People v. Rambo

Opinion

F'"ILED SUPERIOR COURT OF GU.At-1 2021 OCT 14 AM II : 53 CLE.

By :_..,:,...""-1=~------ IN THE SUPERIOR COURT OF GUAM / PEOPLE OF GUAM, CRIMINAL CASE NO. CM0123-19 GPD Report No. 19-08371

vs.

DECISION AND ORDER RAMBO RAMBO, aka Yomoan Rosta, DENYING DEFENDANT'S MOTION aka Rambo Milk, DOB: 01/11/1987 TO DISMISS BASED ON DOUBLE JEOPARDY Defendant.

;;, This matter came before the Honorable Dana A. Gutierrez on July 16, 2021 for a Motion

Hearing on Defendant Rambo Rambo's ("Defendant") Motion to Dismiss Based on Double

Jeopardy ("Motion") filed on March 13, 2020. Present via Zoom were Defendant Rambo

Rambo, aka Yomoan Rosta, aka Rambo Milk ("Defendant"); Public Defender Stephen Hattori

representing Defendant; Assistant Attorney General Sean Brown representing the People of

Guam (the "People"). Upon a review of the applicable law and the arguments presented by the

parties, the Court hereby DENIES Defendant's Motion to Dismiss Based on Double Jeopardy.

BACKGROUND

In Criminal Case No. CF0109-18, on October 11, 2018, the above-named Defendant

pleaded guilty to: 1) two counts of Assault (as a Misdemeanor) as a lesser-included offense of

Aggravated Assault; and 2) Criminal Mischief (As a Misdemeanor) as a lesser-included offense DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY CM0123-19; People v. Rambo Rambo

of Criminal Mischief. At the Change of Plea hearing, the Defendant was sentenced to three (3)

years imprisonment, with all but seven (7) months suspended, with credit for time served, for

both counts of Assault (as a Misdemeanor) and the charge of Criminal Mischief (As a

Misdemeanor). Judgment of Conviction, at 2 (Oct. 23, 2018)_1

While Defendant was released and on probation in CF0109-18, Defendant was charged

with one count of Criminal Mischief (As a Misdemeanor) in the instant case, Criminal Case No.

CM0123-19, on March 23, 2019. On April 17, 2019, a First Violation Report was filed in

CF0109-18 alleging that Defendant committed the following violations of his probation in

CF0109-18:

1. Probationer has failed to obey all the laws of Guam. On March 23, 2019 a magistrate's complaint was filed with the Court, charging the probationer with Criminal Mischief (as a misdemeanor) in CM0123-19 under the alias name Rambo Rambo. 2. Probationer was released from confinement on April4, 2019, but has failed to report to the Probation Office Intake and processing in CM0123-19 and once a month in person in CF0109-18. His last report was on November 18, 2018. 3. Probationer has failed to report to Client Services and Family Counseling for intake and assessment. 4. Probation has failed to make payments to his $300.00 fine and $80.00 court cost [sic]

Opp., Exhibit 1 (Feb. 15, 2021).

On January 9, 2020, the Honorable Arthur R. Barcinas held an evidentiary hearing to

address the Defendant's First Violation Report in CF0109-18. Exhibit to Mot. for Dismissal

(July 16, 2021). Based on the results of the evidentiary hearing, Judge Barcinas held a

1 The Court takes judicial notice of this Judgment. In reNA., 2001 Guam 7 ~58 (the Court may take judicial notice of "the truth of facts in certain documents, including past court orders, findings of fact and conclusions oflaw, and judgments.").

2 DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY CM0123-19; People v. Rambo Rambo

sentencing hearing on March 12, 2020. Id. At the sentencing hearing, Judge Barcinas revoked

the Defendant's probation in CFO 109-18 and sentenced the Defendant to serve the remaining

time on his suspended sentence that was initially imposed pursuant to the Plea Agreement and

Judgment entered in that case. Id. Specifically, Judge Barcinas sentenced Defendant to serve the

three years imprisonment, with credit for time served in the amount of four hundred and fifty-six

(456) days, for both counts of Assault (as a Misdemeanor) and the charge of Criminal Mischief

(As a Misdemeanor). 2

On March 13, 2020, the Defendant filed his Motion to Dismiss Based on Double

Jeopardy in the above-captioned case, CM0123-19. This case was assigned to this Court on

December 4, 2020. 3 On February 12, 2021, the Court held a Further Proceedings hearing and

ordered the People to file any opposition by February 26, 2021 and that Defendant file any reply

by March 3, 2021. The People filed their Opposition on February 15, 2021. Defendant did not

file a reply. The Court held the Motion hearing on July 16, 2021 and subsequently took the

