IN THE SUPERIOR COURT OF GUAM 2 THE PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0002..,J3. 3 ) 4 ) vs. ) 5 ) DECISION AND OROE.R ) (Motion to Dismiss Indictment) 6 JOSEPH CHARF AUROS SALAS, JR., ) 7 ) Defendant. 8 INTRODUCTION 9
10 This matter comes before the Honorable Judge Michael J. Bordallo on Defendant's
II Motion to Dismiss First Charge in the Indictment (Stalking as a Second Degree Felony). 12 Defendant Joseph Charfauros Salas, Jr. ("Defendant") is represented by Assistant Public 13 Defender Maria G. Fitzpatrick. The People of Guam ("The People") are represented by 14
Assistant Attorney General Richelle J. Yu. After reviewing the pleadings and arguments 15
16 presented, the Court now issues the following Decision and Order DENYING Defendant's
17 Motion to Dismiss. 18
19 BACKGROUND
20 On January 11, 2013, Defendant was indicted on charges of Advanced Stalking (As a 21 Second Degree Felony) and Violation of a Court Order (As a Misdemeanor). The First Charge 22 of Advanced Stalking alleges the following: 23
24 On or about between 27th day of December thru 31st day of December 2012, inclusive, in Guam, [Defendant], did commit the offense of Advanced Stalking, in 25 that he did willfully, maliciously and repeatedly stalk another person, specifically, Crystal Gail Hocog, by harassing her, thereby causing substantial emotional 26 distress, wile [sic] being prohibited from harassing Crystal Gail Hocog by a 27 restraining order in effect from December 27,2012, in case number DM135-12, in violation of9 GCA §§ 19.69 and 19.70(b) and (e). 28 Indictment at 1. The Second Charge of Violation of a Court Order (As a Misdemeanor)
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People v. Salas Decision & Order (Motion to Dismiss) Criminal Case No. CF0002-13 alleges the following: 2
3 On or about between 27th day of December thru 31st day of December 201 inclusive, in Guam, [Defendant], did commit the ofTense of Violation of Court 4 Order, in that he knowingly violated a court order no. DM135-1 in the Superior Court of Guam, enjoining l ] Defendant from harassing g [sic] or annoying Crystal 5 Gail Hocog, in violation of9 GCA § 30.40(a). 6 !d. at 1-2. 7
8 On August 27, 2013, Defendant filed Motion to Dismiss First Charge in the Indictment
9 (Stalking as a Second Degree Felony) (''Motion to Dismiss"). The People filed People's
10 Opposition to Defendant's Motion to Dismiss First Charge in the Indictment (Stalking as a II Second Degree Felony) ("Opposition") on October 1, 2013. Defendant filed Reply in Support 12 of Motion to Dismiss First Charge in the Indictment (Stalking as a Second Degree Felony) 13
14 ("Reply") on October 2, 2013.
15 DISCUSSION 16
17 Defendant requests dismissal of the Indictment based upon three points: ( 1) there was
18 no evidence presented to the Grand Jury Defendant made a credible threat with intent to place 19 Crystal Gail Hocog ("Victim") or her immediate family in fear of death or bodily injury; (2) 20 there was no evidence presented to the Grand Jury that Victim suffered emotional distress and 21 that the course of conduct was of such a nature to cause a reasonable person to sutTer 22
23 substantial emotional distress; and (3) there was no evidence presented to the Grand Jury that
24 the text messages served no legitimate purpose. 25 An indictment should not be dismissed "if there is some rational ground for assuming 26 the possibility that an offense has been committed and the accused is guilty of it.'' Guevara v. 27 Superior Court, 62 Cal.App.4th 864, 869 (Cal.Ct.App.l998) (citation omitted). Title 8 GCA § 28
50.54(b) provides that "[t]he grand jury shall find an indictment when from the evidence
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People v. Salas Decision & Order (Motion to Dismiss) Criminal Case No. CF0002-13 presented, there is reasonable cause to believe that an indictable ofTense has been committed 2 and that the defendant committed it." 8 GCA § 50.54(b) (2013) (emphasis added). 3 "Reasonable cause amounts to evidence such that a man of ordinary caution or prudence would 4 be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.'' 5
6 People v. Grajo, 1987 WL 109393 at * 2 (D. Guam 1987) (citations omitted).
7 A grand jury should receive only competent evidence. See 8 GCA § 50.42 (20 13). 8 Competent evidence is evidence that a reasonable person would rely upon in conducting his or 9 her daily affairs. See People v. Quidachay, 815 F .2d 1311, 1313 (9th Cir. 1987). "Dismissal 10
II of an indictment is a disfavored remedy." People v. Palomo, 1993 WL 129624 * 5 (D. Guam
12 1993)(citing United States v. Rogers, 751 F.2d 1074, 1076-1077 (9th Cir.1985)).
