People v. Sanchez, J.

Opinion

\

2 zBIEGC? 2§ PH me 3 CLER?i WSQSURH'

4 B85 i

8 IN THE SUPERIOR COURT OF GUAM 9 PEOPLE OF GUAM, CRIMINAL CASE no. CF0681-10 10 CF0161-11 11 vs.

12 JOEY J. SANCHEZ, DECISION AND ORDER DOB: 07/21/1973 Motion to Revoke Probation 13 DEFENDANT. 14

16 This matter came before the Honorable Anita A. Sukola on July 31, 2019, upon a Motion to

17 Revoke Probation over JOEY J- SANCHEZ ("Defendant"). Assistant Attorney General Dennis L.

18 Le represented the People of Guam (the "People"). Assistant Public Defender Theresa G. Rojas

19 represented Defendant. Upon review of the written and oral arguments of the Parties, the Court

20 hereby GRANTS the People's Motion to Revoke Probation. A Sentencing Hearing is hereby set for

21 HE*/"*' e. TLO o M Services Division ("Probation") is ordered to conduct a pre-

"/'W 22 sentencing investigation and file a Pre-Sentencing/Revocation R e ort by The

23 Parties are ordered to file sentencing memoranda, if any, by I 2/1?/17

25 On June 8, 2011, Defendant pled guilty to the following charges under his plea agreement. In

26 Criminal Case Number CF0161-11, Defendant pled guilty to POSSESSION WITH INTENT TO 27 DELIVER A NON-CONTROLLED SUBSTANCE WHILE REPRESENTING IT TO BE A 28 CUNTROLLED SUBSTANCE (As a Second Degree Felony), in violation of 9 GCA §§ 67.40(a)

CF0681-IO, CF0161-11, People v. Joey J. Sanchez DECISION AND ORDER (Motion to Revoke Probation) Page 1 of 8 1 and (d) (2011). In Criminal Case Number CF0681-10, Defendant pled guilty to POSSESSION OF

2 A SCHEDULE II CONTROLLED SUBSTANCE (As a Third Degree Felony), in violation of 9

3 GCA §§ 67.401.2(a) and . (b)(l). The Court issued an Amended Judgment on June ll, 2012.

4 Defendant was sentenced to, inter alia, probation for a period of five years if he was unable to enroll

5 in the Residential Substance Abuse Treatment ("RSAT") Program at the Department of Corrections

6 and several other conditions. The conditions relevant to this Decision and Order are as follows: 7 [a.] Defendant shall pay a fine in the amount of five thousand dollars ($5,000.00), plus court costs ... [,] [b.] Defendant shall perform two hundred (200) hours of community 8 service work . o nt,1 9 [c.] Defendant shall attend and successfully complete any drug and/or alcohol counseling program recommended by the Court .. 10 0 [J [d.] Defendant shall report to the Probation Office at least three times 11 per week or as ordered by the Court, and at those times will take a drug test if requested. Failure to take the drug tests, if 12 requested, will be considered a violation of probation ... [,] [€.1 Defendant shall not possess or consume any illegal controlled 13 substances, ... [f.] Defendant shall obey all federal and local laws of Guam; and 14 [g.] Defendant shall abide by any other reasonable conditions imposed by the Court or the Probation Office[.]1 15 (Amended Judgment 1-7 June 11, 201].) 16 Defendant's probationary period began on June 8, 2011, and was set to end on June 8, 2016. 17 Five days into probation, Violation One was filed against Defendant on June 13, 2011. By May 26, 18 2016, Defendant had violated his conditions 14 times. During his 14th Violation Hearing, Defendant 19 was reported to be doing well in residential treatment. Based on his progress, his probationary period 20 was extended to December 31, 2016. The additional time gave Defendant an opportunity to complete 21 his probation conditions. However, by June 15, 2018, Defendant now had 16 violations since 22 probation began. As a result, Defendant served a 90-day sanction at the Department of Corrections 23 and was released on September 12, 2018. 24 In lieu of total revocation, Defendant entered the Guam Immediate Violation Enforcement 25 ("GWE") Program on September 24, 2018. The Honorable Anita A. Sukola sentenced Defendant to 26 two years of probation, which was to expire on September 23, 2020. However, by April 19, 2019, 27 .

28 ' The conditions have been renamed for concision.

