People v. Fuller

Opinion

FI L E D SUPERKJR COURT OF GUAM 1

2 2022 Jan 12 PH 142 35 3 CLE!0F COURT 4 IN THE SUPERIOR COURT OF GUAM \\ 5

6 PEOPLE OF GUAM, ) CRIMINAL CASE no. CF0162-21 ) 7 Plaintiff, ) ) 8 vs. ) DECISION & ORDER DENYING MOTION TO REDUCE FELONY 9 THANO JAMES FULLER, aka Dhano Ful1er8 FAMILY VIOLENCE CHARGE aka Dhano James Fuller, TO A MISDEMEANOR 10 DOB: 10/18/1999 ) ) 11 Defendant. ) ) 12 1. INTRODUCTION 13

14 This matter came before the Honorable Maria T. Cenzon on October 6, 2021, for a

15 hearing on the Defendant's Motion to Reduce the Family Violence Charge (the "Motion"). The

16 Defendant Thano James Fuller ("Defendant" or "Fuller") was represented by Attorney William 17 Pole. The People of Guam (the "People") were represented by Assistant Attorney General 18 Renaida San Nicolas. The Court ordered the Parties to submit additional information to the 19

20 Court and upon receipt of the submission, the Court took the matter under advisement on

21 October 15, 2021, pursuant to Supreme Court of Guam Administrative Rule 06-001 and CVR 22 7.1(e)(6)(A) of the Local Rules of the Superior Court of Guam. 23 After reviewing the Parties' written briefs, the record on file with the court, the 24

25 arguments presented at the Motion Hearing, and the applicable statutes and case law, the Court

26 now issues this Decision and Order DENYING Defendant's Motion to Reduce Family

27 Violence Charge. 28

People v. Fuller, CF0162-2] Decision and Order Page I of 1 l 1 II. Background 2 Defendant was charged via Indictment on April 2, 2021, of the charges of Burglary (as a 3 2I1d Degree Felony) (with the Notice: Commission of a Felony while on Felony Release), 4 Strangulation (As a 3rd Degree Felony), Family Violence (As a wIld Degree Felony), and 5

6 Interfering with the Reporting of Family Violence (As a 3rd Degree Felony). The First Charge

7 of Burglary was dismissed on July 28, 2021, because the People charged Fuller with the offense

8 in a separate case, Criminal Case No. CF0171-21. See Order for Dismissal of First Charge (July 9 28, 2021). The People were ordered to file an Amended Indictment in dais case reflecting the 10 11 dismissal of the Burglary charge, but proceeding on the Strangulation, Family Violence and

12 Interfering with the Reporting of Family Violence felony charges.

13 The charges are based on events that allegedly took place on March 19, 2021 in which 14 the Victim, Laura M. Lindbenyfna Lauren M. Sillem (the "Victim") identified her boyfriend 15 16 Fuller as a suspect in the burglary of RK Plaza. When the Victim identified the Defendant for

17 the burglary charge, she also lodged a family violence complaint against Defendant, which she

18 alleged occurred on March 19, 2021. Deck. To Mag. Compo. The family violence complaint 19 alleged that the Defendant got angry with the Victim about a TikTok video she made, and while 20 under the influence of alcohol, jumped on top of the Victim and placed both hands around the 21 22 Victim's neck causing the Victim to have difficulty breathing. See, Mag. Con pl. p. 4. (Mar. 26,

23 2021). A third-party intervened and stopped the altercation, however, the Defendant allegedly

24 proceeded to threaten to kill the Victim with a ldtchen knife and to prevent her from calling the

25 police. Id. Defendant is alleged to have broken Victim's cell phone in the process. Id. 26 On August 2, 2021, the Defendant filed the instant Motion, requesting that the Court 27

28 exercise its discretion under 9 GCA § 30.20(b) to reduce the felony family violence charge to a

People v. Fuller, CF0162-21 Decision and Order Page 2 of 11 1 misdemeanor. In support of his Motion, Defendant submitted an Affidavit from the Victim in 2 . o . . whlch she expresses her deslre that the case be dropped or dlsmlssed or for Defendant to be 3 charged with only misdemeanors and not go to jail. In the Affidavit, filed on August 2, 2021, 4 5 the Victim states as follows:

