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1 UF QUAM
2 zozlnov 16 PH [42 16 3 CLERK OF COURT
4 By! - 5 IN THE SUPERIOR COURT OF GUAM 6
7 PEOPLE OF GUAM, Criminal Case No. CF0602-20 GPD Report Nos. 20-29988 / 20-30068 8 v.
DECISION AND ORDER
9 BERNARD JOEL MENO MUNA GRANTING THE PEOPLE'S AMENDED 10 (aka Bernard Joel Muna), MOTION TO REVOKE PROBATION DOB: 08/16/1985 11 Defendant.
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13 INTRODUCTION 14 This matter came before the Honorable Maria T. Cenzon on September 1, 2021 for hearing
15 on the People of Guam's ("the People's") Amended Motion to Revoke Probation ("Amended 16 Motion"). Assistant Attorney General Renaida San Nicolas represents the People, and Assistant 17 Public Defender Zachary Taimanglo represents Bernard Joel Memo Muna (aka Bernard Joel Muna) 18 ("Defendant"). Having duly considered the parties' briefs, oral arguments, and the applicable law, 19 the Court now issues the following Decision and Order and GRANTS the People's Amended 20 Motion. 21 BACKGROUND 22 On June 7, 2021, a Judgment of Conviction was entered against Defendant based on his 23 guilty plea to the offenses of Charge One: Criminal Mischief (as a 3rd Degree Felony) (Two Counts) 24 and Family Violence (as a Misdemeanor), as a lesser-included o]j"ense to Charge_Two: Family 25 Violence (as a 3rd Degree Felony). Judgment of Conviction (Jun. 9, 2021). Defendant was 26 sentenced to five (5) years incarceration, all but six (6) months suspended. Li. Defendant was also 27 sentenced to three (3) years of supervised probation, during which the first six (6) months he would 28 be subject to electronic monitoring ("EM"). Q.
Decision and Order Granting The People's Amended Motion To Revoke Probation CF0602-20, People of Guam v. Bernard Mina 1 It is important to note that the Court agreed to accept the Plea Agreement entered into 2 between the parties which significantly reduced the charges in the Indictment from 2 counts of 3 Criminal Mischief (As a 3rd Degree Felony) with a Special Allegation: Possession or Use of a 4 Deadly Weapon in the Commission of a Felony and Family Violence (As a 3rd Degree Felony) with 5 with a Special Allegations Possession or Use of a Deadly Weapon in the Commission of a Felony 6 down to Criminal Mischief (as a 3rd Degree Felony) (Two Counts) and Family Violence (as a 7 Misdemeanor), as a lesser-included ojense to Charge Two: Family Violence (as a 3rd Degree 8 Felony). The Plea Agreement also dismissed the allegations of the enhancement provisions of 9 Possession or Use of a Deadly Weapon in the CommiSsion of a Felony. Concerned with the reduced 10 charges, and in order to ensure that the victims were notified of the provisions of the plea and given ll an opportunity to address the Court, the Court held several hearings before accepting the Plea. See 12 Change of Plea Hogs. on June 2, 2021, June 3, 2021 and June 7, 2021. 13 During the hearing on June 3, the Court indicated to the parties that it would accept the 14 Defendant's pleas to 2 counts of Criminal Mischief (as a 3rd Degree Felony) and 2 counts of Family 15 Violence (As a Misdemeanor) if the Defendant would agree to being placed on EM for the first six 16 (6) months of his three (3) year probationary period. The Court then continued the hearing to June 7 17 in order that Defendant could speak with Defense Counsel about the Court's conditions. At the June 18 7 hearing, the Court addressed Defense Counsel and asked whether he had an opportunity to speak 19 with Defendant and whether Defendant wished to proceed with the Plea Agreement with the 20 additional 6-months of EM monitoring. Defendant indicated he wished to proceed with the 21 conditions. Change of Plea Hrg. at 9: 19:00 AM to 9: 19:07 AM, 9:23:59 AM to 9:25:00 AM. 22 The Court further cautioned Defendant that should there be any violations of the EM 23 program, Defendant would be immediately remanded to the Department of Corrections until his 24 hearing on the violation. Defendant expressed his desire to proceed with the plea agreement as 25 modified. Id. at 9:23:51 AM to 9:25:00. 26 On June ll, 2021, a Violation Report was filed by the Probation Services Division stating 27 that Defendant failed to comply with the terms of his EM program. 1st Violation Report (Jun. ll, 28 2021). Defendant failed to charge his EM anldet, resulting in a dead battery. L. This is out of
