FILED l CLERK CLERK (OF 'F COURT CGURT
2 2321, Aus3030 PM 202li AUG 3: us PM 3: 45 3 SU?i°?F€{0R -oUR?
fl" s 4 Ia' A .§.fais'7
5
6 IN THE SUPERIOR SUPERIOR COURT OF GUAM 7
8 PEOPLE OF GUAM, CRIMINAL CASE CASE NO.
no. CM0229-24 CM0229-24 9 vs.
10 DECISION AND ORDER l11l JASON ROBNNY TIMOTHY, 12 Defendant.
13
14 14 INTRODUCTION 15 15 This matter This matter is before the Honorable Honorable Vernon Vemon P. Perez for the limited purpose of addressing limited purpose 16 the People of the People of Guam's Guam's ("the ("the Government") Statementof Government") Statement ofObjection GCA § Objection77GCA § 6107 Motion to and Motion 6107 and to 17 17 Disqualify DisqualifyAugust August 2, 2, 2024.
2024.
18 18 BACKGROUND BACKGROUND 19 19 On On July July 30, 30, 2024, DefendantJASON 2024, Defendant JASONROBNNY ROBNNY TIMOTHY TIMOTHY("Defendant")
("Defendant")was was charged charged 20 20 with with (1)
(1) Criminal Criminal Mischief Mischief(As (Asa aMisdemeanor);
Misdemeanor);(2)
(2) Criminal CriminalTrespass Trespass(As (AsaaMisdemeanor);
Misdemeanor); (3)
(3)
21 Violation Violation of ofaaCourt CourtOrder Order(As (Asa aMisdemeanor), Misdemeanor);and andHarassment Harassment (As (As aa Petty Petty Misdemeanor).
Misdemeanor).
22 22 (Magistrate's (Magistrate's Con pl., Jul.
Compl., Jul. 30, 30, 2024).
2024).
23 23 On On August August 1, 1, 2024, this matter matterwas wasassigned assignedtotoJudge JudgeAlberto AlbertoE.E.Tolentino.
Tolentino. See Notice See Notice 24 24 of of Judge Judge Assignment, Aug. 1, 1, 2024.
25 25 On On August August 2, 2, 2024, 2024, the Governmentfiled the Government a Statement filed a Objection 77 GCA ofObjection Statement of GCA §§ 6107 6107 and and 26 26 Motion Motion to to Disqualify Disqualify("Objection"), ("Objection"), moving moving for for Judge Judge Tolentino's Tolentino's recusal recusal in this matter.
matter. The 27 27 Government moves for Government moves for Judge Judge Tolentino's Tolentino's recusal recusal pursuant to 77 G.C.A.
pursuant to G.C.A. §§ 6105(a)
6105(a) because of because of 28 28
People People v.
v. Timothy Timothy Case No. CM0229-24 Decision Decision and and Order
Page 1 off of8
8
1 Judge Judge Tolentino's familial relationship Tolentino's familial relationship with Attorney General with Attorney General Douglas Douglas B. Molyan. 1 B. Molyan.1 See
2 generally, Aug. 2, generally, Objection, Aug. 2, 2024.
2024.
3 August 5, On August 5, 2024, 2024, Judge Judge Tolentino Tolentino filed his his Answer Answer to to Statement Statement of of Objection, Objection, 4 challenging the timeliness of challenging of the the objection objection and and denying denying that that his his recusal recusal is is appropriate appropriate in in this this 5 matter. See generally, Answer, Aug.
matter. Aug. 5, 5, 2024.
2024.
6 On August 5, 2024, pursuanttoto77G.C.A.
2024, pursuant G.C.A. §§ 6107, 6107,the thequestion questionof of whether whether Judge JudgeTolentino Tolentino
7 should be be disqualified from continuing continuing to preside preside over over this this mater mater came before before this this recusal recusal court.
8 See Notice ofAssignment Notice of Assignmentof ofRecusal RecusalJudge, Judge, Aug.
Aug. 5, 5, 2024.
2024.
9 14, 2024, On August 14, 2024, the the Government Governmentfiled filed a Response Response to to Judge JudgeTolentino's Tolentino's Answer to
10 10 Statement of Objection.
