopardy Clause of the Fifth Amendment of the United States Constitution 18 provides that no person shall “be subject for the same offense to be twice put in jeopardy of life 19 or limb.” U.S. Const. amend V. “It is well established that the Double Jeopardy Clause 20 protects against successive prosecutions as well as successive criminal punishments for the 21 same crime.” People v. San Nicolas, 2001 Guam 4 ¶ 8 (citation omitted). “Two distinct tests 22 have emerged in determining whether the legislature intended to allow for cumulative 23 punishments of statutory violations: (1) the Blockburger test and (2) the “unit of prosecution” 24 test.” Id. ¶ 10. The Court utilizes the Blockburger test to determine whether multiple 25 punishments are allowed when the defendant violates two statutes, and the “unit of prosecution 26

27 The Government’s Proposed Findings of Fact and Conclusions of Law addressed three motions the instant —

Motion to Dismiss the Second Charge, Defendant’s Motion to Suppress, and Defendant’s Motion to Dismiss the 28 Indictment.

People v. Cruz Case No. CF0580-20 Decision and Order Page 2 of 4 1 test” to determine whether multiple punishments are allowed when the defendant commits two 2 violations of the same statute. Id. As to the First and Second Charges of the Indictment, 3 Defendant is charged with violating two statutes. Under Blockburger, “the test to be applied to 4 determine whether there are two offenses or only one is whether each provision requires proof 5 of an additional fact which the other does not.” Id. at ¶ 11. Accordingly, the Court must 6 determine whether the Second Charge is a lesser included of the First Charge. 7 It is clear that as charged, Possession of a Schedule II Controlled Substance (As a Third 8 Degree Felony) is a lesser included offense of Possession of a Schedule II Controlled Substance 9 with Intent to Deliver (As a First Degree Felony). An offense is included when “[ijt is 10 established by proof of the same or less than all the facts required to establish the commission of ii the offense charged.” 8 G.C.A. § 105.58(b)(1). The First and Third Charges of the Indictment 12 read as follows: 13 FIRST CHARGE 14 On or about the 9th day of November 2020, in Guam, JEROME CAMACHO CRUZ aka Anthony Cruz, did commit the offense of Possession of a Schedule 15 II Controlled Substance with Intent to Deliver (As a 1st Degree Felony), in that 16 he intentionally or knowingly possessed with intent to deliver a controlled 17 substance, that is, an amphetamine-based substance, in violation of 9 GCA §~ 67.401.1(a)(1) and (b)(1). 18 SECOND CHARGE 19 On or about the 9th day of November, 2020, in Guam, JEROME CAMACHO 20 CRUZ aka Anthony Cruz did commit the offense of Possession of a Schedule 21 II Controlled Substance (As a Y’~ Degree Felony), in that he did unlawfully or knowingly possess a Schedule II Controlled Substance, that is, an amphetamine- 22 based substance, in violation of 9 GCA §~ 67.40 1.2(a) and (b). 23 (Indictment, Nov. 19, 2020). Here, the only difference between the First and Second Charges 24 is that the First Charge includes the element that Defendant possessed a Schedule II Controlled 25 Substance with the intent to deliver. Therefore, the Second Charge is a lesser included offense 26 of the First Charge. 27

Page 3 of 4 1 Although the Second Charge is a lesser included offense of the First Charge, the Court 2 will not dismiss it at this stage. Under Guam law, even if the Second Charge was not charged in 3 the Indictment, it would still be sent to the jury for deliberation. See People v. Cummins, 2010 4 Guam 19 ¶ 9 (citing Angoco, 2001 Guam 17 ¶ 21 (“Under existing Guam law, ‘trial courts must 5 issue lesser-included offense instructions if there is a rational basis for such as shown by 6 substantial evidence, without regard to whether such instructions were requested or object to by 7 the parties.”)). Here, the lesser offense is independently charged. Should Defendant be found 8 guilty by a jury of both charges, he may not be sentenced on both and “the conviction of the 9 greater is controlling.” Cummins, 2010 Guam 19 ¶ 13 (citing People v. Campbell, 2006 Guam 10 14 ¶ 6 n. 2). See also 9 G.C.A. § 1.22(a) (A defendant may not be convicted of more than one ii offense if one offense is included in the other as defined in § 105.58 of the Criminal Procedure 12 Code”). Therefore, the Court finds that at this stage in the criminal proceedings it is premature 13 to dismiss the lesser included charge against Defendant, and DENIES Defendant’s Motion to 14 Dismiss the Second Charge. 15 CONCLUSION 16 For the foregoing reasons, the Court hereby DENIES Defendant’s Motion to Dismiss the 17 Second Charge. 18 IT IS SO ORDERED this ~ day of December, 2021.

23 SERVICE VIA E-MAIL Judge, Superior VERNON HONORABLE P. PEREZ Court of Guam I acknowledge that an electronic 24 copy of the original was e-mailed to: -

25 A~, Aft 26 Date: ?1/6/q Time:L!f~

27 ____

Deputy Clerk, Superior Court of Guani 28

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