FI l ED l CLER!-{ OF cCOURT CLERK ouRT 2 202L1 ~.UG 2021: AUG29 PM142 29 PH 27 Lt: 27 3 3UP?~'R§{j;;:3 CQUR?
4 GF Qumve 5
6 6 IN THE SUPERIOR COURT OF GUAM 7
8 PEOPLE OF GUAM, NO.CM0193-24 CRIMINAL CASE no. CM0193-24 9 vs.
10 10 DECISION AND ORDER
11 RIK.AT aka FRED RIKAT aka Fred Fred Fin FinRik Rikat, 12 Defendant.
13
14 14 INTRODUCTION 15 This This matter Honorable Vernon P. Perez for the limited matter is before the Honorable limited purpose purpose of addressing 16 the People of the People of Guam's Guam's ("the ("the Government") Statementof Government") Statement ofObjection GCA § Objection77GCA § 6107 Motion to andMotion 6107 and to 17 17 Disqualify Disqualify filed filedJuly July23, 23, 2024.
2024.
18 BACKGROUND 19 19 On On June June 27, 2024, Defendant Fred Rikat Rik aka Fred Fred Fin Fin Rik Rikat ("Defendant")
("Defendant") was was charged 20 20 with with (1)
(1) Driving Driving While WhileImpaired Impaired (As (As aa Misdemeanor) and (2)
Misdemeanor) and (2)Driving Driving While While Impaired (B.A.C.)
21 21 (As (As aa Misdemeanor).
Misdemeanor). (Magistrate's (Magistrate's Con pl., Jun.
Compl., Jun. 27, 27, 2024).
2024).
22 22 On On June 28, 2024, 2024,this this matter matterwas wasassigned assignedtotoJudge Judge AlbertoE.E.Tolentino.
Alberto Tolentino. See SeeNotice Notice of of 23 23 Judge Assignment, Jun. 28, 2024.
2024.
24 24 On On July July11, 11, 2024, 2024, at at Arraignment, Defendant entered entered aaplea pleaof of not not guilty guilty and waived his 25 right right to to aa speedy trial.
speedy trial.
26 26 On July On July 23, 23, 2024, 2024, the the Government tiled a Government filed a Statement ofObjection Statement of 6107 and GCA §§ 6107 Objection77 GCA and 27 27 Motion Motion to to Disqualify Disqualify("Objection"), ("Objection"), moving moving for for Judge Judge Tolentino's Tolentino's recusal recusal in this matter.
matter. The 28 28
People People v, v. Rik Rikat Case No. CM0193-24 Case No. CMol93-24 Decision Decision and and Order
Page 11 off of8 1 Government moves for Government moves for Judge Tolentino's recusal Judge Tolentino's pursuantoto77G.C.A.
recusal pursuant G.C.A. §§ 6105(a)
6l05(a) because of because of 2 Judge Judge Tolentino's familial relationship Tolentino's familial relationship with General Douglas with Attorney General Douglas B. Molyan. 1 B. Molyan.1 See See
3 Objection, Jul.
generally, Objection, Jul. 23, 23, 2024.
2024.
4 On July July 29, 29, 2024, 2024,Judge JudgeTolentino Tolentino filed his Answer filed his Answerto toStatement Statementof ofObj Objection, section,challenging challenging
5 of the the timeliness of the objection objection and and denying denying that that his his recusal recusal is is appropriate appropriate in in this this matter.
matter. See See
6 generally, Answer, Jul. 29, 2024.
Answer, Jul. 2024.
7 On On July 30, 2024, July 30, 2024, pursuant pursuantoto77G.C.A.
G.C.A. §§ 6107, 6107, the the question questionof of whether whether Judge JudgeTolentino Tolentino
8 should be be disqualified from from continuing continuing to preside preside over over this this mater mater came came before before this this recusal recusal court.
9 9 See Notice ofAssignment Notice of AssignmentofofRecusal RecusalJudge, Judge, Jul.
Jul. 30, 30, 2024.
2024.
10 10 Subsequently, on August 15, 2024, 2024, the theGovernment Government filed an Amended tiled an Response to Amended Response to Judge Judge 11 1 Tolentino's Answer Tolentino's Answerto to Statement of Objection Statement of Objection 7 7 GCA GCA §6107 §6107 and Motion to and Motion to Disqualify.