2 Compare Judgment of Conviction, CF0109-18, at 2 (Oct. 23, 2018) (sentencing the Defendant to three years imprisonment, with all but seven months suspended, with credit for time served), with Amended · Judgment, CF0109-18, at 2 (July 16, 2021) (sentencing the Defendant to serve three years imprisonment, none suspended, with credit for time served). 3 Defendant filed the instant Motion to Dismiss on March 13, 2020; however, a Plea Agreement was filed on June 29, 2020. Therefore, the Court called the case on February 12, 2021 for a Further Proceedings hearing to clarify whether the Defendant was pursuing the Motion to Dismiss or desired to move forward with the Plea Agreement. At the hearing, defense counsel represented that Defendant desired to pursue the Motion to Dismiss, and the Court ordered due dates on the briefings. The Court set the Motion for a hearing on April9, 2021. At that hearing, the Court was informed that the Defendant was detained on a federal immigration hold. Counsel for Defendant requested a continuance to confirm if the Defendant was on the deportation list. Min. Entry, at 1:19:10 PM (Apr. 9, 2021). The Court continued the hearing to May 7, 2021. At that hearing, neither defense counsel nor probation had updated information on Defendant's location. The Court issued a Writ of Habeas Corpus Ad Prosequendum to ensure the Defendant's presence at the July 16, 2021 Motion hearing.

3 DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY CM0123-19; People v. Rambo Rambo

matter under advisement.

DISCUSSION

Defendant moves to dismiss the the charge against him in CM0123-19 on the grounds

that it violates Defendant's Fifth Amendment right against double jeopardy, as Defendant "has

already been punished by the Superior Court for this same conduct in CFO 109-18." Motion, at 1.

Defendant argues that this case is analogous to People v. Manila, 2005 Guam 6, and asserts that

the Guam Supreme Court held that "a probation revocation based upon a new criminal case bars

prosecution of the new charge." ld. at 3; Min. Entry, at 1:42:41-1:46:25 PM (July 16, 2021).

Defendant argues that "there can be no doubt" that the three year sentence ordered by Judge

Barcinas in CFO 109-18 "is punitive." !d. at 2.

In opposition, the People argue that notwithstanding the case law, Defendant has failed to

provide a factual basis for the Court to grant his motion. Opp., at 1; Min. Entry, at

1:46:34-1:52:10 PM (July 16, 2021). The People contend that there were multiple reasons for

Defendant's revocation of probation in CF0109-18, not simply his new charge in CM0123-19.

ld. at 2 (listing some reasons as Defendant's failure to report to probation, failure to report to

client services, and failure to pay his fines and court costs).

I. Defendant Mischaracterizes the Holding in People v. Manila.

Defendant mischaracterizes the holding in People v. Manila as determining that "a

probation revocation based upon a new criminal case bars prosecution of the new charge."

Motion, at 2. In People v. Manila, the defendant pleaded guilty to Driving While Under the

Influence of Alcohol ("DUI") and Reckless Driving ("First DUI case"). Manila, 2005 Guam 6 ~

4 DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY CM0123-19; People v. Rambo Rambo

2. Pursuant to the Plea Agreement in the First DUI, the defendant ("Manila") was sentenced as a

first time DUI offender. Id. While on probation in the First DUI case, Manila was charged with

a second DUI and Reckless Driving case ("Second DUI case"). Id. at~~ 3-4.

The People motioned to revoke Manila's probation in the First DUI case on the grounds

that the Second DUI case amounted to a violation of the conditions of his probation. !d. at ~ 4.

After an evidentiary hearing on the motion to revoke the probation in the First DUI case, the trial

court "found that [the Defendant] was Driving Under the Influence on or about October 8, 2001

[the Second DUI case] in the Island of Guam and based upon this finding, [the Court] revoked

the probation of [the Defendant]." People v. Manila, CF0470-97, Decision and Order ("D&O"),

at 3 (July 19, 2002). The trial court continued:

In revoking his probation, [the Court] has re-sentenced and imposed general punishment against [the Defendant] as a second DUI offender. [The Court] has imposed this punishment in a swift and expeditious manner without [the Defendant] having to be tried for the second offense. Irregardless of the pace [the Defendant's] current case takes, he has been punished for the offenses he has been charged with in that case.

!d. at 4.

In other words, although acting in the First DUI case, the trial court found Manila guilty

of the new charges and imposed a sentence that was only statutorily available for a second DUI

offender, rather than merely imposing the original suspended sentence for the first DUI offense.

