r
1 sup Emrm COURT 2 GF GUM!
3 ZRNAPR 28 PH \=23 4 CLERK GF COURT
5 By! /2-n 6 IN THE SUPERIOR COURT OF GUAM 7
8 THE PEOPLE OF GUAM, CRIMINAL CASE NO. CM0499-19 9 vs. 10 DECISION AND ORDER 11 DAVID PEREZ, JR. aka David Taitano 12 Perez, Jr., 13 Defendant. 14
15 INTRODUCTION
16 This matter came before the Honorable Vernon P. Perez on February 25, 2021, for
17 hearing on Defendant David Perez, Jr. aka David Taitano Perez, Jr.'s ("Defendant") Motion to Dismiss Based on 9 GCA § 7.67(b) De Minims. Present remotely via teleconference were 18
19 Defendant with counsel, Assistant Public Defender Jocelyn Roden, and Assistant Attorney
20 General Lenny Rapadas on behalf of the People of Guam ("the Government"). Having
reviewed the pleadings, the arguments presented, and the record, the Court now issues the 21
22 following Decision and Order.
23 BACKGROUND
On November 8, 2019, Defendant was charged with one count of Family Violence (As 24
a Misdemeanor) and one count of Unlawful Restraint (As a Misdemeanor). (Magistrate's 25
Con pl., Nov. 8, 2019). These charges stem from allegations that on or about November 7, 26
2019, Defendant punched his wife, Teresita Perez ("Teresita"), three times on her mouth and 27
two times on the right side of her head. (Decl. of Christine Santos Tenorio, Magistrate's 28
People v. Perez Case No. CM0499-19 Decision andOrder
Page 1 of 5 1 Con pl., Nov. 8, 2019). Defendant yelled at Teresita as she asked him to stop assaulting her. Id.
2 She attempted to leave but Defendant grabbed her arm to prevent her from leaving. Id. She
3 was able to flee from his grasp and drove to the police station. Id. GPD officers. at the station
4 observed that Teresita had a swollen upper lip, a laceration to her lip, redness on her upper Ann
5 and below her neck, and bruising and scratches on her forearms. Id. Defendant admitted to
6 slapping Teresita, but claimed he did not remember what he did after. Id.
7 On December 23, 2020, Defendant tiled the instant Motion to Dismiss. On February 23,
.8 2021, the People filed their Opposition. No Reply was filed. On February 25, 2021, the Court 9 heard additional arguments from the parties. At the hearing, Defendant further set forth that the
10 Motion to Dismiss was supported by his wife. The Court subsequently placed the matter under
11 advisement.
12 DISCUSSION 13 Under Guam law: 14 The court shall dismiss a prosecution if, having regard tithe nature of the conduct chargedto constitute an offense and the nature of the attendant circumstances, it 15 finds that the defendant's conduct: 16 (a) Was within a customary license or tolerance, neither expressly 17 n e g a t e d b y t h e p e r s o n w h o s e in t e r e s t w a s . in fr in g e d n o r inconsistent with the purpose of the law defining the offense, 18
(b) Did not actually cause or threaten the harm or evil sought to be 19 prevented by the law defining the offense or did so only to an 20 extent too trivial to warrant the condemnation of conviction, or 21 (Q) Presents such other extenuations that it cannot reasonably be 22 regarded as envisaged by the Legislature in forbidding the offense. The court shall not dismiss a Prosecution under this Subsection 23 without filing a written statement of its reasons. 24 9 G.C.A. § 7.67. Section 7.67 "directs the trial court to dismiss a prosecution if it finds that the 25 defendant's conduct falls within at least one of three distinct circumstances." People v.. Perez, 26 2004 GuaM 4 'II 9 (emphasis in original). The "statute recognizes that it would be unrealistic to 27 believe that judges never enter a finding of not guilty even though guilt is proven where a 28
People v. Perez Case No. CM0499-19 Decision and Order
Page 2 of 5 1 conviction is considered tO be inappropriate, and therefore authorizes the trial court to mitigate
2 the general provisions of the criminal law to prevent absurd applications." Id. at 'll 10 (quoting 9
