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. ..,..~ 5 IN THE SUPERIOR COURT OF GUAM 6
7 THE PEOPLE OF GUAM, ) Case No. CF0477-16 8 ) 9 ) vol ) 10 DECISION AND ORDER i ) 11 l ) BENNY SAM ROBERT, ) 12 ) Defendant. ) 13 ) 14 ) ) 15
16 INTRODUCTION 17 This latter came before the Honorable Alberto C. Lamorena, IH on October 2, 2017 for 18 _ 19 a hearing co ceding sentencing issues raised by Defendant Benny Sam Robert ("Defendant").
20 During the hearing, Assistant Attorney General Jeremiah B. Luther represented the People of 21 Guam ("the People") and Attorney Terence E. Timblin represented Defendant. Having reviewed 22
23 and considered the record, the arguments of counsel, and the applicable law, the Court now
24 issues the flowing Decision and Order. 25 BACKGROUND 26 1 27 On August 16, 2016, Defendant was indicted by a grand jury on the following charges:
28 (1) Aggravated Assault (as a Second Degree Felony), including a Special Allegation for the Use
29 of a Deadly Weapon in the Commission of a Felony; (2) Terrorizing (as a Third Degree Felony),
30 including a Special Allegation for the se of a Deadly Weapon in the Commission of a Felony; 31
ORIGINAL Ill ll WH
Decision and Order CF0477-16,People v. Robert
1 and (3) Criminal Mischief (as a Third Degree Felony), including a Special Allegation for the
2 Use of a Deadly Weapon in the Commission of a Felony. (Indictment, Aug. 16, 2016.) The 3 charges arise from an incident that occurred on or about August 6, 2016 at the Bottoms Lounge 4
5 in Maite, Guam.
6 Defendant was arraigned on the aforementioned charges on August 17, 2016. During his 7 arraignment hearing, Defendant pled not guilty and asserted his right to a speedy trial under 8 8 G.C.A. § 80.60. Defendant later waived on September 7, 2016. 9
10 On November 15, 2016, Defendant re-asserted his right to a speedy trial. Jury selection
11 and trial was initially scheduled for December 9, 2016, however, Defendant informed the Court 12 of his waiver of his right to a jury trial. (L Waiver of Jury Demand, Dec. 9, 2016.) After the 13 People consented to the waiver, and the Court approved the waiver following a determination 14
15 that it was made knowingly and voluntarily, the parties agreed to begin trial on December 12,
16 2016. (Minutes, Dec. 9, 2016.) 17 On December 12 and December 14, 2016, the Court held a bench triad. The Court issued 18 its Findings Of Fact and Conclusions of Law ("Findings" of "FOFCOL") on April 13, 2017 19
20 therein finding Defendant guilty of all the charges in the Indictment, including the three (3)
21 corresponding special allegations. 22 Following the issuance Of the Court's Findings, Defendant filed a Sentencing 23
Memorandum on July 18, 2017 raising issues of merger as the convictions for Aggravated 24
25 Assault (as a Second Degree Felony) and Terrorizing (as a Third Degree Felony) and the 26 sentencing enhancements. The People responded to the sentencing memorandum on September 27 18, 2017, which Defendant replied to on September 25, 2017. The Court heard oral arguments 28
29 on the sentencing issues on October 2, 2017 and subsequently took the matter under advisement.
