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PEOPLE OF GUAM, 1 CRIMINAL CASE NO. CF0133-09 ) ('LEI;' ; . , _ . : ' i,-,-
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Plaintiff, )
) DECISI~M-AND ORDER -
VS. )
) On Defendant Esmeralda A. Sabinay's HENRY FLORES et al., ) Motion for Reconsideration of Order ) Denying Motion to Dismiss First Charge Defendants. 1
II I. INTRODUCTION
1
This matter came before the HONORABLE VERNON P. PEREZ on Defendan
I I Esmeralda A. Sabinay's Motion for Reconsideration of Order Denying Motion to Dismiss ~ i r s d 9 Charge, filed on September 1, 2009. The People filed an Opposition on September 8, 2009.
I1II Defendant Sabinay filed a Reply on September 14, 2009. Co-Defendants Henry C. Flores, Jo
M. Duenas, Juan L.G. Diaz, James V. Quenga, Raynold C. Alcantara, Joaquin Q. Castro
1
II Vincent G. Perez, Luke Tonaichy and Benedette C. Santos orally joined in Sabinay's motion.
II The Court held a hearing on the matter on October 5, 2009. Having considered the Parties'
II written submissions, the arguments of counsel, and the applicable law, the Court now issues it
ruling.
11. DISCUSSION
II A. Summary of Parties' Arguments
II In her motion, Defendant Sabinay urges the Court to reconsider its Decision and Order o
II II August 24, 2009, denying Defendant Sabinay's Motion to Dismiss the First Charge of th
Indictment. Defendant Sabinay argues that the Court has misapprehended a mixed point of lad
II and fact, namely, that the underlying offense depends on a reckless result, rather than on reckles
People of Guam v. Henly Flores et al. Decision and Order (Motion for Reconsideration) Criminal Case No. 0 0 1 3 3 - 0 9 P a g e 1 of 1 0 -
11 conduct. In their Opposition, the People counter that reconsideration is inappropriate, becaus
Defendant Sabinay has not met the standards set forth in Guam case law for revisiting
previously decided issue. In her reply, Defendant Sabinay contends that the culpable
1
state of the underlying offense is mere recklessness, and that the reference in the statute t
"circumstances manifesting extreme indifference to the value of human life" refers to a materia
1
7 11 element of the attendant circumstances. In light of Defendant Sabinay's arguments, the Co
4
8 will exercise its discretion and entertain the motion for reconsideration.
9 B. Whether Underlying Offense Depends on Reckless Result 10
l1 II 1. Whether Offense Depends on Result or Conduct I In its previous decision, the Court focused on the conduct of the accused. In her reply
11 Defendant Sabinay "concedes that the underlying offense depends on reckless conduct. . . .
a
l3 14 the underlying offense also depends on a reckless result. . . ." Reply to Opp'n to Mot. fo 15 Reconsideration of Order Denying Mot. to Dismiss First Charge (Sept. 14, 2009), at 2-3. Th 16
l7 11 Court examines the distinction between statutes that criminalize conduct and those that demand
18 II particular result.
l9 20 (1 In Commonwealth v. Wood, 475 A.2d 834 (Pa. Super. Ct. 1984), a defendant appealed
his reckless endangerment conviction, arguing that the trial court should have instructed the j 21
22 I1 on the lesser included offense of reckless driving. In arriving at its conclusion that the trial co
. 23 11 had erred, the Pennsylvania court had to analyze the statutes governing the two offenses. Id.
24
25 I1)I 835. Pennsylvania's reckless driving statute provided that "[alny person who drives a vehicle
careless disregard for the safety of person or property is guilty of a summary offense." The court/
i
26 in Wood identified the offense of reckless driving as having "two elements: an actus reus 27 28
People of Guam v. Henly Flores et al. Decision and Order (Motion for Reconsideration)
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Criminal Case No. CF0133-09 Page 2 of 10 -
driving a vehicle; and a mens yea-careless disregard." Id. at 836. Thus, Pennsylvania's 1 (recklessdriving statute required no causation or particular result. Id.
