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5
6 IN THE SUPERIOR COURT OF GUAM 7
8 PEOPLE OF GUAM, GUAM,
CRIMINAL CASE NO. CF0105-14 9 9 vs.
10 10 DECISION AND ORDER 11 SONIY SONIY FIVETEN, 12 Defendant. Defendant.
13 13
14 14 INTRODUCTION
15 This matter came before
matter came before the
the Honorable
HonorableVernon
Vemon P.
P. Perez
Perez on November 12,
12, 2024,
2024, for
16 16 hearing on Defendant SONIY FIVETEN's ("Defendant")
("Defendant")Motion
MotiontotoDismiss
DismissPursuant to Title Pursuant to Title 8
17 17 GCA GCA §§80.70(b)
80.70(b) ("Motion
("MotiontotoDismiss").
Dismiss").Present
Presentwere
wereAssistant
AssistantAttorney
Attorney General
General Kathleen
Kathleen
18 O'Neil 0 'Neilon onbehalf
behalfofofthe
the People
Peopleof
ofGuam
Guam ("the
("theGovernment")
Government")and
andDefendant
Defendant with
with counsel,
counsel, Deputy
19 Public Public Defender Defender John P. Morrison. Having John P. Havingreviewed reviewedthe
thepleadings,
pleadings,the
thearguments
arguments presented,
presented, and
and
20 20 the record, the Court now now issues
issuesthe
thefollowing
following Decision
Decision and
and Order.
21 BACKGROUND
22 On On March
March 13,
13, 2014,
2014, a grand jury returned an indictment returned an indictmentcharging chargingDefendant
Defendantwith
with (1)
(1)
23 Aggravated Aggravated Assault (As (As a Third Degree Felony) with with Special
Special Allegation:
Allegation: Possession
Possession or Use of a
24 Deadly Weapon in Deadly Weapon in the the Commission of a Felony;
Commission of Felony; (2)
(2) Disorderly
Disorderly Conduct (As a Petty Conduct (As Petty
25 25 Misdemeanor), and (3)
(3) Public
Public Drunkenness
Drunkenness(As
(AsaaViolation).
Violation). (Indictment, Mar. 13, 13, 2014).
2014). On
Misdemeanor); and (Indictment, Mar. On 26 26 June 18,2014, 2014,the
theparties
partiesindicated
indicatedthe
thematter
mattermay
maylikely
likelyresolve
resolvewith
with aa lesser-included
lesser-includedoffense,
offense,
June 18, 27 27 pending victim victim notification.
notification. (Minute
(MinuteEntry,
Entry,Jun.
Jun. 18,
18, 2014).
2014). Defendant
Defendantwas
wasreleased
releasedon
on aa personal
28 28
People v.
v. Fiveten
Case No. CF0105-14 Case No. CFol05-l4 Decision Decision and and Order
Page 1l of
of5
11 recognizance bond recognizance bond and and placed
placedon
onhouse
housearrest,
arrest,with
withcertain
certainexceptions.
exceptions. (Order
(Order of
of Conditional
2 Release Release and Appearance Appearance Bond, Jun.
Jun. 18,
18, 2014).
2014). On his
his Order
Order of
ofConditional
Conditional Release
Release and
and
3 Appearance Bond, Defendant handwrote handwrote his
his name
nameas
as"fiveten soniy"and
"riveter sonly" andsigned signedthe
the document
document as
as
4 "riveter sonly". Id "fiveten soniy". Id at at 2.
2. Subsequently, Probationfiled Subsequently, Probation tiled a Violation Violation Report,
Report, indicating
indicating that
that
5 Defendant failed to report report weekly
weeklyin
inperson
person to
to the
the probation
probation office
officeand
and that
that he last
last checked in on
6 July 2, 2014.
July 2, Report,Jul.
(ViolationReport,
2014. (Violation Jul.28, 28,2014).
2014).On
OnJuly
July29,
29,2014,
2014,the
theCourt
Courtissued
issuedaa $5,000.00
$5,000.00
7 warrant for warrant forhis hisarrest.
arrest. (Bench
(Bench Warrant,
Warrant,Jul.
Jul.31, 2014).
3 l,20l4).
