26 States Constitution is made applicable to Guam through the Organic Act). The Guam
27 Legislature also codified these protections in Title 9 G.C.A. §§ 1.22-1.26 (2005).
28 Guam law governing double jeopardy of different offenses provides in relevant part:
Page 3 of 9 Decision and Order Criminal Case Nos.: CM0275-19 and CF0389-19, People v. Harvey Arum Kansou
A prosecution of a defendant for a violation of a dyterent provision of the statutes 1 or based on different facts than a former prosecution is barred by such former 2 prosecution under the following circumstances: (a) The former prosecution resulted in an acquittal or in a eon vietion as defined 3 in § 1.24 and the subsequent prosecution is for: (1) any offense of which the defendant could have been convicted on the 4 first prosecution, 5 (2) any offense of which the defendant should have been tried on the first prosecution under Subsection (b) of § 65.30 of the Criminal Procedure 6 Code unless the court ordered a separate trial of the charge of such offense, or 7 (3) the same eonduet, unless (A) the offense of which the defendant was 8 for mer ly convict ed or a cquit t ed a nd t he offens e for which he is subsequently prosecuted each requires proof of a fact not required by 9 the other and the law defining each of such offenses is intended to 10 prevent a substantially different harm or evil, or (B) the second offense was not consummated when the former trial began. 11 9 G.C.A. § 1.26 (emphasis added). Further, Section 1.22 provides that "[w]hen the same 12 conduct . establish[es] the commission of more than one offense, the defendant may be 13 prosecuted for each offense. He may not however, be convicted of more than one offense if . 14 one offense is included in the other as defined in § 105.58 of the Criminal Procedure Code." 9 15 GCA § 1.22. Under Section 105.58(b)(1) of the Cr iminal Pr ocedur e Code, an offense is 16 included when "[i]t is established by proof of the same or less than all the facts required to 17 establish the commission of the offense charged." 8 GCA 105.58(b)(1). In other words, the 18 Defendant may not be subsequently prosecuted for a greater offense if he was previously 19 convicted of the lesser included offense. See Blockburger v. U.S., 284 U.S. 299, 304 (1932) (A 20 Defendant may not be punished under separate statutes for a single act when the statutes punish 21 the same offense); see also Brown v. Ohio, 432 U.S. 161, 166 (1977) (A Defendant may not be 22 successively prosecuted under separate statutes that constitute the same offense under the 23 Blockburger test). 24 Here, in CM0275-19, the Defendant is being charged with Assault (as a Misdemeanor) 25 in violation of 9 GCA § 19.30(a)(1). In CF0389-19, the Defendant is being charged with 26 Murder (as a First Degree Felony) in violation of 9 GCA § 16.40(a)(2). Assault, as a charged, is 27 defined as a person who "either recklessly causes or attempts to cause bodily injury to another". 28 9 GCA § 19.30(a)(1). Murder, as charged, is defined as a person who "recklessly causes the
Page 4 of 9 Decision and Order Criminal Case Nos.: CM0275-19 and CF0389-19, People v. Harvey Arun Kansou
1 death of another human being under circumstances manifesting extreme indifference to the
2 value of human life" 9 GCA § 16.40(a)(2). As charged, assault requires a less serious risk of
3 injury, that is, "bodily injury," while murder, as charged requires "death." Therefore, assault is a
4 lesser included offense of murder because assault, as charged, differs only in respect that a less
5 serious injury suffices to establish its commission. See People v. Nathan, 2018 Guam 13 '][ 16
6 (finding that Aggravated Assault is a lesser included offense of Murder). Accordingly, for the
7 purposes of the Court's double jeopardy analysis, the Court finds that Assault, as charged in
8 CM0275-19, is a lesser included offense of Murder, as charged in CF0389-19.1
9 Nevertheless, the parties do not dispute that the charges in both CM0275-19 and
10 CF0389-19 result from the same factual background. At dispute is whether there was a proper
ll conviction in the former prosecution, CM0275-19, to invoke double jeopardy protections in the
12 subsequent felony matter, CF0389-19. Title 9 G.C.A. § 1.26 makes reference to the definition of
13 conviction in the preceding section: "There is a conviction if the prosecution resulted in a
14 judgment of conviction which has not been reversed or vacated, or a verdict of guilty which has
15 not set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the
16 court." 9 G.C.A. § 1.24 (emphasis added), see also 8 G.C.A. § 1.19 ("No person may be
17 convicted of an offense except by . . a plea of guilty or polo contenderen."). In other words, a
18 defendant will stand convicted of the crimes charged upon the Court's acceptance of a no
19 contest plea.
20 In CM0275-19, the Defendant entered a plea of no contest to the charge of Assault (as a
21 Misdemeanor). The Defendant maintains that upon the Court's acceptance of his plea, a
22 conviction ensued, and therefore, jeopardy attached. The People however, argue that the Court
23 did not accept the Defendant's plea of no contest, and even if the plea was accepted, the
24 Defendant was not properly advised of all the rights and advisements necessary for the Court to
25 enter a voluntary and intelligent plea. Having determined that a conviction occurs upon the
27 1 On February 19, 2020, the Court ordered further briefing on the issue of whether the offenses of Assault (as a Misdemeanor) and Murder (as a First Degree Felony) constitute the "same offense" for the purposes of double 28 jeopardy. The Defendant filed his Further Briefing re: Defendant's Motion to Dismiss for Double Jeopardy on February 28, 2020. The People failed to file a supplemental brief or otherwise respond to the Court's order.