I
3 Guam's own version of the reckless driving statute provides that "[elvery person wh 4
11 drives any vehicle upon a highway in willful or wanton disregard for the safety of persons o
I
6 II property is guilty of reckless driving." 16 G.C.A. 5 9107(a). Thus, like the Pennsylvania statute
7 II Guam law has two elements: an actus yeus-driving a vehicle; and a mens yea-willful o
I
8
9 11 wanton disregard, but does not require causation any particular result with respect to this offense.1
In Minor v. State, 605 A.2d 138 (Md. 1992), a defendant sought review of his convictio 10 under a statute providing that any person "who recklessly engages in conduct that creates
12 11 substantial risk of death or serious physical injury to another person is guilty of the misdemeanoI l3 1 of reckless endangerment" a at 437 (quoting Md. Code, Art. 27, 5 120(a) (1992 Rep1 Val.)). l4 15 II The Maryland high court noted that "[ilt is readily evident from the plain language of 5 120(a d that it was enacted to punish, as criminal, reckless conduct which created a substantial risk o 16 17 11 death or serious physical injury to another person. It is the reckless conduct and not the h=I 18 I1 II caused by the conduct, if any, which the statute was intended to criminalize." Thus, Maryland'
l9 20 reckless endangerment law did not require causation or any particular result.
I
Guam's own version of the reckless endangerment statute provides that "[a] person i 21
22 I1 guilty of reckless conduct if he . . . recklessly engages in conduct whlch unjustifiably places o
may place another in danger of death or serious bodily injury". 9 G.C.A. 4 19.40(a)(l). Thus
1
24 II like the Maryland statute, Guam law criminalizes the conduct but does not require causation o
any particular result with respect to this offense. But see
1
one of the elements of the crime of reckless endangerment is "the achievement of a particul
People of Guam v. Heniy FIores et al. Decision and Order (Motion for Reconsideration) Criminal Case No. CF0133-09
1
11 result-'danger,'
1
to another person of death or serious bodily injury.") (quoting Comrnonwealt
v. Trowbridge, 395 A.2d 1337, 1340 (Pa. Super. Ct. 1978)).
in Commonwealth v. Myers, 722 A.2d 1074 (Pa. Super. Ct. 1998), a defendant appeale di
I
his aggravated assault conviction, arguing that the trial court had erred in its instructions to th 5 6 II jury. Id.at 1075-76. The Pennsylvania aggravated assault statute under which the defendant ha
been convicted provided in pertinent part: "A person is guilty of aggravated assault if he . . .I 7 8 I I causes [serious bodily injury to another] . . . recklessly under circumstances 9 indifference to the value of human life." Id.at 1076 (citing 18 Pa. Consol. Stat. 8 10
l1 II The reviewing court in Mvers noted that the lower court properly identified one of the element
I
12 I11I of the offense as the defendant causing serious bodily injury to the victim. Mvers, 722 A.2d a
l3 14 1076. Thus, in contrast to the reckless driving and reckless endangerment statutes examine
4
above, Pennsylvania's aggravated assault statute requires causation or a particular result, namely, 15 serious bodily injury. Id.
16
l7 II The offense underlying the conspiracy charge in this case is aggravated assault as se
18 1 I forth in section 19.20(a)(l) of the Guam Criminal Code, which ,states: "A person is guilty oft
l9 llaggravated assault if he . . . recklessly causes . . . serious bodily injury to another i 20
4
circumstances manifesting extreme indifference to the value of human life". 9 G.C.A.
21 8 19.20(a)(l). One of the elements of this offense is that the defendant caused serious bodil
23 11 injury to the victim. Thus, like Pennsylvania's aggravated assault statute, Guam law require 24 11 causation or a particular result, namely, serious bodily injury.
25 26 11 The Court concludes that, in addition to conduct, the offense underlying the conspirac d charge in t h s case depends on a result. The Court's inquiry, however, does not end here. Th 27 28 II Court turns now to address the rnens rea, or culpable mental state, applicable to that result.
