People v. Kinsella

Opinion

IN THE SUPERIOR COURT

OF GUAM

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3 CRIMINAL CASE No. CM 1197-12 THE PEOPLE OF GUAM, )

4 )

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5 v. ) DECISION AND ORDER ) On Defendant's 6 RACHEL A. KINSELLA, ) Motion to Dismiss 7 )

Defendant. )

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9 INTRODUCTION

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11 This matter came before the Honorable Judge Michael J. Bordallo on March 8, 2013 o

12 Defendant's Motion for Dismiss for Inappropriate Prosecution I De Minimis Infraction and fo 13 Civil Compromise. The People of Guam were represented by Assistant Attorney Genera 14 Christine Santos Tenorio. The Defendant was represented by Assistant Public Defender Mari 15

16 Fitzpatrick. Having reviewed the memorandum and papers presented, the court now issues th

17 following decision DENYING the Defendant's Motion to Dismiss. 18 FACTUAL HISTORY

19 The Defendant has been charged with one count each of misdemeanor Assault and Family 20 Violence for actions arising out of an alleged altercation between the Defendant and his 21

22 girlfriend. As with all crimes, the Defendant was charged based upon facts presented in a police

23 reported submitted to the Attorney General's Office following the Defendant's arrest. Since the 24 arrest, the alleged victim has expressed a desire to have the case dismissed. Based upon the 25 victim's statements, the Defendant has filed a Motion to Dismiss arguing that the charges 26 against the Defendant should be dropped because the parties have reached a civil compromise 27

28 pursuant to 8 GCA §80.90. The Defendant further argues that dismissal is warranted because his alleged conduct falls within the circumstances allowing for dismissal under Guam's de 2 minimis prosecution statute. The People timely filed an opposition to the motion arguing that 3 neither civil compromise nor dismissal pursuant to the de minimis statute is appropriate to the 4 facts of the case. For the following reasons, the Court agrees with the People.

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6 DISCUSSION

7 The Defendant has filed a Motion to Dismiss based upon two, alternative grounds: (1 8 that the Defendant and the alleged victim have reached a civil compromise pursuant to 8 GC 9 §80.90, and (2) that prosecution of the Defendant is inappropriate because the People canno 10

II prove the elements of the alleged crimes. Each argument will be evaluated in tum.

12 I. Civil Compromise is not Appropriate for Crimes involving Family Violence

13 The Defendant argues that the criminal charges against her should be dismissed because she 14 and the alleged victim have reached a civil compromise pursuant to 8 GCA §80.90. The relevant 15 statute reads:

16 (a) When the defendant has been charged with the commission of an offense 17 which is not a felony for which the person injured by the act constituting the offense has a remedy by a civil action, the offense may be compromised as 18 provided by this Section.

(b) If the person injured appears before, or files his declaration in, the court in 19 which the criminal action is pending at any time before trial and acknowledges 20 that he has received satisfaction for the injury, the court may, on payment of the costs incurred, order the criminal action dismissed.

21 (c) A dismissal under this Section is a bar to another prosecution for the same offense.

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23 The People oppose the motion and argue that the Defendant cannot demonstrate that th

24 victim "has received satisfaction for the injury" as required by the law. The Defendant has state 25 that the alleged victim "does not want compensation for anything that happened in the case,'

26 because she and the victim "have worked out their differences." The People maintain tha 27 "satisfaction of the victim's injury is best addressed through rehabilitation of the Defendan 28

through the criminal justice system."

The Court has previously entertained a motion for civil compromise in a case involving 2 crime of violence such as Assault or Family Violence. Those cases involved both the victim an 3 perpetrator being charged in a mutual combat setting. Guam law does not explicitly state that th 4 statute is inapplicable to crimes of violence, however, civil compromise is typically limited t 5

6 cases involving monetary restitution for property damage. The current facts involve a Defendan

7 accused of assaulting her boyfriend, making the question of restitution problematic. Contrary t 8 the Defendant's assertion, the Court does not believe that reconciliation between the Defendan 9 and the alleged victim meets the statutory requirement that the victim receive "satisfaction fo 10

II the injury." 8 GCA §80.90(b).

12 The Court looks to the laws of California, which served as the basis for Guam's civi

13 compromise statute, for guidance. California law prohibits the application of civil compromise t 14 cases involving domestic violence. The California law which served as the model for Guam'

15 civil compromise statute states:

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17 When the person injured by an act constituting a misdemeanor has a remedy by a civil action, the offense may be compromised, as provided in Section 1378, except 18 when it is committed as follows:

(a) By or upon an officer of justice, while in the execution of the duties of 19 his or her office.

20 (b) Riotously.

(c) With an intent to commit a felony.

21 (d) In violation of any court order as described in Section 273.6 or 273.65.

(e) By or upon any family or household member, or upon any person when 22 the violation involves any person described in Section 6211 of the Family 23 Code or subdivision (b) ofSection 13700 of this code.

(f) Upon an elder, in violation of Section 368 of this code or Section 24 15656 ofthe Welfare and Institutions Code.

(g) Upon a child, as described in Section 647.6 or 11165.6.

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26 Cal. Pen. Code § 13 77 (italics added).

