People v. Santos

Opinion

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F?LE.'D SU?ER10R COURT GF GUAM

202!JUL -6 PH h: I I CLERK OF COURT

By? IN THE SUPERIOR COURT OF GUAM

PEOPLE OF GUAM, Criminal Case No. CF0488-14 GPD Report No. 14-26030 Plaintiff,

vs. DECISION AND ORDER (Written Statement of Objection and PAUL JOHN SANT OS, Request for Recusal of Court [7 G.C.A. DOB: 03/31/1967 § 6107])

Defendant.

INTRODUCTION T his ma tter is befor e the Honor a ble Da na A. Gutier r ez for the limited pur pose of

addressing Defendant Paul John Santos' ("Defendant") Written Statement of Objection and

Request for Recusa l of Cour t [7 G. C. A. § 6107] ("Request for Recusa l"). Defendant is

represented by Attorney Curtis C. Van dh veld and moves for the recusal of the Honorable

Vernon P. Perez ("]edge Perez") in the above-captioned case. Upon consideration of the parties'

positions and the applicable law, the Court hereby DENIES Defendant's Request for Recusal.

B ACKG ROU ND

Pursuant to a Second Superseding Indictment, Defendant was charged with: (1) three

counts of First Degree Criminal Sexual Conduct ("CSC") (as a First Degree Felony) involving

personal injury to the victim and the use of force or coercion, (2) three counts of First Degree

CSC (as a First Degree Felony) under circumstances involving the commission of another

felony, (3) two counts of Second Degree CSC (as a First Degree Felony) involving personal r

DECISION AND ORDER (Written Statement of Objection and Request for Recusal of Court [7 G.C.A. §6107]) CF0488-14,' People u Paul John Santos

i11iu1'y to the victim and the use of force or coercion, (4) two counts of Second Degree CSC (as a

First Degree Felony) under circumstances involving the commission of another felony, (5)

Bribery (as a Third Degree Felony), (6) two counts of Official Misconduct (as a Misdemeanor),

and (7) Abetting Prostitution (as a Misdemeanor) .

The trial court held a jury trial, and after deliberation, the jury returned a verdict of guilty

for the following charges: one count of T hird Degree CSC, as an included offense of First

Degree CSC (Charge One .-. Count One), three counts of First Degree CSC (Charge One - Count

Two, Charge Two - Counts One and Two), one count of Second Degree CSC (Charge Four -

Count One), Bribery (Charge Five), two counts of Official Misconduct (Charge Six - Counts

One and Two), and Abetting Prostitution (Charge Seven). Defendant was acquitted of the

remaining charges.

After the verdict, Defendant filed a Motion for Judgment of Acquittal, which the trial

court denied. The trial court sentenced Defendant to twenty-one years' incarceration, and

Defendant appealed. Pursuant to its Opinion issued on April 15, 2020, the Supreme Court

entered a Judgment ordering that:

1) the trial court's denial of Santos's motion to suppress is AFFIRMED ... 2) Santos's conviction for bribery is VACATED ... 3) Santos's conviction for First Degree CSC under Count Two of the Second Charge is VACATED ... and 4) Santos's conviction for Third Degree CSC under Count One of the First Charge for the same act of fellatio as his conviction for First Degree CSC under Count One of the Second Charge is VACATED ... The Court REMANDS for entry of a new judgment not inconsistent with this opinion.'

After the Mandate was issued, Judge Perez held a Status Hearing on July 28, 2020. At

the hearing, Attorney Van de veld entered his appearance on behalf of Defendant and notified the

Court that he (on behalf of Defendant) may be filing a motion for recusal. Min. Entry, at 9:48:27

AM (July 28, 2020). Judge Perez directed Defendant to file the motion. Id. at 9:51:21 AM.

1 The Opinion and Judgment were issued by the Supreme Court on April 15, 2020. People u Santos, 2020 Guam 5. The Mandate to the tn'al court was issued on July 1, 2020.

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DECISION AND ORDER (Written Statement of Objection and Request for Recusal of Court [7 G.C.A. § 61071) CF0488-14; People v Paul John Santos

Judge Perez held three more Status Hearings on October 13, 2020, December 1, 2020 and

February 22, 2021. At the February 22, 2021 hearing, Judge Perez informed the parties that the

Court would move forward if he did not hear anything from the parties within the next 45 days

and scheduled a hearing for April 6, 2021. Min. Entry, at 9:55:27 AM (Feb. 22, 2021).