People of Guam v. Henry FIores et al. Decision and Order (Motion for Reconsideration) Criminal Case No. CF0133-09
2. Whether Offense Requires Mere Recklessness or Extreme Recklessness
11 In her reply, Defendant Sabinay I 3 concedes that the underlying offense depends on reckless conduct. And Sabinay 4 concedes that the underlying offense depends on reckless "circumstances manifesting extreme indifference to the value of human life." But the underlying 5 offense also depends on a reckless result, and the culpable mental state is mere 6 recklessness, because "in circumstances manifesting extreme indifference to the value of human life" is nothing more or less than a material element of attendant 7 circumstances-not any part of the culpable mental state.
Reply to Opp7n to Mot. for Reconsideration of Order Denying Mot. to Dismiss First Charg 9 (Sept. 14,2009), at 2-3.
10
l1 II Section 4.30 of the Guam Criminal Code defines four culpable mental states: intentional
12 I11I knowing, reckless, and criminally negligent. 9 G.C.A. 8 4.30(a)-(d). Section 4.40 requires
l3 14 except in limited circumstances not applicable here, that every criminal offense include
d
culpable mental state: "[Ilf the definition of a crime does not expressly prescribe a 15 mental state, a culpable mental state is nonetheless required and is established only if a perso 16
l7 11 acts intentionally, knowingly or recklessly." 9 G.C.A. 5 4.40. Under section 4.25, the culpabl
18 II mental state applies to each element of the offense: "[A] person is not guilty of a crime unless h
l9 11 acts intentionally, knowingly, recklessly oi with criminal negligence, as the law may require
1
20 with respect to the conduct, the result thereof or the attendant circumstances which constitute th 21
22 11 material elements of the crime." 9 G.C.A. 8 4.25.
23 I111 Section 4.35 of the Guam Criminal Code provides: "If the definition of an offens
24 prescribes a culpable mental state but does not specify the conduct, attendant circumstances o
I
25 26 11 result to which it applies, the prescribed culpable mental state shall apply to each such materid
element." 9 G.C.A. 8 4.35(a). The Comment to section 4.35 states:
27
28
People of Guam v. Henry Flores et al. Decision and Order (Motion for Reconsideration) Criminal Case No. CF0 133-09 -Page5of10-
Subsection (a) tends to eliminate previous ambiguity: a particular law made forbidden general conduct, continuing several elements, a crime when done willfully or knowingly or recklessly. Under former law it was unclear whether all, or only part of, the elements of the offense is subject to the required culpable mental state. This Subsection specifically states that the appropriate mental state is applicable to all material elements of the crime unless the statute in question specifically provides the different result.
II 9 G.C.A. 3 4.35, Comment.
II The offense underlying the conspiracy charge in this case is aggravated assault as se
1
II forth in section 19.20(a)(l) of the Guam Criminal Code: "A person is guilty of aggravate
II assault if he . . . recklessly causes . . . serious bodily injury to another in circumstance
I11I manifesting extreme indifference to the value of human life". 9 G.C.A. $ 19.20(a)(l).
language "in circumstances manifesting extreme indifference to the value of human life" comes1
II II from the Model Penal Code. See Model Penal Code $ 2 1 1.1(2)(a) (providing that aggravate
assault occurs when a person acts "purposely, knowingly, or recklessly under circumstance
4
manifesting extreme indifference to the value of human life"). Case law interpreting the ~ o d e i
IIII Penal Code belies Defendant Sabinay's contention that the culpable mental state is mer
recklessness.
4
In O'Brien v. State, 45 P.3d 225 (Wyo. 2002), a defendant appealed his conviction foil II aggravated assault and battery, arguing that the trial court had not properly instructed the jury.