Id. at 3-4. Based on this, the Guam Supreme Court reasoned that "in light of the statements

expressed by the revocation court . . . the revocation court was apparently sentencing Manila for

the offenses charged in the Second DUI case." Manila, 2005 Guam 6 ~ 16. "[T]he problem

5 DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY CM0123-19; People v. Rambo Rambo

presented in the case sub judice lies in the fact that in revoking probation, the revocation court

explicitly stated that it was punishing Manila for the offenses committed while Manila was on

probation and which are charged in the Second DUI case." Id. at~ 17.

The Guam Supreme Court held that under normal circumstances, "double jeopardy does

not attach at a revocation hearing to bar a trial of the new criminal charges" because "revocation

proceedings are not new criminal prosecutions, and do not punish the defendant for the criminal

actions committed while on probation[.]" Id. at~ 15. However, the Manila Court reasoned that

"[t]he application of the above-mentioned principles is dependent [ ] upon the underlying

premise that in revoking probation, the revocation court limited the imposition of its sentence to

the crime for which probation was imposed." Id. at~ 16.

The Manila Court further reasoned:

It is clear that upon revocation of probation, a sentence may be imposed for the original offense upon the conviction of which the defendant was granted probation. If the act alleged to be a violation of probation constitutes another crime and sentence is to be imposed for the subsequent act, the defendant should be tried for such crime and sentence imposed under the orderly criminal processes. This does not preclude sentence on the original offense and the distinction is drawn so as to obviate any question of double jeopardy.

Id. at~ 31 (quoting People v. Deskin, 361, N.E.2d 1188, 1189 (Ill. App. Ct. 1977). The Manila

Court held that Manila's case was "unique" in that the trial court "clearly exceeded its authority

in punishing Manila for the Second DUI," and that because the revocation court had

"fundamental jurisdiction over the revocation proceeding and generally over the offense ofDUI,

Manila was placed in jeopardy in being punished and serving his punishment for the second DUI

offense." Id. at~~ 32-36.

6 DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY CM0123-19; People v. Rambo Rambo

In light of the reasoning explained by the Manila Court, it is clear that the Guam

Supreme Court did not hold that "a probation revocation based upon a new criminal case bars

prosecution of the new charge." Motion, at 2. Rather, the Guam Supreme Court held that the

general rule is that "[b]ecause revocation proceedings are not new criminal prosecutions, and do

not punish the defendant for the criminal actions committed while on probation, double jeopardy

does not attach at a revocation hearing to bar a trial of the new criminal charges." !d. at~ 15.

Notwithstanding this rule, the Court explained that the facts of Manila's case-namely, that at

the revocation hearing, the trial court explicitly found Manila guilty in his new case and imposed

an entirely new sentence specifically for his new case-prevented the application of this general

rule from applying in his "unique" case. !d. ~~ 32-36.

II. The Defendant Has the Burden of Proof When Filing Motions to Dismiss Based on Double Jeopardy.

In People v. San Nicolas, the Guam Supreme Court held that when moving to dismiss

charges on the grounds of a double jeopardy violation, "[t]he burden of proof is on the defendant

to establish that the issue whose relitigation he seeks to foreclose was actually decided in the first

proceeding." People v. San Nicolas, 1999 Guam 19 ~~ 12-13 (analyzing Defendant's argument

that his prosecution was barred by double jeopardy) (citing Dowling v. US., 493 U.S. 342, 350,

107 L. Ed. 2d 708, 110 S. Ct. 668, 673 (1990)).

Further, the burden of persuasion generally does not shift to the prosecution in a motion

to dismiss for double jeopardy. See US. v. Bendis, 681 F.2d 561, 564 (9th Cir. 1981) (holding

that generally the burden of persuasion does not shift and always rests with the defendant;

7 DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY CM0123-19; People v. Rambo Rambo

however, during an interlocutory appeals process, once the defendant makes a non-frivolous

showing of former double jeopardy, the government must tender to the court evidence indicating

separate charges) (citing to Sanchez v. U.S., 341 F.2d 225, 227 (9th Cir. 1965)).4

III. Defendant Has Not Met His Burden of Proof to Show That The Holding in Manila Applies to the Case At Bar, and Therefore Jeopardy Did Not Attach.

Because the holding in Manila was highly dependent on the "unique" facts of that case,

the Defendant in the above-captioned case has the burden to demonstrate that the Manila holding

applies to the facts of the Defendant's situation. See San Nicolas, 1999 Guam 19 ~~ 12-13.

Here, the Defendant offers no facts to suggest that Judge Barcinas sentenced the Defendant for

his new charges in this case, CM0123-19. See Motion. Although Defendant argues that "the

facts underlying this case were used as the basis for revocation" of his probation in CFO 109-18,

as the Guam Supreme Court noted in Manila, "[i]fthe act alleged to be a violation ofprobation

constitutes another crime and sentence is to be imposed for the subsequent act, the defendant

should be tried for such crime and sentence imposed under the orderly criminal processes.