Statement of 11 DISCUSSION
12 12 Title 77 G.C.A.
Title G.C.A.section section6105 6105sets setsforth forththe thesubstantive substantivegrounds grounds under under which which aa judge judge must must 13 be disqualified. Where Whereaajudge judgefails failstotodisqualify disqualifyhim himor orherself, herself,any anyparty partyto to that that proceeding may 14 14 move move to to disqualify disqualify the the judge judge pursuant to 77G.C.A.
pursuant to G.C.A. §§ 6107.
6107.
15 A. Statement Statement of of Objection Objection 16 16 The Government Government moves moves to disqualify disqualify Judge Judge Tolentino Tolentino in m this this matter matter based based on the the 17 17 following following grounds:
grounds:
18 18 • • That from 20142014 to to 2022, 2022, Judge Judge Tolentino Tolentino disqualified disqualified himself himself from from cases cases involving Attorney Attorney General General Moylan Moylan as as aa private private attorney attorney on on the the basis basis of the 19 19 familial relationship relationship that that exists between between them, them;
20 20 • • That Judge Judge Tolentino Tolentino stated stated thatthat 'disqualification 'disqualification was was necessary necessary because because 21 Attorney Attorney General General Moylan Moylan isis the the father father of ofhis his step-children, step-children;
22 22 • That Judge Tolentino's last Judge Tolentino's last Form One-Disqualification One-Disqualification in in this regard was was filed filed 23 on October October 27, 27, 2022, 2022;
24 24 • • That the basis basis for for Judge JudgeTolentino's Tolentino's prior prior disqualifications disqualifications hasn't changed;
changed;
25
26 I1 Attached to the Government's Statementof Government's Statement ofObjection Objectionare are several several exhibits, exhibits, including including a Decision and and Order Order issued 27 Taitingfong, by Judge Iriarte on June 4, 2024 in People v. Taitingfong, Criminal Case No. CF0024-24, and several Form Case No. CF0024-24, and several Form One One --
Disqualification 77 GCA Disqualification GCA §§ 6106 6106 memorandums memorandums issued issued by byJudge JudgeTolentino Tolentinorecursing himself from recusing himself from cases cases involving involving 28 Attorney General Moylan Moylan when when hehe was was in in private private practice practice based onon section 6105(a) up until October 27, 2022.
People v.
v. Timothy Case No. CM0229-24 Case No. Decision Decision and and Order
Page 2 ofS
• • That aa reasonable reasonable person person would presume presume that that Judge Judge Tolentino's Tolentino's personal personal 1 relationship with Attorney General relationship with General Moylan Moylan and and his prior years years disqualifying disqualifying 2 himself from any any matters involving AG matters involving AG Moylan Moylan would wouldraise raise aareasonable reasonable 3 question about his impartiality and necessitate his disqualification, about his impartiality and necessitate his disqualification;
4 • • That Judge Judge Tolentino has been disqualified from presiding Tolentino has presiding over over other other cases cases based on the the above facts;
facts, and 5 • • ThatSan San Agustin v. v. Superior Cr.Ct. 0f ofGuam, 2024 Guam Guam, 2024 Guam 2, required the Clerk 6 of Court of Court toto refrain refrain from from assigning assigning cases cases to to Judge Judge Tolentino Tolentino once hehe was was 7 disqualified.
disqualified.
8 8 See Objection, Aug.
Aug. 2, 2, 2024.
2024.
9 In answer, Judge In his answer, JudgeTolentino Tolentino sets sets forth forth under underpenalty penaltyof ofperjury perjurythe thefollowing following relevant
10 facts:
facts:
11 6. That at Mr. Moylan's Moylan'srequest, request, aameeting meetingbetween betweenhim himandand the the undersigned, undersigned, the undersigned's chamberstaff, undersigned's chamber staff, the the Administrator Administratorof of the the Courts, Courts, and andMr.
Mr. Moylan's Moylan's 12 12 transition chairperson, chairperson,Mr.