CF0681-10, CF0161311; People v. Joey J. Sanchez 9 DECISION AND ORDER (Motion to Revoke Probation) Page 2 of 8 i

1 Defendant had six violations since GWE began- surpassing the five violation limit. On May 8,

2 2019, Probation filed an Informational Report on Defendant. The Report stated that in addition to his

3 six violations, Defendant had failed to submit proof of his completion of a drug rehabilitation

4 program, make monthly payments towards his fines, court costs, and confirmation fees,2 and

5 complete 251 hours of community service.

6 The People filed a Motion to Revoke Probation on June 25, 2019. On June 26, 2019,

7 Defendant was served notice of the Motion and oral argument. Defendant filed his Amended

8 Qualified Opposition and his Amended Declaration in support of his Opposition by July 29, 2019.3

9 A Motion Hearing was held on July 3 l, 2019, where the Court took the matter under advisement.

10 I. Defendant's Violations in GIVE.

11 1. Violation One was reported on October 3, 2018, for Defendant's consumption of an

12 illegal controlled substance, i.e. methamphetamine (or "met"). On this date, Defendant

13 reported to Probation and tested positive for met. He admitted to ingesting math on

14 October 2, 2018, via a signed declaration. This was Defendant's first positive result while

15 in GIVE and his 12th in total. (Informational Report 1, May 8, 2019. )

16 2. Violation Two was reported on October 19, 2018, for Defendant's failure to report as

17 instructed. Defendant did not report on October 15, 2018 for his wieldy check-in.

18 Probation contacted him on October 17, 2018, Defendant stated he was sick and would

19 not be reporting for his scheduled GIVE meeting. Defendant was instructed to report later

20 in the day and provide a doctor's note, he did neither. Later, on October 22, 2018,

21 Defendant reported to Probation and submitted a doctor's note from Southern Region

22 Community Health Center dated October 18, 2018. However, Probation confirmed the

23 note was forged. at 2.

24 3. Violation Three was reported on February 19, 2019, for Defendant's failure to report as

25 instructed. Defendant did not report to Probation on February 15, 2019. Probation

26 z Defendant's monetary conditions total to five thousand and two hundred dollars ($5,200.00). His last payment was on 27 September 30, 2015, for two hundred and forty dollars ($240.00). 3 Defendant's Qualified Opposition was filed on July 19, 2019; and his Declaration in Support was filed on July 26, 28 2019.

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DECISION AND ORDER (Motion to Revoke Probation) Page 3 of 8 I

1 instructed him to report later in the day, he did not. On February 18, 2019, Defendant,

2 again, failed to report to Probation. Attempts to contact Defendant were unsuccessful. A

3 Warrant of Arrest was issued for Defendant, who was detained on February 25, 2019.

4 Defendant submitted a doctor's note excusing him from February 15-20, 2019, however,

5 although valid, the note suggested Defendant was still able to walk and check in. at 3.

6 4. Violation Four was reported on February 25, 2019, for Defendant's consumption of an

7 illegal controlled substance, i.e. methamphetamine. During his arrest for the third

8 violation, Defendant admitted to ingesting math via a signed declaration dated February

9 21, 2019. This was Defendant's second positive result while in GWE and his 13th in

10 total. n

11 5. Violation Five was reported on March 26, 2019, for Defendant's consumption of an

12 illegal controlled substance, i.e. methamphetamine. On this date, Defendant reported to

13 Probation and tested positive for met. He admitted to ingesting met on March 24, 2019,

14 via a signed declaration. This was Defendant's third positive result while in GIVE and his

15 14th in total.

16 6. Violation Six was reported on April 19, 2019, for Defendant's consumption of an illegal

17 controlled substance, i.e. cocaine. Defendant reported to Probation on April 3, 2019, and

18 tested positive for cocaine. He opted to challenge the drug test, which was later

19 confirmed positive. This was Defendant's fourth positive result and first challenged test

20 while in GIVE. Moreover, this was his 15th positive result and fifth challenged test in

21 total. L at 3-4.

23 The People seek an Order from this Court revolting Defendant's probation due to his

24 numerous violations. (Motion to Revoke I.) Defendant opposes- urging the Court to implement a

25 less onerous sanction. Specifically, Defendant asks the Court for an opportunity to attend and

26 complete the next RSAT cycle, to wit, the 26th RSAT cycle. (Amended Qualified Opposition I-2.)

27 Defendant argues his Amended Judgment called for his admission into the l 8th RSAT Cycle,

28 however, he had no option to attend. Defendant acknowledges his need for treatment and

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I DECISION AND ORDER (Motion to Revoke Probation) Page 4 of 8 a

1 accepts- also prefers- incarceration until treatment is extended. L at 2. He requests for his release,

2 thereafter. at 1-2.