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Decision and Order CF0477-16,People v. Robert
2 I. The Terrorizing and Aggravated Assault Convictions Do Not Merge. 3 In his Sentencing Memorandum, Defendant argues that his "conviction for Terrorizing 4
5 should be merged with the conviction for Aggravated Assault, either pursuant to the doctrine of
6 merger or as a matter of statutory interpretation."1 (Def.'s Sentencing Memorandum at 3, Jul. 7 18, 2017.) This argument, however, ignores the statutes corresponding to the offenses and the 8 Findings of the Court which provided a separate factual basis to support the elements for each of 9
10 the convictions. 11 To determine if offenses merge, the Court must look to the statutes giving rise to the 12 convictions. People v. Diaz, 2007 Guam 3 'I 55 ("[w]hether one offense merges with another is a 13 question of statutory interpretation"); People v. Camacho, 2015 Guam 37 1 20 ( "[ i] n 14
15 determining whether multiple punishments violate the Double Jeopardy Clause courts look to 16 the punishment authorized by the legislative branch"). In analyzing whether a violation of two 17 statutes constitutes separate offenses allowing for separate punishments, the Supreme Court of 18
Guam ("Supreme Court") has adopted the framework set forth in Blockburger v. United States, 19
20 284 U.S. 299, 304 (1932). Under the Blockburger test, "[w]here the same act or transaction 21 constitutes a violation of two distinct statutory provisions, the test to be applied to determine 22 whether there are two offenses or only one is whether each provision requires proof of an 23
24 additional fact which the other does not." People v. San Nicolas, 2001 Guam 4 'll 11 ("the test is
25 used to determine whether the violation of two distinct statutes constitutes the same offense and 26 if so, courts presume that the Legislature intends only one punishment for the violation") 27
29 1 To support his argument that the his convictions for Aggravated Assault and Terrorizing merge,
30 Defendant cites generally to 9 G.C.A. § 1.22, which explains the various circumstances under which an individual may not convicted of more than one offense. Defendant though has not put forth any 31 arguments whatsoever regarding how his convictions are barred by any of the means explicitly listed in the statute.
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Decision and Order CF0477-16, People v. Robert
l (internal quotation marks omitted). Based on these principles, merger is appropriate when 2 "proof of the elements of one [offense] necessarily establishes all of the elements of the other 3 offense". Diaz, 2007 Guam 3
5 As stated previously, Defendant was convicted of Terrorizing and Aggravated Assault,
6 among other offenses. Under 9 G.C.A. § 19.60, a person is guilty of Terrorizing: "if he 7 communicates to any person a threat to commit or to cause to be committed a crime of violence 8 dangerous to human life, against the person to whom the communication is made or another, 9
10 and the natural and probable consequence of such a threat, is to place the person to whom the
11 threat is communicated or the person threatened in reasonable fear that a crime will be 12 committed." On the contrary, a person is guilty of Aggravated Assault "if he either \ 13 recklessly causes or attempts to cause serious bodily to another in circumstances manifesting 14
15 extreme indifference to the value of human life."2 9 G.C.A. § 19.20(a)(1).
16 As a matter of statutory interpretation, the offenses of Terrorizing and Aggravated 17 Assault are completely different offenses with each requiring proof the other does not. For 18 example, the offense of Terrorizing requires the distinct element that a threat be communicated 19
20 "to commit or to cause to be committed a crime of violence". 9 G.C.A. § 19.60. The offense, by 21 its very definition, does not require that any crime of violence occur or be attempted on the 22 individual who receives the communication. By contrast, the offense of Aggravated Assault 23
24 contains no communication requirement. Aggravated Assault instead requires causing or
25 attempting to cause "serious bodily injury" with the mens Rea requirement of "recklessly". 9 26 G.C.A. § 19.20(a)(l).
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I I D l
's1JpE?(%QE _<;§>u'f 4'* ~ _ Q * 1 Si - _ 1 *
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2 CLE o u r e
3 ...--»--1 4 f
. ..,..~ 5 IN THE SUPERIOR COURT OF GUAM 6
7 THE PEOPLE OF GUAM, ) Case No. CF0477-16 8 ) 9 ) vol ) 10 DECISION AND ORDER i ) 11 l ) BENNY SAM ROBERT, ) 12 ) Defendant. ) 13 ) 14 ) ) 15
16 INTRODUCTION 17 This latter came before the Honorable Alberto C. Lamorena, IH on October 2, 2017 for 18 _ 19 a hearing co ceding sentencing issues raised by Defendant Benny Sam Robert ("Defendant").
