1 IN THE SUPERIOR COURT OF GUANO 2
3 LE V. PE OPLE OF GU AM , CRIMINAL CASELN( CF71-1 1 ` ` ' 4
5 V. FINDINGS OF FACT AND 6 CONCLUSIONS OF LAW (Restitution) 7 DANIEL CLINTON FEJERANG, 8 Defendant. 9
10 INTRODUCTION 11 This matter came before the Honorable Anita A . Sukola on December 16, 2013 fo 12
13 further proceedings. Assistant Attorney General Gabrielle Rossi represented the People of Gu
14 ("the People"). Daniel Clinton Fejerang ("Defendant") appeared with his counsel, Terence E. 15 Timblin, Esq. Upon confirmation that all documents related to restitution had been filed, th 16 Court took the matter under advisement. Now, taking all evidence and arguments int 17 consideration, the Court issues its Findings of Fact and Conclusions of Law. 18
19 FINDINGS OF FACT
20 By preponderance of the evidence, the Court makes the following findings of fact: 21 1. Defendant was indicted by a Superior Court of Guam Grand Jury on February 18, 22 2011. Defendant was charged with Complicity to Commit Burglary (as a 2nd Degree Felony) an 23
Complicity to Commit Theft of Property (as a Misdemeanor). Indictment (Feb. 18, 2011). 24
25 2. The charges filed against Defendant in the Indictment arise from events taking place
26 on or about December 29, 2010, committed against Francisco and Mare Sanchez. It is allege 27 that Defendant did, with the intention of promoting and assisting in the commission of an offens 28
People v. Fejerang (CF71-11) Page I of 6 Findings of Fact and Conclusions of Law - Restitution that is, Burglary, aided other persons, to wit, Derrick White, Michael Rosario and 1
2 Christine May Sablan Calilung, to commit the offense of Burglary at #120 Aguon Way,
3 Barrigada, Guam. It is also alleged in the Indictment that Defendant did, with the intention o 4 promoting and assisting in the commission of an offense, that is, Theft of Property, induced an 5 aided other persons, to wit, Derrick White, Michael Rosario and Christine May Sablan Calilung 6
7 to commit the offense of Theft of Property at #120 Aguon Way, Barrigada, Guam.
8 3. On October 3, 2012, the Attorney General's Office filed an Information. The
9 Information accuses Defendant of two charges: Burglary (as a 2"d Degree Felony) and Arson (as 10 a (3d Degree Felony). Attorney General's Information (Oct. 3, 2012). 11 4. The Information particularly alleges that "[o]n or about June 14, 2010, in Guam 12
13 [Defendant] did commit the offense of Burglary, in that he did assist Lee John Blas in entering
14 the habitable property of Dianne S.A. Bell located in Ordot, with the intent to commit the crim e 15 of theft therein, licensed at a time or privileged to sowhen the Id. enter." premises were neither The Information open also to the alleges that the Defendan "[o]nnor about public June 14,t 16
17 2010, in Guam [Defendant] did commit the offense of Arson, in that he did assist Lee John Bl 18
19 in unlawfully starting a fire on the habitable property of Dianne S.A. Bell located in Ordot, i
20 reckless disregard of risk that such fire would damage or destroy the property of Dianne S.A 21 Bell." Id. 22 5. Defendant pled guilty to Burglary (as a 2nd Degree Felony) and Arson (as a 3rd Degree 23 understanding Felony) of the nature on December of eachThe 3, 2012. Court charge found and the pleas were the consequences made of the voluntarily plea. with th Furthermore, 24
26 Defendant was ordered to pay restitution to all victims named in Police Report Nos. 10-1811 27
People v. Fejerang ( CF71-11) Page 2 of 6 Findings of Fact and Conclusions of Law - Restitution and 10-36275,-`pur suant to 9 GCA §80.50( e) , in an amount tor t imined by the Cour t a 1
2 restitution hearing. See Judgment at ¶ (A) and (C) (Mar. 25, 2013).