Id. at 228. The statute under which the defendant had been convicted provided that "[a] perso -
11 is guilty of aggravated assault and battery if he: [clauses serious bodily injury to m o t h 4
II intentionally, knowingly or recklessly under circumstances manifesting extreme indifference t
the value of human life[.]" Id.at 229 n.1 (quoting Wyo. Stat. Ann. $ 6-2-502(a)(i)). At issu
4
II was the jury instruction concerning recklessness. The jury received an instruction on th
1
elements of aggravated assault and battery, including an instruction defining recklessness. Th
People of Guam v. Henty Flores et al.
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Decision and Order (Motion for Reconsideration) Criminal Case No. CF0133-09 1 jury did not, however, receive any instruction defining recklessness under circumstances
1/ manifesting extreme indifference to the value of human life. O'Brien, 45 P.3d at 229.
I
6 Because the language "recklessly under circumstances manifesting extreme indifferenc
to the value of human life" came from the Model Penal Code, the court turned to the Mode'
11 Penal Code to interpret that language. Id.at 230. The court noted that the Model Penal code(
i
distinguishes between "recklessness" and "recklessness under circumstances manifestin
extreme indifference to the value of human life".
el
Id. According to the Model Penal Cod commentaries, the term "recklessly under circumstances manifesting extreme indifference to th
11 II value of human life" constitutes a "special character" of recklessness. Id.at 23 1 (citing Mode Penal Code 9 21 1.1(2)(a) cmt. 4, at 189).
l3 11 This special type of recklessness, which elevates simple assault to aggravated assault
I
derives from the Model Penal Code's definition of murder:
In a prosecution for murder, however, the [Model Penal] Code calls for the further judgment whether the actor's conscious disregard of the risk, under the circumstances, manifests extreme indifference to the value of human life. The significance of purpose or knowledge as a standard of culpability is that, cases of provocation or other mitigation apart, purposeful or knowing homicide demonstrates precisely such indifference to the value of human life. Whether recklessness is so extreme that it demonstrates similar indifference is not a question, it is submitted, that can be further clarified. It must be left directly to the trier of fact under instructions which make it clear that recklessness that can fairly be assimilated to purpose or knowledge should be treated as murder and
22 11 that less extreme recklessness should be punished as manslaughter.
23 I111 O'Brien, 45 P.3d at 23 1 (quoting Model Penal Code fj 210.2(l)(b) cmt. 4, at 21-22) (emphasi
24 added).
I
1I
Under the Model Penal Code, a homicide committed recklessly constitutes manslaughter
with a mens rea of recklessness. However, a homicide committed recklessly unde
circumstances manifesting extreme indifference to the value of human life constitutes murder
People of Guam v. Heniy Flores et al. Decision and Order (Motion for Reconsideration) Criminal Case No. CF0133-09 Page 7 of 10 -
1 with a correspondingly higher mens rea. "For a reckless homicide to be classified as murder
(1 instead of manslaughter, the factfinder must find that the actor's conscious disregard of the risk
1
3 under the circumstances, manifests extreme indifference to the value of human life."
4 169 P.3d 913, 917 (Alaska 2007) (quotation marks omitted). On the other hand, "if th
6 11 evidence, viewed as a whole, cannot be reasonably interpreted as demonstrating the type 01 7
8 II heightened recklessness that is equivalent to purposeful or knowing homicide", then the reckles
homicide must be classified as manslaughter rather than murder. Id.
9 Extreme recklessness equates to knowledge in the homicide context because reckless1 10
11 causing serious bodily injury entails awareness of a possibility of death, whereas causing
/II I value of human life entails awareness of a high probability of death. Awareness of a hi4 12 bodily injury with recklessness under circumstances manifesting extreme indifference to th
l3 14 probability is associated with practical certainty. Practical certainty equates to knowledge.
15 m, 9 G.C.A. 5 4.30(b) (defining knowing culpable mental state as follows: "[a] person act 16
l7 I1 knowingly, or with knowledge, with respect to a result of his conduct when he is aware that hi
18 II conduct is practically certain to cause the result").
I
l9 20 11 Similarly, in the context of aggravated assault context, "[tlhe Commentaries addressin
4
aggravated assault and battery state that this special character of recklessness, or extrem 21
22 I1 recklessness, is designed to more severely punish battery where the defendant's state of min
23 11 would have justzfied a murder conviction had his victim not fortuitously lived."