8 29, 2023, On August 29, 2023, a Return Return of Warrant
Warrant Service was filed, indicating indicating that
that "[u]pon
"[u]pon
9 conducting aa check utilizing the conducting the Blue Blue Check
Check System
System the
the Guam
Guam Marshals
Marshals discovered
discovered that
that the
the
10 10 defendant is currently detained and defendant and serving serving a sentence
sentence in case
case CF0281-15.
CF0281-15. Alias are (BJ
Alias are (BJ Johnny,
Johnny,
11 11 BJ Asukar, Asukar,JK JKJohnny,
Johnny,Jiam
JiamSio
Sioand
andSoniy
SoniaFiveteen)."
Fiveteen)."(ROW
(ROW Service, Aug.
Aug. 29,
29, 2023).
12 12 Afterseveral After severalstatus the Court status hearings, the Courtset setthe
thematter
matterfor
fortrial
trialfor
forNovember
November6,6,2024.
2024.(Am.
(Am.
13 13 Criminal Trial Trial Scheduling
SchedulingOrder,
Order, Jun.
Jun. 26, 2024).
14 15, 2024, On October 15, 2024, Defendant Defendant filed
filed the
the instant
instantMotion. On October Motion. On October 28,
28, 2024,
2024, the
the
15 Government filed its Government filed its Opposition.
Opposition. No
No Reply was filed.
filed.
16 16 On November November 12,
12, 2024,
2024, the
the parties
parties submitted
submitted on their briefs and and the Court
Court placed the
the
17 17 matter under under advisement.
advisement.
18 18 DISCUSSION
19 19 Defendant Defendant moves
moves the
the Court to dismiss
Court to this matter dismiss this matterpursuant pursuantoto88G.C.A.
G.C.A.§§80.70(b),
80. 70(b arguing
arguing
20 20 that there was that there was unnecessary unnecessarydelay
delay in
in bringing
bringing this matter
matter to
to trial. See
See generally, Mot. Dismiss, Dismiss,
21 Oct. 15, 2024. The 15, 2024. The Government
Government opposes,
opposes, arguing
arguing Defendant
Defendanthas failed to
has failed to allege
allegeaaproper
proper standard
standard
22 for dismissal dismissal and further, that Defendant's further, that Defendant's actions actions caused or contributed caused or to the contributed to the delay. See See
23 generally, generally, Opp'n, Opp'n, Oct.
Oct. 28,
28, 2024.
2024.
24 Title 88 G.C.A.
G.C.A. section
section 80.70(b)
80. 70(b) provides
provides that
that "[i]f
"[i]fthere
thereisisunnecessary
unnecessary delay in
in bringing
25 25 a defendant to trial, the court, defendant to court, on its own own motion,
motion, may
may dismiss
dismiss the
the indictment,
indictment, information or 26 Thereasons complaint. The reasons for forthe
thedismissal
dismissalshall
shall be
be set
set forth
forth in
inan
an order
order entered
entered upon the
the minutes."
minutes."
27 8 8 G.C.A.
G.C.A. §§ 80.70(b).
80.70(b). Dismissals
Dismissals pursuant to 88 G.C.A.
pursuant to G.C.A. §§ 80.70(b)
80.70(b) "should
"should be
be imposed only in
imposed only in
28 28 extreme circumstances."
circumstances." People
People v.
v. Stephen, Guam 8 ,r'll 21 Stephen, 2009 Guam 21 (citing (citing United
United States
States v. Sears,
Sears,
v. Fiveten
People v. Case No. CF0105-14 Case No. cF0105-14 Decision Decision and and Order
Page 2 of5
of
1 Roebuck & Co., 877 877 F.2d 734,
734, 737
737(9th
(9thCir.
Cir. 1989)).
I989)). Section
Section80.70
80.70 is
is based
based on Rule 48 of the
the
2 2 Federal Rules of Federal Rules Procedure. 8 Criminal Procedure. of Criminal 8 G.C.A.
G.C.A. §§ 80.70, Note. "[T]his 80.70, Note. "[T]hisRule Rulegrants
grantsthe
the trial
trial court
court
3 inherent power, derived from from common
common law, to
to dismiss
dismiss a case for want of of prosecution,
prosecution, whether or
4 not there has hasbeen
beenaaSixth
SixthAmendment
Amendmentviolation.
violation. Thus, this power of of dismissal
dismissal is independent of 5 constitutional considerations, and is derived from from the
the court's supervisory authority in in regard to its
6 own jurisdiction." United own jurisdiction." United States States v. Simmons,
Simmons, 536 F.2d 827,
827, 832
832 (9th
(9th Cir.