3 6. The People submitted a restitution summary requesting restitution in the amount 4 $96,481.001 relative to the victim, Dianne S.A. Bell. Submission of Restitution Summary (Mar. 5 11, 2013). 6
7 7. On March 26, 2013, the People also submitted a Statement of Restitution requesting
8 restitution in the amount of $8,067.50 relative to the victims, Alana and Raymond Quenga
9 Statement of Restitution (Mar. 26, 2013).2 10 8. The case file is devoid of any written objection or information provided by the 11 Defendant relative to restitution. 12
13 9. The Court set its final Restitution Hearing relative to this case on December 16, 2013.
14 CONCLUSIONS OF LAW: 15 "The Court shall require restitution in all cases wherein the offender has been convicte d 16 of a crime involving damage to property of the victim when the offender is or, given a fair 17
opportunity to do so, will be able to pay the restitution." 9 GCA § 80.53 (2005). A defendan t 18
19 may be ordered to pay restitution for losses3 to the victim so long as the restitution does no
20 exceed the victim' s loss resulting from the offense. See 9 GCA § 80.50 (2005). The losse 21 evaluated for purposes of restitution should be losses caused by the conduct constituting the 22 offense by the offender. Id. The guiding principle of restitution is to make the victim whole t 23
the extent permitted by the statutory and constitutional scheme. In re Andrew C., 215 Ariz. 366, 24
25 1 Initially, the victim provided an estimate of $39,789.00 for contents listed on a statement dated August 27, 201 26 as she recalled prior to the burglary and arson. The new figure is to represent payments made to the bank as a resul of a new loan, construction /demolition costs, and purchases of appliances and furniture. 27 2 In review of this matter, the Court finds there was no request made for the Quenga victims as represented to the Court in CF30-1 I on February 3, 2014. Therefore, restitution in the Order herein will pertain only to the victim 28 Dianne S.A. Bell. 3The term " loss" means the amount of value separated from the victim. 9 GCA §80 .50(e).
People v. Fejerang (CF71-11) Page 3 of6 Findings of Fact and Conclusions of Law - Restitution =11[10, 160 P.3d 687, 689 (App.2007). W i t h t l e e r , restitution is necessary because i 1
would act as a deterrent and a correcting influence on the defendant. See 9 GCA §80.52 (b)(2)
Furthermore, Defendant through his Plea Agreement, voluntarily agreed he would pa
restitution. Plea Agreement at 15 (c).
The conviction in this instant case is of a second and third degree felony which woul d
ordinarily limit the order of restitution to $10,000.00 as prescribed by 9 GCA § 80.50 (a).
However, restitution awards in excess of the statutory ceiling are allowed under section 80.50 (e
but are limited up to double the amount equal to the loss to the victim. See People v. Mallo, 200 10 Guam 23 ¶ 41. Section 80.50(e) of Title 9 Guam Code Annotated allows a judge to order up t 11 $10,0004 in restitution without any findings , and to order a higher amount equal to the loss t 12
13 the victim or gain to offender if the judge makes a finding as to the amount. Id. at ¶ 43.