Decision and Order Granting The People's Amended Motion To Revoke Probation CF0602-20, People of Guam v. Bernard Mina 1 compliance with the condition of Defendant's EM program. L. This is also not the first time that 2 Defendant violated EM conditions, as he improperly left his residence and again failed to charge his 3 EM anldet on May 25, 2021. Probation Supplemental Violation Summary and Request for Warrant 4 (May 26, 2021). 5 On June 29, 2021, the People filed their Motion to Revoke Probation ("Motion"). The People 6 argued that Defendant's probation should be revoked because Defendant violated a "substantial 7 requirement imposed" on his probation. Motion at 3 (Jun. 29, 2021). The People also argued that 8 Defendant demonstrated an inability to comply with future court orders because this violation came 9 within one week of him entering his plea. L. at 4. 10 On June 30, 2021, the Court held a Revocation Hearing. However, the Revocation Hearing 11 was continued to a future date after it became known that Probation made additional filings earlier 12 that day. Minute Entry (Jun. 30, 2021). An Amended First Violation Report alleges: (1) that 13 Defendant failed to comply with the conditions of the EM program by failing to charge his EM 14 anldet and that "this is not the first incident for the Defendant failing to charge his EM anklet," and 15 (2) that that Defendant failed to obey the reasonable instructions of Probation Officers by 16 physically resisting when they attempted to take him into custody for violating his EM conditions. 17 Amended 1 S[ Violation Report (Jun. 30, 2021). A Second Violation Report was also filed, 18 indicating that Defendant failed to refrain from possessing illegal controlled substances and failed 19 to allow Probation Officers to search his person for weapons and illegal controlled substances. 20 Second Violation Report (Jun. 30, 2021). 21 On July 9, 2021, the People filed their Amended Motion to Revoke Probation. The People 22 reiterated their request to revoke Defendant's probation, classifying both of Defendant's failure to 23 comply with the EM program and failure to permit the Probation Officers to search his person as 24 substantial violations of his probation. Amended Motion at 4-5 (Jul. 9, 2021). 25 On July 23, 2021, Defendant filed his Opposition to People's Amended Motion 26 ("Opposition"). Defendant argued that even if the Violation Reports were taken as true, revocation 27 of his probation is not appropriate since it would not satisfy the ends of justice or be in the best 28 interests of the public. Opposition at 3 (Jul. 23, 2021).
Decision and Order Granting The People's Amended Motion To Revoke Probation CF0602-20, People of Guam v. Bernard Mina 1 The Court held the Revocation Hearing on September 1, 2021. During the hearing, the 2 Defendant admitted to the Amended First Violation of June 30, 2021, for failing to comply with the 3 EM program mandates as well as for failing to obey the reasonable instructions of Probation 4 Officers when executing the Court's bench warrant by physically resisting his arrest pursuant to the 5 warrant. Revocation Hrg. (Sep. 1, 2021). Defendant also admitted to that portion of the Second 6 Violation filed on June 30, 2021, for failing to submit to demands to search his person by law 7 enforcement. Id. Defendant declined, under advice of counsel, to answer to the possession of illegal 8 controlled substances. Id. at 2:44:35 PM to 2:47:55 PM. The Court found that all of the conduct 9 alleged in the Amended IS Violation and the Second Violation, to which Defendant admitted, are 10 violations of his probation conditions pursuant to the Plea Agreement (June 9, 2021) and Judgment 11 of Conviction (June 9, 2021). After hearing the arguments of the parties, the Court took the matter 12 under advisement pursuant to Administrative Rule 06-001 and CVR 7.l(e)(6)(A) of the Local Rules 13 of the Superior Court.
14 D1scUss;Q1§' 15 Guam law specifies the procedures that the Court must follow for revocation of probation.
16 The relevant statute, in its entirety, states as follows:
17 [T]he court, if satisfied that the offender has inexcusably failed to comply with a substantial requirement imposed as a condition of the order may revoke the 18 suspension or probation and sentence or re-sentence the offender. Violation of a condition shall not result in revocation, however, unless the court determines that 19 revocation under all the circumstances then existing will best satisfy the ends of 20 justice and the best interests of the public.
21 9 G.C.A. § 80.66(a)(2) (1980). 22 The process for revoking an offender's probation has been further explained by the Guam 23 Supreme Court as follows:
24 Probation revocation is a two-step process. First, the trial court must make a factual 25 determination that a violation of probation actually has occurred. If a violation is 26 proven, then the Court must determine if the violation warrants revocation of the probation.