3 G.C.A. § 7.67 commentary).
4 Defendant moves the Court to dismiss this matter pursuant to Section 7.67(b),. arguing
that Defendant's alleged conduct "did not cause or threaten the hand or evil sought to be
6 prevented by the law defining the offense or did so only to an extent too trivial to warrant the
7 condemnation of conviction." (Mot. Dismiss at 4, Dec. 23, 2020). In support of his Motion,
8 l . Defendant attaches two exhibits referencing his current medical condition. The Government l~ 9 i t opposes, arguing that Defendant's actions in this case did actually cause the harm sought to be
10 prevented. (Opp'n at 3-4, Feb. 25, 2021). The Government further notes Defendant's prior
11 I I criminal history with the same victim. Id. at 4 (noting Defendant "plead guilty to a family
12 : violence charge and a violation of a court order in two (2) separate, earlier cases involving the
13 same victim"). .
14 Section 7.67 is modeled after Model Penal Code § 2. 12, which has been adopted by New
15 Jersey, Maine, Hawaii, and Pennsylvania. Id. at 'll ll, fn. 3. In People v. Perez, the Supreme
16 Court of Guam looked to case law from New Jersey for guidance in evaluating a motion to
17 dismiss pursuant to 9 G.C.A. § 7.67, citing State v. Zarrilli,523 A.2d 284 (NJ. Super. Ct. Law
18 Div. 1987), ajfd, 532 A.2d 1131 (no. Super. Ct. App..Div. 1987). Id. at
19 court stated that "[t]he one question to be asked and answered in response to a de minims
20 motion is ... What is the risk of harm to which society is exposed by defendant's conduct?"
21 The Zarrilli court then set forth five factors to evaluate this question: (1) the circumstances
22 surrounding the commission of the offense, (2) the existence of contraband; (3) the amount and
23 value of property involved, (4) the use or threat of violence, and (5) the use of weapons.
24 Zarrilli, 523 A.2d at 288.
25 Defendant argues that the risk of harm to which society is exposed to by his conduct is
26 limited at this time because of his deteriorating health in light of Stage W cancer and because he
27 has been in and out of GBHWC for his Mood Disorder and is prescribed medication. (Mot.
Page 3 of 5 1 Dismiss at 4). Defendant "maintains that dismissal is appropriate to prevent an absurd
2 I application of the criminal law." Id. a 3 For purposes of this motion, the Court assumes as true all the factual allegations against
4 Defendant. See Perez, 2004 Guam 4 'll 16 (quoting Zarrilli, 523 A.2d at 286) ("it must be
5 assumed that the conduct charged actually occurred' because '[t]he motion does not provide a
6 setting for.a determination of guilt or innocence."'). While the second, third, and fifth factors
7 weigh in favor of Defendant as there are no allegations .or indications of the use of dnlgs or
8 presence of contraband, there are no allegations of property damage, nor is it alleged that any
9 weapons were used, the Court is concemedabout the first and fourth factors.
10 As to the first factor, the circumstances surrounding the commission of the offense, the
Court notes that the alleged incident(s) took place after Teresita went to Defendant's residence
12 to bring him food. (Decl. of Christine Santos Tenorio, Magistrate's Con pl., Nov. 8,. 2019).
13 When Defendant complained about the food, Teresita told him that she wanted peace. Id. In
Free access — add to your briefcase to read the full text and ask questions with AI
r
1 sup Emrm COURT 2 GF GUM!
3 ZRNAPR 28 PH \=23 4 CLERK GF COURT
5 By! /2-n 6 IN THE SUPERIOR COURT OF GUAM 7
8 THE PEOPLE OF GUAM, CRIMINAL CASE NO. CM0499-19 9 vs. 10 DECISION AND ORDER 11 DAVID PEREZ, JR. aka David Taitano 12 Perez, Jr., 13 Defendant. 14
15 INTRODUCTION
16 This matter came before the Honorable Vernon P. Perez on February 25, 2021, for
17 hearing on Defendant David Perez, Jr. aka David Taitano Perez, Jr.'s ("Defendant") Motion to Dismiss Based on 9 GCA § 7.67(b) De Minims. Present remotely via teleconference were 18
19 Defendant with counsel, Assistant Public Defender Jocelyn Roden, and Assistant Attorney
20 General Lenny Rapadas on behalf of the People of Guam ("the Government"). Having
reviewed the pleadings, the arguments presented, and the record, the Court now issues the 21
22 following Decision and Order.
