24 (quoting People v. Camacho, 2015 Guam 37 qt 31). 25 N 26
27 People v.Nczutcz, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 4 of 16 The primary question presented to this Court is whether the Defendants are entitled to 1
2 a dismissal of the Indictment based upon the following immunity provisions of Guam's Castle
3 Doctrine statute, 9 GCA § 7. 113 (emphasis added): 4 §7. 113. Immunity from Criminal Prosecution and Civil Action. 5 (a) As used in this Section, the term criminal prosecution includes arresting, 6 detaining in custody, and charging or prosecuting the defendant. 7 (b) A person who uses force as permitted in § 7.112 is justified in using such 8 force and is immune from criminal prosecution and civil action for the use of such force, except when: 9
10 (1) the person against whom force was used is a law enforcement officer, as defined by public law, who was acting in the performance of his or her duties, 11 and the officer identified himself or herself in accordance with applicable law, or 12
13 (2) the person using force knew or reasonably should have known that the person was a law enforcement officer, or 14 (3) the use of force is found to be unlawful or was found to have been 15 exercised with any illegal activity. 16 (c) A law enforcement agency shall use standard procedures for investigating 17 the use of force as described in Subsection (b), but the agency may not arrest the person for using force unless L* determines that there Q probable cause that the 18 .force Lhat was used was unlqzwful. 19 (d) The court shall award reasonable attorney's fees, court costs, compensation 20 for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune 21 from prosecution as provided in Subsection (b) . 22
23 When a defendant challenges an indictment by invoking the immunity provisions of
24 Section 7.113 of the Guam Castle Doctrine Act in a pre-trial motion, the Guam statute 25 unfortunately does not specify the procedure by which the court may implement such 26
27 People v.Nauta, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 5 of 16 immunity, but only requires that the law enforcement agency investigating such use of force 1
2 may not arrest such person "unless it determines that there is probable cause that the force that
3 was used was unlawful." 9 GCA § 7.113(c) (emphasis added). This Court's primary concern in 4 proceeding upon the Defendants' joint motion to dismiss based upon the immunity provisions 5 of Guam's Castle Doctrine Act is that such a determination could conceivably require it to 6
conduct a mini-trial on one or more of the essential elements of the crime (e.g., no privilege to 7
8 act in self-defense), thus removing these elements from the consideration and deliberation of
9 the jury. There is nothing in Guam's Castle Doctrine Act or in its codified legislative intent 10 which would eliminate this constitutional right to a jury determination on these material issues.1 11 Moreover, the Guam Supreme Court has not been called upon to decide these issues. As such, 12
13 this Court proceeds cautiously, looks to the law of other jurisdictions deciding upon similar
14 statutes, and finds invaluable guidance in the cases decided in jurisdictions with identical
15 immunity provisions. 16 A. Kentuckv Supreme Court cases are instructive. 17
18 The Guam Supreme Court has not ruled on the issue of the pre-trial implementation of
19 the immunity provisions of the Guam Castle Doctrine Act, therefore, the Court looks to the 20 treatment of similar immunity provisions in other jurisdictions. The Court finds case law from 21
23 1 9 GCA § 7.111. Legislative Findings and Intent. I Liheslaturan Goa°han finds that it is proper for law-abiding 24 people to protect themselves, their families, and others from intruders and attackers without fear of prosecution or civil action from acting in defense of themselves and others. I Liheslatura further finds that the "Castle Doctrine" 25 is a common-law doctrine of ancient origins that declares that a person's home is his or her castle. I Liheslatura further finds that persons residing in or visiting Guam have a right to remain safe. Therefore, it is the intent of I 26 Liheslatura that no person or victim of crime should be required to surrender his or her personal safety to a criminal, nor should a person or victim be required to needlessly retreat in the face of intrusion or attack. 27 People v.Nauta, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 6 of 16 Kentucky particularly instructive on the procedural and substantive applications of the 1.
2 immunity protections from prosecution under the Castle Doctrine Act.2
3 Kentucky's immunity statute provides as follows: 4 503.085 Justification and criminal and civil immunity for use of permitted force, 5 exceptions.
