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4
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6 IN THE THE SUPERIOR
SUPERIOR COURT
COURT OF
OF GUAM
GUAM
1 7 PEOPLE OF GUAM, GUAM, ) CRIMINAL CRIMINALCASECASENO. NO.CF0665-24 CF0665-24
) GPD REPORT no. 24-13635 REPORT NO. 24-13635
8 )
9 vs. )
)
10 )
D.J. TOSIUO, TOSIU05 ) DECISION AND ORDER 11 11 aka DJ DJPeter PeterRobert
Robert Tosiuo,
Tosiuo, ) RE. DEFENDANT'S MOTION MOTION TO
12 aka David David Peter Robert Robert Tosiuo,
Tosiuo, ) DISMISS WITH WITH PREJUDICE
aka D.J.R.
D.J.R. Tosiuo, Tosiuo, )
13 13 aka D.J.
D.J. BJ BJ Saki
SakiPrick
Prick from
from Barrigada, )
DOB: DOB:01/26/1995 0112611995 oror01/25/1995 01/25/1995 )
14 14 )
15 15 Defendant.
Defendant. )
w
16 16 INTRODUCTION
17 17
18 18 This matter came came before
before the
the Honorable
Honorable Maria
Maria T. Cenzon
Cenzon upon D.J. Tosiuo's upon Defendant D.J. Tosiuo's
19 19 ("Defendant"
("Defendant" or "Defendant Tosiuo") Motion to "Defendant Tosiuo") to Dismiss Dismiss with
with Prejudice (the "Motion").
Prejudice (the
20 Representing the the Defendant
Defendant is
is Assistant
AssistantAlternate
Alternate Public
Public Defender
Defender Tyler
Tyler R. Scott.
Scott. Representing
Representing
21 the the People of Guam ("the People")
People") isis Assistant
Assistant Attorney General General Valerie A.
A. Nuesa.
Nuesa. The
The Court
Court
22 took the the Motion under advisementpursuant under advisement pursuantto to CRCRl.l(g)(4)(B)
1.1(g)(4)(B)and
andCVR
CVR7.l(e)(6)(E)
7.1(e)(6)(E) of the
the
23
24 LOCALRULES LOCAL RULESOF OFTHE
THESUPERIOR
SUPERIORCOURT
COURTOFOF
GUAM on on
GUAM June 27,
June 27,2025
2025.v
25 After After having
having received
receivedand
and reviewed
reviewedthe
thepapers
papers and
and the
the file
file herein,
herein, the
the Court
Court issues
issues the
26 following following Decision Decisionand
and Order DENYING Defendant's Motion.
27 // II 28
II//
People v.
v. Tosiuo,
Tosiuo, Criminal
Criminal Case
Case No. CF0665-24
CF0665-24
Decision Decision and
and Order Re.
Re. Defendant's Motion
Motion to Dismiss
Dismiss with Prejudice
Page 1 of 10
I FACTUAL BACKGROUND PROCEDURAL AND FACTUAL
2 A. Relevant Procedural History.
3 On September 20, 2024,
September 20, 2024,Defendant DefendantTosiuo
Tosiuowas
wasindicted
indictedfor
forthe
thefollowing
following offenses: the
4 5 First First Charge of Aggravated Charge of Assault (As Aggravated Assault (As a Third Third Degree
Degree Felony)
Felony) with
with Special
Special Allegation:
Allegation:
5
66 Possession orUse Possession or Useof ofa Deadly
Deadly Weapon
Weapon ininthe
theCommission
Commissionofofa Felony;
Felony, Two
Two Counts ofthe
Counts of Second
the Second
7 7 Charge of Terrorizing (As (As aa Third Degree Felony) withSpecial Charge of Special Allegation:
Allegation:Possession
Possession or
or Use
Use of
of
8 8 a Deadly Weapon in the Commission of Deadly Weapon the Third Charge of of a Felony; the Possession of of Possession Firearm of aa Firearm
9 Without A Firearms Without IdentificationCard Firearms Identification Card(As the Fourth Felony); the
(As a Third Degree Felony), Charge of Fourth Charge
10 11 ll Unlawful Discharge of Unlawful Discharge of a Firearm Misdemeanor); the (As aa Misdemeanor),
Firearm (As Charge of the Fifth Charge Assault (As aa of Assault
12 12 Misdemeanor), Misdemeanor); and Chargeof Sixth Charge
the Sixth
and the Disorderly Conduct of Disorderly (As aa Violation).