Mr.Wilfred Wilfred Aflague, Aflague, occurred occurred in in December December 2022, 2022;
13 13 7. That 7. That at at this this meeting, meeting, Mr. Mr. Moylan Moylan assured assured me me and and the the other other members members in m 14 14 attendance thathe attendance that heperceived perceivedno noconflict conflict in his election election as the the Attorney General General and and the prosecution the prosecution of criminal cases of criminal cases before the undersigned.
before the undersigned. It was agreed It was agreed that that the 15 15 circumstances underlying my circumstances underlying my recusal recusalinin matters mattersthat thatMr.
Mr.Moylan Moylan was was a lawyer no 16 16 longer longer existed, existed, to to wit:
wit:that thatduring duringmy termas myterm asthe theMagistrate MagistrateJudge Judgeandand as as aa Judge Judge 17 17 I had routinely routinely recused reused myself myselffrom fromall allmatters matters where where Mr.Mr. Moylan Moylanwaswas the the attorney attorney of ofaa party party before before me me onon the the basis basis that he was thethe father father of my minor minor step-children step-children 18 18 and that the and that the minor minor step-children step-children were were members members of and and resided in in the the household household 19 19 maintained maintained by by me me and and mymy wife and and that as of even even date, date, both both step-children step-children have now reached majority majority andand adulthood and have been residing residing at their own residences 20 20 in Guam and andin inthe theU.S.
U.S. Mainland;
Mainland, 21 8. That ThatMr.
Mr.Moylan Moylannever nevermade madean anappearance appearance as as aa lawyer lawyer in in this this case.
22 22 9. 9. That neither Mr. Moylan nor the neither Mr. the Office of ofthe the Attorney Attorney General General had had ever ever 23 23 challenged or or objected objected to to me me presiding presiding over overthis this case case until until the the instant instant Statement of Statement of Objection Objection and Motion Motion to to Disqualify filed filed herein.
24 24
* * *
25
***
14. 14. That That my wife wife Doris Doris L.G.
L.G. Tolentino Tolentino and and Attorney Attorney General General Moylan Moylan were were 26 26 divorced on June 13, 1997, and that there were two minor children at the time divorced on June 13, 1997, and that there were two minor children at the time of of 27 27 the dissolution of marriage, to wit: Brandon (born 1990)
marriage, to and Angela 1990) and Angela (born 1992), 1992);
28 28
v. Timothy People v. Case No. Case No. CM0229-24 Decision Decision and and Order
Page 3 of8 of 15. 15. That my wife wife and and II have have been been together together since since 2001 2001 and and that we were married married 1 civilly civillyinin2005 2005 and and eventually eventuallyin inthe the Roman RomanCatholic CatholicChurch Churchin inDecember December2023 2023;
2 16. 16. That we have five children children inclusive of ofBrandon Brandon and Angela;
Angela, 3 17. since my 17. That since my wife wife and II have have been beentogether togetherII have havenever never observed observedMr.Mr. Moylan Moylan 4 and my my wife involvedin wife involved inany anysense sense in in co-parenting co-parenting the the children children of oftheir their marriage marriage as as 5 the children have been raised and provided provided with with protection protection and and care to ensure ensure their healthy development healthy development intointo adulthood, adulthood,primarily primarilyby by my wife and my wife and me, me, and and that that atat 6 they are in present they are in fact adults adults able able to to conduct conduct and andmake maketheir theirown owndecisions decisionsin inlife;
life, 7 18. That based 18. based upon thethe foregoing averments, averments, the fact fact that that Attorney Attorney General General 8 Moylan Moylan is is the the biological biologicalfather father of ofthe theundersigned's undersigned'sstepchildren stepchildren provides provides no no basis basis for for disqualification under 77 GCA disqualification under GCA §§ 6l05(b)
6105(b)ororthat thatthe the undersigned's undersigned's impartiality impartiality 9 might be reasonably questioned as required under under subsection subsection(a).
(a).
10 10 (Answer (Answer at at 3-4, 3-4, Aug. 5, 5, 2024).
111 In In response, response, the Government asserts that its asserts that its Statement Statementof of Objection was timely timely and and that that 12 12 JudgeTolentino Judge Tolentino is is disqualified disqualified "per "per se."
se." See See generally, Resp., Aug.
Aug. 14, 14, 2024.
2024.
13 13 B. Timeliness Timeliness of of Objection 14 14 The first issue before the is whether the Court is whetherthe theGovernment's Government's Objection Objection was was timely timely filed, filed, 15 as Judge Judge Tolentino Tolentino challenges the timeliness of ofthe the Government's Government'sObjection.