6 (1) A person who uses force as permitted in KRS 503.050, 503.055, 503.070, and 503.080 is justified in using such force and is immune from criminal 7 prosecution and civil action for the use of such force, unless the person against 8 whom the force was used is a peace officer, as defined in KRS 446.010, who was acting in the performance of his or her official duties and the officer 9 identified himself or herself in accordance with any applicable law, or the 10 person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term "criminal prosecution" 11 includes arresting, detaining in custody, and charging or prosecuting the defendant. 12
13 (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may 14 not arrest the person for using force unless Q determines that there is probable cause that the force that was used was unlawful. 15
16 (3) The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any 17 civil action brought by a plaintiff, if the court finds that the defendant is immune from prosecution as provided in subsection (1) of this section. 18
19 Ky. Rev. Stat. Ann. § 503.085 (West 2021)(emphasis added).3
22 z Although the Guam Supreme Court found, in 2016, that Guam's Castle Doctrine Act "closely resembled the language from the Florida version," Peopl e of Guam v. Xo Is John, 2016 Guam 41 at qt 61 (Dec. 30, 2016), the 23 Court has reviewed Florida's immunity provisions, which differ significantly from Guam's following several later amendments to both Guam and Florida law. Additionally, this Court notes that, until the statute was amended, the 24 burden of proof in "Stand Your Ground" cases in Florida when immunity provisions are invoked required a defendant to establish that he was entitled to invoke the immunity defense as a bar to prosecution. Florida's 25 immunity provisions, FL St § 776.032, as amended, while now applying a "probable cause" standard to the "law enforcement agencies," contains provisions markedly different from Guam's. The Guam Supreme Court also 26 noted differences in Florida's "Stand Your Ground" laws particularly with respect to what constitutes a " dw e l l i n g " 27 People v.Nauta, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 7 of 16 In Rogers v. Commonwealth of Kentucky, 285 S.W.3d 740 (Ky. 2009), the Kentucky 1
2 Supreme Court acknowledged that the state legislation providing immunity from criminal
3 prosecution under a self-defense statute was silent as to the process by which a court would 4 make a determination that probable case did not support a claim of justified force. The 5 Kentucky Supreme Court ruled that the applicable law did not provide a statutory right to an 6
evidentiary hearing for a defendant seeking immunity under the statutory scheme, but only 7
8 required that in response to a motion to dismiss or for immunity, the prosecution is required to
9 satisfy its burden of establishing probable cause that the defendant's use of force was not 10 . .. . . , . . . . . justified "by dlrectlng the court s attentlon to the evldence of record 1nc1ud1ng witness 11
statements, investigative letters prepared by law enforcement officers, photographs and other 12
13 documents of record." Rodgers v. Com., 285 S.W.3d 740, 755 (Ky. 2009).
14 The Kentucky Supreme Court also noted the trial court's tentativeness in implementing
15 the state's immunity provision due to the lack of statutory guidance in KRS 503.085(2) (which 16 is identical to Guam's Section 7. 113(c)), but issued the following interpretation of the law and 17 directed the Kentucky trial courts as follows: 18
19 The trial judge's uncertainty regarding how to implement the immunity provision is understandable because the statute offers little guidance. Indeed, the 20 only express indication of legislative intent is in KRS 503.085(2) which provides that immunity must be granted pre-arrest by the law enforcement 21 agency investigating the crime unless there is "probable cause that the force 22 used was unlawful." Because the statute defines the "criminal prosecution" from which a defendant justifiably acting in self-defense is immune to be "arresting, 23 detaining in custody and charging or prosecuting," we can infer that the immunity determination is not confined to law enforcement personnel. Instead 24
25 3 It is imperative to note that one significant provision noticeably absent from the exceptions to immunity in the 26 Kentucky law is that "the use of force is found to be unlawful or was found to have been exercised with any illegal activity," which is contained in 9 GCA § 7. l l3(b)(3). 27 Peopl e v.Nauta, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 8 of 16 t_l!_ statute contemplates that prosecutor QE courts Inv 1 called upon to determine whether a particular defendant § entitled L KRS 2 503.085 immunity. Regardless Q' who § addressing Q13immuni ty claim, infer from the statute that controlling standard Q proof remains 3 "probable cause." Thus, Q order Q ! prosecutor Q bring charges Q seek Q indictment, there must probable cause L conclude that force 4 used by defendant s fully justified under the controlling provision 5 or provisions of KRS Chapter 503. Similarly, once Q matter is before a judge, Q' defendant claims immunity the court must dismiss case 6 unless there § probable cause Q. conclude that force used not 7 legally justified.
