People v. Garrido

• Court: Superior Court of Guam
• Decided: January 20, 2023
• Docket: CM0007-21
• Status: Unknown

Opinion

F.1LEi;= SUPERIOR COURT UF GUAM 2023 JAN 20 PH In us l CLERH OF COURT 2

3 9y1 P IN THE SUPERIOR COURT OF GUAM 4

5 THE PEOPLE OF GUAM, 6 Case No. CM0007-21 7 vs. DECISION AND ORDER 8 (Defendant's Motion to Dismiss Complaint KRISTY ANN GARRIDO, Due To The De Minimus Nature of the 9 Alleged Offense) Defendant. 10

12 INTRODUCTION

13 This matter came before the Honorable Alberto E. Tolentino on October 28, 2022, for a

14 Motion Hearing on Kristy Anne Garrido's ("Defendant") Motion to Dismiss Complaint Due 15 To The De Minimus Nature of the Alleged Offense ("Motion to Dismiss"). Alternate Public 16 Defender Brycen Breazeale appeared for Defendant. Assistant Attorney Katherine Newton 17 appeared for the People of Guam ("People'). Having considered the arguments and applicable 18 law, the Court hereby GRANTS Defendant's Motion to Dismiss Complaint Due To The De 19

Minimus Nature of the Alleged Offense. The Court ORDERS CM0007-21 dismissed without 20

21 Prejudice.

22 BACKGROUND

23 Defendant is charged with Seven Counts of Child Abuse (As a Misdemeanor). Mag.

24 Comal., Jan. 8, 2021. Additionally, the Office of the Attorney General ("OAG") has filed a

25 Petition for a Persons In Need of Services case ("PINS") case, JP0008-21. Second Am. 26

27 Decision and Order Case No, CM0007-2l , People v. Kristy Ann Garrido Page 1 o f 9 |

1 Petition For Persons In Need of Services, Jan. 25, 2021. On April 26, 2022, Defendant filed 2 the instant motion. De£'s Mot. To Dismiss Comal. Due to the De Minimus Nature of the 3

Alleged Offense, Apr. 26, 2022. The People Hled an opposition. People's Opp'n. to Def.'s 4 Mot. To Dismiss As De Minimus, May 3, 2022. Defendant filed a reply. Def.'s Reply to Her 5

6 Motion to Dismiss Mot. To Dismiss Comal. Due to the De MinimumNature of the Alleged

7 Offense, May 17, 2022. The Court held a motion hearing and took the arguments under

s advisement. Minute Entry, Oct. 28, 2022.

9 DISCUSSION 10 Defendant "asks the Court to dismiss the complaint against her because her alleged

conduct does not provide that criminal prosecution in this case is appropriate." Def.'s Mot. To 12 Dismiss at 2. Defendant asserts that "potential harm caused by her conduct would be too 13 trivial to warrant a criminal judgment of conviction." Id The People argue that GPD has 14 responded to reports of child neglect on several other occasions and "[d]ismissa1 is tantamount 15

to telling the children of Guam that being left without a parent's care for days on end is trivial." 16

17 People's Opp'n. to De£'s Mot. To Dismiss As De Minimum at 3-4. The People state "[t]here is

18 a valid legislative interest in protecting these children of Guam, and in the present case there is

19 valid legislative interest in protecting these seven children." Id at 3.

20 Title 9 GCA § 7.67 provides: 21 The Court shall dismiss a prosecution if, having regard to the nature of the conduct 22 charged to constitute an offense and the nature of the attendant circumstances, of finds the defendant's conduct: 23 (a) Was within a customary license or tolerance, neither expressly negated by the 24 person whose interest was infringed nor inconsistent with the purpose of the law defining the offense 25

27 Decision and Order Case No. CM0007-21, People v. Kristy Ann Garrido Page 2 of 9 I

1 (b) Did not actually cause or threaten the harm or evil sought to be prevented by the law defining the offense or did so only to an extent too trivial to warrant the 2 condemnation of conviction or (c) Presents such other extenuations that it cannot reasonably be regarded as envisaged 3 by the Legislature in forbidding the offense. The court shall not dismiss a 4 prosecution under this Subsection without filing a written statement of its reasons.

