People v. Mendiola

Opinion

~:m ~ LI SUPERIOR CGUp~’ 1 OF GUAM 2 20216PR28 PH 3:L~3 3 CLERK OF,~URT 4

6 IN THE SUPERIOR COURT OF GUAM 7 PEOPLE OF GUAM, Criminal Case No. CF0219-19 8 GPD Report Nos. 18-27082 / 19-06111 / v. 19-07947 9 10 MARCELO VICENTE MENIMOLA, DECISION AND ORDER DOB: 01/01/1983 GRANTING THE PEOPLE’S 11 REQUEST FOR RESTITUTION Defendant. 12 13 INTRODUCTION 14 This matter came before the Honorable Alberto C. Lamorena, III on April 8, 2021 for a 15 Restitution Hearing. Assistant Attorney General Steven J. Haderlie represents the People of Guam 16 (“the People”) and Assistant Public Defender William Benjamin Jones represents Marcelo Vicente 17 Mendiola (“Defendant”). •Having duly considered the parties’ briefs, oral arguments, and the 18 applicable law, the Courtnow issues the following Decision and Order and GRANTS the People’s 19 request for restitution. 20 BACKGROUND 21 In April 2019, Defendant wa~ arrested and charged with Forgery (as a 3rd Degree Felony), 22 Identity Theft (as a 3’~’ Degree Felony), and Three Counts of Theft (as a Misdemeanor). Indictment 23 (Apr. 22, 2019). Defendant was accused of taking a purse belonging to Martha Duenas and 24 improperly cashing a series of checks made in the name of Martha Duenas or Pedro Cruz 25 (collectively “the Victims”). Magistrate’s Complaint (Apr. 11, 2019). 26 On September 10, 2019, Defendant pled guilty to One Count of Theft (as a Misdemeanor). 27 Mm. Entry (Sep. 10, 2019). As part of his plea agreement, Defendant agreed to pay full restitution 28

Decision and Order Granting The People’s Request for Restitution CFO219-19, People of Guam v. Marcelo Mendiola Page 1 of 4 1 to the Victims, in an amount to be determined by the Court at a restitution hearing. Judgment of 2 Conviction (Plea Agreement) (Oct. 24, 2019). 3 On January 30, 2020, the People submitted their Summary Report Regarding Restitution 4 (“Summary Report”). Summary Report (Jan. 30, 2020). The Summary Report contained a request 5 for $1,278.54 concerning charges made to the Victim’s First Premier Bank. credit card account. Id. 6 Defendant originally did not oppose this amount. Defendant Marcelo Vicente Mendiola’ s Non- 7 Opposition to Restitution (Feb. 5, 2021). 8 However, an Amended Submission of Summary Report Regarding Restitution (“Amended 9 Summary Report”) was filed on February 10, 2021. Amended Summary Report (Feb. 10, 2021). 10 The requested restitution concerning the First Premier Bank credit balance had grown to, on August 11 5, 2020, $1,423.20 due to additional interest and late fees. Exhibit 2. The Victims also requested 12 an additional $500 reimbursement for a First Hawaiian Bank check dated February 24, 2019 paid to 13 the order of Defendant. Exhibit 1. 14 Defendant now objects to this requested restitution, claiming the First Premier Bank credit 15 card losses stem from conduct outside which Defendant pled guilty to. Defendant Marcelo Vicente 16 Mendiola’s Objection to the Amended Submission of Summary Report (Re: Restitution) and 17 Withdrawal of Prior Non-Opposition at 5 (Feb. 26, 2021). 18 The Court held a Restitution Hearing on April 8, 2021. After hearing the arguments of the 19 parties, the Court took the matter under advisement. 20 DISCUSSION 21 Restitution is proper when the losses are the direct result of the Defendant’s actions. U.S. v. 22 Tyler, 767 F.2d 1350, 1351 (9th Cir. 1985). Normally, restitution will be capped at $1,000 if the 23 conviction is a misdemeanor (such as here). 9 G.C.A. § 80.50(c). However, the Court may “order 24 a higher amount equal to the loss of the victim or gain to the offender if the judge makes a finding 25 as to that amount.” People v. Mallo, 2008 Guam 23, ¶ 43. Any such finding concerning the 26 Victim’s loss must be shown by a preponderance of the evidence. People v. Faisao, 2018 Guam 27 26,j[13. 28

Decision and Order Granting The People’s Request for Restitution CF0219-19, People of Guam v. Marcelo Mendiola Page 2 of 4 1 The People have shown by a preponderance of the evidence that the Victims in this case 2 have lost more than $1,000 as a direct result of the Defendant’s criminal actions. 3 Ms. Duenas testified that the First Premier Bank credit card was the same card used in this 4 theft, and that neither she nor her husband were responsible for the purchases. Court Recording 5 (“CR”) at 3:01:30 (Apr. 8, 2021). The First Premier Bank invoice also shows a balance of 6 $1,423.20. Exhibit 2. While Defendant may not have spent that much while committing the theft, 7 the Victims were subject to roughly $400 in interest and late fees due to Defendant’s conduct. Id. 8 Restitution should include any interest or late fees stemming from Defendant’s conduct because this 9 amount contributed to the Victims’ losses. While Defendant claims he did not partake in the First 10 Premier Bank credit fraud, he already once agreed not to oppose a restitution claim concerning that 11 very same credit account. See Defendant Marcelo Vicente Mendiola’s Non-Opposition to 12 Restitution (Feb. 5, 2021). This, combined with Ms. Duenas’s testimony that the Victims did not 13 use this card, sufficiently prove by a preponderance of the evidence that this loss stemmed from 14 Defendant’s criminal conduct. 15 Ms. Duenas also testified that $500 was improperly withdrawn from her account via a First 16 Hawaiian Bank check. “CR” at 2:53:45 (Apr. 8, 2021). This check was made payable to the 17 Defendant’s name. Exhibit 1. These two facts combine to form a preponderance of the evidence 18 that Ms. Duenas lost $500 stemming from Defendant’s criminal conduct concerning her First 19 Hawaiian Bank checkbook. 20 CONCLUSION 21 For the reasons stated above, the Court GRANTS the People’s request for restitution. 22 Defendant shall pay restitution to the Victims in the amount of at least $1,923.20 minus any amount 23 he has already paid. This amount covers both the $500 First Hawaiian Bank check and the 24 $1,423.20 First Premier Bank credit balance. Defendant shall also be responsible for paying any 25 additional late fees or interest that the First Premier Bank account has accumulated since August 5, 26 2020. 27 28 IT IS SO ORDERED th~5~pr11_28. 202?ttnc pro tunc to April 8, 2021.

Decision and Order Granting The People’s Request for Restitution CF0219-19, People of Guam v. Marcelo Mendiola Page 3 of 4 1 2 3 4 HONORABLE ALBERTO C. LAMORENA, III Presiding Judge, Superior Court of Guam 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19

20 21 22 23 SERVICE VIA E-MAIL 24 I acknowledge that an electronic copy of th original was e-mailed to: 25 A~ ~

26 Date~k~fr~~ T~71~

27 Deputy Clerk, Superior Court of Guam 28

Decision and Order Granting The People’s Request for Restitution CF0219-19, People of Guam v. Marcelo Mendiola Page 4 of 4