3 Under Guam Code Annotated ("GCA") Section 80.66, Revocation of Probation, it states: 4 [A]t any time before the discharge of the offender or the termination of 5 the period of suspension or probation: ... [t]he court, if satisfied that the offender has inexcusably failed to comply with a substantial requirement 6 imposed as a condition of the order may revoke the suspension or probation and sentence or re-sentence the offender. Violation of a 7 condition shall not result in revocation, however, unless the court determines that revocation under all the circumstances then existing will 8 best satisfy the ends of justice and the best interests of the public.

9 9 GCA § 80.66(a)(2) (2017). When revocation does occur, Guam law empowers the court to

10 sentence a defendant to any sentence that may have been originally imposed for the crime a

11 defendant was convicted of. See 9 G C A § 80.66(b). The decision to revoke probation is

12 discretionary, there is no bright-line rule for when revocation is appropriate. See U.S. v. Gallo, 20

13 F.3d 7, 14-15 (reasoning "[w]hen revocation of probation is committed to judicial discretion, judges

14 should not regard it as a routine response to every probation violation. Rather, revocation should be

15 reserved for those instances in which the case history, coupled with the probationer's behavior,

16 indicates that it is a fair, just and sensible outcome.").

17 The Supreme Court of Guam has held "probation is a favor granted by the state, not a right to

18 which a criminal defendant is entitled." People v. Camacho, 2009 Guam 6 *][ 26. Nonetheless,

19 revocation still "implicates a liberty interest, which entitles [a defendant] to some procedural due

20 process." Although probationers lack the "full panoply of due process rights due other criminal

21 defendants," probationers facing revocation are still entitled: "(l) notice of claimed violations, (2)

22 [an] opportunity to appear and present evidence, (3) the conditioned right to confront adverse

23 witnesses, (4) an independent decision maker, and (5) a written report of the hearing."

24 Probation revocation is a two-step analysis: First, the court must "make a factual

25 determination that a violation of a condition of probation has actually occurred." Ld at '][ 27. If the

26 violation is proven, "the court must determine if the violation warrants revocation of probation." L

27 "Guam law provides that an evidentiary hearing be held on the revocation and providing for cross-

28 examination of witnesses and representation of counsel." LL at 'II 28. By contrast, if a probationer

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DECISION AND ORDER (Motion to Revoke Probation) Page 5 of 8 l

1 admits to a violation, "the procedural due process safeguards and an evidentiary hearing are not

2 necessary." By way of admission, the violation requires no further proof, the court may then

3 "proceed to the second step of the inquiry and determine whether the violation warrants revocation .

4 .. [but] the probationer must be given an opportunity to present evidence that explains and mitigates

5 his violation." LCL

6 I. Defendant Violated His Conditions of Probation.

7 The standard for determining if a probationer violated a condition of his probation is whether

8 "the evidence and the facts [are] ... reasonably necessary to satisfy the judge that the probationer's

9 conduct has not been as required by the conditions of probation." at 'II 30. The court's decision to

10 revoke "must be based on credible evidence, but the defendant bears the burden of showing an

ll excuse for failure to comply with the condition." Ii (brackets omitted).

12 A probationer's conduct is not required by his probationary conditions if the probationer

13 admits to the violation's underlying conduct and lacks sufficient excuse for his failures. See

14 Camacho, 2009 Guam 6

15 only excuse for not attending and completing a treatment program was that no specific date was

16 noted in the court's judgment, where the judgment provided the defendant should report to the

17 program within seventy-two hours from release or his guilty plea, whichever was later) .

18 Defendant's GIVE violations involve using illegal controlled substances and failing to report

19 as required. For Violations One, Four and Five, Defendant admitted to ingesting illicit drugs through

20 signed declarations, therefore, no further proof is required. For Violations Two and Three,

21 Defendant failed to report as required by his Amended Judgment, Defendant missed his weedy

22 check-inS and one scheduled GIVE meeting. Defendant attributed these absences to illnesses, and so

23 Probation requested he report later in the day with a doctor's excuse. For Violation Two, Defendant

24 submitted a doctor's excuse from the Southern Region Community Health Center, however,

25 Probation confirmed it as forged. For Violation Three, he submitted a doctor's excuse from Dr.

26 Arcilla's clinic. Although valid, the note suggested Defendant was still able to walk and check in.

27 Thus, Defendant's absences without sufficient excuse were violations of his probation conditions.

28 For Violation Six, Defendant tested positive for drugs at Probation, the result was confirmed positive

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DECISION AND ORDER (Motion to Revoke Probation) Page 6 of 8 1 I

1 after a second testing. Due to his positive drug test results, it was apparent Defendant violated his

2 condition against ingesting illegal controlled substances. Therefore, the Court finds Defendant's six

3 violations are substantiated.