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The Court will not use its discretion to permit civil compromise in cases involving farnil 2 and domestic violence where one party is alleged to have been the perpetrator. California law 3 from which Guam law was adopted, explicitly prohibits civil compromise in these cases. Th 4 court recognizes that Guam did not enact the prohibition of family violence cases from civi 5

6 compromise. The exception of domestic violence cases from civil compromise also holds true i

7 other jurisdictions, such as Oregon and Washington, which share statutory language near} 8 identical to California's. See ORS §135.703(l)(d), RCW 10.22(4). The rational of prohibitio 9 exists not only because it is difficult to determine whether or not an alleged victim has actuall 10

11 "received satisfaction for the injury," but because the prosecution of family violence cases is o

12 interest to the public. More specifically, civil compromise of family violence cases does no

13 present "circumstances such that through private settlement the public is fully vindicated.' 14 People v. Moulton, 182 Cal.Rptr. 761, 768 (1982). The Guam Legislature, through the recen 15 amendments to the Family Violence Act, has made clear their intent to have cases involvin 16

17 Family Violence prosecuted on behalf of the People of Guam. Beginning to apply the civi

18 compromise statute to these cases does not appear to be in keeping with that intent, especiall 19 where only one party is charged and alleged to be the actor. Additionally, a characteristic o 20 family violence cases and spousal abuse is the fact that the victim wants the case dropped and th 21 perpetrator released and returned horne. The vast majority of the cases pending before the farnil 22

23 court have such declarations filed. Hence, it is truly the public's interest and burden to prosecut

24 these matters as the victim, most of the time, will decline to do so. 25 II. The Defendant's Alleged Actions are not De Minimis 26 Guam's de minimis prosecution statute authorizes the court to dismiss charges against 27 Defendant where necessary to "prevent absurd applications." 9 G.C.A. §7.67 (2012). The statut lists three circumstances where the court shall dismiss a prosecution. In her motion, 2 Defendant specifically argues that her conduct: "(b) Did not actually cause or threaten the h 3 or evil sought to be prevented by the law defining the offense or did so only to an extent to 4 trivial to warrant the condemnation of conviction." !d. The Defendant confessed to th 5

6 responding police officers that she had repeatedly slapped and scratched her boyfriend. Despit

7 this confession, the Defendant now argues that these actions do not constitute the crime o 8 Assault because "a slap is not an attempt to cause bodily injury."

9 The Guam Supreme Court has made clear that a dismissal on de minimis grounds require 10 that the trial court "make factual determinations with respect to the conduct charged." People v.

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12 Perez, 2004 Guam 4 (citing See State v. Carmichael, 53 P.3d 214, 218 (Haw.2002)). Thi

13 requires analysis of "objective factors directly related to the defendant's conduct and, i 14 particular, the consequences for the societal interests involved." !d. (citing State v. Zarrilli, 523 15 A.2d 284 (N.J.Super. Ct. Law Div.1987), affd, 532 A.2d 1131 (N.J.Super.Ct.App.Div.1987).

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17 The Court explains that "the protection to which society is entitled is provided by a dismissa

18 only when the offense is truly 'triviaL"' Therefore, with the best interests of the public in mind 19 assessing a de minimis motion requires the court to answer this single question: "What is the ris 20 of harm to which society is exposed by defendant's conduct?" !d.

21 In a motion to dismiss on de minimis grounds the court assumes that the factual allegation 22

23 against the Defendant are true. This is required by law because ""[t]he motion does not provide

24 setting for a determination of guilt or innocence." !d. Assuming that the Defendant did in fac 25 repeatedly slap and scratch her boyfriend's face and neck, her conduct meets the legal definition 26 of both Assault and Family Violence. Contrary to the Defendant's assertion, both slapping an 27 scratching a person unequivocally constitutes "bodily injury to another." 9 GCA §19.30(a)(l).

The risk of harm to society that arises from acts of Assault and Family Violence are significan 2 and cannot be viewed as trivial absent evidence that the charges are excessive or unwarranted. 3 The Defendant's erroneous argument that slapping and scratching are not Assault does no 4 constitute such proof.

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6 The facts of the current case are easily distinguishable from the facts in Perez. Perez wa

7 charged with Improper Irifluence over a Notary and Official Misconduct. In that case, the tria 8 court's de minimis dismissal of the charges was upheld by the Supreme Court not because it wa 9 alleged that Perez did not commit the crimes in question, but because it was determined tha 10

Perez's actions could not have caused "the harm or evil which the statute protects." !d. Critically 11

12 even under the assumption that Perez did commit the crimes at issue, the Court found that it wa

13 the actions of a second defendant that defrauded the public. Here, the Defendant is alleged t 14 have caused direct bodily injury to her boyfriend. Viewing these factual allegations as true 15 charges of Assault and Family Violence are appropriate as both statutes were enacted to protec 16

17 victims from these crimes. The fact that the victim no longer seeks prosecution of the Defendan

18 does not make the charges against the Defendant inaccurate nor does it render them trivial. 19

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CONCLUSION

3 Based on the foregoing, the court finds that the Defendant's alleged actions do not mee 4 the standard for dismissal pursuant to Guam's de minimis prosecution statute. Accordingly, th 5

6 court DENIES the Defendant's Motion to Dismiss for De Minimis Infraction I Inappropriat

7 Prosecution. The Court also finds no basis for allowing civil compromise in family violenc 8 cases and DENIES the Motion to Dismiss for Civil Compromise. Trial setting is hereby se

_____,~f--'L-==~~~~----==-~--' 20 ~at 9:00am.

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13 SO ORDERED, this 3rct day of May 2013.

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