Conduct(As 20, (Sep. 20,
Violation). Indict. (Sep.
13 13 The Indictment 2024). The stemmed from Indictment stemmed events that from events allegedto are alleged
that are haveoccurred tohave onJune
occurredon June 11, 2024.
11, 2024.
14 14 See Id.
15 15 On October
October 10,
10, 2024,
2024, the
the Defendant asserted his speedy Defendant asserted rights. See speedy trial rights. Entry, See Min. Entry,
16 16
117 7 Arraign. Hearing (Oct.
(Oct. 10,
10, 2024). On October
2024). On 23, 2024, October 23, waived his right to speedy 2024, the Defendant waived
18 18 trial trial and thereafter Dismiss. See instant Motion to Dismiss.
thereafter filed the instant ofStatutory Waiver of
See Waiver Speedy Trial Statutory Speedy
19 19 Rights Rights and and Request ofTwelve in Felony for Jury of
Request for Case (Oct. 23, 2024).
Felony Case
20 Some Some of
of the
the crimes here were initially charged here
crimes charged included in initially included Defendant's earlier in Defendant's case, earlier case,
21
22 CF0428-24, however, the CF0428-24; however, Motion to People filed aa Motion
the People Dismiss these to Dismiss charges in these charges CF0428-24 for in CF0428-24
22
23 23 several reasons, that it had intended including that
reasons, including to consolidate the charges with those which intended to had which had
24 24 11, 2024.People June 11, onJune
occurringon
also occurring
events also
for events
been brought against other individuals for Mot.
's Mot.
People 's
25 25 2024). The to Dismiss Without Prejudice (CF0428-24)(Sep. 10, 2024). original Indictment The original in CF0428-
Indictment in CF0428-
26 26 24 charged charged Defendant Defendantwith:
with:the
theFirst
FirstCharge AggravatedAssault ChargeofofAggravated (As aaThird Assault(As Degree Felony)
ThirdDegree Felony)
27 27
28 28 Allegation: Possession or Use of a Deadly Weapon in the with Special Allegations of a Felony;
the Commission of Felony,
People People v. Tosiuo, Criminal CaseNo.
Case No. CF0665-24
CF0665-24
Decision Decisionand
and Order Re. Defendant's Motion to Dismiss with Prejudice Defendant's Motion
Page Page 2 of 10
IO
1 the Second Second Charge of Third Degree of Terrorizing (As a Third Degree Felony)
Felony) with
with Special
Special Allegation:
Allegation: Possession
2 . I I . .
or Use of or of aa Deadly Weapon Weapon in
in the
the Commlsslon
Commission of
of aa Felony,
Felony; the
the Third Charge of Possesslon Thlrd Charge Possession of a of a
3 Firearms Without A Firearms Identification Card (As a Third Degree Felony);
Felony), the Fourth Charge 4 5 of Possession Possession of an Unregistered Firearm (As Unregistered Firearm (As a Third Degree Felony), Felony); the Fifth
Fifth Charge of
of
5
66 Unauthorized Use of a Motor Unauthorized Use Motor Vehicle Vehicle (As
(As aa Misdemeanor),
Misdemeanor); the
the Sixth
Sixth Charge
Charge of
of Unlawful
Unlawful
77 Discharge Discharge of a Firearm Firearm (As a Misdemeanor), Misdemeanor); the Seventh Charge of of Recldess
Reckless Conduct (As a
8 8 Misdemea nor ), and Misdemeanor); a nd the the Eighth
Eighth Charge
Cha r ge of Operation
tion of
of a Motor
Motor Vehicle
Vehicle Without
Without a Valid
9 Operator's License Operator's License (As (As aa Violation).
Violation). Indict.,
Indict., CF0428-24
CF0428-24 (Jul.
(Jul. 2, 2024). Charges One, Two, Six, 10 10
11 11 occurred on June 11, and Seven are alleged to have occurred 11, 2024 2024 - whereas
whereas the
the remaining
remaining charges,
charges,
12 12 Charges Three, Four, and Five are alleged to have occurred on on June 22, 2024. Id.