4 II. Defendant's Violations Do Not Warrant Revocation.

5 A finding that a defendant is in violation of probation does not end a court's inquiry. The

6 court must also determine whether the violation warrants revocation. The United States Supreme

7 Court reasons:

8 [T]he State clearly has an interest in punishment and deterrence, but this interest can often be served fully by alternative means... [T]he 9 state is not powerless to enforce judgments against those financially unable to pay a fine. For example, the sentencing court could extend 10 the time for making payments, or reduce the fine, or direct that the probationer perform some form of labor or public service in lieu of the 11 fine.

12 Bearden v. Georgia, 461 U.S. 660, 671-72 (internal citations and quotations omitted).

13 Revocation is warranted when a probationer's violation upsets the intent of his probation

14 conditions. See Camacho, 2009 Guam 6 'll 31 (holding that (1) when the probationer is convicted of a

15 drug-related offense, violating the condition to report for drug tests warrants revocation because the

16 pu rpose of the condi ti on w as to ensu re the probati oner's sobri ety, (2 ) how ev er, v i ol ati ng the

17 condition to pay a fine does not warrant revocation because the condition alone is not a serious

18 enough factor compared to a condition for drug testing), see also, U.S. v. Nolan, 932 F.2d 1005,

19 1006 (1st Cir. 1991) (reasoning that violating a condition of special psychiatric treatment condition

20 warranted revocation because the probationer was convicted of receiving visual depictions of minors

21 engaged in sexually explicit conduct, and the probationer unilaterally terminated his treatment

22 participation which was intended to correct his sexual proclivity toward children).

23 The facts in this matter are identical to those of Camacho. Camacho at ']['][ 3, 7-8. Defendant's

24 six violations implicate two conditions, i.e. to report as instructed and to stay away from illicit drugs.

25 A focal point of Defendant's Amended Judgment is rehabilitation. Hence, not reporting as instructed

26 and continuing to ingest illicit drugs directly frustrate these conditions. Reporting to Probation

27 allows Defendant accountability in his actions, e.g. not ingesting drugs to prevent positive drug tests.

28 Moreover, steering clear of illicit drugs ensures Defendant is clean and sober. For this reason,

CF0681 - 10, CF0161 -11; People v. Joey J. Sanchez v DECISION AND ORDER (Motion to Revoke Probation) Page 7 of 8 I

1 Defendant's violations are considered substantial enough to warrant revocation. See Camacho at q[<][

2 31-32 (holding because drug tests ensure sobriety, a probationer's failure to report for drug testing-

3 especially when convicted for a drug-related offense- becomes a substantial violation that warrants

4 revocation.)

5 In addition to his GWE violations, Defendant has failed to prove he completed a drug

6 rehabilitation program, make monthly payments towards his fines, court costs, and confirmation

7 fees, and complete 251 hours of community service. Like earlier, Defendant's failure to prove he

8 completed a drug rehabilitation program directly upsets the goal of his conditions and Amended

9 Judgment, which is sobriety. As to his community service and fines, the Guam Supreme Court has

10 shown consonance with a lower court's opinion that the condition to pay fines is not as serious as a

11 condition for drug tests. Camacho at

12 fine is not a substantial factor compared to drug tests when determining revocation.) Nevertheless,

13 Defendant's conditions have been pending since his probation began in 2011. So although these

14 alone may not warrant revocation, his failure to complete payment and community service combined

15 with his drug-related violations demonstrate an overall pattern of noncompliance.

16 The Court finds that Defendant's violations are substantial enough to warrant revocation.

17 Therefore, in order to "best satisfy the ends of justice and the best interests of the pub1ic[,]"4 the

18 Court finds it appropriate that Defendant's probation be revoked.

19 CONCLUSION

20 By preponderance of the evidence and based on the foregoing conclusions, the Court

21 GRANTS the People's Motion to Revoke Probation of Defendant Joey J. Sanchez.

23 SO ORDERED this Z N day of October 2019. ssnvm VBA COURT Box 24 acknowledge that I copy of ll

W hereto was PllGlll\l\o 25 MannRf: H65Pro4.»c<4l'Zon ¢ 26 we neo! §Tlme: 2-l~°°p» " Th Honorable Anita A. Sukola 27 Judge, Superior Court of Guam M y Cwt Deputy C0\l1of GII3M 28 4 9 GCA § 80.66(a)(2).

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