8 Rodgers v. Com., 285 S.W.3d at 754 (emphasis added). The defendant in Rodgers then argued 9 10 that he is entitled, as a matter of statutory right, to an evidentiary hearing "at which the
11 defendant may counter probable cause with proof 'by a preponderance of the evidence' that
12 the force was justified."' Id. Rejecting the defendant's demand for an evidentiary hearing 13 whereby a defendant may counter probable cause with such proof by a preponderance of the 14 evidence, the Rodgers court noted differences between the Colorado law on which the 15
16 defendant's evidentiary hearing argument was based, the probable cause standard expressly
17 provided for in its statute and upon the statute's strong preference for jury determinations in 18 criminal matters. 19 Finding additional significant reasons for ruling that an evidentiary hearing was not 20 required in immunity cases, the Kentucky Court then directed the process by which trial courts 21
22 were to make its determinations of immunity under the statute, and reasoned as follows:
23 The sole remaining issue is how the trial courts should proceed in determining probable cause. The burden is on the Commonwealth to establish probable cause 24 and it may do so by directing the court's attention to the evidence of record 25 including witness statements, investigative letters prepared by law enforcement officers, photographs and other documents of record. Although Rodgers 26 advocates an evidentiary hearing at which the defendant may counter probable 27 People v.Nauta, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 9 of 16 cause with proof "by a preponderance of the evidence" that the force was 1 justified, this concept finds no support in the statute. I legislature QQ _:go 2 delineate Q evidentiary hearing Q only standard Q' proof against which 21_ defendant's conduct must _l measured Ls aforementioned 3 probable cause. XV; decline Q create a hearing right that Q statute dogs y r recognize gt note that there A g several compelling reasons by 4 conclusion. 5 First, the pretrial evidentiary hearings that are currently conducted, such as 6 suppression hearings, do not involve proof that is the essence of the crime charged but focus instead on issues such as protection of the defendant's right to 7 be free from unreasonable searches and seizures, right to be represented by 8 counsel and right to Miranda warnings prior to giving a statement. Similarly, a competency hearing addresses the state of the defendant's mental health and his 9 ability to participate meaningfully in the trial. Neither Q these hearings 10 requires proof Q' gig facts surrounding Q13 alleged crime. £2 evidentiary hearing _Ag immunity. by contrast, would involve same witnesses Q 11 same proof L Hg adduced Q QQ eventual trial, in essence a mini-trial thus 2_process fraught with potential abuse. Moreover, it would result in 12 one of the elements of the alleged crime (no privilege to act in self-protection) 13 being determined in a bench trial. In RCr 9.26 this Court has evinced its strong preference for jury trials on all elements of a criminal case by providing 14 specifically that even if a defendant waives a jury trial in writing, the court and the Commonwealth must consent to a bench trial. Thus, where probable cause 15 exists in criminal matters the longstanding practice and policy has been to 16 submit those matters to a jury and we find no rational basis for abandoning that stance. 17 Rodgers v. Com., 285 S.W.3d 740, 755 (emphasis added). 18
19 The Kentucky Supreme Court's rationale for refusing to require trial courts to conduct
20 an evidentiary hearing in order to determine whether to dismiss an indictment based upon an 21 immunity statute addresses this Court's concerns about potentially adjudicating an issue that 22 should be properly before a jury -- assuming the People have satisfied its burden of proof 23
under 7.113(b). Unlike unlawful search and seizure motions seeking to suppress evidence or 24
25 competency proceedings which do not require the court to make a finding of proof about an
26 essential element of the offense, by their joint motion to dismiss, the Defendants in the instant 27 People v.Nauta, Ignacio, Criminal Case No. CF0096-2 I 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 10 of 16 case seek an affirmative ruling by this Court that their actions were justified, or not justified. 1
2 The Court finds that this is not dictated by the Guam statute and, indeed, flies in the face of a
3 preference for jury trials in criminal matters. 4 Like the immunity provisions in Rogers, the Castle Doctrine Act merely requires the 5 prosecution to satisfy its burden of proof of probable cause that the actions of the defendants 6 7 were not justified. If the Court finds that the People have satisfied its burden, the inquiry ends
8 there, and a defendant is not entitled to counter probable cause by a showing by a
9 preponderance of the evidence that the act was justified. However, if the People fail to satisfy 10 . . . its burde n of probable cause , the n the Court must grant 1n11nun1ty. 11 B. The Court Considers the Matters On the Record Before It in Determining 12 Whether the Prosecution Satisfied its Burden of Proof of Probable Cause. 13 In considering Defendants' motion to dismiss and whether the People have satisfied its 14 burde n of proof of probable cause , the Court must first de fine "probable cause ." Probable 15
