2 II: I 3 3
4 IN THE SUPERIOR COURT OF 5
6 ) CRIMINAL CASE NO. CM540-09· PEOPLE OF GUAM ) 7 ) ) DECISION AND ORDER 8 ) v. ) (Defendant's Motion to Dismiss 9 ) Under People v. Rasauo) DANIEL CLINTON FEJERANG ) 10 ) DOB: 11103/1987 ) 11 Defendant. ) _____________________________) 12
13 INTRODUCTION 14 This matter came before the Honorable Anita A. Sukola on January 23, 2013, on Daniel 15 Clinton Fejerang's ("Defendant") Motion to Dismiss Under People v. Rasauo. Assistant Public 16
17 Defender Jocelyn M. Roden represented Defendant. Assistant Attorney General David Rivera
18 appeared on behalf of the People of Guam ("the People"). Following the hearing, the Court 19 took the matter under advisement. Upon review of the oral and written arguments, and legal 20 authorities presented by both parties, the Court issues its Decision and Order GRANTING 21 Defendant's motion. 22
23 BACKGROUND
24 Defendant was arrested on two counts of Terrorizing on August 8, 2008. See 25 Declaration (Jul. 9, 2009). Following his arrest, Defendant was given a citation and notice to 26 appear in the Superior Court of Guam on July 29, 2009, at 9 a.m., or upon summons if 27 summoned to appear sooner to answer to the offenses charged. On July 9, 2009, a Complaint 28
People v.JOSEPH ROJAS CRUZ (CM767-12) Page I of6 Decision and Order Defendant's Motion to Dismiss for Insufficient Probable Cause was filed charging the Defendant with the following: (1) Disorderly Conduct (as a Petty 1
2 Misdemeanor) and (2) Harassment (as a Petty Misdemeanor) (2 counts). Complaint (Jul. 9,
3 2009). On July 29, 2009, Defendant failed to appear at the scheduled arraignment. 4 Consequently, a bench warrant was issued. Bench Warrant (Aug. 3, 2009). On October 26, 5 2012, Defendant was brought before the Court for a Return of Bench Warrant. Thereafter, 6 Defendant was arraigned on November 7, 2012. 7
8 DISCUSSION
9 Defendant moves the Court to dismiss the instant case. Defendant argues that "[despite 10 there being a warrant issued for him,] the fact remains that the return of warrant hearing could 11 have been done much earlier because the Defendant already was reporting to Probation for 12 another case, CF488-09." Def.'s Mot to Dismiss Under People v. Rasauo at 2 (Dec. 26, 2012). 13
14 As a result, Defendant "was not arraigned until November 7, 2012, beyond 60 days after the
15 Complaint was filed." !d. Furthermore, Defendant argues that "there is not good cause to 16 justify the three year delay in executing the bench warrant." Id. "Defendant's whereabouts 17 were known to the Probation Officer where the Defendant regularly reported." Id. 18
19 The People oppose Defendant's motion. "[Defendant's] motion is based entirely on
20 procedural grounds." People's Opp'n Mot. at 1 (Dec. 31, 2012). "What is left for this court is 21 to determine where [sic] or not there was good cause for the delay between the filing of the 22 complaint in Fejerang's case and his arraignment. The People argue that here good cause for 23 the delay should be found, and therefore that dismissal is inappropriate." Id. at 4. The People 24
25 contend that "Fejerang was notified of a hearing date upon his release from GPD custody, and
26 that he did not appear on that date. There has been nothing provided by Fejerang which would 27 appear to indicate that this failure to appear was in any way not 'willful.'" !d. at 6. The People 28
People v. JOSEPH ROJAS CRUZ (CM767-12) Page 2 of6 Decision and Order Defendant's Motion to Dismiss for Insuftlcient Probable Cause also argue that "on this particular issue that both the Marshals and Probation are 1
2 instrumentalities under the direction of the judicial branch of the government of Guam. These
3 organizations do not share the same advisory relationship with the People as the Guam Police 4 Department. On these bases, any action (or inaction) on the part of the Marshals or Probation 5 cannot be attributed to the People." ld. at 7. Alternatively, the People contend that if the case 6 were to be dismissed, it should be done without prejudice. 7
8 "An arraignment is the first or preliminary step in the progress of a trial and occurs in
9 the early stages of the proceedings." People v. Julian, 2012 Guam 26 ~ 20. "At arraignment, a 10 defendant is read the charges of the complaint, called to answer the accusation contained in the 11 complaint, and is provided a copy of the complaint before taking a plea." Id. (citing 8 GCA § 12
13 60.10(b)).