On March 15, 2021, the People tiled a Request For Defendant To Be Re-Sentenced In

Accordance With the Mandate of the Supreme Court of Guam. On April 2, 2021, Defendant

filed his Written Statement of Objection and Request for Recusal of Court ("Request for

Recusal") supported by a Declaration of Defendant Paul John Santos. Judge Perez filed his

Answer Re Defendant's Statement of Objection on April 12, 2021 ("Perez Answer"). On June 3,

2021, this matter was assigned to the Honorable Dana A. Gutierrez to decide the issue of

Defendant's request to recuse Judge Perez from the case.

DISCUSSION

Defendant alleges the following grounds to support his request to recuse Judge Perez

from his case: 1) "at several status hearings the Court has indicated an intention to continue to

impose the same sentence despite the reduction in offenses," so Defendant believes Judge Perez

is prejudiced against him, 2) Judge Perez has a familial relationship with Ms. Doreen Flores

Pangelinan, who is the mother of Defendant's oldest child and an employee of the Court, and 3)

the Honorable Arthur R. Barcinas previously reused himself from the above-captioned case

because Ms. Doreen Flores Pangelinan worked for him 25 years ago. Req. for Recusal, at 2

(Apf- 2, 2021). I. Challenge To Competency Pursuant to 7 GCA § 6105(b).

First, with regard to the allegation that Judge Perez is actually prejudiced against

Defendant, Defendant cites to 7 GCA § 6l05(b) which states, in part:

(b) A Judge shall also disqualify himself or herself in the following circumstances, but if, following complete disclosure to all parties in the

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proceeding of the reasons for his or her disqualification, all parties agree to having the Judge continue to sit in the proceedings, he or she need not disqualify himself or herself: . (1) Where he or she has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding[.]

Under § 6l05(b), if a party objects to a judge, the judge should be disqualified if he has

an actual bias concerning a party. See Van Dox v Super: co. (Alcorn), 2008 Guam 7 1] 18. A

statement objecting to a judge's competency "that contains nothing but conclusions and sets forth

no facts constituting a ground of disqualification may be ignored or stricken from the files by the

trial judge." Id. at 11 29 (citing People la Sweeney, 357 P.2d 1049, 1053 (Cal. l96l)). An

objection that fails to allege any facts that would serve as grounds for disqualification is legally

insufficient. Id. at ii 27, see also People v Johnny, 2006 Guam 10 ii 19 (finding that a statement

of objection must set forth facts that would constitute grounds for disqualification). A statement

of objection is legally insufficient if it includes only conclusory or irrelevant statements such as:

[C]onc1usions, references to copious transcripts without citation to specific excerpts ... material not legally indicative of bias or prejudice, such as judicial opinions expressed in the discharge of litigation and legal rulings ... and references to circumstances so inconsequential as to be no indication whatsoever of hostility and nonprobative of any bias or prejudice.

Id. (internal citations omitted).

Defendant has failed to demonstrate how any credible facts warrant Judge Perez's

disqualification pursuant to § 6l05(b)(l). People V Tennessee, 2010 Guam 12 'll 48. Rather,

Defendant makes a broad conclusory allegation that Judge Perez has indicated he intends to

impose "essentially the same sentence as previously imposed," so the Defendant believes Judge

Perez "is prejudiced against [him] and bears [sic] intends to disregard the fact of [his] lesser

criminal conduct as determined on appeal." Req. for Recusal, at 2.

Defendant does not support this allegation with any reference to the record or any citation

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to statements made by Judge Perez that may indicate prejudice or bias against Defendant.

Instead, Defendant attempts to support his belief that Judge Perez is biased by stating that the

Court "has not ordered a new and updated Presentence Report" ("PSI") which indicates to

Defendant that the Court "intends to impose essentially the same sentence as previously

imposed[.]" Req. for Recusal, at 2.

In response, Judge Perez asserts that Defendant has never requested for a new PSI to be

produced by probation. Perez Answer, at 2 (Apr. 12, 2021). Judge Perez notes that after the

Mandate was issued by the Guam Supreme Court, the Court held several hearings where

Defendant and counsel represented that they were considering an appeal to the U.S. Supreme

Court or a writ of habeas corpus. Id. at 2-3. Further, Judge Perez states that at all times, he "has

been and continues to be ready to enter a judgment pursuant to the mandate of the Supreme

Could as well as re-sentence Defendant," and that he is not "predisposed to sentence Defendant

to a similar or exact number of years as reflected in the original sentence." Id. at 3.