5 The Supreme Court of Guam has stated that 9 G.C.A § 7.67 "directs due trial court to

6 dismiss a prosecution if it finds that the defendant's conduct falls within at least one of three

7 distinct circumstances." People v. Perez, 2004 Guam 4 1]9 (emphasis in original). The

s "statute recognizes that it would be unrealistic to believe that judges never enter a finding of 9 not guilty even though guilt is proven where a conviction is considered inappropriate, and 10 therefore authorizes the trial court to mitigate the general provisions of the criminal law ro

prevent absurd applications." Id at 1i 10 (quoting 9 G.C.A § 7.67 commentary). The question 12 couxls should ask when determining whether an offense is De minimum is "[w]hat is the risk of 13 harm to which society is exposed by defendant's conduct?" People v. Perez, 2004 Guam 4 1] 14

12 (citingState v. Zarrilli, 523 A.2d 284, 288 (N.J. Super. Ct. Law Div. 1987)). The following 15

16 factors aid courts in determining whether dismissal is warranted under 9 GCA § 7.67(b): (1)

17 the attendant circumstances, (2) the existence of contraband, (3) the value of the property

18 involved, (4) the use or threat of violence, and (5) the use of weapons. Id

19 A. The Court Ends dismissal is unwarranted under 9 G.C.A §7.67(b) because the 20 harm that occurred is the harm that 9 G.C.A §31.30(a)(2)(C) seeks to prevent.

21 In order to consider dismissal under 9 G.C.A § 7.67(b), the Court should assume all

22 factual allegations as true and determine whether the alleged conduct exposes society to a risk

23 of harm sufficient to warrant conviction. Id at 11 16. Police reports state that Guam Police

24 Department ("GPD") responded to a report of three unaccompanied children walking down the 25 road in Pagachao, Guam. Mag. Comal. Officers report dlat the children looked as though they 26

27 Decision and Order Case No. CM0007-21, People v. Kristy Ann Garrido Page 3 of9 l had not been bathed in several days and one child was not wearing shoes. Id The children 2 informed the officers they were walking to their "auntie's house" because they had not seen 3

4 their parents in several days. Id Acer locating the young children walling down the side of

the road, the officers conducted a check of Defendant's house. They reported determining six 5

6 minor children were left alone at the residence, which "smelled strongly of human feces, trash,

7 and other smells." Id "Officers observed dirty clothes, trash, [and] empty food cans strewn

s about the residence." Id

9 The Court finds that dismissal is not warranted under 9 GCA §7.67(b). While the ¢ 10 second, fourth, and fifth factors weigh in favor of Defendant as there are no allegations or

indications of the use of drugs or presence of contraband, nor is it alleged that any weapons 12 were used, the Court is concerned about the first factor. The third factor is inapplicable 13 because the offense alleged is not a property crime. Assuming these factual allegations are 14 true, the attendant circumstances show the type of harm that 9 G.C.A § 31 .30(a)(2)(C) aims to 15

16 prevent.I Defendant left her children-between ages five and fifteen-alone in her residence

17 for approximately two days, and never once called to check on them. Mag. Comal. The

18 children were not bathed for several days, and the house contained trash and human feces. Id

19 Defendant states that her car broke down and she was unable to fix it, preventing her from

20 returning home. The Court understands that sometimes unforeseeable events-like a broken- 21 down car-occur and plans are altered as a result. Even so, the Court is concerned that 22 Defendant did not call the children to see how they were doing, or ask a relative to stop by her 23 residence to check on them. The Court recognizes that Defendant may have been unable to 24

25 1 Title 9 G.C.A §3l.30(a)(2)(C) states:

26 A person is guilty of child abuse when ... having a child in his care or custody he .. . unreasonably causes or permits the physical or, the emotional healdi of that child to be endangered. 27 D ecision and Or der C ase N o . C M0 0 0 7 - 2 1 , Pe o p le v. Kr isty An n G ar r id o Page 4 o f 9 l immediately return home, but Defendant does not offer an explanation as to why she did not 2 attempt to contact the children even once over the next two days. Likewise, Defendant's car 3 4 troubles do not explain why the children had not been bathed in several days, or the trash and

human feces in the house. The description contained in the police report suggests the 5

6 children's hygiene and the cleanliness of the house were neglected prior to Defendant's car

7 troubles. The state of the children and the house, as well as GPD's statement that it has

8 previously responded to reports of child neglect at Defendant's residence is disconcerting.