16 cause is "a fluid concept-turning on the assessment of probabilities in particular factual
17 contexts-not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates,
18 462 U.S. 213, 232 (1983). Probable cause in the context of the burden of proof attributed to 19 the Pe ople in an immunity de te rmination can be de fine d as "re asonable grounds for be lie f, 20 supported by less than prima facie proof but more than mere suspicion The court must 21
22 consider the totality of the circumstances to determine whether probable cause exists to
23 conclude that a defendant's use of force was unlawful." Taylor v. Commonwealth, 567 S.W.3d 24 n 610, 612 (Ky. Ct. App. 2018)(quot1ng Commonwealth v. Jones, 217 S.W.3d 190, 200 (Ky. 25
27 People v.Nauta, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 11 of 16 2006) (Scott, J., dissenting)(quoting United States v. Bennett, 905 F.2d 931, 934 (6th Cir. 1
2 1990)). 3 The evidence on the record consists of video-surveillance footage of the incident 4 submitted by both the People and by Defendant Nauta. No witnesses were called to testify, 5 although counsels were permitted to argue.4 The videos provided two different vantage points: 6
one submitted by the People as Exhibit 1, which provided a direct view of the incident, and the 7
8 other, submitted by Defendant Nauta as Exhibit A, provided a view from a few feet further up
9 the street and showed the victim shortly before the incident as well as the Defendants' leaving 10 the scene. 11 The Court finds that the videos jointly show the Defendants on Tomas Rivera Street in 12
13 Agat, Guam, and that Defendant Ignacio was driving the vehicle while Defendant Nauta was
14 in the passenger seat. Defendants were parked on this street for approximately eight (8)
15 minutes before the victim appears on the street and stops to speak to an occupant of a sedan 16 which is a few feet away from but which is facing the Defendants' vehicle. Defendant's 17 Exhibit A. At the time, the victim did not appear to have any object other than a cell phone in 18
19 his hand. A few minutes later, the victim is seen moving in the direction of the Defendants'
20 vehicle. People's Exhibit 1 shows that the victim approaches the Defendants' vehicle and hits 21 it with his hand while holding a stick in his other hand. No knife is visible in Quidachay's 22 hand. Defendant Ignacio reverses the vehicle while simultaneously waving his arms out of the 23
25 4 Although the Court heard oral arguments on the Defendants' joint motion to dismiss and did not deny any request, should there have been one, to present testimony at the hearing, the Court agrees with the Kentucky 26 Court's interpretation of the law: that the Castle Doctrine Act provisions to not provide a statutory right of evidentiary hearing to a defendant seeking immunity from prosecution under that Act. 27 People v.Nauta, Ignazio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 12 of 16 window, striking the victim. When the vehicle comes to a stop, Defendant Natta exits the 1
2 vehicle, runs behind it and appears to be holding a shotgun in the direction of the victim, The
3 victim is seen stumbling and is out of view of the camera. Defendant Nauta re-enters the 4 vehicle and the Defendants drive away. There is no vehicle blocking their path of egress from 5 the street. There is no audio on either video. 6
"Probable cause" also requires that the court consider the "totality of the 7
8 circumstances" in determining whether defendant's use of force in this instance was unlawful.
9 Rogers, 285 S.W.3d at 754-55. In reviewing the totality of the circumstances as evidenced in 10 the video and as set forth in Defendants' moving papers, the Court considers whether a 11
'reasonably prudent person' would have used same force against victim as the Defendant did 12
13 in this case. Under the circumstances, the Defendants placed themselves on Tomas Rivera
14 Street in Agat, Guam, and waited for Quidachay to appear. This circumstances alone does not
15 undermine their defense, however, the actions of the Defendants belie their claim that they 16 were there to resolve and mediate the differences between Ignacio and Quidachay and not for 17 an unlawful purpose. One of the most important factors that the Court considers is that the 18
19 Defendants had in their possession what appears in the video to have been a shotgun, which
20 Nauta then used on Quidachay after Nauta alighted from the vehicle. The Court finds that a 21 reasonably prudent person would not have brought a shotgun (or "some sort of weapon to 22 'shoot,' 97 as defendant disingenuously describes the object used against Quidachay) to a 23
mediation. Moreover, the video alone does not appear to establish that Quidachay's actions in 24
25 hitting the vehicle with his fist and a stick also support a finding by this Court that he
26 attempted to enter the vehicle. 27 People v.Nauta, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 13 of 16 For these reasons, the Court finds that the People have satisfied its burden of proof of 1
2 probable cause in establishing that the Defendants' acts were not justified for the purpose of
3 immunity under the Castle Doctrine Act. 4 C. The Grand Jury Found Sufficient Probable Case to Charge the 5 Defendants.
