People v. San Miguel

Opinion

IN THE SUPERIOR COURT OF GUAM

2 THE PEOPLE OF GUAM, ) CRIMINAL CASE NO. CF429-11 )

3 )

4 v. ) DECISION AND ORDER ON ) DEFENDANTJOSEPHBABAUTA 5 JOSEPH BABAUTA SAN MIGUEL, ) SAN MIGUEL'S MOTION FOR ) EXPUNGEMENT

6 Defendant. )

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9 INTRODUCTION

10 This matter came before the Honorable Maria T. Cenzon on Defendant Joseph Babauta 11 San Miguel's (hereinafter "Defendant") oral Motion for Expungement (the "Motion") of the 12 official record of the Superior Court of Guam, the Office of the Attorney General and police 13 records relating to the above-captioned matter. The Motion followed the Court's order granting 14

15 the People's Motion and Order for Dismissal of the above-captioned case without prejudice.

16 Assistant Attorney General Matthew Heibel represented the People of Guam. Attorney Randall 17 F. Cunliffe represented Defendant. Upon consideration of the arguments presented during the 18 hearing of this matter and the relevant caselaw, the Court issues its written Decision and Order 19

20 DENYING Defendant's Motion.

21 LAW AND ANALYSIS 22 This Court's statutory authority for granting an expungement when the People have 23 decided not to prosecute an offense is 8 G.C.A. § 11.10, which provides as follows:

24 § 11.10. Expungement: When. (a) The official records of the court, the 25 Attorney General, and the police reports in connection therewith dealing with a 26 violation or attempted violation by an adult of territorial law or a regulation having the force and effect of law shall be expunged when the subject of the 27 report is acquitted of the offense charged, when the prosecuting attorney decides not to prosecute the offense, when the time for commencing the criminal action as 28 prescribed by Chapter 10 of this Title has passed, or on approval of the Pardon

Decision and Order on Motion to Expunge Case No. CF0429-ll

Review Board when a pardon is granted pursuant to §1422 of the Organic Act of Guam, except for the pardon of a felony offense involving violence.

2 Expungement shall not occur for an offense which requires a person to register as 3 a sex offender, as defmed in§ 89.03 of Title 9, Guam Code Annotated, until the defender's name is removed from the registry.

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5 The Guam Supreme Court recognizes the Court's statutory authority to expunge where 6 there has been a decision by the Government not to prosecute. See People of Guam v. Wai Kam 7

8 Ho, 2009 Guam 18 at 17. It is noteworthy that "expungement" as defmed in Guam law does not

9 mean" the complete erasure of any record of involvement in the criminal process, where 'the 10 traces literally vanish and no indication is left behind that information has been removed,"' as it 11 might in other jurisdictions. /d. at fn. 2 (quoting V.C. v. Casady, 634 N.W.2d 798, 809 12 (Neb.2001) (citing to Commonwealth v. Roberts, 656 N.E.2d 1260 (Mass.Ct.App.1995)). In 13

14 Guam, law enforcement agencies and federal agencies still have access to those expunged

15 records, which is "the functional equivalent of sealing as opposed to the complete destruction of 16 records." Id.

17 However, the Supreme Court has instructed, "when a party requests expungement 18 pursuant to 8 GCA §11.10, he or she should do so in a separate civil case. The expungement 19

20 proceeding will be a civil matter governed by civil rules, and an appeal of right will be available

21 from a fmal civil judgment by the Superior Court under 7 GCA 3108(a)." People v. Lau, 2007 22 Guam 4 at 16, fn. 2, 3. In requiring Defendants to bring a separate civil action for expungement, 23 the Court reasoned as follows: "Generally, requesting expungement pursuant to a statute is 24

25 considered a civil matter. [numerous citations omitted]. Guam's general expungement statute is

26 codified in the criminal procedure section of the code, but, as other courts have found, this 27 location in the criminal procedure code does not control, and expungement under 8 GCA § 11.10 28 is a civil matter." /d. at 14.

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Decision and Order on Motion to Expunge Case No. CF0429-ll

CONCLUSION

2 Based on the Guam Supreme Court decisions in Lau and Ho, despite that Defendant may 3 be entitled to expungement as of right pursuant to 8 G.C.A. § 11.10, Defendant is, nevertheless, 4 required to seek expungement by separate civil proceeding. Consequently, Defendant's oral 5

6 motion for expungement following the Government's dismissal without prejudice in the instant

7 criminal case is DENIED. 8 SO ORDERED this lOth day of September, 2013.

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HONORABLE MARIA T. CENZON 12 Judge, Superior Court of Guam