Disqualify.
12 12 DISCUSSION
13 13 Title Title 77 G.C.A.
G.C.A.section section6105 6105sets setsforth forththe thesubstantive substantivegrounds grounds under under which which aa judge judge must must 14 Whereaajudge be disqualified. Where judgefails failsto todisqualify disqualifyhim himor orherself, herself,any anyparty partyto to that that proceeding may 15 15 move move to to disqualify disqualify the the judge judge pursuant to 77G.C.A.
pursuant to G.C.A. §§ 6107.
6107.
16 16 A. Statement Statement of of Objection 17 17 The Government moves to disqualify Government moves disqualify Judge Judge Tolentino Tolentino in m this this matter matter based based on the the 18 18 following followinggrounds grounds:2 19 19 • • That from 20142014 to to 2022, 2022, Judge Judge Tolentino disqualified disqualified himself himself from from cases cases involving Attorney Attorney General General Moylan Moylan as as aa private private attorney attorney on on the the basis basis of the 20 20 familial familial relationship relationship that that exists between between them, them;
21 • • That Judge Judge Tolentino Tolentino stated stated that that disqualification disqualification was was necessary necessary because because 22 Attorney General General Moylan Moylan is is the the father father of ofhis his step step children, children;
23 23 • • JudgeTolentino's That Judge Tolentino's last Form One-Disqualification One-Disqualification in in this regard was was filed filed 24 24 oN on October 27, 2022, 2022;
25
26 26 l1 Attached to the Government's Statementof Government's Statement ofObjection Objectionare are several several exhibits, exhibits, including including aa Decision Decision and and Order Order issued 27 Taitingfong, Criminal Case No.
by Judge Iriarte on June 4, 2024 in People v. Taitingfong, No. CF0024-24, and and several several Form Form One One --
Disqualification 77 GCA Disqualification GCA §§ 6106 6106 memorandums memorandums issued issued by byJudge JudgeTolentino Tolentinorecursing recusing himself from cases himself from cases involving involving 28 Attorney General General Moylan Moylan when when he he was was in in private private practice practice up based onon section section 6105(a) until October 27, 2022.
People v. People v. Rik Rikat Case No.
No. CM0193-24 Decision Decision and and Order
Page 2 of8 of • That the basis basis for for Judge Judge Tolentino's prior disqualifications Tolentino's prior disqualifications hasn't hasn't changed, changed;
1
2 • • That aa reasonable reasonable person would presume presume that that Judge Judge Tolentino's Tolentino's personal personal relationship with relationship with Attorney General General Moylan Moylan and and his his prior prior years years disqualifying 3 himself himself from any any matters involving AG matters involving AG Moylan Moylanwould wouldraise raise aareasonable reasonable 4 question about about his his impartiality impartiality and and necessitate necessitatehis his disqualification;
disqualification,
5 • • That Judge Tolentino has Judge Tolentino has been disqualified from presiding presiding over over other other cases cases based on the the above facts, facts; and 6 • • San Agustin v.
ThatSan v. v.
v. Superior Cr.
Ct. of ofGuam, Guam, 2024 Guam 2, 2, required required the the Clerk 7 of Court of Court toto refrain refrain from from assigning assigning cases cases to Judge Judge Tolentino Tolentino once he he was was 8 disqualified.
disqualified.
9 9 Objection, Jul.
See Objection, Jul. 23, 23, 2024.
2024.
10 10 In his answer, In answer, Judge JudgeTolentino Tolentino sets sets forth forth under underpenalty penaltyof ofperjury perjurythe thefollowing following relevant
11 11 facts::
12 12 Moylan'srequest, 6. That at Mr. Moylan's request, aameeting meetingbetween betweenhimhimandand the the undersigned, undersigned, the undersigned's chamberstaff, undersigned's chamber staff, the the Administrator Administratorofof the the Courts, Courts, and andMr.
Mr. Moylan's Moylan's 13 13 transition chairperson, chairperson,Mr.
