People v. Santos

Opinion

IN THE SUPERIOR COURT OF GUAM 2

3 PEOPLE OF GUAM, ) Criminal Case no. CM 0029::-t 1 4 ) ) 5 v. ) DECISION AND ORDER ) re: Motion to Correct Judgment 6 DEREK JAMES SANTOS, ) 7 ) ) 8 Defendant. 9

10 INTRODUCTION

11 This matter came before the Honorable Judge Michael J. Bordallo on November 30,

12 2012. The People were represented by Assistant Attorney General Riche lie Yu. The Defendant 13 was represented by Assistant Public Defender Maria G. Fitzpatrick. After considering the 14 matter presented, the Court now issues the following decision and order granting Defendant's 15

16 motion.

17 BACKGROUND 18 On January 12, 2011, the Defendant was charges with two counts of Family Violence 19 and two counts of Assault as a Misdemeanor. The Defendant initially entered into the 20 diversion program with the Court. After failing to complete the program, the diversion was 21

22 terminated and the matter set for trial. On June 29, 2012, at trial, the Defendant offered to enter

23 a plea of guilty to one count of Family Violence. The Government accepted the offer, but 24 insisted the Defendant also plead guilty to the assault charge related to the same act. The Court 25 found the Defendant guilty of the assault charge based on his admission to the family violence 26

27 charge. The Court sentenced the Defendant to concurrent time.

Page 1 of2 DISCUSSION 2

3 The Defendant filed the motion before the Court arguing that the assault charge is a 4 lesser included offense and thus the Defendant cannot be convicted of both charges. The 5 Defendant asserts that 9 GCA 1.22 supports his position and the Court should correct the 6

7 Judgment to reflect the non-conviction of assault. The Government failed to file an opposition

8 and instead sent to the Public Defender a judgment which deleted the count of assault. Defense 9 counsel correctly points out that the judgment does not reflect the judgment ordered by this 10 Court at the June hearing. However, the Court elects to treat the proposed judgment as a non- II

12 opposition to the Defendant's Motion. The Court need not reach the question of whether

13 Assault, as a Misdemeanor is a lesser included offense of Family Violence, as a Misdemeanor. 14 CONCLUSION 15

16 Based on the foregoing, the court finds that the Government's filing of a proposed

17 judgment that conforms to the Defendant's requested corrected judgment is a non-opposition to 18 the motion. The Court therefor grants Defendant's Motion to Correct Judgment. However the 19 Court need not and therefor does not decide the question of whether the charges merge for 20

21 purposes of judgment and sentencing or whether assault is a lesser included offense.

23 SO ORDERED, this 6th day of May 2013. 24

27 Judge, Superior Court of Guam

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