Objection.(Answer at at (Answer ,r,r 11119-
16 16 13). 13). The TheGovernment Governmentargues arguesits its objection objectionis is timely timelybecause because theSan San Agustin Agustin opinion opinion issued issued July 17 17 18, 18, 2024 "provided "provided additional additional grounds grounds on which to require disqualification, disqualification, namely namely the the Supreme Supreme 18 18 Court's explanation and use explanation and use of of its supervisory supervisory authority over the authority over the Superior Court of Guam's Superior Court Guam's 19 19 assignment of matters assignment of mattersto to disqualified disqualifiedjudges"
judges" and and that thatitit filed filed the the "Statement of Objection Objection less less 20 20 than two two weeks after the case was initiated and and before before any any hearing hearing on on any any issue issueof of fact was ever 21 set to to be be heard heardby byJudge JudgeTolentino."
Tolentino." (Resp. at 3).
22 22 Pursuant to section 6107: Pursuant to 6107:
23 23 The statement statement of a party objecting to to the the Justice Justice or or Judge the ground Judge on the ground of of his or 24 24 her disqualification disqualification shall shall be be presented presented at the earliest earliest practicable practicable opportunity opportunity after his or her her appearance and discovery appearance and discovery of of the the facts facts constituting the ground constituting the ground of the the 25 Justice's or Judge's disqualification, and in any any event before the commencement of of 26 26 the hearing hearing of any any issue of fact fact in in the the action action or or proceeding proceeding before beforesuch such Justice Justice or Judge. Judge.
27
28
People v.
v. Timothy Case No.
No. CM0229-24 Decision Decision and and Order
Page 4 of8 of 1 7 G.C.A.
7 G.C.A. §§6107.
6107. "The "Therule rulethat thata arequest requestfor fordisqualification disqualificationshould shouldbe besubmitted submitted prior prior to to any any 2 in the hearing iN thematter matterbefore before the the challenged judgerests challengedjudge rests on on the the principle principlethat that aa party may not gamble 3 on a favorable decision. Thus, Thus, aa statement statement of of objection objection is normally timely ififititis is submitted submitted prior 4 any hearing to any hearing before the challenged judge in the matter."
matter." Van Van Dox Dox v.
v. Superior Ct. of ofGuam, Guam, s5 Guam 77 ,iii 46 (internal 2008 Guam 2008 (internal quotation quotationmarks marksand andcitation citationomitted).
omitted). "[A] statement may be "[A] statement
6 untimely untimely if aa party party waits waits until until the the eve eve of oftrial trialtotorequest request disqualification disqualification based based on on information information 7 made known made knownmonths monthsearlier."
earlier."Id.
Id (citing People v. Pariah, Panah, 107 107 P.3d 790, 790, 824 824(Cal.
(Cal. 2005)).
8 Government's Statement Here, the Government's Statement of Objection was filed of Objection filed prior prior to to the the commencement commencement of 9 the hearing hearing of of any any issue issue of of fact in the the action actionor orproceeding proceedingbefore before Judge JudgeTolentino. The case Tolentino. The case was 10 10 assigned to assigned to Judge JudgeTolentino Tolentino on August August 1, 2024, and l, 2024, and the the Government's Statement Statement of of Objection
11 was filed the following following day.
day. According Accordingtotothe theCourt's Court'scase casemanagement management system, system, at the the time time of
12 12 filing of filing ofthe theObjection, Objection,no nohearings hearings had had been been calendared calendared or heard before Judge Judge Tolentino in in the 13 1 instant matter.
matter. However, the Court However, the Court does does not find find that the the timeliness timeliness analysis ends endsthere.
there. The facts
14 14 that form the basis of the Statement of Objection of Obj sectionare arenot notnewly newlydiscovered discovered to the Government and Government and
15 15 Judge Judge Tolentino Tolentino has has presided presided over over criminal criminal matters matters involving since Attorney involving the Government since
16 General Moylan took office in General in January January 2023.
2023.See Answer,ii44("I SeeAnswer ("I ... havebeen ... have beenaa Judge Judge of of the the 17 17 Superior Court of Guam Guam since September September 2021, 2021, and and that thatmy my docket docket consists consistsmostly mostly of of criminal
18 18 matters broughtby matters brought Peopleof thePeople bythe ofGuam Guamthrough throughthe theOffice Officeof ofthe theAttorney AttorneyGeneral.").