13 Title 9 GCA § 19.70 contains the statutory authority for Advanced Stalking and 14 provides: 15 (a) A person is guilty ofsimple stalking if he or she willfully, maliciously, 16 and repeatedly, follows or harasses another person or who makes a credible threat 17 with intent to place that person or a member of his or her immediate family in fear of death or bodily mJury. 18 (b) A person is guilty of advanced stalking if he or she violates Subsection 19 (a) of this Section when there is a temporary restraining order or an injunction or 20 both or any other court order in effect prohibiting the behavior described in that Subsection against the same party. 21 (c) A person is guilty of advanced stalking if he or she violates Subsection 22 (a) of this Section a second or subsequent time against the same victim, within 23 seven (7) years of a prior conviction under that Subsection, and involving an harassment or a credible threat of violence, as defined in 24 § 19.69 ofthis Chapter. 25 (d) Simple stalking is a felony of the third degree. 26 (e) Advanced stalking is a felony of the second degree. 27
28 (f) This Section shall not apply to conduct which occurs during labor picketing.
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People v. Salas Decision & Order (Motion to Dismiss) Criminal Case No. CF0002-13 9 GCA § 19.70 (2013) (emphasis added). Title 9 GCA § 19.69 defines "harasses" or 2 "harassment" and provides: 3 (a) Harasses or harassment means a knowing and willful course of conduct, 4 whether physical, verbal, \vritten, electronic, telephonic, via or by use of a computer, computer network, computer system, telephone network, data network, 5 text message, instant message, or otherwise, directed at a specific person which 6 alarms, annoys, or distresses the person, and which serves no legitimate purpose. Such course of conduct must be of a nature to cause a reas·onable person to suffer 7 substantial emotional distress, and must cause subs·tantial emotional distress. 8 9 GCA § 19.69 (2013) (emphasis added). 9 Again, Defendant argues dismissal is warranted based upon three points: ( 1) there was 10
II no evidence presented to the Grand Jury Defendant made a credible threat with intent to place
12 Crystal Gail Hocog ("Victim") or her immediate family in fear of death or bodily injury; (2)
13 there was no evidence presented to the Grand Jury that Victim suffered emotional distress and 14 that the course of conduct was of such a nature to cause a reasonable person to suffer 15 substantial emotional distress; and (3) there was no evidence presented to the Grand Jury that 16
17 the text messages served no legitimate purpose.
18 First, , the Court agrees with The People that they were not required to present evidence 19 of a credible threat, since Advanced Stalking as charged did not contain that element.
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IN THE SUPERIOR COURT OF GUAM 2 THE PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF0002..,J3. 3 ) 4 ) vs. ) 5 ) DECISION AND OROE.R ) (Motion to Dismiss Indictment) 6 JOSEPH CHARF AUROS SALAS, JR., ) 7 ) Defendant. 8 INTRODUCTION 9
10 This matter comes before the Honorable Judge Michael J. Bordallo on Defendant's
II Motion to Dismiss First Charge in the Indictment (Stalking as a Second Degree Felony). 12 Defendant Joseph Charfauros Salas, Jr. ("Defendant") is represented by Assistant Public 13 Defender Maria G. Fitzpatrick. The People of Guam ("The People") are represented by 14
Assistant Attorney General Richelle J. Yu. After reviewing the pleadings and arguments 15
16 presented, the Court now issues the following Decision and Order DENYING Defendant's
17 Motion to Dismiss. 18
19 BACKGROUND
20 On January 11, 2013, Defendant was indicted on charges of Advanced Stalking (As a 21 Second Degree Felony) and Violation of a Court Order (As a Misdemeanor). The First Charge 22 of Advanced Stalking alleges the following: 23
24 On or about between 27th day of December thru 31st day of December 2012, inclusive, in Guam, [Defendant], did commit the offense of Advanced Stalking, in 25 that he did willfully, maliciously and repeatedly stalk another person, specifically, Crystal Gail Hocog, by harassing her, thereby causing substantial emotional 26 distress, wile [sic] being prohibited from harassing Crystal Gail Hocog by a 27 restraining order in effect from December 27,2012, in case number DM135-12, in violation of9 GCA §§ 19.69 and 19.70(b) and (e). 28 Indictment at 1. The Second Charge of Violation of a Court Order (As a Misdemeanor)
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People v. Salas Decision & Order (Motion to Dismiss) Criminal Case No. CF0002-13 alleges the following: 2
3 On or about between 27th day of December thru 31st day of December 201 inclusive, in Guam, [Defendant], did commit the ofTense of Violation of Court 4 Order, in that he knowingly violated a court order no. DM135-1 in the Superior Court of Guam, enjoining l ] Defendant from harassing g [sic] or annoying Crystal 5 Gail Hocog, in violation of9 GCA § 30.40(a). 6 !d. at 1-2. 7
8 On August 27, 2013, Defendant filed Motion to Dismiss First Charge in the Indictment
9 (Stalking as a Second Degree Felony) (''Motion to Dismiss"). The People filed People's
10 Opposition to Defendant's Motion to Dismiss First Charge in the Indictment (Stalking as a II Second Degree Felony) ("Opposition") on October 1, 2013. Defendant filed Reply in Support 12 of Motion to Dismiss First Charge in the Indictment (Stalking as a Second Degree Felony) 13
14 ("Reply") on October 2, 2013.
