People v. Muna

Opinion

2 IN THE SUPERIOR COURT OF GUAM 3 ) CRIMINAL CASJt\NO. CFOfr7-11 4 THE PEOPLE OF GUAM, )

)

5 )

VS.

6 ) DECISION AND ORDER )

7 ANDREW MENDIOLA MUNA, )

)

8 Defendant. )

9 )

10 This matter came before the HONORABLE VERNON P. PEREZ on September 4,2012.

11

12 Attorney Raymond B. !lagan appeared representing Defendant, who was present. Attorney

13 Brian D. Gallagher appeared on behalf of the Government. Having reviewed the record, 14 pleadings and the arguments presented, the Court now issues the following Decision and Order.

15 BACKGROUND

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17 Defendant is charged with two counts of third degree criminal sexual conduct as a

18 second degree felony and two counts of felony child abuse. The motions currently pending 19 before the Court are Defendant's two Motions to Dismiss and the Government's informal 20 request to amend the Superseding Indictment. Defendant filed a Motion to Dismiss Charge One 21 on March 31, 2011 but the April 1, 2011 Superseding Indictment made that motion moot and is 22

23 no longer an issue before the Court. This Decision and Order will address all pending motions

24 and issues before the Court. 25

26 27 28 People v. A1una, Decision and Order Criminal Case No. CFO 117-11 - Page I of3-

DISCUSSION

2 I. Motion to Dismiss 3 Defendant requests dismissal of Charge Two of the Superseding Indictment. Defendant 4 argues that the evidence before the grand jury does not support Charge Two of the indictment 5 6. pursuant to 8 GCA§§~5:!~(1J),~g:~2 and 50.5~(1J). Specifically, Defendant contends there was

7 no evidence presented that Defendant subjected the alleged victim to serious bodily injury or 8 likelihood of serious bodily injury. 9 GCA § 16.1 O(c) defines serious bodily injury as:

9 means bodily irijury which creates: serious permanent 10 disfigurement; a substantial risk or death or serious, permanent disfigurement, severe or intense physical pain or protracted loss 11 or impairment of consciousness or of the function of any bodily 12 member or organ.

13 The Government does not oppose the motion. Instead, the Government requests the 14 Court for leave to amend the Superseding Indictment to change Charge Two to a misdemeanor, 15 which will be discussed below. The Court will grant dismissal of Charge Two because the 16 Court agrees with Defendant that the facts brought before the Grand Jury do not support a 17

18 charge of felony child abuse. The Court also grants Defendant's Motion because the

19 Government does not oppose Defendant's Motion to Dismiss Charge Two. The Government 20 agrees that the charge should have been filed as a misdemeanor.

21 The Court will not address Defendant's second Motion to Dismiss Charge Two as it is similar to 22

23 the first motion which was also granted.

II. Request to Amend the Superseding Indictment 25 The Government asks that the Court allow for amendment to the Superseding Indictment 26 in order to correct Charge Two. Defendant opposes the informal request and argues that the 27 28 v. Muna.

Decision and Order Criminal Case No. CFOl17~11 200 ~

Government must bring a new indictment before a Grand Jury to add a new charge. The

2 Government contends that as long as the proper facts were brought before the Grand Jury, there 3 is no obligation under the law to bring a fresh indictment. The Defendant argues in rebuttal that 4 the Government filed the informal Motion to Amend long after the motion cut-off date provided 5

6 in the Scheduling Order filed by the Court and should not be allowed to amend the indictment.

7 The Court concludes that the Government's informal request to amend the Superseding 8 Indictment is a motion. The Court denies the Government's Motion to Amend as it is untimely.

9 The Court will not address the Government's options to bring a superseding indictment as that 10 issue is not now before the Court.

11

12 CONCLUSION

13 For the foregoing reasons, the Court GRANTS Defendant's Motion to Dismiss and 14 DENIES the Government's Motion to Amend the Superseding Indictment.

15 So ORDERED this of September, 2012.

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18 HONORABLE VERNON P. PEREZ 19 JUDGE, SUPERIOR COURT OF GUAM 20 21

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28 People v. Muna, Decision and Order Criminal Case No. CFOl17-11 Page 301'3 -