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6 IN THE SUPERIOR COURT OF GUAM
7 THE PEOPLE OF GUAM, ) Criminal Case No. CF0142-20-01 8 -) ) 9 Plaintiff, ) ) 10 v. ) DECISION AND ORDER ) (Motion for Dismissal) ) MONALISA CABRERA KUSTERBECK, ) 12 DOB: 03/19/1972 ) ) 13 ) Defendant. ) 14 ) 15
16 INTRODUCTION 17 This matter came before the Honorable Jonathan R. Quam on June 23, 2020, for a Zoom 18 video-conference hearing upon Defendant MONALISA CABRERA KUSTERBECK's 19 ("Defendant") Motion for Dismissal of Charge (Mar. 13, 2020). Curtis C. Van de veld, Esq. 20 appeared by video on behalf of Defendant. Jeffrey A. Moots, Esq. appeared by video on behalf 21 of Gilberto Florendo Kusterbeck.1 Assistant Attorney General Christine S. Tenorio appeared by 22 video on behalf of the People of Guam ("the People"). After considering all written submissions, 23 oral arguments, and applicable law, the Court hereby DENIES Defendant's Motion for Dismissal 24 of Charge. 25
26 1 At the time of this hearing, Defendant and Mr. Kusterbeck were joined as co-defendants in Criminal Case CFol42- 27 20. However, the co-defendants' cases have now been severed and Defendant is now the sole defendant in the instant matter, CF0142-20-01. See generally Order (Motion to Sever)(Jun. 24, 2020). 28 Order (Motion for Dismissal) CF0142-20-01, People v. MONALISA CABREBRA KUSTERBERCK (DOB: 03/19/1972)
BACKGROUND 1 The People allege that on two occasions, one each in 2018 and in 2019, Gilberto Florendo 2 Kusterbeck sexually assaulted a minor female ("the Victim") under Defendant's custody. Decl. 3 Christine Santos Tenorio (Feb. 28, 2020). The People further allege that the Victim reported these 4 assaults to Defendant at some point in 2019. Id However, because Defendant allegedly 5 "forgave" her husband, she allegedly told the Victim "not to tell anyone" about what had 6 occurred. Id The People assert that Deflendant's actions amount to the offense of Child Abuse 7 (As a Misdemeanor) in violation of 9 GCA § 3l.30(a)(2)(C). 8 The People filed a Magistrate's Complaint on February 28, 2020, charging Defendant with 9 Child Abuse (As a Misdemeanor) and charging Gilberto Florendo Kusterbeck with Second 10 Degree Criminal Sexual Conduct (As a First Degree Felony). The Magistrate Judge found 11 probable cause to support all charges. On March 5, 2020, the grand jury returned a true bill 12 indicting Defendant on the Child Abuse (As a Misdemeanor) charge. 13 Defendant now moves this Court to dismiss the Child Abuse charge. Defendant argues 14 that the Magistrate Judge's finding of probable cause was erroneous because the People's 15 Declaration set forth sufficient facts to support the elements of a Child Abuse charge. See 16 generally Mot. Dismiss (Mar. 13, 2020). On June 12, 2020, the Court ordered an expedited 17 briefing schedule on this issue. Order RE: Scheduling (Jun. 12, 2020) at 2-3. On June 15, 2020, 18 the People filed a written Opposition to Defendant's Motion to Dismiss for Lack of Probable 19 Cause, and the Defendant filed a Reply to the Opposition on June 18, 2020. The Court heard oral 20 arguments at a Motion Hearing on June 23, 2020. At the hearing, the People requested leave to 21 file additional briefing on the issue of prosecutorial misconduct before the grand jury, an issue 22 first raised by Defendant in her Reply brief The Court granted leave and on June 30, 2020, the 23 People thereafter filed a Supplemental Brief On July 6, 2020, Defendant filed a Reply to the 24 Supplemental Brief (Jul. 6, 2020) and the Court took the matter under advisement that same day. 25
27 DISCUSSION 28
Page 2 of S Order (Motion for Dismissal) CF0142-20-01, Peoplev. MONALISA CABREERA KUSTERBERCK (DOB: 03/19/1972)
l Defendant argues that the Magistrate Judge's finding of probable cause was erroneous. At
2 the outset, the Court notes that probable cause does not mean prima facie evidence of guilt, but
3 rather "reasonable grounds of suspicion." Locke v. United States, 7 Crunch 339 (1813). As the
4 U.S. Supreme Court has explained,
5 "In dealing with probable cause, however, as the very name implies, we deal with 6 probabilities. These are not technical, they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal 7 technicians, act. The standard of proof is accordingly correlative to what must be proved." 8
9 Brinegar v. United States, 338 U.S. 160, 175 (1949). Thus, the standard of proof to establish
10 probable cause is considerably lower than the standard of proof that would eventually be
necessary to convict the defendant at trial. 12 Under Guam law, the Magistrate Judge properly finds probable cause where the
