/ l^l,W t:i! -!-r l Q! !1,::i..:f ': i l-'1ii:I v\.,i *1., : I IN THE SUPERIOR COURT OF GUAM 2 , :'-l ":n:!? J PEOPLE OF GUAM. CRMINAL C.G_EXO, CMO3 07-09 A
vs. ii" /. 5 DECISION AND ORDER ELWIN CHAMPACO QUITANO, (Motion to Dismiss) 6
7 Defendant. ) 8 The Defendant's Motion to Dismiss was heard on May 18, 2009 before the 9
HONORABLE ELZABETH BARRETT-ANDERSON. Defendant was represented by l0
1l Attorney F. Randall Cunliffe. The People were represented by Assistant Attorney General Sally
12 A. Tobin. The Defendant has asserted speedy trial. l3 The Court having considered all the briefs and arguments DENIES Defendants Motion t4 to Dismiss the Magistrate's Complaint, with leave granted the People to amend on or before l5
l6 June 8. 2009, in accordance with the Court's holding. hr the event the People fail to amend the
17 Complaint on or before June 8, 2009, the Defendant's Motion to Dismiss is GRANTED sua
18 sponte on June 9,2009, without prejudice. 19 Defendant is charged with three separate offenses that are alleged to have occurred on or 20 about April 3, 2009 in an April 6,2009 a Magistrate's Complaint. The Magistrate's Complaint 21
22 is based on the Declaration of Probable Cause ("Declaration"); both of which are signed on
z) April 6, 2009- The Declaration states that the two alleged incidents of the Defendant requesting a1 to have sex with the minor alleged victim occurred in September 2008 and January 2009. The 25 alleged victim filed a complaint with Guam Police Department on April 3,2009; but did not 26
allege any illegal actions of the Defendant related to that specific day. 27
Page I of4 \
I Under 8 G.C.A. $ 1.15, the charges against the Defendant are to be prosecuted by z Complaint, which is "subject to the same rules of pleading as an indictment for information." 8
J
G.C. A. $ 15.10. "[A]n indictment is sufficient if it, first, contains the elements of the offense A
charged and fairly informs a defendant of the charge against which he must defend, and second, 5
6 enables him to plead an acquittal or conviction in bar of future prosecutions for the same
7 offense." Hamling v. (J.s.,419 u.s. 97,ll7 (1974). In this case, all of the essential elements
of each of the offenses charged is contained in the Complaint; however, this Court is not 8
9 bar of convinced that the Complaint enables the Defendant to plead an acquittal or conviction in l0
ll future prosecutions for the same offense due the discrepancies in the dates stated in the
t2 Declaration and the Complaint, the generic terms of the statute, and the lack of "a statement of
the facts and circumstances as will inform the accused of the specific offence, coming under 13 the
t4 general description, with which he is charged." Id. at ll7-118 (quoting U.S. v' Hess,124 U'S' l5 483,487, (1888). lo
t7 Due to the discrepancy of dates of the allege incidents in the Magistrate's Complaint and
a summons to l8 the Declaration, this Court questions whether or not there was probable cause for
i9 People have be issued on the Complaint as written. However, because the Court finds that the 20 charge, nor not plead particular facts as to adequately apprise the Defendant of the nature of the 21
22 to adequately prepare for a defense, and to guard against potential dangers to Defendant's
constitutional guarantee against double jeopardy, the Court need not address the summons issue. z)
AA For the above listed reasons all three of the charges will be dismissed unless the People file an
25 and with amended Complaint on or before June 1, 2009 with correct dates of allege incidents 26 particular facts pleaded to adequately appraise the defendant of the nature of the first charge and 27