24 I I P.3d at 23 1 (citing Model Penal Code 5 2 11.1(2)(a) cmt. 4, at 189) (emphasis added). Th 25 26 1I Wyoming Supreme Court in O'Brien held that the trial court erred in instructing the jury only ad
to recklessness and not on recklessness under circumstances manifesting extreme indifference t 27 28 11 the value of human life. O'Brien, 45 P.3d at 232.
II People of Guam v. Henry Flores et al.
Decision and Order (Motion for Reconsideration) Criminal Case No. CF0133-09
II1 I The Ninth Circuit Court of Appeals in United States v. Esparza-Herrera, 557 F.3d 1.01
(9th Cir. 2009), reached a similar conclusion as to the distinction between mere recklessness and)
4
3
4 "recklessness under circumstances manifesting extreme indifference to the value of human life7
when it decided for purposes of illegal reentry that a conviction under Arizona's aggravate
I
assault statute, which required mere recklessness, did not qualify as a crime of violence.
7 II Ninth Circuit noted that extreme recklessness is not equivalent to mere recltlessness:
4
8 " '[R]ecklessly under circumstances manifesting an extreme indifference to human life7does no 9 encompass 'recklessly,' and a defendant can be reckless without manifesting an extrem 10 indifference to human life." Id.at 1024. According to the court in Esparza-Herrera,
12 I11I Penal Code commentary shows that the 'extreme indifference7 recklessness requiremen
1
l3 establishes a mens rea standard for aggravated assault arguably higher than ordin
4
1
14 recklessness." Id.
15 Guam law has adopted the approach of the Model Penal Code in distinguishing betwee 16
l7 11 reckless homicide and homicide committed recklessly in circumstances manifesting extrem
18 I1 II indifference to the value of human life. Reckless homicide constitutes manslaughter, wherea
l9 homicide committed recklessly in circumstances manifesting extreme indifference to the value o
4
human life constitutes murder. 9 G.C.A. 5 16.50(a)(l) ("[clriminal homicide constitute 21 manslaughter when: [ ] it is committed recklessly"); 9 G.C.A. 5 16.40(a)(2) ("Criminal homicid
constitutes murder when: . . . it is committed recklessly under circumstances manifesting extrem
24 1I indifference to the value of human life".). Murder and manslaughter do not share the same men
I
25 11 rea. 26
27 Like the homicide statutes, Guam's aggravated assault laws are also based on the Mode
Penal Code. Under the Model Penal Code, "recklessness under circumstances manifestin
4
People of Guam v. Henly Flores et al. Decision and Order (Motion for Reconsideration) Criminal Case No. CF0133-09 extreme indifference to the value of human life" is a hgher culpable mental state thar
recklessness. Although it may be argued that a reckless homicide cannot underlie a conspirac;
charge, the same cannot be said of a homicide committed with extreme recklessness.
United States v. Cham-a, 638 F. Supp. 1389, 1403 (W.D. Tex.), affd, 807 F.2d 398 (5th Cir
1986), cert. denied, 484 U.S. 832, 108 S. Ct. 106, 98 L. Ed. 2d 66 (1987). Similarly, because thc
underlying aggravated assault charged in t h s case involves a higher culpable mental state thar
mere recklessness, the conspiracy charge based on it survives Defendant's motion to dismiss fo
failure to charge an offense.
111. CONCLUSION
For the foregoing reasons, Defendant Esmeralda A. Sabinay's Motion fo:
Reconsideration of Order Denying Motion to Dismiss First Charge, joined by all Co-Defendants
is hereby DENIED.
SO ORDERED this 12th day of October, 2009.
HO~ORABLEVERNON P. PEREZ JUDGE, SUPERIOR COURT OF GUAM
People of Guam v. Henry Flores et al. Decision and Order (Motion for Reconsideration) Criminal Case No. CF0 133-09 -Page 10 of 10 -