13 13 CF0428-24, Defendant asserted In CF0428-24, asserted his his right
right to trial on August 7, 2024, but on to speedy trial
14 14 September 10, September 10, 2024, 2024, the
the People sought,
sought, and
and the court
court granted,
granted, dismissal
dismissal of Charges One
of Charges
15 15 16 (Aggravated Assault (As a Third Degree Degree Felony) with Special Allegation: Possession or Use of of a
16
17 17 of aa Felony), Commission of
Deadly Weapon in the Commission Felony); Two Two (Terrorizing
(Terrorizing (As a Third Degree Felony)
18 18 with Special Allegation: Possession or Use of a Deadly Deadly Weapon in the Commission of a Felony);
Commission of Felony),
119 u n . .
9 Six (Unlawful S1x (Unlawful Discharge Dlscharge of
of a Firearm
Flrearm (As
(As a Misdemeanor))
Mlsdemeanor)) and Seven
Seven (Reckless Conduct
Conduct (As a
(As a
20 .
all of
Misdemeanor)) - all ofwhich which are
are alleged
alleged to
to have
have occurred
occurred on
on June
June 11,
11, 2024
2024 (referred
(referred to herein
21 22 as the "June 11, 2024 Charges"). CF0428-24 CF0428-24 then
then proceeded to trial on on the
the remaining
remaining charges on
22
23 23 September September 13, 2024, within 13, 2024, within the
the time
time mandated
mandated under
under 88 GCA
GCA §§ 80.60.
80.60.
24 The Defendant's complaint isis that Defendant's complaint that the People's People's dismissal
dismissal of
ofthe
the June
June 11,
11, 2024, charges in
25 25 CF0428-24 was purportedly for the purpose purpose of consolidating
consolidating those charges with charges brought 26 against other individuals individuals for
for events
events occurring
occurring on
on June 11, 2024.
2024. Mot.
Mot. at p.
p. 2. The Defendant
27 28 28 alleges that this this was a misrepresentation by the People for the sole purpose of of gaining
gaining aa tactical
tactical
People v. Tosiuo,
Tosiuo, Criminal
Criminal Case
Case No.
No. CF0665-24
CF0665-24
Decision Decision and Order Re.
Re. Defendant's
Defendant's Motion
Motion to Dismiss with Prejudice Page 3 of 10
10
1 advantage and circumventing the Defendant's circumventing the Defendant's speedy speedy trial
trial rights
rights because
because no
no additional
additional
advantage and 2 1nd1v1dua1s have individuals have been been named
named in in
thethe IndIctment
Indictment in in
thisthls case.
case. Id Idatatp.p.4.4.The The People
People essentially
3 defer to to the
the Court's
Court's discretion
discretion and
and provide
provide no
no additional
additional information
information as
as to
to whether
whether other
other
4
5 individuals individuals have been been indicted
indicted for
forthe
the June
June 11, 2024, events.People 11, 2024, 's Response People's Response (May
(May 27,
27, 2025).
6 At At the
the outset,
outset, the Court notes
the Court notes that
that the
the Indictment
Indictment in
in the
the instant case charges instant case Defendant charges Defendant
7 7 with crimes not originally originally charged
charged in
in CF0428-24.
CF0428-24. Specifically,
Specifically, the
the additional
additional charges
charges are:
are: an
an
8 additional countof additional count of Terrorizing Terrorizing (As 3rd Degree (As aa 3rd Degree Felony) Joseph victim, Joseph
new victim,
involving aa new
Felony) involving
9 Hernandez, of a Firearm Hernandez; Possession of FirearmWithout FirearmsIdentification WithoutFirearms (As a 3rd Identification (As DegreeFelony)( rdDegree Felony)(on
10 10
111 a different date from Charge Charge Four: Possessionof Four:Possession anUnregistered fan Firearm(as UnregisteredFirearm 3rd Degree (asaa 3rd DegreeFelony)
Felony)
12 12 in CF0428-24 citing to and citing
CF0428-24 and different statutes), to different Assault (As statutes); Assault Misdemeanor); and (As aa Misdemeanor), Disorderly and Disorderly
13 13 Conduct (Sep. 20, (As a Violation). Indictment (Sep.
