People v. Mendiola

Opinion

• FILED DtJPERIOR COUR 1 1~r (WAM

2 2L12O~uc—5 A~HI. Os 3

6 IN THE SUPERIOR COURT OF GUAM 7 PEOPLE OF GUAM, Criminal Case No. CF0662-11 8 GPD Report No. 11-31660 V. DECISION AND ORDER 10 DOMINGO SYLVESTER CHARGUALAF GRANTING THE PEOPLE’S MENDIOLA, REQUEST FOR RESTITUTION 11 DOB:07/15/1987 12 Defendant. 13 14 INTRODUCTION 15 This matter came before the Honorable Alberto C. Lamorena, III on July 22, 2020 for a 16 restitution hearing. Assistant Attorney General Sean Brown represents the People, and Assistant 17 Alternate Public Defender Brycen Breazeale represents Defendant Domingo Sylvester Chargualaf 18 Mendiola (“Defendant”). Having duly considered the evidence presented, oral arguments, and the 19 applicable law, the Court now issues the following Decision and Order and GRANTS the People’s 20 request for restitution. 21 BACKGROUND 22 On December 14, 2011, a grand jury returned an Indictment against Defendant, charging him 23 with Theft of Property (as a Second Degree Felony) with the Special Allegation: Crime Against the 24 Community. Defendant entered into a plea agreement, pleading guilty to Theft of Property (as a 25 Third Degree Felony), as a lesser-included offense to the charge of Theft (as a Second Degree 26 Felony). Plea Agreement at 2 (Nov. 17, 2014). Defendant further agreed that he “shall pay 27 restitution to Guam Department of Agriculture, if any, in an amount to be determined by the court 28 at a restitution hearing.” Id. at 3 (emphasis in original). Thereafter, People provided the Court with

Decision and Order Granting the People’s Request for Restitution CF0662-1 1, People of Guam v. Mendiola Page 1 of 3 1 a restitution summary prior to the scheduled hearing date. Submission of Summary Report (RE: 2 Restitution) (“Restitution Report”) (Feb. 18, 2015). 3 The Court held a restitution hearing on July 22, 2020. After hearing the arguments of the 4 parties, the Court took the matter under advisement. 5 DISCUSSION 6 A person convicted of a crime may be ordered to pay restitution in the amount of: 7 (c) One Thousand Dollars ($1,000.00), when the conviction is of a misdemeanor; (e) Any higher amount equal to double the pecuniary gain to the offender or loss to 8 the victim caused by the conduct constituting the offense by the offender. In such case the court shall make a finding as to the amount of the gain or loss, and if the 9 record does not contain sufficient evidence to support such a finding the court may conduct a hearing upon the issue. For purposes of this Section, the term “gain” means 10 the amount of money or the value of the property derived by the offender and the term “loss” means the amount of value separated from the victim; 11 \ 12 9 G.C.A. § 80.50(c), (e). This means that the Court may order Defendant to pay restitution up to 13 one thousand dollars ($1,000.00) without any specific findings but must make findings for any 14 higher amount, not to exceed double the loss of the victim or gain of Defendant. People v. Mallo, 15 2008 Guam 23 ¶ 43. Here, the People seek six thousand nine hundred fifty dollars ($6,950.00) in 16 restitution for the victim’s losses, requiring the Court to make specific findings regarding those 17 losses. See id. The People bear the burden of proving losses by a preponderance of the evidence. 18 See United States v. Wakine, 543 F.3d 546, 556 (9th Cir. 2008). 19 At the hearing, the Court heard the testimony of Mr. Rodney Tibbatts, a fisheries biologist 20 with the Guam Department of Agriculture. Mr. Tibbatts testified that he is a biologist who assisted 21 in the development of the fishing platform project at the Messo Resovoir in 2011. Ct. Recording 22 (“CR”) at 2:06:45. On Monday, October 24, 2011, Mr. Tibbatts went to inspect the platform, as he 23 did so daily. Id. at 2:07:40, 2:17:10. When Mr. Tibbatts arrived, he discovered that some of the 24 metal railings and flaps were removed from the platform, some of them having been broken off. Id. 25 at 2:07:40. The pieces missing on October 24, 2011 were not missing during Mr. Tibbatts’ visit on 26 October 21, 2011. Id. Mr. Tibbatts took photos of the platform and then contacted the Guam Police 27 Department to file a police report. Id. 28 \

Decision and Order Granting the People’s Request for Restitution CF0662-1 1, People of Guam v. Mendiola Page 2 of 3 1 The Guam Department of Agriculture contacted the procurement office at the Guam 2 Department of Administration, General Services Agency (“GSA”) to obtain bids for the repair of 3 the platform as GSA controls to whom to award the bid. Id. at 2:24:10. The platform was 4 subsequently repaired by Molecular Construction and Development in late 2012 or early 2013. Id. 5 at 2:16:20. The People submitted as Exhibit 1 the Purchase Order from GSA. Exhibit 1 indicates 6 that the total cost of repairing the platform, including “all necessary costs for parts, labor, 7 fabrication, installation, and any shipping costs,” totaled six thousand nine hundred fifty dollars 8 ($6,950.00). The Conservation Fund at the Guam Department of Agriculture paid for the cost of the 9 repairs. CR at 2:10:00. Mr. Tibbatts testified that the Guam Department of Agriculture was not 10 reimbursed for such expenses by insurance or any other source of money. Id. at 2:09:45, 2:10:30, 11 2:25:35.

12 Having heard the testimony of the Mr. Tibbatts and the arguments of the parties, the Court is 13 satisfied that the People have met their burden of proving the victim’s losses by a preponderance of 14 the evidence. See Wakine, 543 F.3d at 556. Accordingly, the Court shall grant the People’s request 15 for restitution and order Defendant to pay for the full losses incurred by the victim. 16 CONCLUSION 17 For the reasons stated above, the Court GRANTS the People’s request for restitution. It is 18 hereby ORDERED that Defendant pay restitution to the victim, Guam Department of Agriculture, 19 in the amount of six thousand nine hundred fifty dollars ($6,950.00). 20 21 IT IS SO ORDERED this 5th day of 22 23 SERVICE VIA E-MAIL ~, ,~ I acknowledge that an electronic copy of the original was e-mailed to: 25 C. LAMORENA, III of Guam 26 Date: ~ ~

27 ‘~‘~ (4’~ c~-~- Deputy Clerk, ~rior Court of Guam 28

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