14 Guam law relative to arraignments provides: 15 (a) The defendant shall be arraigned promptly after the indictment or information 16 is filed or after the complaint is filed where prosecution by complaint is required by § 1.15. 17 (b) Arraignment shall be conducted in open court and shall consist of reading the indictment, information or complaint to the defendant or stating to him the 18 substance of the charge and calling on him to plead thereto. The defendant 19 shall be given a copy of the indictment, information or complaint before he is called upon to plead. 20 8 GCA § 60.10 (emphasis added). 21
22 The Supreme Court of Guam held that "unless good cause is shown, a Complaint shall
23 be dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 24 Complaint." See People v. Rasauo, 2011 Guam 14 ~ 14. This Court notes that Rasauo 11 25 articulated that "compliance with this new standard continues to require a case by case analysis 26
of whether or not the specific circumstances of any given case show good cause for delay 27
28 beyond the 60 day period normally required to comply with law." Rasauo 11 ,i 14. "Under 8
People v. JOSEPH ROJAS CRUZ (CM767-12) Page 3 of6 Decision and Order Defendant's Motion to Dismiss for lnsu!Iicient Probable Cause GCA § 80.60, the term good cause is not statutorily defined." People v. Julian, 2012 Guam 26 1
2 ~ 21. "Rather, good cause is defined through case law and determined by the facts and
3 circumstances of each case." ld. The holding in Rasauo II is designed to provide a baseline 4 standard, and not bind the hands of the trial court in cases where deviation from this baseline is 5 judged to be appropriate. Rasauo II~ 14. 6 The Complaint herein was filed on July 9, 2009. Defendant was not arraigned until 7
8 November 7, 2012. Over three years passed between the filing of the Complaint and
9 Defendant's arraignment. On its face, the time period between the filing ofthe complaint and 10 the arraignment is violative of the 60 day rule announced in Rasauo II. However, "[t]he 11 scheduling of [a] hearing past sixty days does not automatically violate prompt arraignment 12
13 under 8 GCA § 60.10(a) and [the Supreme C]ourt's holding in Rausauo II because good cause
14 may still exist for the delay in not arraigning a defendant within sixty days from the filing of the
15 complaint." People v. Julian, 2012 Guam 26 ~ 28. Because the Court scheduled the 16 arraignment on July 29, 2009, following the filing of the complaint, the Court finds that the 17 original scheduling date was well within the sixty days. The issue now before the Court is 18
19 whether good cause existed for the over three year time frame between the filing of the
20 Complaint and the Defendant's eventual arraignment on November 7, 2012. 21 The Court first recognizes that Guam law requires that a summons shall issue upon 22 filing of the criminal complaint.
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2 II: I 3 3
4 IN THE SUPERIOR COURT OF 5
6 ) CRIMINAL CASE NO. CM540-09· PEOPLE OF GUAM ) 7 ) ) DECISION AND ORDER 8 ) v. ) (Defendant's Motion to Dismiss 9 ) Under People v. Rasauo) DANIEL CLINTON FEJERANG ) 10 ) DOB: 11103/1987 ) 11 Defendant. ) _____________________________) 12
13 INTRODUCTION 14 This matter came before the Honorable Anita A. Sukola on January 23, 2013, on Daniel 15 Clinton Fejerang's ("Defendant") Motion to Dismiss Under People v. Rasauo. Assistant Public 16
17 Defender Jocelyn M. Roden represented Defendant. Assistant Attorney General David Rivera
18 appeared on behalf of the People of Guam ("the People"). Following the hearing, the Court 19 took the matter under advisement. Upon review of the oral and written arguments, and legal 20 authorities presented by both parties, the Court issues its Decision and Order GRANTING 21 Defendant's motion. 22
23 BACKGROUND
24 Defendant was arrested on two counts of Terrorizing on August 8, 2008. See 25 Declaration (Jul. 9, 2009). Following his arrest, Defendant was given a citation and notice to 26 appear in the Superior Court of Guam on July 29, 2009, at 9 a.m., or upon summons if 27 summoned to appear sooner to answer to the offenses charged. On July 9, 2009, a Complaint 28
People v.JOSEPH ROJAS CRUZ (CM767-12) Page I of6 Decision and Order Defendant's Motion to Dismiss for Insufficient Probable Cause was filed charging the Defendant with the following: (1) Disorderly Conduct (as a Petty 1
2 Misdemeanor) and (2) Harassment (as a Petty Misdemeanor) (2 counts). Complaint (Jul. 9,