14 In calculating the amount owed in restitution, the court needs only a reasonabl 15 may use any rational determination of fixing theUS. method restitution. of appropriate v. Kearney, amount of restitution which 672 F.3d 81(1isstreasonably Cir. 2012).calculated t Trial courts 16
17 make the victim whole. People v. Goulart, 273 Cal. Rptr. 477, 483 (Cal. App. 4 Dist. 1990). 18
19 When read plainly, 9 GCA § 80.50 can be interpreted as governing restitution to th
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1 IN THE SUPERIOR COURT OF GUANO 2
3 LE V. PE OPLE OF GU AM , CRIMINAL CASELN( CF71-1 1 ` ` ' 4
5 V. FINDINGS OF FACT AND 6 CONCLUSIONS OF LAW (Restitution) 7 DANIEL CLINTON FEJERANG, 8 Defendant. 9
10 INTRODUCTION 11 This matter came before the Honorable Anita A . Sukola on December 16, 2013 fo 12
13 further proceedings. Assistant Attorney General Gabrielle Rossi represented the People of Gu
14 ("the People"). Daniel Clinton Fejerang ("Defendant") appeared with his counsel, Terence E. 15 Timblin, Esq. Upon confirmation that all documents related to restitution had been filed, th 16 Court took the matter under advisement. Now, taking all evidence and arguments int 17 consideration, the Court issues its Findings of Fact and Conclusions of Law. 18
19 FINDINGS OF FACT
20 By preponderance of the evidence, the Court makes the following findings of fact: 21 1. Defendant was indicted by a Superior Court of Guam Grand Jury on February 18, 22 2011. Defendant was charged with Complicity to Commit Burglary (as a 2nd Degree Felony) an 23
Complicity to Commit Theft of Property (as a Misdemeanor). Indictment (Feb. 18, 2011). 24
25 2. The charges filed against Defendant in the Indictment arise from events taking place
26 on or about December 29, 2010, committed against Francisco and Mare Sanchez. It is allege 27 that Defendant did, with the intention of promoting and assisting in the commission of an offens 28
People v. Fejerang (CF71-11) Page I of 6 Findings of Fact and Conclusions of Law - Restitution that is, Burglary, aided other persons, to wit, Derrick White, Michael Rosario and 1
2 Christine May Sablan Calilung, to commit the offense of Burglary at #120 Aguon Way,
3 Barrigada, Guam. It is also alleged in the Indictment that Defendant did, with the intention o 4 promoting and assisting in the commission of an offense, that is, Theft of Property, induced an 5 aided other persons, to wit, Derrick White, Michael Rosario and Christine May Sablan Calilung 6
7 to commit the offense of Theft of Property at #120 Aguon Way, Barrigada, Guam.
8 3. On October 3, 2012, the Attorney General's Office filed an Information. The
9 Information accuses Defendant of two charges: Burglary (as a 2"d Degree Felony) and Arson (as 10 a (3d Degree Felony). Attorney General's Information (Oct. 3, 2012). 11 4. The Information particularly alleges that "[o]n or about June 14, 2010, in Guam 12
13 [Defendant] did commit the offense of Burglary, in that he did assist Lee John Blas in entering
14 the habitable property of Dianne S.A. Bell located in Ordot, with the intent to commit the crim e 15 of theft therein, licensed at a time or privileged to sowhen the Id. enter." premises were neither The Information open also to the alleges that the Defendan "[o]nnor about public June 14,t 16
17 2010, in Guam [Defendant] did commit the offense of Arson, in that he did assist Lee John Bl 18
19 in unlawfully starting a fire on the habitable property of Dianne S.A. Bell located in Ordot, i
20 reckless disregard of risk that such fire would damage or destroy the property of Dianne S.A 21 Bell." Id. 22 5. Defendant pled guilty to Burglary (as a 2nd Degree Felony) and Arson (as a 3rd Degree 23 understanding Felony) of the nature on December of eachThe 3, 2012. Court charge found and the pleas were the consequences made of the voluntarily plea. with th Furthermore, 24
26 Defendant was ordered to pay restitution to all victims named in Police Report Nos. 10-1811 27
People v. Fejerang ( CF71-11) Page 2 of 6 Findings of Fact and Conclusions of Law - Restitution and 10-36275,-`pur suant to 9 GCA §80.50( e) , in an amount tor t imined by the Cour t a 1
2 restitution hearing. See Judgment at ¶ (A) and (C) (Mar. 25, 2013).