Conduct (As 2024). Additionally, 20, 2024). Charge Seven:
Additionally, Charge Reckless Seven: Reckless
14 14 Conduct (As (As aa Misdemeanor)
Misdemeanor) as
as to
to victim
victimRudy wasdismissed Sablanwas
RudySablan in CF0428-24, dismissed in but not CF0428-24, but
15 15 16 charged in the instant case. Thus, instant case. Thus, the charges against the charges Defendant in against Defendant this case in this are not
case are identical to not identical
16
17 17 those set forth in CF0428-24.
CF0428-24.
18 18 DISCUSSION 19 19 8 GCA §§80.70(a) 8 GCA 80.70(a)sets
sets forth
forth the
the procedure
procedure upon
upon which
which a prosecutor may move for case prosecutor may case 20 dismissal: dismissal:
21
22 The prosecuting attorneymay prosecuting attorney maywithwith leave leave of court
court file
file aadismissal ofan
dismissal of indictment, an indictment,
information information oror complaint complaintandand the
the prosecution shall thereupon prosecutionshall Such a dismissal thereupon terminate. Such 23 23 may not be tiled filed during
during the
the trial
trial without
without the consent of the consent ofthe defendant. The the defendant. prosecuting The prosecuting
attorney shall file aa statement attorney shall statement of his reasons for seeking his reasons dismissal when he applies for seeking dismissal
24 24 leave to set forth the shall set
order shall
court's order
the court's
granted the
leave isisgranted
to file
fileaadismissal
dismissal and
and where
where leave
25 25 reasons such leave. reasons for granting such leave.
26 26 The Guam The Guam Supreme Court, in Supreme Court, in examining examining a
a motion
motion to
to dismiss
dismiss under
under§ 80.70(a),
80.70(a), has
has stated
stated
27 27 that that "the prosecutor having a presumption is recognized as having
prosecutor is of good faith in bringing the motion presumptionof
28 ... and the the motion
motion should as aa matter generally be granted as
should generally of course."
matterof course." People v. Gutierrez, 2005
People v.
v. Tosiuo, Criminal Case
Tosiuo, Criminal Case No.
No. CF0665-24
CF0665-24
Decision Decision and Order Re.
Re. Defendant's Motion to Dismiss with Defendant's Motion with Prejudice Page Page 4 of
of 10
~~ 51-52. However, this presumption is not absolute and "is rebutted upon a showing Guam 19 W 2 u I .
of aa lack of lack of ofgood
good faith." Id.1]~ 53
faith." Id United States 53 (quoting United v. Salinas, States v. 693 F.2d Salinas, 693 F.2d 348,
348, 352
352 (5th
(5th C1r.
Cir.
3 1982). Even if the presumption were overcome by a showing of of bad faith, "section 80.70(a) does 4
5 not authorize trial courtsto sue sua sponge
sponte dismiss indictments indictments with
with prejudice." Id.'H~ 69.
prejudice." Id 69. "[T]he "[T]he [only]
66 options available to a court upon upon a finding
finding of bad faith by the prosecution in bringing a Title 8
7 GCA §§ 80.70(a) GCA motion are 80.70(a) motion either grant to either
are to grant or
or deny
deny the
the motion
motion [to
[to dismiss
dismiss without
without prejudice]."
prejudice]." Id.
Id
8 W ~~ 74-75.
74-75.
9 The Guam Supreme
Supreme Court
Court requires trial courts to consider three factors factors when deciding
10
11 whether to dismiss a case with or without prejudice: "(1) the seriousness of of the offense,
offense; (2) the
12 12 facts and circumstances facts and of the circumstances of the case case which
which led
led to
to the
the dismissal, and (3)
dismissal; and (3) the
the impact
impact of a
13 13 reprosecution prosecution on the administration of justice."
justice." Guam v. Aromin, ~ Aron in, 2014 Guam 3 1]21.
14 14 A. The offenses alleged in this matter are serious.
15 15 The Court first turns to the Indictment in this matter in considering the seriousness of of the
16 16
17 17 charges against Defendant Tosiuo as prescribed in Aromin.