6 2....On March 29, 2021 I went to the Office of the Attorney General and asked that all charges be dropped. I still want the charges dropped. 7 3. That l explained to the Office of the Attorney General that Thano is the 8 greatest man I have ever met. 4. I explained that he did not hit or strike me. 9 5. That I would like the Court to life the no contact provisions and allow Thano Fuller out of jail. 10 6. I ask that this case be dismissed. 11

12 Affidavit of Laura Lingberry at 'W 2-6 (Aug. 2, 2021). Additionally, the Victim stated: "That if

13 this case is not dismissed that I would ask the charges be dropped to a Misdemeanor." Id. 119. 14 The People filed an Opposition to the Defendant's Motion on August 16, 2021 arguing 15

that retention of the 3rd Degree Felony charge is warranted in this case based on Defendant's 16

17 criminal history and the severity of the charges in this case. Defendant filed a Reply on August

18 18,2021. 19 111. DISCUSSION 20 A. The Court has the authority to reduce Family Violence as a Third Degree Felony 21 to a Misdemeanor by considering factors set forth in 9 GCA §30.20(c). 22

Under 9 GCA § 30.20(b) the Court has the discretion to reduce a family violence charge 23

24 from a Third Degree Felony to a Misdemeanor upon Defendant's written, noticed motion prior

25 to commencement of trial. People v. Perez, 1999 Guam 2 ("In the exercise of its discretion 26 . u I . . n . [under the Famlly Vlolence Act], the court is permltted to entertaln such a motlon and is 27 statutorily required to consider the list of seven factors in its determination of the 28

People v. Fuller, CF0162-21 Decision and Order Page 3 of 11 1 appropriateness of a felony charge of Family Vio1ence.")(footnotes omitted). The court's

dlscretlon is only llmlted when the famlly vlolence charge is the defendant's thlrd offense and 3 the charge for 3rd Degree Family Violence is brought under 9 GCA § 30.20(a)(3). Although 4 5 Fuller has several serious felony convictions, the Defendant has no prior family violence

6 convictions, thus, the prohibition under 30.20(a)(3) does not apply to preclude him from the

7 benefit of a reduced charge As such, the Court must engage in close scrutiny under the

8 . . relevant factors to determine whether, pursuant to the statute or other compelling law, the Court 9 should exercise its discretion under 9 GCA § 30.20(b) and grant the motion to reduce the 10

11 family violence felony charge to a misdemeanor.

12 Pursuantto Perez, the Court considers the following factors under 9 GCA § 30.20(c) :

13 (1) the extent or seriousness of the victim's injuries, 14 (2) the defendant's history of violence against the same victim whether charged or uncharged, 15 (3) the use of a gun or other weapon by the defendant, (4) the defendant's prior criminal history, 16 (5) the victim's attitude and conduct regarding the incident, 17 (6) the involvement of alcohol or other substance, and the defendant's history of substance abuse as reflected in the defendant's criminal history and other sources, 18 and (7) the defendant's history of and amenability to counseling. 19

20 B. Analysis of the 9 GCA §30.20(c) Factors.

21 1. The Extent or Seriousness of the Victim's Injuries: The Declaration filed

22 along with the Magistrate's Complaint in this case does not indicate that the Victim sustained 23 any injuries. See Mag. Con pl. p. 4 (Mar. 26, 2021). The Magistrate's Complaint alleges that 24

26 1 The Court may take judicial notice pursuant to Rule 201 of the Guam Rules of Evidence of the Defendant's prior family violence case, Superior Court of Guam Criminal Case No. CF0562-18, in which the Defendant was indicted 27 for Family Violence (as a Misdemeanor), among other charges. This case was dismissed (but not expunged) pursuant to the terms of a Deferred Plea Agreement in Superior Court of Guam Criminal Case No. CF0058-18. 28 See Deferred Plea Agreement in CF0058-18 at 11 9(t)("The People agree to dismiss Superior Court of Guam Criminal Case No. CF0562-18 in its entirety").