3 6. The People submitted a restitution summary requesting restitution in the amount 4 $96,481.001 relative to the victim, Dianne S.A. Bell. Submission of Restitution Summary (Mar. 5 11, 2013). 6
7 7. On March 26, 2013, the People also submitted a Statement of Restitution requesting
8 restitution in the amount of $8,067.50 relative to the victims, Alana and Raymond Quenga
9 Statement of Restitution (Mar. 26, 2013).2 10 8. The case file is devoid of any written objection or information provided by the 11 Defendant relative to restitution. 12
13 9. The Court set its final Restitution Hearing relative to this case on December 16, 2013.
14 CONCLUSIONS OF LAW: 15 "The Court shall require restitution in all cases wherein the offender has been convicte d 16 of a crime involving damage to property of the victim when the offender is or, given a fair 17
opportunity to do so, will be able to pay the restitution." 9 GCA § 80.53 (2005). A defendan t 18
19 may be ordered to pay restitution for losses3 to the victim so long as the restitution does no
20 exceed the victim' s loss resulting from the offense. See 9 GCA § 80.50 (2005). The losse 21 evaluated for purposes of restitution should be losses caused by the conduct constituting the 22 offense by the offender. Id. The guiding principle of restitution is to make the victim whole t 23
the extent permitted by the statutory and constitutional scheme. In re Andrew C., 215 Ariz. 366, 24
25 1 Initially, the victim provided an estimate of $39,789.00 for contents listed on a statement dated August 27, 201 26 as she recalled prior to the burglary and arson. The new figure is to represent payments made to the bank as a resul of a new loan, construction /demolition costs, and purchases of appliances and furniture. 27 2 In review of this matter, the Court finds there was no request made for the Quenga victims as represented to the Court in CF30-1 I on February 3, 2014. Therefore, restitution in the Order herein will pertain only to the victim 28 Dianne S.A. Bell. 3The term " loss" means the amount of value separated from the victim. 9 GCA §80 .50(e).
People v. Fejerang (CF71-11) Page 3 of6 Findings of Fact and Conclusions of Law - Restitution =11[10, 160 P.3d 687, 689 (App.2007). W i t h t l e e r , restitution is necessary because i 1
would act as a deterrent and a correcting influence on the defendant. See 9 GCA §80.52 (b)(2)
Furthermore, Defendant through his Plea Agreement, voluntarily agreed he would pa
restitution. Plea Agreement at 15 (c).
The conviction in this instant case is of a second and third degree felony which woul d
ordinarily limit the order of restitution to $10,000.00 as prescribed by 9 GCA § 80.50 (a).
However, restitution awards in excess of the statutory ceiling are allowed under section 80.50 (e
but are limited up to double the amount equal to the loss to the victim. See People v. Mallo, 200 10 Guam 23 ¶ 41. Section 80.50(e) of Title 9 Guam Code Annotated allows a judge to order up t 11 $10,0004 in restitution without any findings , and to order a higher amount equal to the loss t 12
13 the victim or gain to offender if the judge makes a finding as to the amount. Id. at ¶ 43.
14 In calculating the amount owed in restitution, the court needs only a reasonabl 15 may use any rational determination of fixing theUS. method restitution. of appropriate v. Kearney, amount of restitution which 672 F.3d 81(1isstreasonably Cir. 2012).calculated t Trial courts 16
17 make the victim whole. People v. Goulart, 273 Cal. Rptr. 477, 483 (Cal. App. 4 Dist. 1990). 18
19 When read plainly, 9 GCA § 80.50 can be interpreted as governing restitution to th
20 extent of losses incurred by victim caused by the conduct constituting the offense which 21 Defendant is convicted.5 "A person who has been convicted of an offense may be sentenced t c 22 pay a fine or to make restitution not exceeding any higher amount equal to double the loss to th e 23
victim caused by the conduct constituting the offense by the offender." Id. "The law on statutory! 24
The$ 10,000 ceiling applied to a Pt or 2d Degree conviction, as referenced in Mallo, 2008 Guam 23. 27 It is a cardinal rule of statutory construction that courts must look first to the language of the statute itself .. Absen 28 clear legislative intent to the contrary, the plain meaning prevails. Sumitomo Const., Ltd. v. Government of Gua 2001 WL 1360135 Guam Tern, 2001.