Aron As described above, the Defendant is
18 18 charged with three (3) felony offenses, two (2) misdemeanor misdemeanor offenses, and and one (1)
(1) violation. See
19 19 Indict. (Sep. Indict. (Sep. 20, 2024).
2024). The three
three more serious offenses offenses are the First Charge Charge of
of Aggravated
Aggravated
20 Assault (As Assault (As a Third Degree Degree Felony) with
with Special Allegation: Possession Possession or Use
Use of
of aa Deadly
Deadly
21
Weapon in the Weapon in theCommission Commissionofofa Felony,
Felony, Two Counts of
of the Second Charge of
of Terrorizing (As a
22
23 Third Degree Felony) with Special Allegation:
Allegation: Possession
Possession or
or Use
Use of a Deadly Weapon
Weapon in the
24 24 Commission ofa Felony, Commission of Felony, and the Third Charge of of Possession of
of a Firearms Without A Firearms 25 25 Identification Card (As a Third Degree Felony). Id. The felony charge of of Aggravated Assault is
26 26 particularly serious due to the allegation of committing serious bodily injury to one of the named 27 28 28 victims, Rudy Sablan.
victims, Rudy Id. The Sablan. Id. The two (2)
(2) counts
counts of
of the
the felony
felony charge
charge of
ofTerrorizing
Terrorizing are
are also
also
People v. Tosiuo,
Tosiuo, Criminal Case No. CF0665-24 Decision Decision and Re. Defendant's Motion and Order Re. Motion to Dismiss Dismiss with Prejudice
Page 5 of
of 10
1 particularly seriousbecause becausethere
thereare
aretwo
two (2)
(2) alleged
particularly senous alleged victims, victims, Rudy
Rudy Sablan
Sablan and
and Joseph
Joseph
2 Hernandez. Id Adding Hernandez. Id Adding to to the
the seriousness of these seriousness of these offenses offenses are
are the
thetwo
two Special
Special Allegations
Allegations of
3 Possession or Use of ofaa Deadly
Deadly Weapon
Weapon attached
attached to Charges
Charges One and Two, which which are
are sentence
sentence
4
5 enhancements shouldthe enhancements should theDefendant Defendantbe
beconvicted
convicted of
of the attendant crimes. Therefore, attendant crimes. Therefore, the Court
6 finds that the allegations allegations against
against the
the Defendant
Defendant are
are particularly
particularly serious
serious in
in nature,
nature, and
and weigh
7 with prejudice.11
heavily against dismissal with 8 B. B. Defendant Defendant has failed
failed to demonstrate actual prejudice, demonstrate actual prejudice, and his speedy trial rights speedy trial rights
9 were not violated. 10 IO The Court
Court now turns to
to considering the second factor of ofthe
the facts
facts and
and circumstances which
11 11 led to the dismissal. "The "The second
second factor
factorincludes,
includes,but
but is
is not
not limited
limitedto,
to,the
thefacts
facts and
and circumstances
circumstances
12 12 surrounding the length surrounding the length of of delay,
delay, government
government conduct,
conduct, and
and actual prejudice suffered actual prejudice suffered by by the
the
13 1
14 14 defendant." Aromin defendant." ,I ..
Aron in 1]21
15 15 As As stated
stated earlier, the People People are
are presumed to
to have
have aagood-faith
good-faith basis
basis for
for bringing a motion
16 16 to dismiss, dismiss; therefore, therefore, the
the Defendant
Defendant has
has the burden of rebutting rebutting this
this presumption by establishing 17 17 the bad faith. the prosecutor's bad faith. See ,I,I 51-53.
See Guerrero W 51-53. Defendant Defendant Tosiuo asserts that the asserts that the People's People's
18 18 basis basis for dismissing dismissing the
the June
June 11, 2024, charges
11, 2024, charges in CF0428-24 amountedto CF0428-24 amounted to obtaining obtaining "tactical
"tactical
19 19
20 advantage" because the prosecutor in CF0428-24 represented represented that
thatthe
thePeople
People would consolidate
21 the June 11,2024 June 11, 2024charges chargeswith
with those
those of
of three other suspects, but that suspects, but that"[n]otably "[n]otab1y absent from this absent from
22 22 Indictment is any any reference
reference to
tothese
thesesupposed
supposed suspects/co-defendants."
suspects/co-defendants." See See Defy.
