People v. Quitano

Opinion

?nibnirl t/t^l Ufu\ tl1 itI I IN THE SUPERIOR COURT OF GUAM 2 '"" t -i ".':q,7 3 el :,' !?, i .- , 't, ti .1

PEOPLE OF GUAM, cRTMTNAL casB No. cMj0z-oq I '' ',. A

vs. DECISION and ORDER o ELWIN CHAMPACO QUITANO, 7 Defendant.) 8

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The Defendant's Motion to Dismiss was heard on Julv 6.2009 before the HONORAB 10

ll ELIZABETH BARRETT-ANDERSON. Defendant was represented by Attorney F.

l2 Cunliffe, and the People were represented by Assistant Attomey General Sally Tobin. The IJ having considered all the briefs and arguments this Court hereby DENIES Defendant's Moti 14 to Dismiss. 15

l6 FACTUAL BACKGROUND

t7 Defendant was originally charged by a Magistrate's Complaint dated April 6, 2009.

t8 affrdavit of probable cause was attached to the Magistrate's Complaint and has been provided l9 Defendant. Defendant moved to dismiss the Magistrate's Complaint, and the Court gran 20 leave to the Prosecutor to file an amended complaint in its June 1,2009 Decision and Order. 21

22 Amended Magistrate's Complaint was filed June 8,2009. This Court dismissed all but the

zi counts of the Second and Third Charge of the Amended Magistrate's Complaint on June 1

24 2009. Defendant filed his Motion to Dismiss the Second and Third Charees of the Am 25 Magistrate's Complaint on June 16,2009. zo

Page I of3 1 DISCUSSION 2 Defendant argues that an affidavit must be frled with an Amended Magistrate' 3 Complaint but fails to cite any case law to support this argument. Instead, Defendant argues A

G.C.A. $15.20(a) requires an affidavit to be filed "therewith" otherwise the Amended Complai 5

6 is defective. 8 G.C.A. I 55.20. The Court disaerees. There is nothine in readine both Secti

7 together that leads this Court to conclude that failure of the prosecutor to attach the origi 8 Affidavit of Probable Cause is fatal especially if there were no amendments intended or made 0

the orieinal Affidavit. The orieinal Affidavit is still of record. The Defendant has been full 10

11 apprised of the probably cause facts underlining the original Affidavit, and no prejudice

12 occurred to him simply because the same Affidavit of Probable Cause was not attached to

13 Amended Complaint. t4 Defendant further attacks the Amended Complaint on the grounds that he was not 15

a Summons under 8 G.C.A. $ a5.21(a). The purpose of the Sumlnons is to require a defendant' 16

1'7 appearance. The Defendant has appeared, and has continued to appear throughout

t8 proceedings without summons. There is no requirement under Guam law that a sunmons 19 reissued on an amended pleading under circumstance where a defendant has already appeared. 20 Finally, Defendant argues that Charge Three should be dismissed as the law 21

unconstitutional. The Court has, heretofore, in its June I,2009 Decision "reject[ed] Defendant' 22

L) claim that 9 G.C.A. $61.20(a) is unconstitutional." People v. Ouitano, Criminal Case No. 307

24 09, Decision and Order on Motion to Dismiss (Jun 1, 2009), p. 3. Defendant re-iterates hi 25 original argument and relies on People v. Smith. 862 P.2d 939 (Colo. 1993). Defendant's use 26 the Colorado decision is not persuasive based on the facts of the case at hand, and is, there 27

28 distinguishable. Unlike Colorado's statute, Guam's harassment law narrowly draws attention

Page 2 of 3 I communication "likely to cause" an ordinary person to be annoyed or be alarmed. It invokes a 2 reasonable person standard. This standard would be sufficient in the Court's determination to 3 narrow the scope of application of Guam's harassment statute so as to prevent it from being 4

overbroad and vague. It would provide protection to victims of harassment, while at the same 5

0 time afford full First Amendment protect to citizens in their ordinary and daily communications,

7 as well as more specific public political expressions. Id. at 943, n.7 .

8 The People properly argue that this case does not involve the traditional constitutional o

challenges to criminal statutes which proscribe certain speech. The alleged communication is nol 10

1l traditionally protected speech. There are no constitutional protections for speech which allure

l2 and entice children to have sex.

IJ CONCLUSION 14 Based on the above, the Defendant's Motion to Dismiss is DENIED. 15

SO ORDERED this Julv 6.2009. 16

l8

1c} ARRETT-AI\DERSON Judge, Superior Court of Guam 20

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