20 During the hearing, Assistant Attorney General Jeremiah B. Luther represented the People of 21 Guam ("the People") and Attorney Terence E. Timblin represented Defendant. Having reviewed 22
23 and considered the record, the arguments of counsel, and the applicable law, the Court now
24 issues the flowing Decision and Order. 25 BACKGROUND 26 1 27 On August 16, 2016, Defendant was indicted by a grand jury on the following charges:
28 (1) Aggravated Assault (as a Second Degree Felony), including a Special Allegation for the Use
29 of a Deadly Weapon in the Commission of a Felony; (2) Terrorizing (as a Third Degree Felony),
30 including a Special Allegation for the se of a Deadly Weapon in the Commission of a Felony; 31
ORIGINAL Ill ll WH
Decision and Order CF0477-16,People v. Robert
1 and (3) Criminal Mischief (as a Third Degree Felony), including a Special Allegation for the
2 Use of a Deadly Weapon in the Commission of a Felony. (Indictment, Aug. 16, 2016.) The 3 charges arise from an incident that occurred on or about August 6, 2016 at the Bottoms Lounge 4
5 in Maite, Guam.
6 Defendant was arraigned on the aforementioned charges on August 17, 2016. During his 7 arraignment hearing, Defendant pled not guilty and asserted his right to a speedy trial under 8 8 G.C.A. § 80.60. Defendant later waived on September 7, 2016. 9
10 On November 15, 2016, Defendant re-asserted his right to a speedy trial. Jury selection
11 and trial was initially scheduled for December 9, 2016, however, Defendant informed the Court 12 of his waiver of his right to a jury trial. (L Waiver of Jury Demand, Dec. 9, 2016.) After the 13 People consented to the waiver, and the Court approved the waiver following a determination 14
15 that it was made knowingly and voluntarily, the parties agreed to begin trial on December 12,
16 2016. (Minutes, Dec. 9, 2016.) 17 On December 12 and December 14, 2016, the Court held a bench triad. The Court issued 18 its Findings Of Fact and Conclusions of Law ("Findings" of "FOFCOL") on April 13, 2017 19
20 therein finding Defendant guilty of all the charges in the Indictment, including the three (3)
21 corresponding special allegations. 22 Following the issuance Of the Court's Findings, Defendant filed a Sentencing 23
Memorandum on July 18, 2017 raising issues of merger as the convictions for Aggravated 24
25 Assault (as a Second Degree Felony) and Terrorizing (as a Third Degree Felony) and the 26 sentencing enhancements. The People responded to the sentencing memorandum on September 27 18, 2017, which Defendant replied to on September 25, 2017. The Court heard oral arguments 28
29 on the sentencing issues on October 2, 2017 and subsequently took the matter under advisement.
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Decision and Order CF0477-16,People v. Robert
2 I. The Terrorizing and Aggravated Assault Convictions Do Not Merge. 3 In his Sentencing Memorandum, Defendant argues that his "conviction for Terrorizing 4
5 should be merged with the conviction for Aggravated Assault, either pursuant to the doctrine of
6 merger or as a matter of statutory interpretation."1 (Def.'s Sentencing Memorandum at 3, Jul. 7 18, 2017.) This argument, however, ignores the statutes corresponding to the offenses and the 8 Findings of the Court which provided a separate factual basis to support the elements for each of 9
10 the convictions. 11 To determine if offenses merge, the Court must look to the statutes giving rise to the 12 convictions. People v. Diaz, 2007 Guam 3 'I 55 ("[w]hether one offense merges with another is a 13 question of statutory interpretation"); People v. Camacho, 2015 Guam 37 1 20 ( "[ i] n 14
15 determining whether multiple punishments violate the Double Jeopardy Clause courts look to 16 the punishment authorized by the legislative branch"). In analyzing whether a violation of two 17 statutes constitutes separate offenses allowing for separate punishments, the Supreme Court of 18
Guam ("Supreme Court") has adopted the framework set forth in Blockburger v. United States, 19
20 284 U.S. 299, 304 (1932). Under the Blockburger test, "[w]here the same act or transaction 21 constitutes a violation of two distinct statutory provisions, the test to be applied to determine 22 whether there are two offenses or only one is whether each provision requires proof of an 23
24 additional fact which the other does not." People v. San Nicolas, 2001 Guam 4 'll 11 ("the test is
25 used to determine whether the violation of two distinct statutes constitutes the same offense and 26 if so, courts presume that the Legislature intends only one punishment for the violation") 27
29 1 To support his argument that the his convictions for Aggravated Assault and Terrorizing merge,
30 Defendant cites generally to 9 G.C.A. § 1.22, which explains the various circumstances under which an individual may not convicted of more than one offense. Defendant though has not put forth any 31 arguments whatsoever regarding how his convictions are barred by any of the means explicitly listed in the statute.