Deft. 's's Mot.
Mot. at
at 2-4.
23 23 The People People claim claimthat
that they
they are
are unaware
unaware of
ofany
any other
other co-actors/co-defendants being charged for co-actors/co-defendants being 24 24
25 the allegedevents of ofJune
June 11, 2024.
2024.See
See Ppl 's. Resp.
Ppl's. Resp. at
at 2-3. The Court
Court takesjudicial
judicial notice of the
26 26
27 27
28 11 The trial court court in Aron
Aromin "applied the
in "applied the seriousness of the offense factor seriousness of factor in in recognizing
recognizingthatthat the
the more
more serious
serious the
th
offense, offense, the the more weight
weight should be
be given
given to dismissalwithout to dismissal withoutprejudice."
prejudice."Aron
Aromin ,r 23 (citing United in 'll United States States v. Clymer,
v. Clymer
25 F.3d 824,831 824, 831(9th
(9thCir.1994)).
Cir.l994)).
People v. Tosiuo,
Tosiuo, Criminal Case No.
No. CF0665-24
Decision Decision and Motion to Dismiss with Prejudice and Order Re. Defendant's Motion Page 6 of
of 10
People's People's Motion Motionto
to Dismiss
Dismiss Without
WithoutPrejudice
PrejudiceininCF0428-24
CF0428-24 (Sep.
(Sep. 10,
10, 2024).
2024). In that Motion the 2 2 prosecutor stated:
prosecutor stated:
3 Dismissal Dismissal of
of these charges against Defendant Defendant is is requested in in the interests of justice, of justice,
4 as the Office Office of
of the
the Attor ney Gener
Attorney a intends General intends toto pr osecute these prosecute these ma tter s in matters
connection connection with
with other
other GPD
GPD investigations
investigations that
that have
have resulted
resulted in the charging of of other 5 defendants defendants for the same or related criminal activities. The June related criminal activities. The June 11, ll, 2024 allegations 6 in particular concern this defendant and three (3) other suspects. GPD Report Nos.
that the
the Office
Office intends
intends to
to consider in connection with this defendant defendant and others are
7 2024-10344 and 2024-13128. Separate indictments indictments were
were issued
issued for the matters
2024-10344 and 2024-13128. Separate matters 8 charged in this case and others in large part due to the timing of of the arrests arrests of the
multiple multiple defendants.
defendants. The
The Office
Office intends
intends to
to consolidate
consolidate the
the cases
cases and
and parties and file
9 the Indictments Indictments within
within days
days ofof this
this requested dismissal. 2 requested dismissal.2
10 The Court agrees that the the Indictment
Indictment in the instant case case does
does not include any persons other 11 11 than the Defendant. However, the Court notes that the Indictment is not identical to the charges 12 12 levied against him in CF0428-24. Additional charges have been presented to a grand jury and a 13 13
14 14 true true bill bill has been issued
issued charging
charging him with
with an
an additional
additional count
count of
of Terrorizing,
Terrorizing, a charge of
of
15 15 Possession of a Firearm without Firearms Identification Possession Identification and and a new charge
charge of
of Assault.
Assault. It also
also
16 16 eliminates a charge of Reckless Conduct (As a Misdemeanor). Also notable is that the Defendant 17 17 object to the People's
did not object People's Motion Motion to
to Dismiss
Dismiss during
during the
the hearings
hearings before
before the
the trial
trial court in
18 18 19 CF0428-24.33 Additionally, Additionally, there
there is
is no
no evidence
evidence that the
the prosecutor's
prosecutor's original "intent" to bring the 19
20 20 charges against charges against the the Defendant
Defendant together
together with
with other individuals was other individuals impacted by other was not impacted other
21 considerations not considerations not related related to
to evading
evading a speedy trial
trial in
in CF0428-24.
CF0428-24. Thus,
Thus, just reviewing the
22 22 Indictment on its face, the Defendant has not established that the People have acted in bad faith 23 23 in dismissing the June 11, 2024, 2024, charges
charges in
in CF0428-24
CF0428-24 and
and bringing
bringing them
them -- together with
with new
24 charges -- in in this case.
case.
