People v. Ninete

Opinion

'FILED SUPER\0R COURT DF GUAM 1 ZHHJAN -9 PH 2: 39 2 CLERK OF cOuRt 3

4 IN THE SUPERIOR COURT OF diAM 5 PEOPLE OF GUAM, ) CRIMINAL CASE no. CF0346- 17 6 ) v. ) 7 ) 8 KENNETH LEON GUERRERONINETE, ) DECISION AND ORDER DENYING DOB: 04/17/1961, ) DEFENDANT'S MOTION TO REDUCE 9 ) SENTENCE DEFENDANT. ) 10 ) 11 _ Introduction. 12 13 This matter came before the Honorable Maria T. Cenzon on December 17, 2018 for a 14 hearing on Defendant Kenneth Leon Guerrero Ninety's Motion to Reduce Sentence. Defendant 15 was present and represented by Assistant Public Defender William Bischoff. The People of 16 Guam were represented by Assistant Attorney General James Collins. Having heard from the

17 parties and reviewed the record, the Court ruled from the bench DENYING Defendant's Motion 18 to Reduce Sentence. The Court now issues this Decision and Order memorializing its decision.

19 . Background 20 Defendant was charged with Two Counts of FIRST DEGREE CRIMINAL SEXUAL 21 CONDUCT (as. a First Degree Felony) and Three Counts of SECOND DEGREE CRIMINAL 22 SEXUAL CONDUCT (as a First Degree Felony). Indictment (Jun. 26, 2017). After a jury trial, 23 Defendant was found guilty of Count One of FIRST DEGREE CRIMINAL SEXUAL 24 CONDUCT (as a First Degree Felony) and Count One and Two of SECOND DEGREE 25 CRIMINAL SEXUAL CONDUCT (as a First Degree Felony). Judgment of Conviction and 26 Judgment of Acquittal (Aug. 15, 2018). Prior to sentencing, the Court afforded the parties an 27 opportunity to tile a sentencing memorandum. The People recommended the Court impose a 28 sentence of life incarceration, while the Defendant requested the minimum allowed under the

People v. Kenneth Leon Guerrero Ninette , CF0346-17 D&O Denying Defendants Motion to Reduce Sentence Page 1 of 4 1 statute, or fifteen (15) years. Ar the sentencing hearing, the Defendant apologized to the victim's

2 family and accepted responsibility for his actions. The court entered judgment accordingly and

3 sentenced the Defendant to twenty (20) years imprisonment.l The Court also permitted defendant

4 a limited furlough to be with family members.

5 On October 24, 2018, Defendant tiled the instant Motion to Reduce Sentence. The

6 People's opposition is ser forth in the People's Response to Reduce Sentence. (Oct. 31, 2018).

7 Law 8 Pursuant to Guam law, the court may reduce a sentence within one hundred twenty (120)

9 days after the sentence is imposed. 8 Guam Code Ann. § 120.46. The purpose of a motion ro

10 reduce sentence is "to decide if, on further reflection, the original sentence now seems unduly

11 harsh." U.S. it Maynard, 485 F.2d 247, 248 (9th Cir. l973).2 It is essentially a plea for leniency.

12 Id. When considering a Defendant's proffered request for leniency, the court reviews his Motion

13 for the presentation of redemptive facts not available at the time of sentencing or for compelling

14 arguments, sufficiently persuasive for the court to reconsider and reweigh the factors evaluated at

15 the Defendant's initial Sentencing Hearing. Motions for reduction of sentence are addressed to

16 the court's discretion. Flores u United States 238 F.2d 758, 760 (9th Cir. 1956).

17 Discussion

18 Defendant seeks this court to reduce his sentence from twenty years to fifteen. In other

19 words, Defendant requests that the Court impose the statutory minimum sentence for a first

20 degree criminal sexual conduct conviction. Motion to Reduce Sentence, at p. l. Defendant argues

21 the facts of his crimes were not "more egregious" than other cases such that the victim did not

22 involve a pre-pubescent minor. Id. at p. 2 Defendant also posits that his decision to accept his

23 guilt and decline an appeal is a "redemptive fact" not available at sentencing. Id. Defendant also

26 | The Defendant was sentenced to twenty years for the first charge and five years each count of the second charge, to Mn concurrently with first sentence and all with credit for time served. Id. 27 2 The Court looks to persuasive federal case law since no Guam case law squarely address Motions to Reduce a Sentence brought under 8 GCA § 120.46 and the Guam statute is identical to former Fed. R. Crim. Proc. 35(a). 28

People v. Kenneth Leon Guerrero Nanete ;CF0346-17 D&O Denying Defendant's Motion to Reduce Sentence Page 2 off 1 assumes the Court might have been "unsure" of the sincerity of his remorse and acceptance of

2 responsibility and now argues that the Court can be "assured" of that sincerity. Id.

3 On the other hand, the People suggest the alleged "new" information is insufficient to

4 warrant a reduction of the Defendant's sentence. The People argue that the court has already

5 considered the Defendant's "change of heart" at the time of sentencing. Additionally, that such

6 consideration can be inferred from the Court's decision to adopt the relatively lenient sentence of

7 twenty years compared to the sentence recommended by the People. People's Response to

8 Reduce Sentence at p. 3 (emphasis added).

9 The Court disagrees that it adopted a "relatively lenient" sentence, especially considering

10 that the Defendant was fifty-seven years old at the time of sentencing. Nevertheless, the Court

1.1 agrees with the People that ultimately the Defendant's instant motion should be denied and

12 further that the sentence previously imposed should remain undisturbed.

13 The Court finds that the Defendant failed to present redemptive facts that were not

14 available to the Court at the sentencing hearing. The Defendant's "sincerity" at the sentencing

15 hearing was never in doubt. Therefore, further evidence of his sincerity in a motion to reduce

16 sentence is unnecessary. Additionally, the Court has already consideredthe facts of this case -

17 egregious or not - at the sentencing hearing. Thus, Defendant's further arguments regarding the

18 age of the minor is neither detrimental nor beneficial to this request. While the Court appreciates

19 the Defendant's further allocution, the Court, in its discretion, finds a reduction of the

20 Defendant's sentence is not warranted.

21 // 22 //

23 //

28 People v. Kennerlz Leon Guerrero Ninety ; CF0346-17 D&O Denying Defendant's Motion lo Reduce Sentence Page 3 of 4 1 Conclusion

2 For the reasons discussed above, the court properly DENIED the Defendant's Motion to

3 Reduce Sentence. The Court's judgment and sentence memorialized therein should remain

4 undisturbed.

5 No further hearings are scheduled for this matter.

7 SO ORDERED this JAN UP 2619 Mme pf? tune December 17, 2018.

...I 1/ 10

11 HO MARIA T. CENZON JUD a SUPERIOR COURT OF GUAM 12

22 SE::vlcEvln CGURT sox IacknovAedge that a copy of the 23 original hereto Was placed in the =~, § w; 24

25 Date:

26 Eur CoUrt d Guam DeM czeri

People v. Kenneth Leon Guerrero Ninety , CF0346-17 D&O Denying Defendant's Motion to Reduce Sentence Page 4 of'4