Defendant's Request for Recusal does not point to any evidence, such as conduct or

statements made by Judge Perez, in order to demonstrate that Judge Perez is biased against

Defendant. The only alleged evidence in the record referenced by Defendant is that Judge Perez

has not ordered a new PSI, however, the Court does not find anything in the record

demonstrating that Defendant ever made a request for a new PSI to be ordered, as noted by Judge

Per ez.

As Defendant's Request for Recusal "contains nothing but conclusions and sets forth no

[credible] facts constituting a ground of disqualification," the Court is unable to determine

whether actual bias exists and is therefore permitted to reject these allegations in Defendant's

Request for Recusal. See Van Dox, 2008 Guam 7 1129, 37 n.l3. Accordingly, the Court finds

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DECISION AND ORDER (Written Statement of Objection and Request for Recusal of Court [7 G.C.A. §6107]) CF0488-14; People v Paul John Santos

that this ground for the objection does not meet the requirements to show actual bias pursuant to

7 GCA § 6105(b). Id.

11. Challenge To Competency Pursuant to 7 GCA §6105(a).

With regard to Defendant's assertion that Judge Perez's familial relationship with Ms.

Doreen Flores Pangelinan warrants disqualification, Defendant cites to 7 GCA § 6105(a) which

states :

(a) Any Judge shall disqualify himself or herself in any proceeding in which his or her impartiality might reasonably be questioned, but if, following c o m p le t e d is c lo s u r e t o a ll p a r t ie s in t he p r o c e e d ing o f t he r e a s o ns fo r disqualification, all parties agree to having the Judge continue to sit in the proceedings, he or she need not disqualify himself or herself.

First, in order to support his assertion that a connection to Ms. Pangelinan warrants the

disqualification of Judge Perez, Defendant mistakenly asserts that Judge Barcinas' recusal was

based on his professional relationship with Ms. Pangelinan-that she worked for Judge Barcinas

more than 25 years ago. Rather, Judge Barcinas' 7 GCA § 6106 Disqualification Memorandum

states that Judge Barcinas disqualified himself because before becoming a judge, his law firm

"represented a client against the Defendant, and [he has] personal knowledge of the Defendant

which may affect [his] ability to be impartial." Disqualification Memo. of Judge Barcinas (Oct.

7, 2014). There is no comparable allegation in Defendant's objection to Judge Perez (i.e. that

Judge Perez previously represented a client against Defendant and may have a legal conflict of

interest) . Therefore, the reference to Judge Barcinas' recusal does not support Defendant's

objection to Judge Perez's competency because it was not related to a professional relationship

with Ms. Pangelinan such as her status as a current employee for the Superior Court or a

previous position worldng for Judge Barcinas.

Next, Defendant moves for Judge Perez's disqualification, alleging that an appearance of

impartiality exists because "Judge Perez's father, and the mother-in-law of Ms. Doreen Flores

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DECISION AND ORDER (Written Statement of Obj action and Request for Recusal of Court [7 G.C.A. §6107]) CF0488-I4,' People v Paul JohnSantos

Pangelinan, are related." Req. for Recusal, at 2. Defendant states that Ms. Pangelinan is the

mother of Defendant's oldest child with whom he "has a turbulent relationship." Id. Defendant

further states that Ms. Pangelinan is an employee of the Superior Court. Id.

In response, Judge Perez states that he "was unaware until the filing of the Written

Statement of Objection that Ms. Doreen Flores Pangelinan is the mother of Defendant's oldest

child." Perez Answer, at 2. Judge Perez admits that Ms. Pangelinan is manned to his second

cousin, but denies that such a relationship has created a bias against Defendant. Id.

For objections to a judge's competency under 7 GCA § 6105(a), "what matters is the

appearance of bias, not actual bias." People v Camaddu, 2015 Guam 2 1174 (citing Van Dox la

Super Cr., 2008 Guam 7 'll 32). The "appearance of bias is judged from the standard of a

'reasonable person' who knows all the facts, and understands the 'contexts of jurisdictions,

parties, and controversies involved.'" Id.

The decision on whether a judge's impartiality can "'reasonably be questioned' is to be

made in light of the facts as they existed, and not as they were surmised or reported." Cheney v.