Cir. 1976).
7 Here, however, however, Defendant
Defendantis
is moving
movingthe
theCourt
Courtto
todismiss
dismiss this
this matter,
matter, not
not the
the Court on
on its
8 own own motion. Defendant Defendantargues
argues that
that during the period of of the
the active
active bench
bench warrant, he "remained warrant, he
9 incarcerated for an eight-year period in incarcerated for in aa separate case, with his presence separate case, presence readily known to the
10 10 same same authorities now attempting authorities now attempting to to proceed with this delayed prosecution"
prosecution" which
which renders
renders the
11 delay delay "unnecessary "unnecessary and unjustifiable under§ and unjustifiable under § 80.70(b),"
80.70(b)," similar
similar to
to the
the defendant
defendant in
in United
United States
States
12 12 v.
v. Price, 373 F.Supp.825, 373 F.Supp. 825,827
827(W.D.
(W.D.Mo.
Mo.1974).
1974). (Mot. Dismiss
Dismiss at 4).
13 Upon Upon review,
review, Defendant
Defendant has
has several
several aliases
aliases and
and had
had several warrants
warrants out for his
his arrest.
arrest.
14 14 On the same same date that aa Return
date that Return of
of Warrant
Warrant Service was filed filed in
inthe
the instant
instant matter,
matter, placing the
15 15 matter back backon
onthe
theCourt's
Court's active
active docket,
docket, aaReturn
Returnof
of Warrant
WarrantService
Service was
was also
also filed
filed in Criminal
16 16 Case Nos. Clv10335-12, CF0143-07,CM0996-10, CM0335-12, CF0143-07, CM0996-10, and andCMl
CMI105-11 reflecting the
105-11 reflecting the same same statement
statement
17 17 that the marshals that the discovered the marshals discovered the Defendant Defendant was
was cmTently
currently detained
detained and
and serving
sewing a sentence
sentence in
18 18 CF0281-15 along with all of ofhis
his named
named aliases.
aliases.
19 19 In In CF0143-07, Defendantplead CF0143-07, Defendant pleadguilty guiltytotoAssault
Assaulton
onaaPolice
PoliceOfficer
Officer (As
(As a Third Degree
20 20 Felony) and Family Felony)and FamilyViolence Violence(As
(Asa Misdemeanor) under
a Misdemeanor) underthe
thealias
aliasB.J.
B.J.Asukar,
Asukar,DOB
DOB11/11/1983.
11/11/1983.
21 (Judgment (CF0143-07), Sept. 20, 2007).
2007). The
Theparties
partiessubsequently
subsequently stipulated
stipulated in
in CF0143-07
CF0143-07 to
22 revocation revocation of ofDefendant's
Defendant's probation.
probation. (Stip.
(Stip.and
and Order
Order Re: Revocation
Revocation of
ofProbation
Probation (CF0143 -07),
(CF0143-07),
23 23 May 23, 23, 2024).
24 24 In In CM0996-10,
10, Defendant
Defendant consented
consentedto
to diversion
diversion of
of the
the case with
with certain
certain conditions
conditions under
25 25 the alias B.J.
B.J. Asukar,
Asukar, DOB:
DOB: 11/11/1983. (Stip.and 11/11/1983. (Stip. andOrder Orderfor
forDiversion
Diversion(CM0996-10),
(CM0996-10), Dec. 21,
26 2010).
l0). AAWarrant WarrantofofArrest
Arrestwas
wasissued
issuedon
onFebruary
February2,
2, 2012,
2012, after
after Defendant was terminated from 27 27 Lighthouse Recovery Recovery Center
Center and
and failed
failed to
to check
check in
in with
with Probation
Probation on
on aa monthly basis.
basis. See
See 2nd
2nd
28 Violation Violation Report Report (CM0996-10),
(CM0996-10), Feb.
Feb. 1,
1, 2012,
2012; Warrant
Warrant of Arrest
Arrest (CM0996-10),
(CM0996-10), Feb.
Feb. 2,
2, 2012.
2012.