13 Magistrate's Complaint and accompanying People's Declaration lead him "to believe that an
14 offense has been committed and that the defendant has committed it." 8 GCA § 45.20(a). If the 15 Magistrate Judge does not find probable cause, the Complaint must be dismissed. 8 GCA § 16 45.20(b). Critically, however, the Magistrate Judge's dismissal "shall not preclude the 17 government from instituting a subsequent prosecution for the same offense." Id; see also People 18 v. Rios, 2008 Guam 22 1112. Hence, even if the People's Declaration fails to establish probable 19 cause, the People are not barred Hom prosecuting that defendant, they are only barred from
20 proceeding upon the defective Complaint. 21 The instant matter no longer proceeds upon the Complaint and People's Declaration. The 22 People have already presented this case to a grand jury, and the grand jury has already returned a
23 true bill. See Minute Entry (Mar. 5, 2020) at 3:07:11 P.M. A grand jury returns a true bill "when 24 from the evidence presented there is reasonable cause to believe that an indictable offense has 25 been committed and that the defendant committed it." 8 GCA § 50.54(b); see also People v. San 26 Nicolas, 2013 Guam 21 11 ll. In this context, "reasonable cause" is synonymous with "probable
27 cause" Id 1112 n.5,People v. Sharp, 2017 Guam 191[ 10. Hence, the return of a true bill "affirms
Page 3 of 5 Order (Motion for Dismissal) CF0142-20-01, People v. MONALISA CABREBRA KUSTERBERCK (DOB: 03/19/1972)
1 that the grand jury found probable cause for the charges in the indictment." San Nicolas, 2013
2 Guam 21 1112.
3 Therefore, the issue is whether the grand jury's finding of probable cause supersedes the
4 Magistrate Judge's finding of probable cause. Guam law does not squarely answer this question.
5 However, the Guam Supreme Court has looked to California case law in reviewing the role of the
6 grand jury. See People v. San Nicolas, 2013 Guam 21 1121. In San Nicolas, the Guam Supreme
7 Court has cited the California rule stating "an indictment will not be set aside or a prosecution
8 thereon prohibited if there is some rational ground for assuming the possibility that an offense has
9 been corninitted and the accused is guilty of it." Id. (citing Roads v. Superior Court In & For
10 City. Of Siskiyou, 80 Cal. Rptr. 169, 171 (Ct. App. 1969)). Similarly, the California Supreme
Court has held:
12 "The duty of determining whether or not an indictment should be found is lodged 13 exclusively in the grand jury and not in the courts. The reviewing court does not substitute its judgment as to the weight of the evidence for Mat of the grand jury, 14 and must draw all reasonable inferences in favor of the indictment." 15 People v. Stark, 52 Cal.4th 368, 406-07 (Cal. 2011) (internal citations omitted).
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Fl sumwsa CG'JRT Er? G§i').H
1 ZGZDJUL QL, PM 1-.55 2 CLiiR*.'€ GF e-aum 3 By 4
6 IN THE SUPERIOR COURT OF GUAM
7 THE PEOPLE OF GUAM, ) Criminal Case No. CF0142-20-01 8 -) ) 9 Plaintiff, ) ) 10 v. ) DECISION AND ORDER ) (Motion for Dismissal) ) MONALISA CABRERA KUSTERBECK, ) 12 DOB: 03/19/1972 ) ) 13 ) Defendant. ) 14 ) 15
16 INTRODUCTION 17 This matter came before the Honorable Jonathan R. Quam on June 23, 2020, for a Zoom 18 video-conference hearing upon Defendant MONALISA CABRERA KUSTERBECK's 19 ("Defendant") Motion for Dismissal of Charge (Mar. 13, 2020). Curtis C. Van de veld, Esq. 20 appeared by video on behalf of Defendant. Jeffrey A. Moots, Esq. appeared by video on behalf 21 of Gilberto Florendo Kusterbeck.1 Assistant Attorney General Christine S. Tenorio appeared by 22 video on behalf of the People of Guam ("the People"). After considering all written submissions, 23 oral arguments, and applicable law, the Court hereby DENIES Defendant's Motion for Dismissal 24 of Charge. 25
26 1 At the time of this hearing, Defendant and Mr. Kusterbeck were joined as co-defendants in Criminal Case CFol42- 27 20. However, the co-defendants' cases have now been severed and Defendant is now the sole defendant in the instant matter, CF0142-20-01. See generally Order (Motion to Sever)(Jun. 24, 2020). 28 Order (Motion for Dismissal) CF0142-20-01, People v. MONALISA CABREBRA KUSTERBERCK (DOB: 03/19/1972)