15 DISCUSSION 16
17 Defendant requests dismissal of the Indictment based upon three points: ( 1) there was
18 no evidence presented to the Grand Jury Defendant made a credible threat with intent to place 19 Crystal Gail Hocog ("Victim") or her immediate family in fear of death or bodily injury; (2) 20 there was no evidence presented to the Grand Jury that Victim suffered emotional distress and 21 that the course of conduct was of such a nature to cause a reasonable person to sutTer 22
23 substantial emotional distress; and (3) there was no evidence presented to the Grand Jury that
24 the text messages served no legitimate purpose. 25 An indictment should not be dismissed "if there is some rational ground for assuming 26 the possibility that an offense has been committed and the accused is guilty of it.'' Guevara v. 27 Superior Court, 62 Cal.App.4th 864, 869 (Cal.Ct.App.l998) (citation omitted). Title 8 GCA § 28
50.54(b) provides that "[t]he grand jury shall find an indictment when from the evidence
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People v. Salas Decision & Order (Motion to Dismiss) Criminal Case No. CF0002-13 presented, there is reasonable cause to believe that an indictable ofTense has been committed 2 and that the defendant committed it." 8 GCA § 50.54(b) (2013) (emphasis added). 3 "Reasonable cause amounts to evidence such that a man of ordinary caution or prudence would 4 be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused.'' 5
6 People v. Grajo, 1987 WL 109393 at * 2 (D. Guam 1987) (citations omitted).
7 A grand jury should receive only competent evidence. See 8 GCA § 50.42 (20 13). 8 Competent evidence is evidence that a reasonable person would rely upon in conducting his or 9 her daily affairs. See People v. Quidachay, 815 F .2d 1311, 1313 (9th Cir. 1987). "Dismissal 10
II of an indictment is a disfavored remedy." People v. Palomo, 1993 WL 129624 * 5 (D. Guam
12 1993)(citing United States v. Rogers, 751 F.2d 1074, 1076-1077 (9th Cir.1985)).
13 Title 9 GCA § 19.70 contains the statutory authority for Advanced Stalking and 14 provides: 15 (a) A person is guilty ofsimple stalking if he or she willfully, maliciously, 16 and repeatedly, follows or harasses another person or who makes a credible threat 17 with intent to place that person or a member of his or her immediate family in fear of death or bodily mJury. 18 (b) A person is guilty of advanced stalking if he or she violates Subsection 19 (a) of this Section when there is a temporary restraining order or an injunction or 20 both or any other court order in effect prohibiting the behavior described in that Subsection against the same party. 21 (c) A person is guilty of advanced stalking if he or she violates Subsection 22 (a) of this Section a second or subsequent time against the same victim, within 23 seven (7) years of a prior conviction under that Subsection, and involving an harassment or a credible threat of violence, as defined in 24 § 19.69 ofthis Chapter. 25 (d) Simple stalking is a felony of the third degree. 26 (e) Advanced stalking is a felony of the second degree. 27
28 (f) This Section shall not apply to conduct which occurs during labor picketing.