This does not preclude sentence on the original offense and the distinction is drawn so as to

obviate any question of double jeopardy." Manila, 2005 Guam 6 ~ 29 (emphasis added); see 9

4 In Sanchez v. U.S., the Ninth Circuit held that when a motion to dismiss based on double jeopardy is before the trial court, the "burden rests upon the accused to establish that" the "two prosecutions relate to the same conduct." Sanchez, 341 F.2d at 227; see also U.S. v. Benson, 1993 WL 460960, at *3 (9th Cir. 1993) (holding that "the burden is on the [defendant] to establish facts supporting his contention that his retrial violated the double jeopardy clause of the fifth amendment."); U.S. v. Zone, 403 F.3d 1101, 1105 (9th Cir. 2005) (holding that Defendant did not satisfy his evidentiary burden on a motion to dismiss for double jeopardy where he produced news articles describing the events that occurred, citing favorably to U.S. v. McKinney, 52 F.3d 664, 676 (5th Cir. 1995) ("The defendant has the burden of producing evidence to show a prima facie double jeopardy claim.")).

8 DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY CM0123-19; People v. Rambo Rambo

GCA § 80.60(b) ("When the court revokes a suspension or probation, it may impose on the

offender any sentence that might have been imposed originally for the crime of which he was

convicted.").

In fact, the Amended Judgment reveals that Judge Barcinas explicitly sentenced the

Defendant for his original underlying offense in CFO 108-19, properly limiting "the imposition of

its sentence to the crime for which probation was imposed." Manila, 2005 Guam 6 ~ 16. 5 To

support his contention that "the statements expressed" by Judge Barcinas presents a situation

analogous to Manila, Defendant cites to nothing on the record from the hearings held in front of

5 The Amended Judgment issued by Judge Barcinas on March 16, 2020 states:

Wherefore, it is hereby ORDERED, ADJUDGED, AND DECREED, the Defendant, Milk Manutae, is hereby sentenced as follows: a) That for the conviction of: 1) ASSAULT (as a Misdemeanor) as a lesser-included offense of AGGRAVATED ASSAULT, Charge 1, Count 1; 2) ASSAULT (as a Misdemeanor) as a lesser-included offense of AGGRAVATED ASSAULT, Charge 1, Count 2; and 3) CRIMINAL MISCHIEF (as a Misdemeanor) as a lesser-included offense of CRIMINAL MISCHIEF, Charge 3, the Defendant shall be sentenced to three (3) years imprisonment at the Department of Corrections, with credit for time served in the amount of four hundred and fifty-six (456) days.

This is starkly contrasted to the language of the trial court in People v. Manila where the trial court explicitly stated that Manila was being sentenced for his new charges in the Second DUI case:

In this matter, [the Court] has determined and found that [the Defendant] was Driving Under the Influence on or about October 8, 2001 [the Second DUI case] in the Island of Guam and based upon this finding, [the Court] revoked the probation of [the Defendant]. . . In revoking his probation, [the Court] has re-sentenced and imposed general punishment against [the Defendant] as a second DUI offender. [The Court] has imposed this punishment in a swift and expeditious manner without [the Defendant] having to be tried for the second offense. Irregardless of the pace [the Defendant's] current case takes, he has been punished for the offenses he has been charged with in that case.

People v. Manila, CF0470-97, D&O, at 3 (July 19, 2002).

9 "' ' ,. ,.

DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS BASED ON DOUBLE JEOPARDY CM0123-19; People v. Rambo Rambo

Judge Barcinas on January 9 and March 12, 2020. See id. (where the Court's holding relied

heavily on "the statements expressed by the revocation court").

Due to the Defendant's failure to meet his burden by pointing to any evidence on the

record indicating that Judge Barcinas considered the Defendant's offense in CM0123-19 as

anything more than "evidence of his rehabilitative potential," this Court finds that jeopardy did

not attach at Defendant's revocation hearing in CF0109-18. See id, at~ 29. Because jeopardy

must first "attach" before a defendant "can suffer double jeopardy," the Court must deny

Defendant's Motion to Dismiss Based On Double Jeopardy. See id., at~ 23.

CONCLUSION

In accordance with the applicable law and for the foregoing reasons, the Court hereby

DENIES Defendant's Motion to Dismiss Based on Double Jeopardy.

A Further Proceedings hearing is set for November 12, 2021 at 1:30 p.m.

SO ORDERED: _ _1_4_0_CT_Z_OZ_1_ _

HO~Z Judge, Superior Court of Guam

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