People v. Fuller, CF0162-21 Decision and Order Page 4 of 11 1 the Defendant was straddling the victim with both hands around her neck, but due to a third

party intervening, the Vlctlm was able to get away. Id. Bodlly 1n]ury is defined under 9 GCA § 3 l6.l0(b) as "physical pain, illness, unconsciousness or any impairment of the physical 4 condition." Bodily injury as defined here is different from serious bodily injury. Serious bodily 5

6 injury is as defined by 9 GCA § 16.10(c) as bodily injury that creates "serious permanent

7 disfigurement, substantial risk of death or serious permanent disfigurement, severe or intense 8 . physical pain, or protracted loss or impairment of consciousness or the function of any bodily 9 member or organ." Neither of these descriptions applies here. The Victim has also stated in her 10

11 Affidavit (contrary to her previous statements to police) that the Defendant did not hit or strike

12 her during the alleged altercation. Affidavit of Laura Lindberry 114 (August 2, 2021). Because

13 no specific injuries have been allegedthis factor weighs in favor of granting the Defendant's 14 motion to reduce. 15

2. The Defendant's Historv of Violence against the Same Victim: Nothing has 16

17 been proffered by the People establishing that the Defendant has a history of violence against

18 the same named victim in this case and the Defendant argues that none exist. This factor weighs 19 Q favor. of granting the motion. 20 3. Use of a Gun or Other Weapon: The Defendant has not been charged with 21

22 using a deadly weapon in this case. However, both the Declaration accompanying the

23 Magistrate's Complaint and the People's Opposition indicate that the Defendant allegedly

24 threatened the Victim with a kitchen knife in order to prevent her from reporting the altercation

25 to the police. The Court finds that the kitchen knife is a "weapon" as contemplated by 9 GCA § 26 30.20(c). The Court finds that this instrument also falls within the definition of "deadly 27 28 weapon" under 9 GCA § 16.10(d)(A "deadly weapon" is defined as a "firearm, or other

People v. Fuller, CFOl62-21 Decision and Order Page 5 of 11 1 weapon, device, instrument, material or substance, whether animate or inanimate, which in the

2 manner it is used or is intended to be used is known to the defendant to be capable of producing 3 death or serious bodily injury."). It is noteworthy, however, that the People have not charged 4 5 Defendant with any special allegation of "Possession or Use of A Deadly Weapon in the as 6 Commission of a Felony.

7 The Court determines that, based upon the allegations in the Magistrate's Complaint,

8 the People's Opposition to Defendant's motion and the Victim's Statements (filed under Seal 9 on October 19, 2021), the Defendant allegedly used a knife to threaten the Victim and prevent 10

11 her firm calling the police. Specifically, the Magistrate's Complaint alleges that the Victim ran

12 away from the Defendant and tried to call the police. The Defendant caught up with her and

13 threw her phone to the ground, breaking it, and at which point the Defendant allegedly told the 14 Victim that if she tried to leave him that he would kill her. It is further alleged that the 15

16 Defendant had a kitchen knife in his hands when he and the Victim heard the police arrive, the

17 Defendant then purportedly told the Victim that if she said or did anything the Defendant would

18 stab her. The Defendant then allegedly placed the knife behind the Victim and stuffed it into the 9 . 1 . n . . 1 couch to hlde it. see, Mag. Con pl. p. 4, Vlctlm's Statement. Based upon these submlsslons on 20 the record, the Court finds that the allegations that Defendant threatened the Victim with a 21 kitchen knife weighs a_gainst granting the motion. 22

23 4. The Defendylt's Prior Qrim_inal History: The Defendant has the following

24 active criminal cases in addition to the instant matter: 25 • CF0058-18: The Defendant is currently on probation in this case pursuant to a 26 Judgment of Conviction issued on October 21, 2021, convicting him of Burglary 27

28 (as a 2nd Degree Felony) and Burglary to a Motor Vehicle (as a 2nd Degree

People v. Fuller, CF0162-21 Decision and Order Page 6 of 1 I 1 Felony). Judgment of Conviction (Oct. 21, 2021), Deferred Plea (Dec. 14, 2 2018), Order After Hearing (Deferred P1ea)(Dec. 14, 2018). After the Defendant 3 failed to comply with the provisions of the 2018 Deferred Plea, the court entered 4

his GUILTY pleas to the offenses and sentenced Defendant to FWE (5) years of 5

6 incarceration, with all but forty-five (45) days suspended.