23 BACKGROUND
On November 8, 2019, Defendant was charged with one count of Family Violence (As 24
a Misdemeanor) and one count of Unlawful Restraint (As a Misdemeanor). (Magistrate's 25
Con pl., Nov. 8, 2019). These charges stem from allegations that on or about November 7, 26
2019, Defendant punched his wife, Teresita Perez ("Teresita"), three times on her mouth and 27
two times on the right side of her head. (Decl. of Christine Santos Tenorio, Magistrate's 28
People v. Perez Case No. CM0499-19 Decision andOrder
Page 1 of 5 1 Con pl., Nov. 8, 2019). Defendant yelled at Teresita as she asked him to stop assaulting her. Id.
2 She attempted to leave but Defendant grabbed her arm to prevent her from leaving. Id. She
3 was able to flee from his grasp and drove to the police station. Id. GPD officers. at the station
4 observed that Teresita had a swollen upper lip, a laceration to her lip, redness on her upper Ann
5 and below her neck, and bruising and scratches on her forearms. Id. Defendant admitted to
6 slapping Teresita, but claimed he did not remember what he did after. Id.
7 On December 23, 2020, Defendant tiled the instant Motion to Dismiss. On February 23,
.8 2021, the People filed their Opposition. No Reply was filed. On February 25, 2021, the Court 9 heard additional arguments from the parties. At the hearing, Defendant further set forth that the
10 Motion to Dismiss was supported by his wife. The Court subsequently placed the matter under
11 advisement.
12 DISCUSSION 13 Under Guam law: 14 The court shall dismiss a prosecution if, having regard tithe nature of the conduct chargedto constitute an offense and the nature of the attendant circumstances, it 15 finds that the defendant's conduct: 16 (a) Was within a customary license or tolerance, neither expressly 17 n e g a t e d b y t h e p e r s o n w h o s e in t e r e s t w a s . in fr in g e d n o r inconsistent with the purpose of the law defining the offense, 18
(b) Did not actually cause or threaten the harm or evil sought to be 19 prevented by the law defining the offense or did so only to an 20 extent too trivial to warrant the condemnation of conviction, or 21 (Q) Presents such other extenuations that it cannot reasonably be 22 regarded as envisaged by the Legislature in forbidding the offense. The court shall not dismiss a Prosecution under this Subsection 23 without filing a written statement of its reasons. 24 9 G.C.A. § 7.67. Section 7.67 "directs the trial court to dismiss a prosecution if it finds that the 25 defendant's conduct falls within at least one of three distinct circumstances." People v.. Perez, 26 2004 GuaM 4 'II 9 (emphasis in original). The "statute recognizes that it would be unrealistic to 27 believe that judges never enter a finding of not guilty even though guilt is proven where a 28
People v. Perez Case No. CM0499-19 Decision and Order
Page 2 of 5 1 conviction is considered tO be inappropriate, and therefore authorizes the trial court to mitigate
2 the general provisions of the criminal law to prevent absurd applications." Id. at 'll 10 (quoting 9
3 G.C.A. § 7.67 commentary).
4 Defendant moves the Court to dismiss this matter pursuant to Section 7.67(b),. arguing
that Defendant's alleged conduct "did not cause or threaten the hand or evil sought to be
6 prevented by the law defining the offense or did so only to an extent too trivial to warrant the
7 condemnation of conviction." (Mot. Dismiss at 4, Dec. 23, 2020). In support of his Motion,
8 l . Defendant attaches two exhibits referencing his current medical condition. The Government l~ 9 i t opposes, arguing that Defendant's actions in this case did actually cause the harm sought to be
10 prevented. (Opp'n at 3-4, Feb. 25, 2021). The Government further notes Defendant's prior
11 I I criminal history with the same victim. Id. at 4 (noting Defendant "plead guilty to a family
12 : violence charge and a violation of a court order in two (2) separate, earlier cases involving the
13 same victim"). .