9 Accordingly, the Court finds Defendant's actions caused the harm that 9 G.C.A § 10 31.30(a)(2)(C) seeks to prevent. 11 B. The Court kinds dismissal is warranted under 9 G.C.A §7.67(c) because this case 12 presents such other extenuations that the Legislature could not have reasonably envisaged when enacting 9 G.C.A §31.30(a)(2)(C). 13 Despite the Court's conclusion that the harm Defendant caused is the harm that 9 14

G.C.A §31.30(a)(2)(C) seeks to prevent, the Court notes that this case impedes the goals of 15

16 JP0008-21 and Defendant's efforts to reunite her family. Defendant contends that the

17 conditions of IP0008-21 cannot be accomplished if she has a criminal conviction. Digital

18 Recording at 3:47:41-4:19:33 (Mot. Hr'g., Oct. 28, 2022). Specifically, Defendant represents

19 that JP0008-21 requires that she secure housing and maintain employment. Id A criminal 20 conviction Seriously hinders Defendant's ability to qualify for housing assistance and prevents 21 her from being hired at many jobs. Id 22 OAG filed JP0008-21 after referral from Child Protective Services ("CPS") pursuant to 23 19 G.C.A § I3301(c)(4). "The policy and purpose of [Chapter 19 of the Guam Code 24 Annotated is] to provide children with prompt and ample protection from the harms detailed 25

26 herein, with an opportunity for timely reconciliation with their families where practical, and

27 Decision and Order Case No. CM0007-21,People v. Kristy Ann Garrido Page S of 9 l with timely and permanent planning so they may develop and mature into responsible, self- 2 sufficient and law abiding citizens." Guam Pub. L. 20-209 (1990). "This permanent planning 3

should effectuate placement with a child's own family when possible and should be conducted 4 in an expeditious fashion. " ld "[Chapter 19 of the Guam Code Annotated] shall be 5

6 liberally construed to serve the best interests of the children and the purposes set out in this

7 Chapter." ld Consequently, the Court finds the Legislature intended for PINS cases to

8 prioritize the timely reunification of the children with their parents.

9 The Legislature predicated 9 G.C.A § 31.30(a)(2)(C) on Model Penal Code ("MPC") § 10 230.4, California Penal Code § 980, Massachusetts Penal Code Chapter 273 §§ 1,4, andNew

Jersey Penal Code § 2C:24-4. See 9 G.C.A § 31.30(a)(2)(C). Accordingly, the Court looks to 12 those statutes for guidance in identifying the purpose of 9 G.C.A § 31.30(a)(2)(C). MPC § 13 230.4 "is designed to replace vague and uncertain laws dealing with contributing to the 14

delinquency of a minor, child neglect, and corrupting morals of a minor." M.P.C. § 230.4 15

Explanatory Note. California Penal Code § 980 holds "persons who have care, custody, and or 16

17 control of a child" to a higher standard of Cate. Cal Penal Code § 980 Commentary. "This

18 section recognizes the duty imposed upon those who have custody of children to care for their

19 physical and emotional needs," and provides that persons who have custody of children "have

20 a filrther responsibility to control the child's environment so he will not be physically or 21 emotionally endangered." Id The Commentary to New Jersey Penal Code §2C:24-4 22 criticizes the breadth and lack of precision of the definitions of abuse, abandonment, cruelty, 23 and neglect in relation to § 2C:24~-4, stating "[t]he conduct which is appropriately prevented by 24 non-criminal sanctions need not always also be made criminal." N.J. § 2C:24-4 Commentary. 25

"Further, provisions of Chapter 6 of Title 9 show the basic thrust of it not to be to provide a 26