BACKGROUND 1 The People allege that on two occasions, one each in 2018 and in 2019, Gilberto Florendo 2 Kusterbeck sexually assaulted a minor female ("the Victim") under Defendant's custody. Decl. 3 Christine Santos Tenorio (Feb. 28, 2020). The People further allege that the Victim reported these 4 assaults to Defendant at some point in 2019. Id However, because Defendant allegedly 5 "forgave" her husband, she allegedly told the Victim "not to tell anyone" about what had 6 occurred. Id The People assert that Deflendant's actions amount to the offense of Child Abuse 7 (As a Misdemeanor) in violation of 9 GCA § 3l.30(a)(2)(C). 8 The People filed a Magistrate's Complaint on February 28, 2020, charging Defendant with 9 Child Abuse (As a Misdemeanor) and charging Gilberto Florendo Kusterbeck with Second 10 Degree Criminal Sexual Conduct (As a First Degree Felony). The Magistrate Judge found 11 probable cause to support all charges. On March 5, 2020, the grand jury returned a true bill 12 indicting Defendant on the Child Abuse (As a Misdemeanor) charge. 13 Defendant now moves this Court to dismiss the Child Abuse charge. Defendant argues 14 that the Magistrate Judge's finding of probable cause was erroneous because the People's 15 Declaration set forth sufficient facts to support the elements of a Child Abuse charge. See 16 generally Mot. Dismiss (Mar. 13, 2020). On June 12, 2020, the Court ordered an expedited 17 briefing schedule on this issue. Order RE: Scheduling (Jun. 12, 2020) at 2-3. On June 15, 2020, 18 the People filed a written Opposition to Defendant's Motion to Dismiss for Lack of Probable 19 Cause, and the Defendant filed a Reply to the Opposition on June 18, 2020. The Court heard oral 20 arguments at a Motion Hearing on June 23, 2020. At the hearing, the People requested leave to 21 file additional briefing on the issue of prosecutorial misconduct before the grand jury, an issue 22 first raised by Defendant in her Reply brief The Court granted leave and on June 30, 2020, the 23 People thereafter filed a Supplemental Brief On July 6, 2020, Defendant filed a Reply to the 24 Supplemental Brief (Jul. 6, 2020) and the Court took the matter under advisement that same day. 25
27 DISCUSSION 28
Page 2 of S Order (Motion for Dismissal) CF0142-20-01, Peoplev. MONALISA CABREERA KUSTERBERCK (DOB: 03/19/1972)
l Defendant argues that the Magistrate Judge's finding of probable cause was erroneous. At
2 the outset, the Court notes that probable cause does not mean prima facie evidence of guilt, but
3 rather "reasonable grounds of suspicion." Locke v. United States, 7 Crunch 339 (1813). As the
4 U.S. Supreme Court has explained,
5 "In dealing with probable cause, however, as the very name implies, we deal with 6 probabilities. These are not technical, they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal 7 technicians, act. The standard of proof is accordingly correlative to what must be proved." 8
9 Brinegar v. United States, 338 U.S. 160, 175 (1949). Thus, the standard of proof to establish
10 probable cause is considerably lower than the standard of proof that would eventually be
necessary to convict the defendant at trial. 12 Under Guam law, the Magistrate Judge properly finds probable cause where the
13 Magistrate's Complaint and accompanying People's Declaration lead him "to believe that an
14 offense has been committed and that the defendant has committed it." 8 GCA § 45.20(a). If the 15 Magistrate Judge does not find probable cause, the Complaint must be dismissed. 8 GCA § 16 45.20(b). Critically, however, the Magistrate Judge's dismissal "shall not preclude the 17 government from instituting a subsequent prosecution for the same offense." Id; see also People 18 v. Rios, 2008 Guam 22 1112. Hence, even if the People's Declaration fails to establish probable 19 cause, the People are not barred Hom prosecuting that defendant, they are only barred from
20 proceeding upon the defective Complaint. 21 The instant matter no longer proceeds upon the Complaint and People's Declaration. The 22 People have already presented this case to a grand jury, and the grand jury has already returned a
23 true bill. See Minute Entry (Mar. 5, 2020) at 3:07:11 P.M. A grand jury returns a true bill "when 24 from the evidence presented there is reasonable cause to believe that an indictable offense has 25 been committed and that the defendant committed it." 8 GCA § 50.54(b); see also People v. San 26 Nicolas, 2013 Guam 21 11 ll. In this context, "reasonable cause" is synonymous with "probable
27 cause" Id 1112 n.5,People v. Sharp, 2017 Guam 191[ 10. Hence, the return of a true bill "affirms
Page 3 of 5 Order (Motion for Dismissal) CF0142-20-01, People v. MONALISA CABREBRA KUSTERBERCK (DOB: 03/19/1972)
1 that the grand jury found probable cause for the charges in the indictment." San Nicolas, 2013