People v. Fejerang (CF71-11) Page 4 of 6 Findings of Fact and Conclusions of Law - Restitution construction is well-settled. [I]f a stat Ute is unambiguous, then judicial inquiry is complete 1
2 People v. Quichocho, 1997 Guam 13 ¶ 5 (citing Rubin v. United States, 449 U.S. 424 (1981).
3 A plain deconstruction shows that a person convicted of an offense must pay restitution 4 to a victim. The amount the convicted person must pay is the amount of losses caused by the 5 conduct constituting the offense. The offense referred to in "conduct constituting the offense" 6
can only be referring to the "offense" which a person is convicted of in the beginning of thi s 7
8 statute. There also must be a direct link between the loss for which restitution was ordered and
9 conduct for which defendant was convicted. State v. Kenvin, 2011 VT 123, ¶ 11 (Vt 10 Supreme Court 2011). The losses which victims can recover for must be the direct results of 11 defendant's crime. Id_ at ¶ 13. 12
13 The plain reading of the statute above makes clear that Defendant should onl y b
14 responsible for those losses directly caused by his conduct for which he was convicted. Here 15 Defendant pled to Burglary (as a 2nd Degree Felony) and Arson (as a 3rd Degree Felony) 16 Consequently, the People submitted on behalf of Dianne S.A. Bell, a request for restitution in the 17 amount of $96,481.00. The victim's restitution request far exceeds the amount authorized by 18
19 GCA § 80.50 (a). Title 9 GCA § 80.50 (e) grants the authority after a finding of loss to th e
20 victim that is higher than that enumerated in the breakdown provided under § 80.50. However, 21 while the Plea Agreement represents said subsection, absent more information, the Court is no 22 convinced to invoke subsection (e) of 80.50 given the information it has. While the Victim wa s 23
24 present at the hearing, she was not called to provide testimony under oath. Likewise, th e
25 information does disclose that there was an insurance company settlement of $106,000.00
26 however that does not cover the contents which were valued at $39,789.00. The insurance di 27 offset the amount necessary to rebuild the house for which $93,194.00 was paid. This leaves 28
People v. Fejerang (CF71-11) Page 5 of 6 Findings of Fac t and Conclusions of Law - Restitution estimated $ 12,000.00 left. ierefore, t iie Court at this time is unable to make J= fin 1
2 the statutory ceiling provided for in 9 GCA § 80.50(a).
3 Having reviewed the file and the information provided, specifically the Indictment, price 4 quotes, and victims' statement with corresponding content price summary, the Court finds tha 5 Defendant Daniel Clinton Fejerang is jointly and severally liable to pay restitution in the amoun 6
of $10,000.00 as it relates to Dianne S.A. Bell. Nothing in this Order precludes the victim fro 7
8 seeking damages civilly.
9 CONCLUSION 10 By preponderance of the evidence and based on the foregoing reasons, the Court 11 ORDERS the Defendant Daniel Clinton Fejerang to pay restitution in the amount of Ten 12
13 Thousand Dollars ($10,000.00) for the loss incurred to the Victim as he is jointly and severally
14 liable to Dianne S.A. Bell. 15 A hearing on Defendant's Motion to Clarify Credit for Time Served is set for 16
17 0 ORDERED this Z- day of APRIL, 2014. 18
21 HONORABLE ANITA A. SUKOLA 22 Judge, Superior Court of Guam 23
24 SERVICE VIA COURT BOX 25 I acknowledge that a copy of the original hereto was placed in the 26 court box of
27 . 28 1 1 1 2 4 :Court of am
People v. Fejerang (CF71-11) Page 6 of 6 Findings of Fact and Conclusions of Law - Restitution