27 Decision and Order CaseNo. CM0007-21, People v. Kristy Ann Garrido Page 6 o f 9 l criminal sanction but rather a strong remedy to compel support and/or proper conduct toward z the child." ld 3 Upon examining the statutes that the Legislature used to crait 9 G.C.A § 4 31 .30(a)(2)(C), the Court concludes that the purposeof 9 G.C.A § 31.30(a)(2)(C) is to ensure 5

6 the children of Guam are not placed in physical or emotional danger, and that their physical

7 and emotional needs are cared for. The Court interprets the commentary of other child

8 endangerment statutes to indicate that the goal of 9 G.C.A § 31.30(a)(2)(C) is not punishment,

9 but to protect the health and wellbeing of the children in the wrongdoer's custody. The 10 commentary suggests that the focus should be restoring a safe environment for the children, 11 which is not necessarily achieved by criminal sanctions-as the commentary to New Jersey's 12 Penal Code articulates. 13 The Court finds that the Legislature could not have reasonably envisaged prosecution 14

under 9 G.C.A § 31 .30(a)(2)(C) could prevent Defendant from achieving the goals of JP0008- 15

21. The goals of both CF0007-21 and JP0008-21 are to ensure that the children do not 16

17 experience further harm from Defendant. The Court is concerned with deterring this conduct

18 from occurring in the future, and notes that a criminal conviction could deter other parents

19 Bom committing acts similar to the acts Defendant committed. Yet, the possibility of

20 deterrence is outweighed by the bonier a criminal conviction imposes on completing the 21 conditions 0fJP0008-21. 22 The People argue that rather than dismiss the case in its entirety, the goals of IP0008-21 23 can be achieved by resolving the criminal case through a plea agreement. Digital Recording at 24 3:47:41-4:19:33 (Mot. Hr'g., Oct. 28, 2022). While that may be true, Defendant represents 25 that many of the probation conditions of CM0007-21 are identical to the conditions in JP0008- 26

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l 21. Duplicative conditions do not fulfill the purpose of either 9 G.C.A §3l.30(a)(2)(C) or 19 2 G.C.A § 13301(c)(4). Likewise, duplicative conditions are an unnecessary use ofjudicial 3 4 resources. Defendant represents that she is already on probation in JP0008-21. It is therefore

redundant and unnecessary for mc Office of Probation to monitor Defendant in two cases that 5

6 flow from the same conduct.

7 The People contend that the reason Defendant has made significant progress in her

8 PINS case is because she has the criminal case "hanging over her head." Digital Recording at

9 3:47:41-4:19:33 (Mot. Pk'g., Oct. 28, 2022). The Court believes that Defendant has made 10 significant progress in her PINS case because she is motivated by the prospect of reuniting

with her children, and the Court hopes that it is not incorrect in dies belief. Regardless, should 12 Defendant fail to complete the conditions in JP0008-21, Defendant will not regain custody of 13 her children and Defendant could be placed in jail. The Court finds that Defendant's desire to 14 reunite with her children and the possibility of jail time are sufficient motivation for Defendant 15

to continue to make progress in JP0008-21. Finally, the goals of criminal punishment are not 16

17 solely retribution and deterrence but also rehabilitation and restoration. The Court's main

18 concern in this case is that the children remain in a safe living situation and do not experience

19 any fuNner harm. Should Defendant fail to complete the conditions of JP0008-21, she will not

20 regain custody of her children-thereby preventing them from being exposed to any further 21 harm while in her care. 22

27 Decision and Order Case No. CM0007-21, People v. Kristy Ann Garrido Page 8 of 9 J

1 CONCLUSION AND ORDER 2 For the above reasons, the Court GRANTS Defendant's Motion to Dismiss Complaint 3 Due To The De Minimus Nature of the Alleged Offense. The Court ORDERS CM0007-21 4

5 dismissed without prejudice.

6 SO ORDERED, this day of JAN 202023 7

9 I \_ e . 10 HONORABLE ALBERTO E. TOLENTINO 11 Judge, Superior Court of Guam 12

27 Decision and Order Case No. CM0007-21, People v. Kristy Ann Garrido Page 9 of 9