Mr.Wilfred Wilfred Aflague, occurred in Aflague, occurred in December December 2022, 2022;
14 7. 7. That That at at this this meeting, meeting, Mr. Mr. Moylan Moylan assured assured me me and and the the other other members members in m 15 15 attendance thathe attendance that heperceived perceivedno noconflict conflict in his election election as the the Attorney General General and and the the prosecution prosecution of of criminal cases before criminal cases before the undersigned.
undersigned. It It was was agreed agreed that that the 16 16 circumstances underlying my circumstances underlying my recusal recusalinin matters mattersthat thatMr.
Mr.Moylan Moylan was was a lawyer lawyer no 17 17 longer longer existed, existed, to to wit:
wit:that thatduring duringmymyterm termas asthe theMagistrate MagistrateJudge Judgeandand as as aa Judge Judge 18 18 I had routinely routinely recused reused myself myselffrom fromall allmatters matters where where Mr.Mr. Moylan Moylanwaswas the the attorney attorney of ofaa party party before before me me onon the the basis basis that he was thethe father father of my minor minor step-children step-children 19 19 and that that the the minor step-children step-children were were members members of and and resided inin the the household household 20 20 maintained maintained by by me me and and mymy wife and and that as of even even date, date, both both step-children step-children have now reached reached Maj rarityand majority andadulthood adulthoodand andhave havebeen beenresiding residingat attheir theirown own residences residences 21 in in Guam and and ininthe theU.S.
U.S. Mainland;
Mainland, 22 22 8. That ThatMI.
Mr.Moylan Moylanever nevermade madean anappearance appearance as as aa lawyer lawyer in in this this case.
23 23 9. 9. That neither Mr. Moylan nor the neither Mr. the Office of ofthe the Attorney Attorney General General had had ever ever 24 24 challenged challenged or or obi objected to me presiding over over this this case case until the the instant Statement Statement of of Objection and Motion Objection and Motion toto Disqualify filed filed herein.
25
* * *
26 26 *** 14. 14. That That my wife wife Doris Doris L.G.
L.G. Tolentino Tolentino and and Attorney Attorney General General Moylan Moylan were were 27 27 divorced on June 13, 1997, and that there were two minor children at the time divorced on June 13, 1997, and that there were two minor children at the time of of 28 the dissolution of of marriage, marriage, to to wit: Brandon (born 1990) andAngela 1990) and Angela (born 1992), 1992);
People People v.
v. Rik Rikat Case No. Case No. CM0193-24 CM0193-24 Decision Decision and and Order
Page 3 of8
1 15. That my wife 15. wifeand and IIhave havebeen beentogether togethersince since2001 2001 and and that that we we were were1nan'ied married civillyinin2005 civilly 2005 and and eventually eventuallyin inthe the Roman RomanCatholic CatholicChurch Churchin inDecember December2023 2023;, 2 16. That we have five 16. Hve children inclusive of of Brandon Brandon and andAngela;
Angela, 3 17. That since 17. since my my wife wife and II have have been beentogether togetherII have havenever neverobserved observedMr.Mr. Moylan Moylan 4 and my and my wife involvedin wife involved inany any sense sense in in co-parenting the the children oftheir children of their marriage marriage as as 5 the children have been raised and and provided with protection provided with protection and and care care to ensure ensure their healthy development healthy development intointo adulthood, adulthood,primarily primarilybyby my wife and my wife and me, me, and and that that atat 6 present they are are in fact adults able to adults able to conduct conduct and andmake maketheir theirown owndecisions decisionsin inlife;
life, 7 18. That based 18. based upon upon the averments, the the foregoing averments, the fact fact that that Attorney Attorney General General 8 Moylan is Moylan is the the biological biologicalfather fatherof ofthe theundersigned's undersigned'sstepchildren stepchildren provides provides no no basis basis 9 for for disqualification under 77 GCA disqualification under GCA §§ 6l05(b)
6105(b)ororthat thatthe the undersigned's undersigned's impartiality impartiality might be reasonably questioned as required under under subsection subsection(a).
(a).
10 10 (Answer at 3-4, (Answerat 3-4, Jul.
Jul. 29, 2024).
2024).