Page 5 of 9 Decision and Order Criminal Case Nos.: CM0275-19 and CF0389-19, People v. Harvey Aron Kansou
1 court's acceptance of a no contest plea, the Court's next inquiry Tums to whether the magistrate
2 court properly accepted the Defendant's no contest plea in CM0275-19.2
3 II. The Defendant's No Contest Plea in CM0275-19.
4 There are four types of pleas available to a defendant: not guilty, not guilty by reason of
5 mental illness, disease or defect, guilty, or polo contenderen, otherwise known as a no contest
6 plea. 8 G.C.A. §§ 60.40(a)(l)-(4). "A defendant may plead polo contenderen only with the
7 consent of the court .. [and] shall be accepted by the court only after due consideration of the
8 views of the parties and the interest of the public in the effective administration of justice." 8
9 G.C.A. § 60.40(b). Title 8 G.C.A. §§ 60.40-60.90 governs a defendant's rights and requirements
10 for entering a guilty or no contest plea. Before the court can accept either plea, the court must
11 make a determination that the defendant, inter alia, understands the nature and consequences of
12 the intended plea, the maximum sentence provided by law, and the voluntariness of the plea. 8
13 G.C.A. §§ 60.40-60.90.
14 Here, the People assert that the magistrate court did not accept the Defendant's plea of
15 no cont es t b eca u s e t he cou r t neit her infor med t he Defenda nt of his r ight s nor ma de a
16 determination that the Defendant understood or voluntarily waived those rights. The Defendant
17 on the other hand, does not deny that the magistrate court may not have fully advised him of all
18 the rights and requirements necessary for entering a no contest plea. Instead, the Defendant
19 argues that the provisions of 8 G.C.A. §§ 60.40-60.90 were intended to protect the defendant
20 and allow for the defendant's withdrawal of a plea. In other words, the Defendant contends that
21 it is a defendant's right to set aside a plea for a failure to comply with the mandates of 8 G.C.A.
22 §§ 60.40-60.90, not the government's. The Court agrees.
23 The People do not cite any authority or case law giving courts the ability to set aside a
24 defenda nt's plea upon a motion by the gover nment when the defenda nt does not seek to
26 2 The People argue that double jeopardy applies only upon sentencing. As the Court found above, pursuant to 27 Guam law, a conviction occurs upon the court's acceptance of a guilty or no contest plea. 8 G.C.A. §§ 1.24 and 1.26. Thus, the People's argument that double jeopardy normally only applies once someone has been sentenced 28 under a plea fails.
Page 6 of 9 Decision and Order Criminal Case Nos.: CM0275-19 and CF0389-19, People v. Harvey Aron Kansou
1 withdraw the plea himself. The Supreme Court of Guam however, has issued several opinions
2 regarding the withdrawal of guilty and no contest pleas. See People v. Castro, 2016 Guam 6
3 (affirming the trial court's denial of the defendant's motion to withdraw guilty plea, and finding
4 that the trial court conducted a proper plea colloquy), see also People v. Van Bui, 2008 Guam 8
5 (holding that the defendant's guilty plea was not made voluntarily, knowingly, or intelligently,
6 and therefore, was not properly accepted by the triad court), see also People v. Chung, 2004
7 Guam 2 (finding no indication that the defendant understood the trial court's explication of the
8 nature of the charges and therefore, trial court accepted the plea in violation of 8 G.C.A. §
9 60.50), see also People v. Manley, 2010 Guam 15 (finding the defendant entered into the plea
10 agreement voluntarily, knowingly, and intelligently); see also People v. Habib, 2010 Guam 9
11 (pennitting defendant to withdraw his plea). In these cases, it is the defendant seeldng
12 withdrawal of the plea, asserting that it was not made voluntarily, knowingly, or intelligently
13 pursuant to 8 G.C.A. § 60.50.
14 Conversely, there are no Guam Supreme Court cases discussing the withdrawal of guilty
15 or no contest pleas upon a motion by the government. However, there is case law amongst the
16 different jurisdictions wherein a lower court set aside a defendant's plea either independently or
17 upon the government's motion - these cases were ultimately reversed on appeal. See U.S. v.
18 Patterson, 381 F.3d 859 (9th Cir. 2004) (finding the lower court was not free to vacate the plea
19 on the government's motion), see also U.S. v. Fagan, 996 F.2d 1009 (5th Cir. 1993) ("once the
20 district court accepts a guilty plea, absent fraud or breach of the plea agreement by the
21 defendant, the court has no authority to vacate the guilty plea because a government motion .
22 "), see also State v. Spraggins, 742 Nw.2d l (Minn. Ct. App. 2007) (the lower court did not
23 have authority to vacate defendant's plea sue sponge and over his objection).
