People v. Nemecheck
This text of People v. Nemecheck (People v. Nemecheck) is published on Counsel Stack Legal Research, covering Superior Court of Guam primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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4 IN THE SUPERIOR COURT OF GUAl\JY=~ - - t f - 5 PEOPLE OF GUAM, Criminal Case No. CM0212-23 6 GPD Report No. 23-14159 v. 7 DECISION AND ORDER 8 KATHERINE LEILANI ATAD NEMECHECK, DENYING DEFENDANT'S DOB: 08/21/1992 MOTION TO DISMISS 9 DUE TO CIVIL COMPROMISE Defendant. 10
11 INTRODUCTION
12 This matter came before the Honorable Alberto C. Lamorena, III on October 25, 2023 for
13 hearing on Katherine Leilani Atad Nemecheck's ("Defendant's") Motion to Dismiss Due to Civil
14 Compromise ("Motion"). Assistant Attorney General Matthew Shuck represents the People, and
15 Assistant Public Defender Jocelyn Roden represents Defendant. Having duly considered the parties'
16 briefs, oral arguments, and the applicable law, the Court now issues the following Decision and Order
17 and DENIES Defendant's Motion.
18 BACKGROUND
19 Defendant is charged with Family Violence (as a Misdemeanor) after allegedly punching her
20 sister, Melanie Jane Cabrera ("Victim"), and striking Victim with several household items. See
21 Magistrate's Complaint (Jun. 7, 2023).
22 On September 6, 2023, Victim filed a Declaration stating that she received satisfaction for her
23 injuries sustained, that she does not object to dismissal of the case, that she has no restitution claims
24 against Defendant, and that she would like to waive prosecution of the Family Violence charge
25 against Defendant. See Declaration of Victim (Sep. 6, 2023).
26 The Defendant simultaneously filed her Motion to Dismiss Due to Civil Compromise.
27 Defendant requests dismissal of the charge against her, claiming full compliance with the
. 28 misdemeanor compromise provisions set forth in 8 G.C.A. § 80.90. See Motion at 2-3 (Sep. 6, 2023).
Decision and Order Denying Defendant's Motion to Dismiss Due to Civil Compromise CM0212-23, People of Guam v. Katherine Nemecheck Page 1 of4 1 On September 18, 2023, the People filed their Opposition to Defendant's Motion
2 ("Opposition"). The People oppose dismissal on grounds that (i) Victim suffered no civil injury
3 coextensive to Defendant's criminal conduct, (ii) private settlement would not fully vindicate the
4 injury to the public, and (iii) dismissal would go against the purpose of Guam's Family Violence
5 Treatment Court. See Opposition at 3-5 (Sep. 18, 2023).
6 The Court held a hearing on October 25, 2023. After hearing the arguments of the parties, the
7 Court took the matter under advisement.
8 DISCUSSION
9 Title 8 G.C.A. § 80.90 provides that:
10 (a) When the defendant has been charged with the commission of an offense which is not a felony for which the person injured by the act constituting the offense has a 11 remedy by a civil action, the offense may be compromised as provided by this Section. 12 (b) If the person injured appears before, or files his declaration in, the court in which 13 the criminal action is pending at any time before trial and acknowledges that he has received satisfaction for the injury, the court may, on payment of the costs incurred, 14 order the criminal action dismissed. (c) A dismissal under this Section is a bar to another prosecution for the same offense. 15 16 See 8 G.C.A. § 80.90 (emphasis added). Section 80.90 is based on California Penal Code sections
17 1377 and 1378. Id. Section 80.90 also makes clear that dismissal on grounds of compromise is done 18 at the Court's discretion. Id.
19 Several factors are considered when the Court exercises its discretion, including: (1) whether 20 he civil injury was coextensive with the criminal violation; (2) whether the circumstances were such 21
22 hat through private settlement the injury to the public was fully vindicated; and (3) whether the 23 ictim's settlement agreement was made voluntarily. See People v. Moulton, 182 Cal. Rptr. 761, 767-
24 768 (Cal. Ct. App. 1982). 25 Regarding factor one, an injury is coextensive with the criminal violation if "there is an 26 overlapping of the civil remedy and the public remedy by way of prosecution for a crime." See People 27 . 0 'Rear, 34 Cal. Rptr. 61, 63 (Cal. Ct. App. 1963). This required overlap prevents people suffering 28
Decision and Order Denying Defendant's Motion to Dismiss Due to Civil Compromise CM0212-23, People of Guam v. Katherine Nemecheck Page 2 of4 1 only "incidental damage" from obtaining dismissal orders covering the criminal case as a whole. Id.
2 at 63.
3 Here, Victim's injury is not coextensive with the criminal violation. Family Violence is
4 defined as "attempting to cause or causing bodily injury to another family or household member." See
5 9 G.C.A. § 30.I0(a)(l). Whether the victim actually suffers bodily injury is not required in Family 6 iolence prosecutions, so long as the attempt to cause bodily injury exists. Id. Family Violence may 7 e committed with or without injury to the person or property of another. The Legislature's intent in 8 9 enacting 8 G.C.A. § 80.90 was not to dismiss cases via compromise "upon the happenstance that in
10 any particular case a private citizen might or might not suffer personal injury or property damage." 11 See People v. 0 'Rear at 64. This factor points against dismissal.
12 Regarding factor two, courts consider whether "the private wrong ... overshadow[s] the 13 offense against the public." See Commonwealth v. Heckman, 113 Pa. Super. 70, 74 (Pa. Super. Ct. 14 1934). A victim's harm does not automatically overshadow the public's harm just because the victim 15 16 directly suffered from the defendant's actions. Id. at 74 (finding that embezzlement's harmful public
17 effects are not overshadowed by harm to the specific embezzlement victim themselves). 18 Here, private settlement does not fully vindicate the injury to the public. Family Violence has 19 a profound effect not just on the victims themselves, but also on their friends, loved ones, and family 20 elationships. The painful effects of family violence run far beyond specific victims, and the 21
22 ·mportance of safe family relationships is of such public interest that everyone is affected when the
23 crime of Family Violence occurs. Furthermore, permitting civil compromise in Family Violence cases
24 creates significant risk that victims will be improperly coerced into settlements. Recognizing that
25 amily Violence victims are uniquely susceptible to such coercion, the California Penal Code, which 26 8 G.C.A. § 80.90 is based on, doesn't even allow civil compromise dismissals in family violence 27 cases. See CA Penal§ 1377(e). Taken together, this factor points against dismissal. 28
Decision and Order Denying Defendant's Motion to Dismiss Due to Civil Compromise CM0212-23, People of Guam v. Katherine Nemecheck Page 3 of 4 1 Regarding factor three, it is undisputed that the victim acted voluntarily in entering this
2 settlement agreement. See Declaration of Victim (Sep. 6, 2023). 3 Having analyzed all three Moulton factors, the Court, in its discretion, will not dismiss the 4 above-captioned case on grounds of civil compromise. Two factors point against dismissal while only 5 one points in favor. Several highly important considerations such as a lack of overlap between civil 6
7 and public remedy and the harmful effects to the public justify the Court not dismissing this case.
8 CONCLUSION
9 For the reasons stated above, the Court DENIES Defendant's Motion.
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