28 possibly the second and/or third charge. This Court grants leave to amend the Complaint
Page 2 of 4 ,
I provided that no additional charges are filed against the Defendant and finds that the substantial I 2 rights of the Defendant will not be prejudiced by permitting this amendment. g G.c.A. g J 55.20. Although the court dismisses charges A Two and Three for reasons other than as put forth by Defendant, it is important to nonetheless 5 address Defendant,s ar€,uments so as to prevent 6 them from being raised in further motions in this case should the people amend. Title g G.c.A. 7 $ 5.13 indicates that the title of ..Crimes against the Family,, does not limit the scope or 8 applicability of 9 G'c.A. $ 31.30 to family members. In fact, the legislature 9 is clear that anv person may be guilty of child l0 abuse and did not limit this section to parents and/or guardians. ll while the comments discuss the duty of parents or guardians with respect to 9 G.c.A. $ l2 3l'30(a)Q)(c)1; the comments also discuss the high standard of care a person genera'y, and not 13 only a parent or guardian, who has a child under their care or responsibility t4 for the child. g G'c'A' $ 31'30(a)(2)(c) cmt' After reading l5 the statute along with the comment, this court rejects Defendant's argument that l6 this charge should be dismissed because g G.c.A. $ 17 3r'30(a)(2)(c) only applies to parents or guardians. Further, while the Defendant asked this 18 court to look at the comments of the Model Penal code $ 230.4,the court notes that Guam did l9 not adopt the exact language of the Model Penal code and that several of 20 the comments indicate that anon-parent or guardian with a child in his care and custody 21 can be guilty of endangering a
22 child' see state v' Hackett,733 A2d 554, 559[N.J.super.App.Div.1999)(interpreting N.J. $2C:24-4 that is also a source for Guam law). .,1 The court rejects Defendant's claim that 9 G.c.A. $ 61.20(a) is unconstitutional. 25 The general rule is that legislative enactmenrs are presumed to be 26 constifutiondl, ,,... moreover'he who alieges the unconstitutionality of 27 an act bears the burden of proof.,,, In re Request of 28
Page 3 of4 ll i .< , L-.Do^nla rr Pere.z criminal Case No' 747-06, Decision t || Gutrerrez,2002Guam -1 tT 41 (quoted -t^) by People v. Perez, Criminal
"' ll|| ancl orcler, Mar. 29, 2007 at, p. ^.\ in his burden of 2-3). r- the Defendant has failed fai] In +r..io ^occ rhe this case I
ll Colorado statute was not a source tlor ao Colorarlo of 9 G'C'A' ' ll proof' For example, the Court notes that ^---J -^+^. o ll -rr^^ ^.^ i-orranrrarc rlescrintion of what the Colorado Court s||sor'20andthatDefendantprovidesaninadequatedescriptionofwhat ' ll ,^.t^ caset' \rlern Supp' of Mot. to Dismiss'(Apr' T,aw in Supp. Mem' of Law and an incorrect citation to the ^noo2 e llreached ll .i d-^ ^^r^-ronr cirec the II.S. Suoreme Court standard for striking a 71116,2009)atp.4.Further,theDefendantcitestheU.S.SupremeCourtstz r statute substantially indicate to this court how Guam's llr"* down as being overbroad, but fails to t ll ld. Furthermore, this Court concurs with the protected speech' /d' ... -:---^1r-. ^-nraotaA ll infringes on a constitutionally "neech. t0 ll r n^-^- t-r tl v' Perez' Doanlarr C/ People Ruda' Criminal Case No. 438- v' Rrrrla- reasorung of the Court in People ,," llsound ll , t. ^ .tA .^A1 onrl rrnhesitatinelv adopts the trial court's-analysis of rz||06,Decisionandorder,Apr.24,2o0T,andunhesitatinglyadoptsthetrii ,, \lrroOt" v. Lizamaas no longer persuasive on the constitutionality of 9 G'C'A' $61'20(a)' t. ll Motion to Dismiss is DENTED unless the Magistrate's ll Based on the above, Defendant,s tr and order on or before June 8.