6 Although the Court need not consider any other factors in making its determination on 7 . . the Defendants' motlon, the Court notes that Sectlon 7.113(c) places the burden on a law 8 enforcement agency, which includes the Prosecution, to establish probable cause that the force 9 10 that Defendants employed was unlawful. While the Court does not give deference to the
11 People in making its determination in this instance, the Court notes that the Grand Jury found
12 "reasonable cause" to charge the Defendants with the offenses which they now seek to dismiss
13 and that neither Defendant has challenged the sufficiency of the indictment on this basis. 14
It is the role of the grand jury "to inquire into felonies and any related misdemeanors 15 16 triable by the court." 8 GCA § 50. 10. A defendant has the right to prosecution by indictment. 8
17 GCA § 45.30. An indictment is "[a]n accusation in writing, presented by the grand jury to a
18 competent court, charging a person with a felony or a felony and a related misdemeanor." 8 19 GCA § 50.54(a). The grand jury shall find an indictment "when from the evidence presented, 20 there is reasonable cause to believe that an indictable offense has been committed and that the 21
22 defendant committed it." 8 GCA § 50.54(b).
23 The grand jury's role in the criminal justice system has been succinctly stated by the 24 Guam Supreme Court in People of Guam v. San Nicolai, 2013 Guam 21 (Nov. 5, 2013), as 25 follows : 26
27 People v.Nauta, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 14 of 16 1
2 A grand jury's chief duty is to determine whether the prosecution has established a prima facie case that a crime has been committed and that the accused 3 committed it. See 38 Am. Jur. ad Grand Jury § 2 (2013). Further, "a grand jury serves a gatekeeping function by considering the sufficiency of the evidence to 4 support an indictment." Id. § 3. Title 8 GCA § 50.54, entitled "Form of 5 Indictment: Standards for Indicting," provides:
6 (a) An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a felony or a felony and a related 7 misdemeanor. 8 (b) The grand jury shall find an indictment when from the evidence presented 9 there is reaso nab le cau se to b elieve that an ind ictab le o ffense has b een 10 committed and that the defendant committed it.
11 8 GCA § 50.54(a)-(b) (as amended by Guam Pub. L. 29-042:1 (Jan. 2, 2008)), Guam v. San
12 Nicolai, 2013 Guam 21, 'I[ 11 (Guam Nov. 5, 2013)(footnote omitted). 13 Importantly, the Guam Supreme Court has declared that the grand jury indictment 14 serves two purposes: "it affirms that the grand jury found probable cause for the charges in 15
16 the indictment, and it gives the defendant notice of the charges." Id. at '][ 12 (emphasis added).
17 As relevant here, neither of the Defendants raised any issues with respect to the finding of the 18 grand jury of probable cause for the charges in the Indictment issued against them. Arguably, 19 the grand jury determined from the evidence presented to it during the proceedings before it 20 that there exists probable cause to bring the Defendants to trial on the charges set forth in the 21
22 indictment.
23 Despite the grand jury determination of probable cause, the Court here has conducted 24 . . . . . . . . its own inquiry Into whether the People satlsfled its burden to show that Defendants' actlons 25 were not lawful. Based upon the Court's independent determination of probable cause from 26
27 People v.Nauta, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 15 of 16 the evidence presented to it on the record on Defendants' motion to dismiss, the Court finds 1
2 that the People have satisfied its burden.
3 Iv. CONCLUSION 4 For the reasons set forth herein, the Court finds that the People have satisfied its 5 burden of proof of probable cause that the Defendants' actions were unlawful. Consequently, 6
Defendants' joint motion to dismiss the Indictment is DENIED. 7 gap 2 'J 2021 8 SO ORDERED this day of a 2021.
10 z 11 LE MARIA T. CENZON 12 Judge, Superior Court of Guam 13
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27 People v.Nczuta, Ignacio, Criminal Case No. CF0096-21 28 Decision and Order Re. Defendants' Joint Motion to Dismiss Indictment Castle Doctrine Act Immunity Page 16 of 16