People v. Herbert

Opinion

IN THE SUPERIOR COURT OF GUAM

8 PEOPLE OF GUAM, CRIMINAL CASE NO. CFI02-ll

9 Plaintiff, 10 FINDINGS OF FACT AND CONCLUSIONS OF LAW vs. (Restitution)

HERNO HERBERT, Defendant.

INTRODUCTION

This matter came hp1,nrp the Honorable Anita Sukola on August 1 201 a 8

restitution hearing. Assistant Attorney General Nelson 1. Werner represented the People 9

o Guam ("the People"). Assistant Alternate Public Defender John Morrison appeared on behalf

of Hemo Herbert ("Defendant"). Now, taking all evidence and arguments into consideration,

the Court issues its findings and conclusions.

FINDINGS OF FACT

By preponderance of the evidence, the Court makes the following findings of fact:

1. On March 1, 201 L Defendant was indicted on the following charges: (1) Criminal

Mischief (As a 3rd Degree Felony) and (2) Assault (As a Misdemeanor). Indictment (Mar. 1, 8 2011).

People v. Herbel1 (CF102-11) Page I of4 Findings of Fact and Conclusions of Law ~ Restitution 2. Defendant was arraigned on March 9,2011. 1

3. On April 23, 2012, Defendant entered into a plea agreement. Therein, Defendant 2

3 "voluntarily, and without coercion or promises apart from [the] plea agreement, agree [d] to 4 enter a guilty plea to the charge of ASSAULT (As a Misdemeanor), in violation of 9 GCA § 5 19.30(a)(l) and (e), filed pursuant to 9 GCA §§80.34 and 80.50 which carries a maximum 6 sentence of one (l) year imprisonment and a maximum fine of One Thousand dollars 7

8 ($1,000.00)." Plea Agreement (Apr. 23,2012).

9 4. The Plea Agreement provides that "Defendant shall pay full restitution, if any, arising 10 out charge the Indictment, an amount to be determined by Court at a 11 hearing, pursuant to the limitations set in 9 GCA § 80.50 (e). Defendant shall pay said

restitution in monthly installments to be arranged by the Adult Probation Office and shall pay it 13

14 in full prior to the termination of the probationary period. However, in the event restitution is

5 not paid by the expiration of probation, the obligation for restitution shall survive[.]" Id at ~ 16 People filed a UU,.h,,",'VH of Restitution Summary on February 201 The 7 total restitution requested by victim amounts to .00. 18 The Defendant did not submit a written opposition, but did express some concerns 1

o with the damage estimate at the restitution hearing. 1 7. The Court held a restitution hearing on August 1 201

CONCLUSIONS OF LAW:

Restitution is authorized pursuant to 9 GCA § 80.50 and 9 GCA § 80.53. A defendant

may be ordered to pay restitution for property shown to be lost so long as the restitution does

not exceed the victim's loss resulting from the offense. Id. Imposing restitution is based upon

the principle that the offender should make reparations to the victim by restoring the victim to

I People v. Herbert (CFI02-1 I) Page 2 Qf4 Findings of Faet and Conclusions of Law ~ Restitution his economic status quo before the offender's wrongdoing. In re Andrew c., 215Ariz. 366,367, 1 ~ 10, 160 P.3d 687, 689 (App.2007). The guiding principle is to make the victim whole to the 2

3 extent permitted by the statutory and constitutional scheme. Id. at ~ 11. Additionally, restitution

4 in this case is necessary because it would act as a deterrent and a correcting influence on the 5 defendant. See 9 G.c.A. §80.52 (b)(2). Thus, the Defendant through his Plea Agreement,

voluntarily agreed that he would pay restitution. Plea Agreement at ~ C.

8 The conviction here is of a misdemeanor which would ordinarily limit the order of

9 restitution to $1,000.00 set by 9 GCA §80.50 (c). However, restitution awards in excess of o $1,000.00 are allowed under § 80.50 (e) but are limited up to double the amount equal to the 1 loss to the victim. People v. }v1allo, 2008 Guam 23 ~ 41. Section 80.50(e) allows for a higher

amount when there is a finding of loss to the victim that is higher than that. Jd at ~ 43.

4 In the instant case, damage estimate to the victim's 1998 Dodge Dakota was pegged at

15 $2,400 plus $40.00 charge for price quotation. This amount accounts for parts and labor from

an estimate conducted by George & Sons Repair Shop. The victim also submitted costs for

proposed dental plan work amounting to $1,209.00 and $54.00 for the requisite exam and 18 Defendant has no objection to the costs provided by the People relative to dental 19

o for the victim. However, Defendant objects to the repair estimate for the 1998 Dodge

Defendant contends that the $2,400 figure exceeds the Blubook value of $2,300 for the same

vehicle in fair condition. Transcript JDAASCRA (Aug. 1 201 at 11 :27:44 a.m. 3 In the Court's review of this matter, the Court recognizes that the value for a used 24

Dodge Dakota in fair condition is estimated at $2,300, as of February 2012, the time of the

6 restitution filing by the People on behalf of the victim. Based on this figure and 7 notwithstanding the one estimate amount of $2,400.00, the Court determines that the victim is

Page 3.of 4 People v. Herbert (CF102-11) Findings of Faet and Conclusions of Law ~ Restitution entitled to $2,300.00 for the damaged 1998 Dodge Dakota. In addition, the victim is also

entitled to $40.00 for the costs associated with an estimate for the damaged vehicle. With

respect to dental work as a result of Defendant's offense, the victim is entitled $ L2630.00 to

account for the proposed dental plan and associated exam and xray costs.

CONCLUSION 6 By preponderance of the evidence and based on the foregoing reasons, the Court 7

8 ORDERS the Defendant to pay restitution in the amount of Three Thousand Six Hundred Three

Dollars ($3,603.00). o SO ORDERED of November, 2012. 11

4 HONORABLE ANITA A. SUKOLA 1

SERVICE VIA COURT BOX I acknowledge that a copy of the original hereto was pla~ in the COfJI'ibox of: N5J. P (It!> ¥ .~~

Date: lI· q frrlllle: [l~ 8 Jerry Guerrero Cs Deputy Clerk, Superior Court of Guam

People v. Herbert (CFI02-ll) Page40f4 Findings of Faet and Conclusions of Law Restitution