General."). It It was was not 19 19 until over over aa year later in May 2024 that thatthe theGovernment Governmentfirst firstmoved movedto todisqualify disqualify Judge JudgeTolentino.
Tolentino.
20 20 See See People People v.
v. Ybanez, Ybanez, et al. (CF0447-23) Dec.
Dec.&&Order Orderatat5,5,Jun.
Jun. 12, 12, 2024 2024 (noting the the Statement Statement 21 of of Objection Objection and Motion Motion to to Disqualify Disqualify was was filed filed on May l, 1, 2024).
2024). The TheGovernment Governmenthas has since since 22 22 to disqualify moved to disqualify Judge Judge Tolentino Tolentino in in aanumber number of ofcriminal criminal cases,2 cases,2 but but not not all all of his his criminal 23 23
24 24
25 2 This This Court, Court, for for example, example, has has been assigned assigned asasrecusaljudge recusal judgeforforthe theinstant instantmatter matter(CF0391-24), (CF039l-24),People People v. Buchun, (CF0458-24), (CF0458-24), People v. Rik at (CM0193-24), Rikat (CMOI93-24), People v. v. Ada (CF0520-24), (CF0520-24), People v. v. Timothy Timothy (CM0229-24), and and 26 People People v.
v. Quichocho (CM0249-24).
(CM0249-24). The TheStatement StatementofofObjection Objectiontiled filedinineach eachcase case isis substantially substantially the the same.
same. Judge Judge Tolentino's Tolentino's Answer Answer also also refers to objections objections being being filed filed in in People People v. Mantanona (CM0203-24), (CM0203-24); People People v.v.Babauta Babita 27 (CF0443-24); (CF0443-24); People v. Enlet (CM0322-22); PeoplePeople v. Sarges (CF0461-24), People v. Rabago (CF0423-24); and Sanres (CF0461-24);
28 People v.
v. Alipich Alzpich (CF0449-24). (Answer ,r (Answer1124).
People v.
v. Timothy Case No. CM0229-24 Case No. CM0229-24 Decision Decision and and Order
Page Page 5 of8
1 docket.3 docket.3 Therefore, Therefore, while while the the timeliness timeliness of of an an objection would normally objection would be case normally be the case specific, the
2 circumstances of the circumstances of being filed objectionsbeing the objections some but filed in some all cases but not all Judge Tolentino, cases before Judge
3 3 despite the basis of of all all obi beingsubstantially sectionsbeing objections thesame, substantiallythe requirethe same,require Courtto theCourt view them in toview
4 light light of ofhis entire criminal docket, as all criminal matters his entire arebrought matters are bythe broughtby Officeof theOffice theAttorney of the Attorney
s 5 General on behalf General on the People of the behalf of People of of Guam.
Guam. "7 "7 GCA GCA§§6105 6105 is is not not intended to 'bestow veto power intended to
6 over asaajudge used as over judges or to be used shoppingdevice.'"
judgeshopping ,i 24 ((citing San Agustin, 2024 Guam 2, 1124 device."' San citing
77 People People v.
v. Camaddu, Guam 22,i1180).
2015 Guam Camaddu, 2015 that while 80). The Court further notes that was not Agustin was San Agustin whileSan
8 issued until until July July 18, 18, 2024, 2024,the theSupreme SupremeCourt Courtof "explanation and use Guam's "explanation ofGuam's of its supervisory use of
9 authority authority over the Superior Court Court of Guam's assignment of matters Guam's assignment as matters to disqualified judges," as 10 10 relied relied on on by by the Government, see Resp.
the Government, 3, was specifically in Resp. at 3, regard to the in regard Superior Court's the Superior
11 assignment of judicial judicialrecusal matters. 4 See recusal matters.4 Guam 22,ii 20 See San Agustin, 2024 Guam (Once disqualified, 20(Once
12 12 a judge can can take no action-even take no when acting action-even when inaalimited acting in capacity as limitedcapacity recusal judge.").
as aa recusal
13 13 Therefore, the the Government on the cannot rely on Government cannot opinion recently the opinion being published recently being as a basis for aa published as
14 14 timeliness argument.
argument.