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/ l^l,W t:i! -!-r l Q! !1,::i..:f ': i l-'1ii:I v\.,i *1., : I IN THE SUPERIOR COURT OF GUAM 2 , :'-l ":n:!? J PEOPLE OF GUAM. CRMINAL C.G_EXO, CMO3 07-09 A
vs. ii" /. 5 DECISION AND ORDER ELWIN CHAMPACO QUITANO, (Motion to Dismiss) 6
7 Defendant. ) 8 The Defendant's Motion to Dismiss was heard on May 18, 2009 before the 9
HONORABLE ELZABETH BARRETT-ANDERSON. Defendant was represented by l0
1l Attorney F. Randall Cunliffe. The People were represented by Assistant Attorney General Sally
12 A. Tobin. The Defendant has asserted speedy trial. l3 The Court having considered all the briefs and arguments DENIES Defendants Motion t4 to Dismiss the Magistrate's Complaint, with leave granted the People to amend on or before l5
l6 June 8. 2009, in accordance with the Court's holding. hr the event the People fail to amend the
17 Complaint on or before June 8, 2009, the Defendant's Motion to Dismiss is GRANTED sua
18 sponte on June 9,2009, without prejudice. 19 Defendant is charged with three separate offenses that are alleged to have occurred on or 20 about April 3, 2009 in an April 6,2009 a Magistrate's Complaint. The Magistrate's Complaint 21
22 is based on the Declaration of Probable Cause ("Declaration"); both of which are signed on
z) April 6, 2009- The Declaration states that the two alleged incidents of the Defendant requesting a1 to have sex with the minor alleged victim occurred in September 2008 and January 2009. The 25 alleged victim filed a complaint with Guam Police Department on April 3,2009; but did not 26
allege any illegal actions of the Defendant related to that specific day. 27
Page I of4 \
I Under 8 G.C.A. $ 1.15, the charges against the Defendant are to be prosecuted by z Complaint, which is "subject to the same rules of pleading as an indictment for information." 8
J
G.C. A. $ 15.10. "[A]n indictment is sufficient if it, first, contains the elements of the offense A
charged and fairly informs a defendant of the charge against which he must defend, and second, 5
6 enables him to plead an acquittal or conviction in bar of future prosecutions for the same
7 offense." Hamling v. (J.s.,419 u.s. 97,ll7 (1974). In this case, all of the essential elements
of each of the offenses charged is contained in the Complaint; however, this Court is not 8
9 bar of convinced that the Complaint enables the Defendant to plead an acquittal or conviction in l0
ll future prosecutions for the same offense due the discrepancies in the dates stated in the
t2 Declaration and the Complaint, the generic terms of the statute, and the lack of "a statement of
the facts and circumstances as will inform the accused of the specific offence, coming under 13 the
t4 general description, with which he is charged." Id. at ll7-118 (quoting U.S. v' Hess,124 U'S' l5 483,487, (1888). lo
t7 Due to the discrepancy of dates of the allege incidents in the Magistrate's Complaint and
a summons to l8 the Declaration, this Court questions whether or not there was probable cause for
i9 People have be issued on the Complaint as written. However, because the Court finds that the 20 charge, nor not plead particular facts as to adequately apprise the Defendant of the nature of the 21
22 to adequately prepare for a defense, and to guard against potential dangers to Defendant's
constitutional guarantee against double jeopardy, the Court need not address the summons issue. z)
AA For the above listed reasons all three of the charges will be dismissed unless the People file an
25 and with amended Complaint on or before June 1, 2009 with correct dates of allege incidents 26 particular facts pleaded to adequately appraise the defendant of the nature of the first charge and 27
28 possibly the second and/or third charge. This Court grants leave to amend the Complaint
Page 2 of 4 ,