3 2009). On July 29, 2009, Defendant failed to appear at the scheduled arraignment. 4 Consequently, a bench warrant was issued. Bench Warrant (Aug. 3, 2009). On October 26, 5 2012, Defendant was brought before the Court for a Return of Bench Warrant. Thereafter, 6 Defendant was arraigned on November 7, 2012. 7
8 DISCUSSION
9 Defendant moves the Court to dismiss the instant case. Defendant argues that "[despite 10 there being a warrant issued for him,] the fact remains that the return of warrant hearing could 11 have been done much earlier because the Defendant already was reporting to Probation for 12 another case, CF488-09." Def.'s Mot to Dismiss Under People v. Rasauo at 2 (Dec. 26, 2012). 13
14 As a result, Defendant "was not arraigned until November 7, 2012, beyond 60 days after the
15 Complaint was filed." !d. Furthermore, Defendant argues that "there is not good cause to 16 justify the three year delay in executing the bench warrant." Id. "Defendant's whereabouts 17 were known to the Probation Officer where the Defendant regularly reported." Id. 18
19 The People oppose Defendant's motion. "[Defendant's] motion is based entirely on
20 procedural grounds." People's Opp'n Mot. at 1 (Dec. 31, 2012). "What is left for this court is 21 to determine where [sic] or not there was good cause for the delay between the filing of the 22 complaint in Fejerang's case and his arraignment. The People argue that here good cause for 23 the delay should be found, and therefore that dismissal is inappropriate." Id. at 4. The People 24
25 contend that "Fejerang was notified of a hearing date upon his release from GPD custody, and
26 that he did not appear on that date. There has been nothing provided by Fejerang which would 27 appear to indicate that this failure to appear was in any way not 'willful.'" !d. at 6. The People 28
People v. JOSEPH ROJAS CRUZ (CM767-12) Page 2 of6 Decision and Order Defendant's Motion to Dismiss for Insuftlcient Probable Cause also argue that "on this particular issue that both the Marshals and Probation are 1
2 instrumentalities under the direction of the judicial branch of the government of Guam. These
3 organizations do not share the same advisory relationship with the People as the Guam Police 4 Department. On these bases, any action (or inaction) on the part of the Marshals or Probation 5 cannot be attributed to the People." ld. at 7. Alternatively, the People contend that if the case 6 were to be dismissed, it should be done without prejudice. 7
8 "An arraignment is the first or preliminary step in the progress of a trial and occurs in
9 the early stages of the proceedings." People v. Julian, 2012 Guam 26 ~ 20. "At arraignment, a 10 defendant is read the charges of the complaint, called to answer the accusation contained in the 11 complaint, and is provided a copy of the complaint before taking a plea." Id. (citing 8 GCA § 12
13 60.10(b)).
14 Guam law relative to arraignments provides: 15 (a) The defendant shall be arraigned promptly after the indictment or information 16 is filed or after the complaint is filed where prosecution by complaint is required by § 1.15. 17 (b) Arraignment shall be conducted in open court and shall consist of reading the indictment, information or complaint to the defendant or stating to him the 18 substance of the charge and calling on him to plead thereto. The defendant 19 shall be given a copy of the indictment, information or complaint before he is called upon to plead. 20 8 GCA § 60.10 (emphasis added). 21
22 The Supreme Court of Guam held that "unless good cause is shown, a Complaint shall
23 be dismissed where a defendant is not promptly arraigned within 60 days of the filing of the 24 Complaint." See People v. Rasauo, 2011 Guam 14 ~ 14. This Court notes that Rasauo 11 25 articulated that "compliance with this new standard continues to require a case by case analysis 26
of whether or not the specific circumstances of any given case show good cause for delay 27
28 beyond the 60 day period normally required to comply with law." Rasauo 11 ,i 14. "Under 8
People v. JOSEPH ROJAS CRUZ (CM767-12) Page 3 of6 Decision and Order Defendant's Motion to Dismiss for lnsu!Iicient Probable Cause GCA § 80.60, the term good cause is not statutorily defined." People v. Julian, 2012 Guam 26 1
2 ~ 21. "Rather, good cause is defined through case law and determined by the facts and
3 circumstances of each case." ld. The holding in Rasauo II is designed to provide a baseline 4 standard, and not bind the hands of the trial court in cases where deviation from this baseline is 5 judged to be appropriate. Rasauo II~ 14. 6 The Complaint herein was filed on July 9, 2009. Defendant was not arraigned until 7