People v.
v. Fiveten
Case No. CF0105-14 Case No. CF0105-I4 Decision Decision and and Order
Page 3 ofS
of 5
1 CM0996-10 was subsequently dismissedwithout subsequently dismissed withoutprejudice.
prejudice. See
See Judgment of Revocation Judgment of Revocation and and
2 Dismissal Without Prejudice (CM0996-10), May May 23,
23, 2024.
2024.
3 In CM1105-11, Defendant was CMl 105-11, Defendant wascharged chargedwith
withFamily
FamilyViolence
Violence (As
(As aa Misdemeanor)
Misdemeanor) and
and
4 Assault (As (As aa Misdemeanor)
Misdemeanor)under
under the
the alias
alias BJ
BJ Asukar,
Asukar, DOB:
DOB: 11/11/1983.
11/11/1983. A Bench
Bench Warrant
Warrant
5 was issued issued for Defendant's Defendant's arrest after he arrest after he failed to to appear
appear for an
an Arraignment
Arraignment Hearing
Hearing on
on
6 November November23, 23, 2011.
2011. See
See Bench
Bench Warrant, Dec. 5, 2011.
2011. CMI105-11
CMl 105-11 was
was subsequently
subsequently dismissed
7 by the Government prejudice. See People's Government with prejudice. People's Motion Motionand
and Order
Order to
to Dismiss
Dismiss with
with Prejudice
Prejudice
8 (CMI105-11), (CMl 105-11),Jan.
Jan. 10,
10, 2024.
2024.
9 In CM0335-12, CM0335-12, Defendant was charged Defendant was charged with with Disorderly
Disorderly Conduct
Conduct(As
(As a Petty
Petty
10 10 Misdemeanor) and Public Misdemeanor) and Public Intoxication Intoxication(As
(As aa Violation)
Violation) under the name under the name Sio Jiam,
Jiam, DOB:
11 11 11/13/1984. (Magistrate's Compl.
11/13/1984. (Magistrate's Con pl. in in CM0335-12,
CM0335-12,Apr.
Apr. 4,
4, 2012).
2012). A
ABench
BenchWarrant
Warrant was
was issued
issued
12 12 for his his arrest arrest after he failed to to appear
appear for
for aa hearing on
on September 11, 2012.
2012. See
See Bench
Bench Warrant
13 13 (CM0335-12), (CM0335-12), Sept.
Sept. 11,
11, 2012.
2012. CM0335-12
CM0335-12 was subsequently subsequently dismissed
dismissed with prejudice, prejudice, as
as
14 14 Defendant served the the maximum
maximumtime
time of
of imprisonment
imprisonment after
afterhis
hisReturn
Returnof
of Warrant.
Warrant. See Ex Parte
15 15 Mot. Dismiss, Mot. Dismiss, Jun. 25,2024;
Jun. 25, 2024,Order
OrderGranting
GrantingPeople's
People'sEx
Ex Parte
ParteMotion
Motion to
to Dismiss with
with Prejudice,
Prejudice,
16 Jul. 29, Jul. 29, 2024.
2024.
17 11 In CF028l-l5, CF0281-15,Defendant
Defendantentered
entered aa guilty plea
plea to the charge
charge of Attempted Murder Murder (As
(As a
18 18 First Degree Felony) with with attached Allegation: Possession attached Special Allegation: Possession or or Use of
of aa Deadly Weapon in
19 19 the Commission of a Felony. See See Plea
PleaAgreement
Agreement(CF0281-15),
(CF0281-15),Jul.
Jul.24,
24, 2015,
2015; Judgment (Guilty
Judgment (Guilty
20 20 Plea Plea Agreement)
Agreement) (CF0281-15),
(CF0281-15), Sept.
Sept. 20,
20, 2016.
2016. Defendant
Defendantwas
wascharged
charged as
as BJ
BJ Johnny
Johnny aka CO
21 with DOB: 11/13/1984 11/13/1984 ininCF0281-15.
CF0281-15.See
SeeMagistrate's
Magistrate'sCompl.
Con pl. (CF0281-15),
(CF028l-15), May 6,
6, 2015,
2015;
22 22 Indictment (CF028l-l5), May Indictment (CF0281-15), May14, 14,2015,
2015;Superseding
Superseding Indictment
Indictment (CF028l-15),
(CF0281-15),Jun.