15 15 "Guam "Guam law does speak explicitly does not speak ofwaiver, explicitly of but does waiver, but that 'all parties agree.'
does require that 16 16 Rather than interpreting interpreting 'agree'
'agree' to tomean that the parties must mean that expressly agree mustexpressly to waive the judge's agree to
17 17 disqualification, we held that disqualification, we silent constitutes remaining silent that remaining waiver, at constituteswaiver, leastin at least the context in the of 7 context of
18 18 G.C.A.
G.C.A. §§6105(a), 6105(a), 'to 'toavoid avoidthe thepossibility possibilityofofparties p_artieslying lyingininwait, wait,raising raisingthe therecusal recusal issue issue only 19 19 after learning the court's learning the court's ruling ruling on on the the merits."'
merits."' People People v.
v. Win, Wia, 2020 Guam ,i 28 (internal 17 1128 Guam 17 20 20 alterations andcitations alterations and Inthe omitted).In citationsomitted). thecontext contextof of 77 G.C.A.
G.C.A. §§ 6l05(b), 6105(b), the the Supreme Supreme Court of Court of 21 Guam adopted adoptedthe "silence-as-wavier" rule on a case-by-case the"silence-as-wavier" basis. Id.
case-by-casebasis. ,i 30. The at 1130.
Id at The "silence-as-
"silence-as-
22 22 waiver" includes waiver" includes failure failure to to object objectbased based on on information knownto previouslyknown informationpreviously the parties tothe through parties through 23 23 separate Id.atatii,i27 litigation. Id separate litigation. 27(finding (findingthat thatthe rendered the rulerendered silence-as-waiverrule thesilence-as-waiver defendant's the defendant's 24 24
25 3 Judge Tolentino asserts Judge Tolentino asserts in his Answer in his Answer that that "if "if there there truly truly isis concern the undersigned's with the concern with undersigned's impartiality or impartiality or appearance of partiality then by appearance of by movant's logic the movant's logic disqualificationshould the disqualification have extended shouldhave to the extended to undersigned's entire the undersigned's 26 ,r (Answer1134).
criminal docket offending pendingandandpost-adjudication further proceedings."
post-adjudication further proceedings." (Answer
27 4 The Supreme Court exercised exercised its "supervisory "supervisory authority to to clarify clarifythe procedures (1)
properprocedures theproper when aa party (1) when seeks party seeks to challenge a recusal recusaljudge judge for for cause, cause,(2)
(2)for for service serviceof of a statement writ petition, and (3) for service of of aa writ of objection statement of objection 28 on a judge judge or or justice."
justice." San San Agustin, 2024 Guam 2 ,rii 54.
Agustin, 2024
People People v.
v. Timothy Timothy Case No. CM0229-24 Decision Decision and and Order
Page Page 6 of of8 1 objection obi action waived waived and and untimely untimely because because the the defendant aware of of the disqualification issue through
2 his counsel's involvement involvement in in other other criminal cases).
3 Government does The Government does not not dispute dispute in in its its Response Response (nor (nor does does itit appear appear to to address address at at all)
all)
4 statement that he and Attorney General Moylan met in December 2022 with Judge Tolentino's statement
5 court administration and staff whereby whereby "[i]t was agreed that that the the circumstances circumstances underlying underlying [Judge
6 Tolentino's] recusal Tolentino's] recusal in in matters that Mr. Moylan was a lawyer no longer existed." (Answer ,r (Answer117).
7 Thus, Attorney General Moylan appears to to have have waived waived any conflict on behalf behalf of of the the Government Government
8 tO the prior to startof the start ofhis histerm termin inJanuary January2023.
2023. At At this this time, time, the the Court is is unaware unaware of of any any objection objection
9 set forth by by the the Government Government to Judge Tolentino presiding presiding over over any any criminal criminal matter matter prior to People 10 10 v. Ybanez, CF0447-23, on v. Ybanez, l, 2024.55 The Government on May 1, Government therefore therefore did did not not move move to to disqualify disqualify 11 11 Judge Tolentino in any criminal matter for sixteen months after Attorney General Moylan took
12 12 office (January (January 2023 2023 to to April April 2024).