7 • CF0150-20: On November 24, 2021, Defendant entered a GUILTY plea to Theft 8 (As a 3rd Degree Felony), as a lesser included offense of the Second Charge of 9 Theft (As a 2nd Degree Felony), and the Third Charge of Possession of a 10

11 Schedule II Controlled Substance (As a 3rd Degree Felony). Judgment of

12 Conviction (Dec. 30, 2021). He is now under the supervision of the Adult Drug 13 Court II, over which this Court presides. Notiee of Judge Assignment (Jan. 5, 14 2021). 15

• QF0171-21: On April 9, 2021, Defendant was charged with Burglary (As a 2I1d 16

17 Degree Felony), Theft (As a 2nd Degree Fe1ony)(Two Counts), Conspiracy to

18 Commit Burglary (As a 2nd Degree Felony) and Conspiracy to Commit Theft 19 (As a 2nd Degree Felony). CF0171-21 contains the Burglary charge against 20 Defendant that was previously dismissed from the instant matter. This matter is 21

22 still pre-trial and new trial dates have not been issued.

23 The People argue that the Defendant's criminal history warrants denial of the motion. Opp. p. 3

24 (Aug. 16, 2021). The Court considers the entry of Defendant's GUILTY plea in CF0058-18 due 25 to his failure to comply with the conditions of the Deferred Plea Agreement to be a significant 26 27 factor which is indicative of Defendant's potential for future compliance with treatment as

People v. Fuller, CFOI62-21 Decision and Order Page 7 of 11 1 might be required under conditions of a Misdemeanor Family Violence charge. The Court

2 considers this factor to weigh against granting Defendant's Motion. 3 5. The Victim's Attitude _glad Conduct regards_n_g the_ Incid91;t_: The named 4

5 Victim in this case has filed an Affidavit in support of Defendant's Motion to Reduce and

6 expressed a desire for the charges to be dismissed altogether. Lindberg Affidavit 1] 2 (Aug. 2,

7 2021). The Victim states that the Defendant did not hit or strike her. Id. 1i 4. Further, the Victim

8 r e q ue s t e d t h a t s h e w oul d l i ke t h e n o c on t a c t l i f t e d a n d t h e De f e n da n t t o be r e l e a s e d. I d. 115. S h e 9 requests that if the case cannot be dismissed that the Defendant be given the lowest sentence 10

11 possible. Id. 'H 7. Finally, the Victim requests that the Defendant receive any help he needs for

12 substance abuse problems. Id. 11 12. The Victim's August 2021 Affidavit, however, is markedly

13 different from the Victim's statements to GPD made on March 25, 2021, a few days after the 14 incident. These statements to GPD were provided by the People in opposition to the Motion. 15

16 Her statements to GPD report incidences of family violence which directly contradict her

17 August 2021 affidavit statement that the Defendant did not hit her. However, because the Court

18 was unable to question the Victim about these drastic differences during the hearing on the 9 . . . . 1 Motlon because the Defendant did not call her or any other wltness to testlfy, the Court 20 considers this factor to weigh neither Q favor nor against the Defendant. 21

6. The lvolvement of Alcohol or Other_Sub§t_ance/History of Substance Use 22

23 and the Defendant's Historv of Substance Abuse as Reflected in the Defendant's Criminal

24 Historv and other Sources: The Declaration to the Magistrate's Complaint indicates that the 25 Defendant was possibly under the influence of alcohol when he engaged in the conduct which 26 led to the family violence and other charges. Specifically, the Magistrate's Complaint alleges 27

28 that the Victim made a statement to the effect of being afraid of the Defendant due to him being

People v. Fuller, CF0162-21 Decision and Order Page 8 of l l 1 "under the influence of alcohol." Mag.Comp1. p. 4. Additionally, the Victim's Affidavit 2 indicates that the Defendant may need help for possible substance abuse problems. Lindberg 3 Affidavit at 1[ 12. Moreover, the Defendant has an active case in the ADULT DRUG COURT II 4 5 (ADCII) which is evidence of substance use, based upon the eligibility requirements of ADCII.

6 The Court notes that Defendant is required to engage in treatment pursuant to the terms

7 of his Plea Agreement in CFol5l-20 and is subject to a high level of supervision in the Adult

8 Drug Court II, over which this Court presides. However, in CF0058-18 and CF0150-20, both of 9 which pre-date the events of March 19, 2021, which form the subject of the Indictment in this 10

11 case, the Defendant was prohibited from "possess[ing] or consul[ing] any alcoholic beverages,

12 any illegal drugs, controlled substances or intoxicants" and, in CF0058-18, he was required to

13 "attend and successfully complete courses of treatment for: Substance abuse."Deferred Plea 14 Agreement at 111] 9(vi) and (xvii). As discussed more fully, below, the Defendant failed to 15 16 comply with and complete the requirements under the Deferred Plea in CF0058-18, resulting in

17 the entry of his GUILTY pleas and his conviction in that case.