Jun. 30,
30, 2015.
2015.
23 23 Both Defendant's Defendant's and
and the
the Government's
Government's sentencing
sentencing memoranda
memoranda in
in CF0281-15
CF0281-15 reference
reference
24 Defendant as asaafirst
firstoffender.
offender. See
See Deft. Sent. Memo. (CF0281-15), Sent. Memo. (CF028l-15), Oct.
Oct. 8,
8, 2015, People's Sent.
2015; People's Sent.
25 25 Memo. (CF028l-15), (CF0281-15),Jun.
Jun. 24,
24, 2016).
2016). On
OnSeptember
September2,2,2016,
2016, Defendant
Defendant was
was sentenced
sentenced to ten
ten
26 26 years of (10) years imprisonment in ofimprisonment in CF0281-15 CF0281-15 .-- five (5) years - five years for
for the
the Attempted
Attempted Murder
Murder charge
charge and
and
27 five five (5)
(5)years
years for
forthe
the Special
Special Allegation,
Allegation,totorun
run consecutive
consecutive to each other.
other. (Judgment (Guilty
(Guilty Plea
28 28 Agreement) (CF028l-15), (CF0281-15),Sept.
Sept. 20,
20, 2016).
2016).
People v. Fiveten Case No. CF0105-14 Case No. Decision Decision and and Order
Page 4 of5
2 In light light of
ofthe
theabove,
above, the
theCourt
Courtdoes
doesnot
notfind
findthat
that"extreme
"extremecircumstances"
circumstances" exist
exist
3 warranting dismissal warranting dismissalunder under88G.C.A.
G.C.A. §§ 80.70(b).
80.70(b). See
See Stephen,
Stephen, 2009 Guam
Guam 88 1121.
,i 21. The Court
Court
4 does not find the the delay
delay "unnecessary
"unnecessaryand
andunjustifiable"
unjustifiable"ininlight
lightof
of Defendant's
Defendant's choice
choice to
to utilize
5 aliases.
aliases. This Thisisis unlike
unlike the
the defendant
defendant in United
United States v.v. Price, Price, 737 F.Supp.
F.Supp. 825
825(W.D.
(W.D. Mo.
Mo. 1974),
6 where, as the Government sets forth, forth, "there is
is no
no allegation
allegationthat
that the
the defendant
defendant absconded
absconded from
7 the jurisdiction jurisdiction or
or used
usedaliases
aliasesduring
duringthe
theperiod
periodofofdelay."
delay."(Opp'n
(Opp'n at
at 4).
4). The
The Court
Court does
does not find
8 it clear clear that that Deflendant's
Defendant's "presence was readily known known to the
the same
same authorities now attempting attempting to
9 proceed with this delayed prosecution"
prosecution" as
asargued
arguedby
byDefendant.
Defendant.See
SeeMot.
Mot.Dismiss
Dismissatat4.4. Rather,
10 10 Defendant's use of aliases aliases contributed to the contributed to the Government's Government's inability to bring the matter to to final
II 1 I adjudication sooner.
sooner. Therefore,
Therefore, the
the Court denies Defendant's Motion Motion to Dismiss.
12 12 CONCLUSION
13 13 For the the foregoing
foregoing reasons, the Court reasons, the Court hereby hereby DENIES
DENIES Defendant's Motion Motion to
to Dismiss.
Dismiss.
14 14 Parties shall return for aa Status Hearing Hearing on February 3, 2025 at10:30 10:30 a.m.
15 15 ~
16 IT IS SO ORDERED this Q'2 day of QW'
ofJanuary,
January, 2025.
2025.
17 17
18 18
19 19 HONORABLE VERNON p. P. PEREZ Judge, Judge, Superior Court of Guam 20
21
22 22
23 23 SERVICE VIA EMAIL SERVICE VIA
24 acknowledge that I acknowledge that an electronic copy of the
the original was
was e-mailed
e-mailed to:
to:
25 As, P050
26 lb Tme : '*'-Vl a d Date:
27 Anhdo/ C`4vl Deputy Clerk, Subdior Court of Guam 28
People v.
v. Fiveten
Case No. CF0105-14 CF0105-14
Decision Decision and and Order
Page 5 of5
of