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People v. Salas Decision & Order (Motion to Dismiss) Criminal Case No. CF0002-13 9 GCA § 19.70 (2013) (emphasis added). Title 9 GCA § 19.69 defines "harasses" or 2 "harassment" and provides: 3 (a) Harasses or harassment means a knowing and willful course of conduct, 4 whether physical, verbal, \vritten, electronic, telephonic, via or by use of a computer, computer network, computer system, telephone network, data network, 5 text message, instant message, or otherwise, directed at a specific person which 6 alarms, annoys, or distresses the person, and which serves no legitimate purpose. Such course of conduct must be of a nature to cause a reas·onable person to suffer 7 substantial emotional distress, and must cause subs·tantial emotional distress. 8 9 GCA § 19.69 (2013) (emphasis added). 9 Again, Defendant argues dismissal is warranted based upon three points: ( 1) there was 10
II no evidence presented to the Grand Jury Defendant made a credible threat with intent to place
12 Crystal Gail Hocog ("Victim") or her immediate family in fear of death or bodily injury; (2)
13 there was no evidence presented to the Grand Jury that Victim suffered emotional distress and 14 that the course of conduct was of such a nature to cause a reasonable person to suffer 15 substantial emotional distress; and (3) there was no evidence presented to the Grand Jury that 16
17 the text messages served no legitimate purpose.
18 First, , the Court agrees with The People that they were not required to present evidence 19 of a credible threat, since Advanced Stalking as charged did not contain that element. Title 9 20 GCA § 19.70 states that "[a] person is guilty of simple stalking if he or she willfully, 21 maliciously, and repeatedly, follows or harasses another person or who makes a credible 22
23 threat . ... " 9 GCA § 19.70 (emphasis added). Here, the statute's use of the disjunctive "or"
24 means that only one of the listed requirements need to be satisfied or charged. Therefore, the 25 Court holds that The People have properly charged Defendant with Advanced Stalking under 26 the first theory, harassment. 27 Next, Defendant argues The People did not present sufficient evidence both that Victim 28
suffered emotional distress, and a reasonable person would not have suffered substantial
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People v. Salas Decision & Order (Motion to Dismiss) Criminal Case No. CF0002-13 emotional distress. The legislature has not defined "substantial emotional distress." In the 2 context of the tort of intentional infliction of emotional distress, "severe emotional distress'' 3 means "mental suffering, mental anguish, mental or nervous shock, or their like. It includes all 4 highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, 5
6 embarrassment, anger, chagrin, disappointment, worry, and nausea ... Complete emotional
7 tranquility is seldom attainable in this world, and some degree of transient and trivial emotional 8 distress is a part of the price of living among people. The law intervenes only where the 9 distress inflicted is so severe that no reasonable man could be expected to endure it." 10
II Restatement (Second) of Torts § 46, cmt. j (1965). Finally, "substantial" is defined as
12 "considerable size or amount." Webster's New Twentieth Century Dictionary, 1817 (2
13 ed.l979). Since the word "substantial" modifies "emotional distress," a defendant's acts must 14 cause a considerable mental anguish in a reasonable person. 15 In the present case, The People indicate there was evidence presented to the Grand Jury 16
17 regarding the Order of Protection issued on December 27, 2012, and Defendant violated the
18 Court's order by sending text messages and loitering at Victim's front door. The text messages 19 presented to the Grand Jury include the following statements: "Give me my stuff tomorrow im 20 not playn. Drop it in da morning. I'll be waitn or else imago tour work. If you don't want 21 that call me tonite and xplain!," "im at gate," "Waiting or irn comn there," "Im at ur door," 22
23 and "U fuken sold my boys phone to someone. Just wait im not done. Bitch!"
24 The Court holds the Grand Jury received evidence that Victim suffered substantial 25 emotional distress and that distress was reasonable. First, The People presented evidence to 26 the Grand Jury that Victim feared for her safety. Additionally, Defendant's distress was 27 reasonable, as any reasonable person who knows there is a protective order in place, would be 28
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People v. Salas Decision & Order (Motion to Dismiss) Criminal Case No. CF0002-13 greatly disturbed by the content Defendant's text messages and Defendant's physical 2 proximity. 3 Finally, Defendant argues there was no evidence presented that the text messages did 4
not serve a legitimate purpose. The term "legitimate'' means "sanctioned by law or custom; 5
6 lawful; allowed." Webster's New Twentieth Century Dictionary I 035 (2d ed. 1979). The
7 People presented evidence to the Grand Jury of the Order of Protection, and even if Defendant 8 argues he had a partially legitimate motive for contacting Victim, The People presented 9 evidence of threatening texts and behavior made during the course of the Court's order. The 10
II Court holds that by proffering the above evidence to the Grand Jury, the People presented
12 evidence the communication served no legitimate purpose. 13
14 CONCLUSION
15 For the foregoing reasons, the Court DENIES Defendant's Motion to Dismiss. Further 16 proceedings are set for ~ / ~ Jl[] f? / tJ~ I I
this-=--~- ofNovember 2013. 18 SO ORDERED 19
21 ~?,PBLE MICHAEL J. BORDALLO JrE, SUPERIOR COURT OF GUAM 22
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People v. Salas Decision & Order (Motion to Dismiss) Criminal Case No. CF0002-13