18 Consequently, a consideration of this factor as well as the Defendant's failure to engage 19 . . . . . in treatment in an earller case as ordered as well as to comply wlth a "no consumptlon" order, 20 evidences to the Court that the Defendant is not a good candidate for a misdemeanor family 21 22 violence charge. This factor weighs against granting Defendant's Motion.

23 7. The Defendant's Historv of and Amenabilitv to Counseling: As discussed

24 above, the Defendant was previously ordered to complete courses of treatment for substance

25 abuse as a part of his Deferred Plea Agreement in CF0058-18 with his probation officer's 26 approval, and if necessary, treatment at Guam Behavioral Health and Wellness Center. The 27 28 Defendant failed to appear for his intake and processing at Client Services and Family

People v. Fuller, CF0162-21 Decision and Order Page 9 of 11 1 Counseling in accordance with the requirements of that case on January 4, 2021, and failed to 2 . report to Guam Behavloral Health and Wellness Center for drug and alcohol assessment or 3 treatment. During the hearing on the Defendant's Motion, the Defendant admitted that he has 4 5 not undergone any prior counseling for substance abuse. Hrg. Min. 2:24:54PM (Oct. 6, 2021).

6 Although the Defendant is subject to treatment in CF0150-20 and still subject to treatment in

7 CF0058-18, the Court is wary of the Defendant's claims of amenability to counseling in this

case, given his hlstory of fa111ng to report for an Intake and assessment, much less to engage in 9 treatment. As such, consideration of this factor weighs against granting the Motion to Reduce. 10

11 Iv. CONCLUSION

12 Although the Victim claims not to have sustained any bodily injury and has expressed a

13 desire for the Defendant to be charged with the lowest offense if the matter is not to be 14 dismissed, the Court cannot reconcile the statements contained in her August 2021 Affidavit 15 16 made a significant time after the incident in March 19, 2021 - with her Statements made on

17 March 25, 2021, shortly after the incident. Moreover, the Court considers the Defendant's

18 criminal history and his failures in his several cases to comply with court-ordered abstention 19 . . . . from drugs and alcohol as well as treatment mandates to weigh heavily against reducing the 20 offense to a misdemeanor. 21 Finally, although it is not a specific factor for the Court to consider in deciding whether 22

23 to exercise its discretion in this instance, the Court finds that the other charges levied against

24 the Defendant in this Indictment, specifically: Strangulation (As a 3rd Degree Felony) and

25 Interfering with the Reporting of Family Violence (As a 3rd Degree Felony) are serious felony 26 offenses which necessarily drive whether the Family Violence charge should be reduced to a 27 28 misdemeanor. All charges arise out of the same set of facts and the Court will not disregard the

People v. Fuller, CF0162-21 Decision and Order Page 10 of l 1 1 context in which the People elected to charge the Defendant with a third degree felony rather 2 than a misdemeanor, when the statute provides a choice. As such, the Court will not disturb the 3 People's decision to charge the Defendant, under these circumstances, with a felony rather than 4 . . 2 a mlsdemeanor crime. 5

6 For these reasons, the Court DENIES the Defendant's Motion to Reduce the Family

7 Violence Charge to a Misdemeanor. 8 SO ORDERED this JAN 12 2522 9

11 Hono MARIA T. CENZON 12 SUPERIOR COURT OF GUAM 13

19 SERVICE vIA E-MAIL Iacknowledgethatanelectronic 20 copyoftheoriginalwase-mailedto: AGE* QQ - me 21

22 'JAN 1 22022 4%y»~ 23 Cynthia T.. Tiong DeputyClark,SuperiorCourtd Guam 24

26 2 The Court's decision not to disturb the People's decision to charge the Family Violence offense as a 3 ld Degree Felony, rather than a misdemeanor, is consistent with its judicial function. See Perez at 11 18 ("When the decision 27 to prosecute has been made, the process which leads to acquittal or sentencing is fundamentally judicial in nature, or, to state it in another way, when the jurisdiction of the court has been properly involved by the filing of a 28 criminal charge, the disposition of that charge becomes a judicial responsibility.")(citing State v. Jones, 689 P. 2d 561, 564).

People v. Fuller, CF0162-21 Decision andOrder Page ll of 11