24 Further, Title 8 G.C.A. § 60.50, derives from proposed Rule 1l(c) of the Federal Rules
25 of Criminal Procedure and ABA, Project on Minimum Standards for Criminal Justice Pleas of
26 Guilty § 1.4 (Approved draft 1968)3. See 8 G.C.A. 60.50 NOTE. The core purpose of Rule ll is
28 3 Thus, case law interpreting Rule ll is persuasive. People v. Chung, 2004 Guam 2 (citing Guam v. Ojeda, 758 F.2d 403, 406 (9th Cir. 1985).
Page 7 of 9 Decision and Order Criminal Case Nos.: CM0275-19 and CF0389-19, People v. Harvey Arum Kansou
1 to ensure that guilty and no contest pleas are made knowingly and voluntarily. U.S. v. Pena, 315
2 F.3d 1152, 1157 (9th Cir. 2003). The failure to satisfy those safeguards affects the substantial
3 rights of defendant. (emphasis added), see also United States v. Camacho, 233 F.3d 1308,
4 1314 (nth Cir. 2000) (stating that a court's failure to satisfy any of the core objectives of Rule
5 ll affects a defendant's substantial rights).
6 As explained above, Title 8 G.C.A. §§ 60.40-60.90 and Rule ll were intended to protect
7 the defendant. In this case, the Defendant is not seeking to withdraw his no contest plea in
8 CM0275-19, nor is he claiming that his plea was made involuntarily or unknowingly. Thus,
9 although the magistrate court may not have advised the Defendant of all his rights pursuant to 8
10 G.C.A. § 60.50, it does not give the People the r ight to move this Cour t to set aside the
ll Defendant's plea when he is not seeking to have it set aside himself. Further, the People never
12 objected to the Defendant's no contest plea at arraignment. Both CM0275-19 and CF0389-19
13 were scheduled for arraignment on the same day. However, although aware of both matters, the
14 People did nothing.4 Consequently, the Court has no choice but to find that although the
15 magistrate judge did not follow all of the procedural safeguards of 8 G.C.A. § 60.50, the
16 Defendant's no contest plea was nonetheless accepted by the magistrate court. Thus, pursuant
17 to Guam law, jeopardy attached at the time the court accepted the Defendant's no contest plea 18 for Assault (as a Misdemeanor) in CM0275-19.
19 III. The Defendant did not consent to multiple prosecutions.
20 Finally, the People alternatively argue that the Defendant consented to having multiple
21 prosecutions since he was aware of the Indictment in CF0389-19 at the time of arraignment in
22 CM0275-19. The People cite to Currier v. Virginia, 138 S. Ct. 2144, 201 L. Ed. ad 650 (2018)
23 to support their argument. In Cup°ier however, both the defendant and the government agreed to
24 a severance of the charges, and when the jury acquitted the defendant in the first trial, the
26 4 Both CM0275-19 and CF0389-19 were before the magistrate court for arraignment. Consequently, the People's "delayed death" argument fails. The People cite New York's "delayed death" exception which permits a second 27 prosecution for murder when a death occurs after a prosecution non-homicidal related offense. Here, the victim passed away on July 2, 2019,before the Defendant entered his no contest plea in CM0275-19, and the Indictment in 28 CF0389-19 preceded the Defendant's no contest plea. Thus, this "delayed death" exception proffered by the People, although inapplicable to Guam, is unbefitting.
Page 8 of 9 l H HI ll lllllllul
Decision and Order Criminal Case Nos.: CM0275-19 and CF0389-19;People v. Harvey Arun Kansou
1 defendant then sought to dismiss the other severed charges on the grounds of double jeopardy.
2 Ld Here, there is no severance of charges. Although the Defendant may have been aware of the
3 Indictment in CF0389-19 at the time of his arraignment and no contest plea in CM0275-19, it
4 does not, in and of itself, bar double jeopardy protections in the subsequent felony matter.
5 Accordingly, Currier is not on point here. Thus, the People's alternative argument fails.
7 For the reasons set forth above, the Court has no choice but to GRANT the Defendant's 8 Motion to Dismiss for Double Jeopardy in Criminal Case No. CF0389-19 and DENY the 9 People's Motion to Dismiss in Criminal Case CM0275-19. Pursuant to Guam law, jeopardy 10 attached in CF0389-19 at the time the Court accepted the Defendant's no contest plea in 11 CM0275-19. Accordingly, the charges contained in the Indictment against the Defendant in 12 CF0389-19 are hereby DISMISSED in accordance with the Double Jeopardy Clause of the 13 Fifth Amendment of the United States Constitution through the Organic Act of Guam, and Title 14 9 G.C.A. §§ 1.22-1.26 (2005). 15
16 mAn 162tl2u 18
21 •
HONORABLE ARTHUR R. BARCINAS 23 Judge, Superior Court of Guam 24
I acknowledge that a copy of the original hereto was placed in the 26 court box of;
27 R91 28 Daiezb V+ WAS'
Depu*y Lb re, Supp ECouri0f.Guam Page 9 of 9