8 November 7, 2012. Over three years passed between the filing of the Complaint and
9 Defendant's arraignment. On its face, the time period between the filing ofthe complaint and 10 the arraignment is violative of the 60 day rule announced in Rasauo II. However, "[t]he 11 scheduling of [a] hearing past sixty days does not automatically violate prompt arraignment 12
13 under 8 GCA § 60.10(a) and [the Supreme C]ourt's holding in Rausauo II because good cause
14 may still exist for the delay in not arraigning a defendant within sixty days from the filing of the
15 complaint." People v. Julian, 2012 Guam 26 ~ 28. Because the Court scheduled the 16 arraignment on July 29, 2009, following the filing of the complaint, the Court finds that the 17 original scheduling date was well within the sixty days. The issue now before the Court is 18
19 whether good cause existed for the over three year time frame between the filing of the
20 Complaint and the Defendant's eventual arraignment on November 7, 2012. 21 The Court first recognizes that Guam law requires that a summons shall issue upon 22 filing of the criminal complaint. The specific statutory provision reads as follows: 23 (a) If it appears from the complaint and the affidavits filed therewith that there is 24 probable cause to believe that an offense has been committed and that the 25 defendant has committed it, the judge shall issue a summons for the appearance of the defendant. 26
27 8 GCA § 15.20(a)(2005)(emphasis added).
People v. JOSEPH ROJAS CRUZ (CM767-12) Page 4 of6 Decision and Order Defendant's Motion to Dismiss for Insufficient Probable Cause In the instant case, the record is devoid of any summons issued following the filing of 1
2 the complaint. Defendant was only given a Citation and Notice to Appear after his arrest on
3 August 8, 2008. See Declaration (Jul. 9, 2009). In other cases reviewed by this Court, an 4 Affidavit of Non-Service of summons filed by our Marshal's assists the Court in determining 5 whether or not reasonable efforts were made to locate the Defendant. "In view of the difficulty 6 of locating people in a modem society and the difficulty of proving that a defendant has been 7
8 intentionally avoiding apprehension, [the lack of good faith and due diligence standard] would
9 place an impossible burden on law enforcement and result in the dismissal of numerous cases." 10 State v. Greenwood, 845 P.2d 971, 979 (Wash. 1993). Hence, where law enforcement agents 11 demonstrate "due diligence" in attempting to contact a defendant but are unable to do so, those 12
13 defendants do not accrue the benefits of the running of timing rules during periods where they
14 are out of contact with the criminal justice system. Id. Here, there is no basis for the Court to 15 make such a finding absent any summons issued in the first place. 16 Secondly, Defendant also had numerous cases before the Court system. In CF488-09, a 17 Plea Agreement was entered with the Superior Court of Guam on December 15, 2009. This 18
19 supports Defendant's argument that the bench warrant in the above-captioned case could have
20 been executed earlier. Likewise, in CF488-09, Defendant was issued a bench warrant on 21 January 13,2011 and a Return ofBench Warrant in that case was heard on February 9, 2011. 22 Again, the Bench Warrant with the case at bar could have been addressed at an earlier time. In 23 light of this information, for purposes of prompt arraignment under 8 GCA § 60.1 0( a) and 24
25 Rasauol II delay the court's delay will be attributed to the People. See People v. Julian, 2012
26 Guam 26 ~ 22. Accordingly, the Court does not find good cause to excuse the delay from the 27
People v. JOSEPH ROJAS CRUZ (CM767-12) Page 5 of6 Decision and Order- Defendant's Motion to Dismiss for Insufficient Probable Cause filing of the complaint to the Defendant's arraignment. For that reason, this case is dismissed 1
2 without prejudice.
3 CONCLUSION 4 By preponderance of the evidence and based on the foregoing reasons, the Court 5 GRANTS Defendant's Motion to Dismiss Under People v. Rasauo. This case is hereby 6 dismissed without prejudice. 7
8 SO ORDERED this z_J day of APRIL, 2013. 9
13 HONORABLE ANITA A. SUKOLA 14 Judge, Superior Court of Guam 15
People v. JOSEPH ROJAS CRUZ (CM767-12) Page 6 of6 Decision and Order Defendant's Motion to Dismiss for Insufficient Probable Cause