11 In In response, the Government asserts response, the thatits asserts that its Statement Statementof of Objection was timely timely and and that that 12 12 JudgeTolentino Judge Tolentino is is disqualified disqualified "per "per se."
se." See See generally, Am. Resp., Resp., Aug.
Aug. 15, 15, 2024.
2024.
13 13 B. Timeliness Timeliness of of Objection 14 14 The first issue issue before the Court is the Court is whether whetherthe theGovernment's Government'sObjection Objectionwas wastimely timely filed.
filed.
15 15 In his his Answer, Answer, Judge Judge Tolentino Tolentino challenges challenges the the timeliness timeliness of of the the Government's Government's Objection.
Objection.
16 16 (Answer (Answerat ,r,r 9-
at iiii 13). In 9-13). Inresponse, response, the the Government Government sets sets forth forth that objection is timely that their objection timely because because 17 17 the San San Agustin Agustin opinion opinion issued issued July July 18, 2024 "provided 18, 2024 "provided additional additional grounds on which to require 18 18 disqualification, disqualification, namely the Supreme Supreme Court's explanation explanation and use use of its its supervisory supervisory authority authority 19 19 over over the the Superior Court of Guam's assignment of matters to disqualified judges"
matters to judges" and that thatitit filed filed 20 20 the "Statement "Statement of Objection Objection less less than than two weeks weeks after after the the case case was was initiated initiated and and before any any 21 hearing anyissue hearing on any issueof offact factwas wasever everset settotobe beheard heardby byJudge JudgeTolentino."
Tolentino." (Am.
(Am. Resp. at 3).
22 Pursuant to section 6107: Pursuant to 6107:
23 23 The statement statement of a party party objecting to to the the Justice Justice or Judge the ground Judge on the ground of of his or 24 her disqualification disqualification shall shall be presented presented at the earliest practicable opportunity after 25 his or her her appearance and discovery appearance and discovery of of the the facts facts constituting the ground constituting the ground of the Justice's or Judge's disqualification, and in any any event before the commencement of of 26 26 the hearing hearing of any issue issue of fact fact in in the the action action or or proceeding proceeding before beforesuch such Justice Justice or 27 Judge.
Judge.
28
People v. People v. Rik Rikat Case No.
No. CM0193-24 CMOI93-24 Decision Decision and and Order
Page Page 4 of of8 1 7 G.C.A.
7 G.C.A. §§6107.
6107. "The "Therule rulethat thataarequest requestfor fordisqualification disqualificationshould shouldbe be submitted submitted prior prior to to any any
2 hearing in in the matter before before the challenged challenged judge judge rests rests on on the principle principle that that a party may not gamble gamble
3 on a favorable decision. Thus, Thus,aastatement statement of ofobi sectionisisnormally objection normallytimely timely if it it is is submitted submitted prior
4 to any any hearing hearing before the challenged judge judge in the matter." Van Dox v.
matter." Van v. Superior Superior Ct. of ofGuam, Guam,
5 2008 Guam 7 ~114646(internal 2008 Guam (internalquotation quotationmarks marks and and citation citation omitted)."[A]
omitted). "[A] statement may be statement may
6 untimely if if aa party party waits waits until until the the eve eve of oftrial trialtotorequest request disqualification disqualification based based on on information information
7 made known made knownmonths earlier."Id.
monthsearlier." Id (citing v. Pariah, (citing People v. Panah, 107 107 P.3d 790, 790, 824 824(Cal.
(Cal. 2005)).
8 Here, the Government's Govemrnent's Statement of Objection Statement of Objection was filed filed prior prior to to the the commencement of commencement of
9 the hearing hearing of of any issueof any issue of fact in the the action actionor orproceeding proceedingbefore before Judge JudgeTolentino.
Tolentino. The The case case was
10 10 assigned to Judge Judge Tolentino on June Tolentino on June 28, 28,2024, 2024,and andthe theGovernment's Government's Statement Statementof of Objection Objection was
11 11 filed few weeks filed aa few on July later on weeks later July 23, 23, 2024.