2 Guam 21 1112.
3 Therefore, the issue is whether the grand jury's finding of probable cause supersedes the
4 Magistrate Judge's finding of probable cause. Guam law does not squarely answer this question.
5 However, the Guam Supreme Court has looked to California case law in reviewing the role of the
6 grand jury. See People v. San Nicolas, 2013 Guam 21 1121. In San Nicolas, the Guam Supreme
7 Court has cited the California rule stating "an indictment will not be set aside or a prosecution
8 thereon prohibited if there is some rational ground for assuming the possibility that an offense has
9 been corninitted and the accused is guilty of it." Id. (citing Roads v. Superior Court In & For
10 City. Of Siskiyou, 80 Cal. Rptr. 169, 171 (Ct. App. 1969)). Similarly, the California Supreme
Court has held:
12 "The duty of determining whether or not an indictment should be found is lodged 13 exclusively in the grand jury and not in the courts. The reviewing court does not substitute its judgment as to the weight of the evidence for Mat of the grand jury, 14 and must draw all reasonable inferences in favor of the indictment." 15 People v. Stark, 52 Cal.4th 368, 406-07 (Cal. 2011) (internal citations omitted). Applying thee 16 principles of deference, the Court does not find it appropriate to interfere with the grand jury' 17 determination of probable cause. To engage in a redetermination of probable cause would be t 18 elevate the Court's own judgment above that of the grand jury. This would conflict with the well 19 established deference that the Court pays to jury findings. See id; see also People v. Sangalang 20 2001 Guam 18 11 39 ("deference must be paid to the jury's role as the body charged with th 21 resolution of facts in dispute"). 22 "An appeal should be dismissed as moot when, by virtue of an intervening event, th 23 appellate court cannot grant effective relief in favor of the appellant." Town House Dep't Stores v 24 Ahn, 2000 Guam 32 ii 9. Presumably, Mis same principle also applies to a trial court acting in 25 quasi-appellate role, such as when that court is asked to redetermine probable cause. Here, eve 26 if the Court were to find that the Magistrate Judge erred in finding probable cause, the Court wool 27 not be able to properly grant the relief (dismissal) sought by Defendant. The indictment is no 28 the operative pleading, and the indictment self-evidently demonstrates the existence of probably
Page 4 of 5 Order (Motion for Dismissal) CFOl42-20-01, Peoplev. MONALISA CABREBRA KUSTERBERCK (DOB: 03/19/1972)
l cause. The Court therefore declines to reconsider the issue of probable cause in the People's
2 Declaration and declines to dismiss the prosecution against Defendant on this basis.
3 The Court understands that Defendant's argument has evolved to incorporate allegations
4 of prosecutorial misconduct during the grand jury process. Reply (Jun. 18, 2020) at 5; Reply to
5 Supplemental Brief (Jul. l, 2020) at 2-4. Prosecutorial misconduct, if proven, may indeed be
6 grounds to dismiss the prosecution. See, e.g, People of Territory of Guam v. Mina, 999 F.3d 397,
7 399 (9th Cir. 1993). Defendant, however, did not raise this argument in her initial Motion and did
8 not present evidence in support of this argument at the Motion Hearing. The Court therefore lack.
9 a sufficient factual basis on which to consider the question of prosecutorial misconduct. Ii
10 Defendant wishes to pursue this argument, she must request an evidentiary hearing, and she must
11 do so in a separate Motion.
13 CONCLUSION
14 Defendant's Motion for Dismissal of Charge is DENIED. However, the Court grants Rh
15 parties leave to file any additional Motions as may be necessary to effectuate the argument
16 advanced in the Reply and Supplemental briefing that have not yet been resolved.
18 SO ORDERED on thi02jQ;y of July, 2020. 19 \
20 `*`
\ __ 21
( .̀. 4 f m~41, . 22
NORABLE JONA HA | QUAN 23 J Ge Pro Tempore, Sure or Court of Guam 24
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