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Decision and Order CF0477-16, People v. Robert
l (internal quotation marks omitted). Based on these principles, merger is appropriate when 2 "proof of the elements of one [offense] necessarily establishes all of the elements of the other 3 offense". Diaz, 2007 Guam 3
5 As stated previously, Defendant was convicted of Terrorizing and Aggravated Assault,
6 among other offenses. Under 9 G.C.A. § 19.60, a person is guilty of Terrorizing: "if he 7 communicates to any person a threat to commit or to cause to be committed a crime of violence 8 dangerous to human life, against the person to whom the communication is made or another, 9
10 and the natural and probable consequence of such a threat, is to place the person to whom the
11 threat is communicated or the person threatened in reasonable fear that a crime will be 12 committed." On the contrary, a person is guilty of Aggravated Assault "if he either \ 13 recklessly causes or attempts to cause serious bodily to another in circumstances manifesting 14
15 extreme indifference to the value of human life."2 9 G.C.A. § 19.20(a)(1).
16 As a matter of statutory interpretation, the offenses of Terrorizing and Aggravated 17 Assault are completely different offenses with each requiring proof the other does not. For 18 example, the offense of Terrorizing requires the distinct element that a threat be communicated 19
20 "to commit or to cause to be committed a crime of violence". 9 G.C.A. § 19.60. The offense, by 21 its very definition, does not require that any crime of violence occur or be attempted on the 22 individual who receives the communication. By contrast, the offense of Aggravated Assault 23
24 contains no communication requirement. Aggravated Assault instead requires causing or
25 attempting to cause "serious bodily injury" with the mens Rea requirement of "recklessly". 9 26 G.C.A. § 19.20(a)(l). A full comparison of the elements for Terrorizing and Aggravated Assault 27 reveal that the offenses do not even contain even a single common element. Accordingly, the 28
30 2 31 The indictment and the elements of offenses used by the Court to find the Defendant guilty of Terrorizing and Aggravated Assault track the statute.
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Decision and Order CF0477-16, People v. Robert
1 convictions of the offenses of Terrorizing and Aggravated Assault do not merge as the 2 construction of their corresponding statutes creates separately punishable offenses. 3 Defendant also seems to suggest that that the offenses merge because there was no 4
5 chronological separation between the threat and the assault. In furtherance of this argument,
6 Defendant states with respect to the Terrorizing offense - that due to the phrase "will be 7 committed" within the statute "the Legislature intended that there be a chronological separation, 8 however brief, between the threat and the act." (Def.'s Sentencing Memorandum at 3, July 18, 9
10 2017.) This interpretation, however, is misleading as it does not take into account the context in
11 which the phrase is used within the statute. A full reading of section 19.60 explains that the 12 phrase "will be committed" is part of the element concerned with the effect of the threat on the 13 individual receiving the threat. More specifically, the offense of Terrorizing requires that the 14
15 natural and probable consequence of the threat be "to place the person to whom the threat is
16 communicated or the person threatened in reasonable fear that crime will be committed." 9 17 G.C.A. § 19.60 (emphasis added). The phrase "will be committed" therefore is not meant to 18
impose a chronological separation between the threat and any violence as the offense does not 19
20 require that the communication lead to a completed crime against the person to whom the threat 21 is against. Furthermore, the factual basis used by the Court to support the elements for the two 22 different convictions are different, and the Court made it clear in its Findings of those specific 23
24 facts. (See FOFCOL at 7-8, Apr. 13, 2017.)