2024. According Accordingtotothe theCourt's Court'scase casemanagement management system, system, at at
12 12 the time of the of filing filingofofthe theObjection, Objection,nonohearings hearingshad hadbeen beencalendared calendared or or heard heard before before Judge Judge
13 13 Tolentino in the Tolentino in instant matter.
the instant However,the matter. However, theCourt Courtdoes doesnot notfind findthat that the the timeliness timeliness analysis analysis ends ends
14 14 Thefacts there. The thatform factsthat formthe thebasis basis of ofthe theStatement Statementof ofObj sectionare Objection arenot notnewly newly discovered to the
15 15 Government and Judge JudgeTolentino Tolentino has has presided presided over over criminal criminal matters matters involving involving the the Government Government
16 16 since Attorney General Moylan Moylan took office office in in January 2023. See January 2023. See Answer, Answer 114 ("I...
4 ("I ... have have been been a
17 17 Judge of Judge of the Superior Court of ofGuam Guam since since September September 2021, 2021, and that my and that my docket consists mostly
18 18 ofcriminal of broughtby criminal matters brought bythe thePeople Peopleof ofGuam Guamthrough throughthe theOffice Officeof ofthe theAttorney AttorneyGeneral.").
General.").
19 19 It It was not until over over a year later in May 2024 that that the theGovernment Government first first moved to disqualify disqualify Judge Judge
20 20 Tolentino. See See People People v.
v. Ybanez, Ybanez, et al. (CF0447-23)
(CF0447-23)Dec.
Dec.&&Order Orderatat5,5,Jun.
Jun. 12, 12, 2024 (noting the 21 Statement of Objection Statement of Objectionand andMotion MotiontotoDisqualify Disqualifywas wasfiled tiledon onMay May 1, l, 2024).
2024). The The Government Government 22 22 has since since moved to disqualify Judge Tolentino in Judge Tolentino in aa number number of ofcriminal criminal cases,2 but not cases,2 but not all all of his
23 23
24 24
25 2 This This Court, Court, for for example, example, has has been assigned asrecusaljudge assigned as recusal judgefor forthe theinstant instantmatter matter(CM0193-24), (CM0193-24),People People v. Buchun, Buchun, (CF0458-24), (CF0458-24), People v. Romolor Romo/or (CF0391-24), (CF0391-24), People People v. Ada Ada (CF0520-24), (CF0520-24), People v. Timothy Timothy (CM0229-24), and and 26 People People v. Quichocho (CM0249-24).
(CM0249-24). The TheStatement StatementofofObjection Objectionfiled filedinineach eachcase case isis substantially substantially the the same.
same. Judge Judge Tolentino's Tolentino's Answer Answer also also refers to objections being filed tiled in People v.
v. Mantanona Mantanona (CM0203-24);
(CM0203-24), PeoplePeoplev.v.Babauta Babara 27 (CF0443-24), (CF0443-24); People v.
v. Enlet (CM0322-22); People People v. Rabago (CF0423-24);
(CF0423-24), and and People People v.v.Alipich Alipich (CF0449-24).
28 (Answer ,r 24)..
(Answer1124)
People People v.
v. Rik Rikat Case No.
No. CM0193-24 Decision Decision and and Order
Page 5 of8 of 1 criminal docket. 3 Therefore, criminal docket.3 normally be case specific, would normally section would objection timelinessofofananobi thetimeliness whilethe Therefore,while 2 the circumstances of the but not all cases before Judge Tolentino, the objections being filed in some but
3 despite the basis of all objections being substantially the same, require the Court to view them in to view
4 light of light the Attorney of his entire criminal docket, as all criminal matters are brought by the Office of the Attorney
5 General General on the People on behalf of the People of of Guam.
Guam. "7 GCA GCA §§ 6105 is not intended to to 'bestow veto power
6 to be over judges or to used as be used judge shopping as aa judge device."' San Agustin, 2024 Guam shopping device."' Guam 2, 1 24 (citing 2, 1124 77 People v. Camaddu, 2015 Guam 21jj 80).
v. Camaddu, The Court 80). The further notes that while San Agustin was not Court further 8 2024, the issued until July 18, 2024, Supreme Court of the Supreme "explanation and of Guam's "explanation use of and use its supervisory of its 9 authority the Superior Court authority over the of Guam's assignment Court of of matters assignment of to disqualified matters to as disqualified judges," as
10 10 relied on relied Government, see on by the Government, Am. Resp.
see Am. at 3, was specifically in regard to the Resp. at Superior Court's the Superior Court's
11 assignment of assignment judicial recusal of judicial matters. 4 See San Agustin, 2024 Guam 2120 recusal matters.4 (Once disqualified, jj 20 (Once
12 12 take no aaction-even a judge can ta actinginina alimited whena cting ction-even when pa city a as limitedcacapacity recusal s a ar ecusa judge.").
l judge. ").