2024). The Government has not presented any newly discovered
13 1 facts or change facts change in in circumstances circumstances relating relating to to the the familial familial relationship relationship between between Judge Judge Tolentino and
14 14 Attorney General Moylan that would would render Attorney Attorney General General Moylan's Moylan's December December 2022 waiver
15 15 of any conflict moot. The Court moot. The Court notes notes that that the issue of of Judge Tolentino's Tolentino's competency competency was was first first 16 addressed in People v. Aguon, CMOl45-21 CM0145-21 in Spring 2024, 2024; yet it was through a motion filed by 17 17 the defendant, and in defendant, not the Government, and in the the context context of of aa Motion Motion to to Disqualify Disqualify the the Prosecutor 18 18 and not a ruling ruling on on aa Statement Statement of ofObjection Objectionto toJudge JudgeTolentino's Tolentino's competency.
competency. See See Dec. & Order
19 19 at 4-5, People v. (CM0145-21), Apr.
v. Aguon (CMOl45~2l), Apr. 5, 5, 2024 2024 ("On March March 1, 2024, the Court heard new l, 2024,
20 arguments on the arguments the Motion to Withdraw Withdraw the the Prosecutor. There, in addition to the issue Prosecutor. There, issue of AAG 21 Olan's alleged Olan's alleged statements, statements, Defendant Defendant asserted asserted there had been an undisclosed familial relationship 22 22 between Judge Tolentino Tolentino and and Douglas Douglas Moylan Moylan ... "). At ..."). Atthe thetime timeofofthat that Decision Decision and and Order Order in 23 23 CM0145-21, Judge CMOl45-2l, Judge Tolentino Tolentino had already already recused himselffrom reused himself from the thematter, matter, albeit albeit on on different different 24
25 5 The Government Government has has not not shown shown that that itit has objected to Judge Tolentino presiding over over any any criminal criminal matter matter prior prior to 26 People v. Ybanez.
Ybanez. The Court acknowledges acknowledges that that on on May May 24, 24, 2024 2024 (twenty-three (twenty-three days days after after the the filing of of an objection in Ybanez), the Government orally Ybanez), the orally agreed agreed with Defendant Taitingfong Taitingfong in CF0024-24 that Judge Tolentino was 27 disqualified from presiding over over her case in light of the familial relationship relationship between between Judge Judge Tolentino Tolentino and and Attorney Attorney General Moylan. See People People v. Taitingfong Taitingfong (CF0024-24) Dec. & Order Order at 4 fn. 1, Jun.
Jun. 4, 4, 2024.
2024. ItIt does not not appear 28 that the Government Government itself itself also filed an Objection to Judge Tolentino Tolentino presiding presiding in in that matter. See idid.
People v.
v. Timothy Case No. CM0229-24 Case No. CM0229-24 Decision Decision and and Order
Page Page 7 of8 of l grounds. See id grounds. See id.atat2.2.InInlight lightofofthe theforegoing, foregoing, the theCourt Court finds finds that that the Government's silence for 2 over a year, despite being aware ofthe the facts facts forming forming the basis of the disqualification, amounts to 3 of any a waiver of any objection objection to Judge Tolentino presiding over cases cases involving the Office of the 4 Attorney General Attorney General based familial relationship based on the familial relationship between between Judge Judge Tolentino Tolentino and and Attorney Attorney 5 General Moylan. 6 CONCLUSION
7 For the foregoing reasons, reasons, the Court hereby DENIES the Government's Government's Statement Statement of of 88 Objection and Motion to Disqualify. The TheCourt Courtreturns returns the the matter matter to to Judge Tolentino for further 99 disposition. 10 10 1,-, 11 IS SO IT IS SO ORDERED this ORDEREDthis 1fi_ day of August, 2024.
12
13
14 14 HONORABLE VERNON P. p. PEREZ Judge, Superior Court of Guam 15
16 16
17 17
18 18
19 19
20 20
21
22
23 23
24
25
26 26
27
28
v. Timothy People v. Case No. CM0229-24 Case No. Decision Decision and and Order
Page 8 of8