US. Dist. Court for Dist. of Columbia, 541 U.S. 913, 914 (2004).2 The "reasonable person is not

hypersensitive or unduly suspicious, but is a well-informed, thoughtful observer." US. in Sierra

Pacyic Industries, 759 F. Supp. 1198, 1203 (ED. Cal. 2010) (citing US. v. Holland, 519 F.3d

909, 913 (9th Cir. 2008)). Furthermore, judges "have 'as strong a duty to sit when there is no

legitimate reason to recuse as [they] do[ ] to recuse when the law and facts require."' Tennessen,

2010 Guam 121]49.

Defendant has not put forward any facts supporting that a reasonable inference of

partiality exists based on Judge Perez's second cousin's manage to Ms. Pangelinan who is the

2 Because 7 GCA § 6105 is taken from the federal disqualification statute, 28 U.S.C.A. §455, the, Guam Supreme Court has held that the federal courts' interpretation of the federal statute is instructive for the purpose of interpreting 7 GCA § 6105. People to Tennessee, 2010 Guam 12 1125 (citing Ada u Gutierrez, 2000 Guam 22 1112 n.2).

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DECISION AND ORDER (Written Statement of Objection and Request for Recusal of Court [7 G.C.A. §61071) CF0488-14; People v Paul John Santos

mother of Defendant's oldest child. Contrary to Deflendant's suggestion that pursuant to Dizon u

Superior Court, Judge Perez must disqualify himself because an appearance of bias may exist,

the facts of this case are distinguishable from that oflDizon. See Dizon u Super Ct., 1998 Guam

3. Specifically, nothing on the record suggests Ms. Pangelinan has attempted to influence the

outcome of Defendant's case through improper communications with the Judge or that Judge

Perez and Ms. Pangelinan are close friends, which were significant factors in the Dizon decision.

Id. at 1l 12-15.

Further, Defendant cites to US. u Barry to support his assertion that statements made by

a judge reflecting that a judge has lost perspective or may act impartially would warrant

disqualification of a judge and re-sentencing by a new judge. Req. for Recusal, at 6 (citing U S .

u Barry, 961 F.2d 260 (D.D.C. l992)). However, in Barry, the defendant based his objection on

specy'ic remarks which were identified and quoted in the defendant's motion to disqualify the

judge. Barry, 961 F.2d at 264. Additionally, contrary to Defendant's assertion, the Barry court

did not find that the remarks made by the judge caused his impartiality to. be reasonably

questioned, and held that the trial court did not err in denying the defendant's motion for a

pre-sentencing report and for a new judge. Id. at 265-69.

In this case, the Court, having reviewed the pleadings and applicable law, does not find

that a reasonable person-a well-informed, thoughtful observer-would question Judge Perez's

impartiality in this matter based on his second cousin's marriage to Ms. Pangelinan who is the

mother of Defendant's child. Nothing in the record suggests that Judge Perez and Ms.

Pangelinan have the type of relationship sufficient to require disqualification, and Ms.

Pangelinan is not a witness or party in this matter. Rather, the fact that neither Judge Perez nor

Defendant realized this relationship existed until several months after an appeal from a fully

conducted trial by Judge Perez weighs in favor of finding that a reasonable person would not

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DECISION AND ORDER (Written Statement of Objection and Request for Recusal of Court [7 G.C.A. §61071) CF0488-14; People v Paul John Santos

question Judge Perez's impartiality based on this connection.

A "reasonable person is able to appreciate the significance of the facts in light of relevant

legal standards and judicial practice and can discern whether any appearance of impropriety is

merely an illusion." In re Sherwin-Williams Co., 607 F.3d 474, 478 (7th Cir. 2010) (citing

Cheney, 541 U.S. at 924). Here, the Court finds that Defendant's allegations-that Judge Perez

made remarks which may indicate impartiality and that Judge Perez has a familial relationship

with the mother of Defendant's oldest child-are remote, conclusory, and speculative in nature,

and the Court therefore concludes that an appearance of impartiality does not exist.

CONCLUSION

For the foregoing reasons, Defendant has not stated grounds under 7 GCA § 6105(a) and

(b) warranting Judge Perez's disqualification. Accordingly, Defendant's Request for Recusal of

Judge Perez is hereby DENIED 1

SO ORDERED : .JULO 6 2021

HOD LE D GUT EZ Judy Superior (Lou f Guam