13 13 opinion recently Therefore, the Government cannot rely on the opinion being published recently being as aa basis published as for a basis for 14 14 timeliness argument.
15 15 law does "Guam law not speak does not explicitly of speak explicitly waiver, but does require of waiver, parties agree.'
require that 'all parties 16 16 Rather than interpreting 'agree' mean that to mean 'agree' to the parties that the must expressly agree to waive the judge's parties must 17 17 disqualification, we held disqualification, we that remaining held that waiver, at constitutes waiver, remaining silent constitutes least in at least the context of 7 in the
18 18 G.C.A.
G.C.A. §§ 6105(a), 6l05(a), 'to 'to avoid avoid the the possibility possibility of ofparties parties lying lying in in wait, wait, raising raising the recusal issue only 19 19 after learning learning the ruling on court's ruling the court's the merits."' People v. Win, on the Guam 17 Wia, 2020 Guam 1 (internal 17 1128 (internal 20 20 alterations and citations alterations and citations omitted).
omitted). In In the the context context of of 77 G.C.A.
G.C.A. §§ 6105(b), 6105(b the Supreme Court of of 21 Guam adopted the "silence-as-wavier" rule on a case-by-case basis. 130. The "silence-asbasis . Id atat 1130.
22 22 waiver" includes failure to object failure to previously known information previously obi et based on information to the known to parties through the parties 23 23 separate litigation.
separate 1 (finding Id atat1127 litigation. Id rule rendered the defendant's (finding that the silence-as-waiver rule 24 24
3 25 Judge Tolentino asserts Judge in his asserts in that "if his Answer that "if there is concern truly is there truly with the concern with undersigned's impartiality the undersigned's or impartiality or of partiality then appearance of by movant's then by the disqualification logic the movant's logic should have disqualification should extended to have extended the undersigned's to the undersigned's entire 26 26 further proceedings."
post-adjudication further and post-adjudication pendingand (Answer1134). ,r criminal docket of criminal offending proceedings." (Answer
27 4 The Supreme Court exercised its "supervisory authority authority to to clarify clarifythe theproper properprocedures procedures (1) when aa party (1) when seeks party seeks to challenge a recusal recusal judge judge for for cause, cause,(2)
(2)for for service serviceof of a statement writ petition, and (3) for service of of aawrit of objection statement of objection 28 on a judge judge or justice." San Agustin, 2024 Guam 2 ,r1]54.
justice." San 54.
People Rikat People v,v. Rik Case No. CM0193-24 Case No. CMOl93-24 Decision and Decision and Order
Page 6 of of8 1 of the disqualification issue through objection waived and untimely because the defendant aware of
2 counsel's involvement his counsel's involvementininother othercriminal criminalcases)
cases).
3 Response (nor The Government does not dispute in its Response (nor does it appear appear to address at all)
4 Judge Tolentino's statement statement that he and Attorney General Moylan met in in December December 2022 with 5 court administration and staff whereby "[i]t was agreed that the circumstances underlying [Judge
6 recusal in matters that Mr.
Tolentino's] recusal Mr. Moylan was a lawyer no longer existed." (Answer ii,-i 7).
existed." (Answer
7 Thus, Attorney General Moylan Moylan appears appears to have waived any conflict conflict on behalf behalf of the Government
8 prior to the start of of his his term term in in January January 2023. At this time, the Court is unaware of any objection 2023. At
9 set forth by the Government to Judge Tolentino Tolentino presiding over any criminal criminal matter matter prior to People
5
10 10 v. Ybanez, CF0447-23, v. Ybanez, CF0447-23,on onMay May 1, l, 2024.