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Decision and Order Granting The People's Amended Motion To Revoke Probation CF0602-20, People of Guam v. Bernard Mina 1 People of Guam v. Camacho, 2009 Guam 6 <II 27 (internal citations omitted). To revoke a
2 defendant's probation, evidence and facts presented to the Court must be "reasonably necessary to 3 satisfy the judge that the probationer's conduct has not been as required by the conditions of 4 probation." Id. at *][30 (citing People v. Angoco, 1998 Guam 10).
5 The Court also cannot order revocation unless the offender is provided with written notice 6 7 of grounds for revocation of probation. 9 G.C.A. § 80.68(a) (1980). At the hearing, the offender
8 shall "have the right to hear and controvert the evidence against him, to offer evidence in his 9 defense and to be represented by counsel." Id. Should the Court revoke an offender's probation, 10 "it may impose on the offender any sentence that might have been imposed originally for the ; crime of which he was convicted." 9 G.C.A. § 80.66(b).
It remains undisputed that Defendant violated substantial conditions of his probation and 13 14 that there was probable cause to support these violations. Multiple Violation Reports detail
15 Defendant's failures to abide by his EM conditions, to obey the reasonable .instructions of 16 Probation Officers, and to allow Probation Officers to search his person for weapons and illegal 17 controlled substances. See Amended First Violation Report (Jun. 30, 2021), Second Violation E Report (Jun. 30, 2021). Defendant specifically agreed to each of these conditions as part of his 20 change of plea. See Judgment of Conviction (Jun. 9, 2021). 21 Having found that Defendant was in violation of his probation requirements, the next
22 question the Court must resolve is whether "revocation under all the circumstances . 0 will best 23 satisfy the ends of justice and the best interests of the public." 9 G.C.A. § 80.66(a)(2).
24 Based on a review of the record, it is clear that Defendant has exhausted the trust of the 25 26 Court by violating numerous conditions of his probation, both before and after adjudication.
27 Defendant was aware of these conditions, specifically agreeing to each of them in court while 28 changing his plea. Moreover, the Court expressed several times, both prior to taking his plea
Decision and Order Granting The People's Amended Motion To Revoke Probation CF0602-20, People of Guam v. Bernard Mina Page S of 7 1 a greedment over the course of three separate hearings, that it was of utmost importance that 2 Defendant comply with all requirements of the EM program. He is not a stranger to the program
and he had an opportunity to reject the Court's additional requirements and to proceed with trial.
4 The Court points out that Defendant claimed that there were "significant questions" as to whether 5 6 the PeoPLe could satisfy its burden of Proof as to the charges. See Change of Plea Hrg. June 3,
7 2021. Therefore, Defendant had the chance to reject the Court's modifications to the conditions of 8 the Plea Agreement and specifically to the 6 month post-plea EM supervision. However, the
9 Defendant knowingly and voluntarily agreed to enter his guilty pleas and be sentenced 10 accordingly.
11 Despite agreeing to the modification and acknowledging that any violation of the EM 12 13 program would result in his remand (and by the terms of his plea, to revocation), the Defendant
14 violated multiple conditions of probation within one (1) week of changing his plea. The fact that 15 these violations occurred within days of his change of plea is a strong indication that Defendant
16 did not intend to follow through on these conditions. Moreover, when probation officers 17 attempted to take Defendant into custody pursuant to the Court's bench warrant, Defendant 18 19 resisted and a struggle ensued. Were the Court to simply sanction the Defendant by imposing a
20 few months' time in detention, 8even that Defendant's historyY of noncompliance is a reliable 21 indicator of future performance, it appears highly unlikely that Defendant would comply with the
22 conditions of his probation and this Court's orders. Therefore the court finds that revocation is in 23 the public's best interest and satisfies the ends of justice. 9 GCA § 80.66(a)(2).
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Decision and Order Granting The People's Amended Motion To Revoke Probation CF0602-20, People of Guam v. Bernard Mina 1 CONCLUSION 2 For the reasons stated above, the Court hereby R E V O K E S the Defendant, Bernard Joel 3 Memo Muna's (aka Bernard Joel Muna's) probation in the above-captioned matter. A Sentencing 4 Hearing shall be held on ]0Y\M0\V\- \'l,'WZZ , 2022, at '¥'50U!'QL in orde r to impose
5 the sentence as set forth in the Plea Agreement and Judgment following this Revocation. 6 IT IS S0 ORDERED this teov 1 5 z021 A
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9 ORABLE MARIA T. CENZON Judge, Superior Court of Guam 10
11 SERVICEVIA E-MAIL
12 1 acknowledge that an electronic copy of the original was e-mailedto:
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Deputy Clerk, Superior Court or Guam 16
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Decision and Order Granting The People's Amended Motion To Revoke Probation CF0602-20, People of Guam v. Bernard Mina