I provided that no additional charges are filed against the Defendant and finds that the substantial I 2 rights of the Defendant will not be prejudiced by permitting this amendment. g G.c.A. g J 55.20. Although the court dismisses charges A Two and Three for reasons other than as put forth by Defendant, it is important to nonetheless 5 address Defendant,s ar€,uments so as to prevent 6 them from being raised in further motions in this case should the people amend. Title g G.c.A. 7 $ 5.13 indicates that the title of ..Crimes against the Family,, does not limit the scope or 8 applicability of 9 G'c.A. $ 31.30 to family members. In fact, the legislature 9 is clear that anv person may be guilty of child l0 abuse and did not limit this section to parents and/or guardians. ll while the comments discuss the duty of parents or guardians with respect to 9 G.c.A. $ l2 3l'30(a)Q)(c)1; the comments also discuss the high standard of care a person genera'y, and not 13 only a parent or guardian, who has a child under their care or responsibility t4 for the child. g G'c'A' $ 31'30(a)(2)(c) cmt' After reading l5 the statute along with the comment, this court rejects Defendant's argument that l6 this charge should be dismissed because g G.c.A. $ 17 3r'30(a)(2)(c) only applies to parents or guardians. Further, while the Defendant asked this 18 court to look at the comments of the Model Penal code $ 230.4,the court notes that Guam did l9 not adopt the exact language of the Model Penal code and that several of 20 the comments indicate that anon-parent or guardian with a child in his care and custody 21 can be guilty of endangering a
22 child' see state v' Hackett,733 A2d 554, 559[N.J.super.App.Div.1999)(interpreting N.J. $2C:24-4 that is also a source for Guam law). .,1 The court rejects Defendant's claim that 9 G.c.A. $ 61.20(a) is unconstitutional. 25 The general rule is that legislative enactmenrs are presumed to be 26 constifutiondl, ,,... moreover'he who alieges the unconstitutionality of 27 an act bears the burden of proof.,,, In re Request of 28
Page 3 of4 ll i .< , L-.Do^nla rr Pere.z criminal Case No' 747-06, Decision t || Gutrerrez,2002Guam -1 tT 41 (quoted -t^) by People v. Perez, Criminal
"' ll|| ancl orcler, Mar. 29, 2007 at, p. ^.\ in his burden of 2-3). r- the Defendant has failed fai] In +r..io ^occ rhe this case I
ll Colorado statute was not a source tlor ao Colorarlo of 9 G'C'A' ' ll proof' For example, the Court notes that ^---J -^+^. o ll -rr^^ ^.^ i-orranrrarc rlescrintion of what the Colorado Court s||sor'20andthatDefendantprovidesaninadequatedescriptionofwhat ' ll ,^.t^ caset' \rlern Supp' of Mot. to Dismiss'(Apr' T,aw in Supp. Mem' of Law and an incorrect citation to the ^noo2 e llreached ll .i d-^ ^^r^-ronr cirec the II.S. Suoreme Court standard for striking a 71116,2009)atp.4.Further,theDefendantcitestheU.S.SupremeCourtstz r statute substantially indicate to this court how Guam's llr"* down as being overbroad, but fails to t ll ld. Furthermore, this Court concurs with the protected speech' /d' ... -:---^1r-. ^-nraotaA ll infringes on a constitutionally "neech. t0 ll r n^-^- t-r tl v' Perez' Doanlarr C/ People Ruda' Criminal Case No. 438- v' Rrrrla- reasorung of the Court in People ,," llsound ll , t. ^ .tA .^A1 onrl rrnhesitatinelv adopts the trial court's-analysis of rz||06,Decisionandorder,Apr.24,2o0T,andunhesitatinglyadoptsthetrii ,, \lrroOt" v. Lizamaas no longer persuasive on the constitutionality of 9 G'C'A' $61'20(a)' t. ll Motion to Dismiss is DENTED unless the Magistrate's ll Based on the above, Defendant,s tr and order on or before June 8. 2009' ln the to this Decision 1la"*oraint is amended pursuant 16 16 llll .r n^r^.^l^-+:. I\rfnfinn \ tl r : 'a ^- ^- L^r^*a r,,na R ?o0g- the Defendant's Motion 1\lleventthePeoplefailtoamendtheComplaintonorbeforeJune8'2009'the 9'2009'without prejudice' t8 l\to Dismpd is GRANTED sua sponte on June ismicc ts
tr llY for June 9, 2009, at 9:30 a'm' A criminal Trial setting is scheduled
'll \ ri-H$ffi*#&Hffi 2l nmn.ffiff#ffi$'W,
,, ll .rrril *a'lnnS nOXonAsLE Court ITAKKL r r- ANDERSON ELIZABJTH BARRETT. of Guam i"ai., S"Perior L)
.A
,< '" ll . - rt-:^ ^^ as ^a fr,^^ typo o.r{ and ecknowledges acknowledgt il , reference $ 3l-30(2xc); however, the court recognizes this rr " ll lis | | The comments officially to $I 31'30(ax2)!c), comment actuallv ll ,hi,';"-,i,,i;rriu.toutty reters reiers - . r+tt :^is -^r J r 'ru\a'\z/w'case clear ir not ^roar found that any statute was Colorado court fo'nd the colorado if rhe w€
" ll*;:*":rH::i::"'1"?1nr:"':liJ;ffi;:i+i;"i,i'iriiii,:h'$;y*1r"*i:":'"J;.ff'"; -i"i"*i* i:;'t5 ;;;'":;';"; foi Guam's ,r:'"{"T.'"$:Hi':ff raw' did Defendant not ,, llro;,9'9ru;L,::""iil,1: aoutysi, for the courr to by colorado whether *; tbtt court should be persuaded a
ll provide enough ," ,i. i^it.- n"tiuo.. on the Colorado decision is questionable' ll court ruthg on ri;;;;",,;;.V ,i.iir" "
Page 4 of4