2024.5 The Government therefore did not move to disqualify
11 Judge Tolentino Tolentino in any criminal matter for sixteen months after Attorney Attorney General Moylan took
12 12 (January 2023 office (January 2023 to to April April 2024). The Government 2024). The Government has not not presented any newly discovered discovered 13 13 facts or change in circumstances relating to the the familial familial relationship between Judge Tolentino and
14 14 Attorney General Moylan that would render Attorney General Moylan's December 2022 waiver Moylan's December
15 15 of of any conflict conflict moot. The The Court Court notes notes that that the the issue issue of of Judge Judge Tolentino's Tolentino's competency competency was first first 16 16 addressed in People v. Aguon, CM0145-21ininSpring Aguon, CMol45-2l Spring2024, 2024; yet yetititwas was through through aa motion motion tiled filed by 17 17 defendant, not the Government, and in the context of a Motion to Disqualify the Prosecutor the defendant, Prosecutor 18 18 and not a ruling on a Statement Statement of of Objection Objection to to Judge Judge Tolentino's Tolentino's competency. See See Dec. & Order 19 19 at 4-5, People v. (CM0145-21), Apr.
v. Aguon (CMOl45-21), Apr. 5, 5, 2024 2024 ("On ("On March March 1, 2024, the Court l, 2024, Court heard new 20 20 arguments on the Motion to Withdraw arguments Withdraw the the Prosecutor. There, in addition Prosecutor. There, addition to the issue of AAG 21 Olan's Olan's alleged alleged statements, statements, Defendant Defendant asserted asserted there had been an undisclosed familial relationship 22 Judge Tolentino between Judge Tolentino and and Douglas DouglasMoylan Moylan ...
...").
"). At Atthe thetime timeof ofthat that Decision Decision and and Order Order in 23 CMOl45-21, Judge Tolentino CM0145-21, Judge Tolentino had had already already recused reused himself himselffrom from the the matter, matter, albeit albeit on on different different 24 24
25 5 Govemmenthas The Government hasnot notshown shownthat thatitithas has objected to Judge objectedto Judge Tolentino Tolentino presiding presiding over over any any criminal criminal matter matter prior prior to 26 People v. Ybanez.
Ybanez. The Court Court acknowledges acknowledges that that on on May May 24,24, 2024 2024 (twenty-three (twenty-three days days after after the filing of of an objection Ybanez), the in Ybanez), the Government orally orally agreed agreed with Defendant Taitingfong Taitingfong in CF0024-24 that Judge Tolentino was 27 disqualified from presiding over her case in light of the familial familial relationship relationship between between Judge Judge Tolentino Tolentino and Attorney General Moylan. See People People v.
v. Taitingfong Taitingfong (CF0024-24) Dec. & Order Order at 4 fn. 1, Jun.
Jun. 4, 4, 2024.
2024. ItIt does not not appear 28 that the Government itself also filed an Objection to Judge Tolentino presiding in that matter. See Government itself See id.
id
People v. Rik People v. Rikat Case No.
No. CM0193-24 Decision Decision and and Order
Page 7 of of8 1 See idid.atat2.2.InInlight grounds. See lightofofthe theforegoing, foregoing,the the Court Court finds that that the Government's silence for 2 over a year, despite being aware of the facts facts forming the basis of the disqualification, amounts to 3 a waiver of any objection objection to Judge Tolentino presiding over cases cases involving the Office of the 4 Attorney General based Attorney General based on the the familial familial relationship relationship between between Judge Judge Tolentino Tolentino and and Attorney Attorney 5 General Moylan. 6 CONCLUSION
7 For the foregoing reasons, the Court hereby DENIES the Government's Statement reasons, the Statement of of 8 Objection and Motion to Disqualify. The TheCourt Courtreturns returns the the matter matter to to Judge Tolentino for further 9 disposition. 10 10 ""-- 111 1 IT IS SO ORDERED this ':lf day of of August, 2024.
2024.
12 12
13 I 13
14 14 HONORABLE VERNON P. p. PEREZ Judge, Superior Court of Guam 15 15
16 16
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People v. People v. Rik Rikat Case No.
No. CM0193-24 Decision Decision and and Order
Page Page 8 of8