14 Section 7.67 is modeled after Model Penal Code § 2. 12, which has been adopted by New
15 Jersey, Maine, Hawaii, and Pennsylvania. Id. at 'll ll, fn. 3. In People v. Perez, the Supreme
16 Court of Guam looked to case law from New Jersey for guidance in evaluating a motion to
17 dismiss pursuant to 9 G.C.A. § 7.67, citing State v. Zarrilli,523 A.2d 284 (NJ. Super. Ct. Law
18 Div. 1987), ajfd, 532 A.2d 1131 (no. Super. Ct. App..Div. 1987). Id. at
19 court stated that "[t]he one question to be asked and answered in response to a de minims
20 motion is ... What is the risk of harm to which society is exposed by defendant's conduct?"
21 The Zarrilli court then set forth five factors to evaluate this question: (1) the circumstances
22 surrounding the commission of the offense, (2) the existence of contraband; (3) the amount and
23 value of property involved, (4) the use or threat of violence, and (5) the use of weapons.
24 Zarrilli, 523 A.2d at 288.
25 Defendant argues that the risk of harm to which society is exposed to by his conduct is
26 limited at this time because of his deteriorating health in light of Stage W cancer and because he
27 has been in and out of GBHWC for his Mood Disorder and is prescribed medication. (Mot.
Page 3 of 5 1 Dismiss at 4). Defendant "maintains that dismissal is appropriate to prevent an absurd
2 I application of the criminal law." Id. a 3 For purposes of this motion, the Court assumes as true all the factual allegations against
4 Defendant. See Perez, 2004 Guam 4 'll 16 (quoting Zarrilli, 523 A.2d at 286) ("it must be
5 assumed that the conduct charged actually occurred' because '[t]he motion does not provide a
6 setting for.a determination of guilt or innocence."'). While the second, third, and fifth factors
7 weigh in favor of Defendant as there are no allegations .or indications of the use of dnlgs or
8 presence of contraband, there are no allegations of property damage, nor is it alleged that any
9 weapons were used, the Court is concemedabout the first and fourth factors.
10 As to the first factor, the circumstances surrounding the commission of the offense, the
Court notes that the alleged incident(s) took place after Teresita went to Defendant's residence
12 to bring him food. (Decl. of Christine Santos Tenorio, Magistrate's Con pl., Nov. 8,. 2019).
13 When Defendant complained about the food, Teresita told him that she wanted peace. Id. In
14 response, Defendant punched her three times on her mouth and two times on the right side .of
15 her head. Id. Defendant further tried to prevent her from leaving by grabbing her arms. Id.
16 This was an unprovoked assault on the alleged victim, which resulted in a swollen upper lip, a
17 laceration to her lip, redness on her upper arm and below her neck, and bruising and scratches
18 on her forearms. See id. These actions involved the use of violence which resulted in some
19 bodily injury to Teresita. See. 9 G.C.A. § 30.l0(c); 16 G.C.A. § l6.l0(b) ("Bodily Injury means
20 physical pain, illness, unconsciousness or any impairment of physical condition."). .
21 , The Court recognizes that Defendant faces significant health issues at this time,
22 however, it does not find that the actions alleged "did not actually cause or threaten the harm or
23 evil sought to be prevented by the law defining the offense or did so only to an extent too trivial
24 to warrant the condemnation of conviction." 9 G.c.A. § 7.67051 This matter will not be 25 dismissed. .
26 CONCLUSION
27 For the foregoing reasons, the Court hereby DENIES Defendant's Motion to Dismiss 28 Based on 9 GCA § 7.67(b) De Minims. A remote Status Hearing is set for M a y 10, 2021 at
Page 4 of 5 1 10:30 a.m. To appear for this remote hearing by teleconference, dial 969-7000 and enter
2 meeting ID number116;7473-0337.
3 IT IS SO ORDERED this 28th day of April, 2021. 4
5 r
aw
7 HONORABLE VERNON p. PEREZ Judge, Superior Court of Guam 8
9 SERVICE vIA E-mAII. 10 l!U'l\0Wll0ll0 um an wplgdtxeoriuiulwue-lhildilh: 11 4 6 ) M Z '
12 Date:'/."°1l Time: I'!2t". 13 napuwrzlem superior chmrbfeumu 14
Page 5 of s