25 II. Defendant is Subject to Separate Sentencing Enhancements. 26 Defendant also raises an issue with respect to the sentencing enhancements for each of 27 the Special Allegations for Use of a Deadly Weapon in the Commission of a Felony, which 28
29 accompany the convictions for Terrorizing, Aggravated Assault, and Criminal Mischief.
30 Although not explicit, Defendant seems to suggest that the sentencing enhancements should be 31 aggregated as "[a]ll three charges arose from a single relatively brief incident and the number of
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Decision and Order CF0477-16, People v. Robert
1 enhancements should not depend on how many separate felony charges can be squeezed out of a 2 given event." (Def.'s Sentencing Memorandum at 5, July 18, 2017.) Aggregation or merger of 3 the sentencing enhancements, however, does not apply under the circumstances as Defendant 4
5 was convicted of separate punishable offenses.3
6 Here, Defendant was convicted of three separate and distinct felonies -Terrorizing, 7 Aggravated Assault, and Criminal Mischief - each with a corresponding Special Allegation for 8 Use of a Deadly Weapon in the Commission of a Felony. The special allegations which 9
10 accompanied the felony convictions were charged pursuant 9 G.C.A. § 80.37, which reads as
11 follows: 12 Whoever unlawfully possesses or uses a deadly weapon in the commission of a 13 felony punishable under the laws of Guam shall, in addition to the punishment imposed for the commission of such felony, be imprisoned for a term of not less 14 than five (5) years nor more than twenty-five (25) years...The term required to be 15 imposed by this Section shall not run concurrently with any term of imprisonment imposed for the commission of any other felony. 16
17 Based on the expressed language of section 80.37, Defendant's possible sentencing 18
19 enhancement must be served "in addition to the punishment imposed" for each underlying
20 felo ny. Q See also Guam v. Snaer, 758 F.2d 1341, 1344 (9th Cir. 1985) ("Guam's purpose in 21 enacting § 80.37 was specifically to impose a penalty that would be in addition the punishment 22 for underlying felony"). Contrary to Defendant's arguments that "the law is clear that there can 23
24 only be one deadly weapon enhancement for a single event," the Supreme Court has determined 25 that the "[t]he Legislature did not intend to aggregate the deadly weapon sentencing, but 26 intended to allow for a separate unit of prosecution for each felony conviction." People v. 27
28 Afaisen, 2016 Guam 31 '][ 27. Therefore, Defendant's arguments that there can only be a single
29 3 As the Court has already determined drat the charges of Terrorizing and Aggravated Assault constitute 30 separate and distinct felonies with different facts forming the basis for the convictions, Defendant's 31 reliance on merger and multiple theories of liability - as explained in People v. Reves, 1998 Guam 32 - is misplaced.
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Decision and Order CF0477- 16, People v. Robert
1 sentencing enhancement are unpersuasive in light of the statute, this jurisdiction's treatment of 2 special allegations, and the Court's determination that there exist separate and distinct felonies 3 with different facts forming the basis for each of the convictions. (See Def.'s Reply to Govt.'s 4
5 Opp. at 2, Sep. 25, 2017.) Finally, section 80.37 states that sentencing enhancement "shall not
6 run concurrently with any term of imprisonment imposed for the commission of any other 7 felony". (emphasis added). This language makes it very clear to the Court that Defendant is 8 subject to separate sentencing enhancements that must run consecutively, as opposed to 9
10 concurrently, to the punishment imposed for the underlying felony offenses.
ll CONCLUSION 12 Based on the reasons set forth above, the Court finds that (1) the convictions for 13 Terrorizing and Aggravated Assault convictions do not merge, and (2) Defendant is subject to 14
15 separate sentencing enhancements for each of the underlying felony offenses.
16 A sentencing hearing is scheduled for March 14, 2018 at 3:00 p.m. 17
18 IT IS SO ORDERED on this 29th day of January, 2018. 19
23 HONORABLE ALBERT() c. LAMORENA, III 24 Presiding Judge, Superior Court of Guam
27 SERVICE Vi .1 (1OURT BOX I acknowledge mat a copy of the 28 original hereto was placed in the co of:
31 a &putyClerk s c fCourt d Guam
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