25
26 26
2 27 GRERule Id. GRE Zld Rule 201.
201. .
3 3 The The Court takes takesjudicial
judicialnotice
noticepursuant
pursuantotoGREGRERule
Rule201
201of
ofAssistant
AssistantAPD
APD Tyler
Tyler Scott's appearance
appearance on behalf
behalf of
of
28 28 the Defendant in CF0428-24, CF0428-24, during
during the
the pre-trial
pre-trialconference
conference when
when the
thePeople's
People's Motion
Motion to Dismiss was addressed by the Honorable the Honorable Presiding Presiding Judge
Judge Alberto
Alberto C. Lamorena III. See, C. Lamorena See, Minutes oof f PPre-Trial re - T rial CConference (Sep. 12, o nf e re nc e (Sep. 12,
2024)(appearing on behalf of of Defendant Defendant isis APD
APD Scott).
People People v.
v. Tosiuo,
Tosiuo, Criminal
Criminal Case
Case No. CF0665-24
Decision Decision and
and Order Re.
Re. Defendant's Motion
Motion to Dismiss with
with Prejudice
Prejudice
Page Page 7 of 10 l Perhaps the most persuasive argument argument against
against finding that the People acted in bad faith is 2 I . I .
noted specdically noted specifically by by Defendant
Defendant in
in Ins
his moving
moving papers:
papers: "On
"OnSeptember
September 20,
20, 2024,
2024, aa mere ten (10)
(10)
3 days after filing filing its
its motion
motion to
to dismiss
dismiss the
the June
June 11
11 charges,
charges, the
the OAG
OAG submitted
submitted this
this Indictment
Indictment --
4
CF0665-24, recharging Mr. CF0665-24, recharging Mr. Tosiuo Tosiuo for
for the
the alleged
alleged June 11 crimes." Mot.
Mot. at pp. 2-3.
2-3. Had the
5
66 People intended to gain gain aa tactical
tactical advantage by circumventing Defendant's Defendant's speedy
speedy trial
trial rights,
rights,
77 bringing the matter before a grand jury jury and seeking an indictment merely ten ten (10)
(10) days after the
8 8 People filed its Motion filed its (but only Motion (but only eight
eight (8)
(8)days
days after
after the
the Motion
Motionwas
was heard
heard by
by the
the trial
trial court)
court)
9 belies the notion that the belies the People People would take of aa dismissal take advantage of dismissal and bring bring an entirely
entirely new
10
11 11 indic t ment soo qu indictment ic kly aafter quickly f t t the
he dis mis s a l ininC FCF0428-24.
dismissal 0 4 2 8 - 2 4 . Addit iona lly, tthe Additionally, he DDefendant ef enda nt
12 12 mischaracterizes the indictment in this case as merely "recharging" Defendant of the June 11 mischaracterizes the 11 13 13 crimes contained in the Indictment Indictment in CF428-24. As already noted by the Court, the Indictment 14 14 in this case both includes new charges charges against
against Defendant and did not recharge recharge the Reckless
Reckless
15 15 16 Conduct charge contained in CF428-24.
Conduct 16
17 17 In this case, the People acted reasonably expeditiously expeditiously in bringing bringing evidence before the
18 18 grand jury, resulting resulting in
in the
the Indictment in this case. The Court finds that the the Defendant has not
119 9 | . | 1 | 1 .
sufficiently rebutted the presumption of good falth faith by its assertion
assertion that
that the
the People's
People's dismissal
dlsmlssal of
of
20 the June 11, 11, 2024, charges
charges was
was done to avoid a speedy speedy trial.
trial. On the contrary,
contrary, by virtue
virtue of the
21 22 Indictment Indictment in in this case, the People gained gained another
another speedy
speedy trial
trial on
on the heels
heels of
of the trial in CF0428-
22
23 23 24 - that that is,
is, until Defendant waived in pursuit of of this Motion. See People v.
v. Flores,
Flores, 2009 Guam
24 24 22.
25 Moreover, the Defendant has failed Moreover, the failed to demonstrate demonstrate any prejudice prejudice resulting from the resulting from
26 26 dismissal of of the charges in CF428-24 and bringing them less than ten days after the the court's order
27 28 28 establishes that granting dismissal. This establishes that the the impact
impact of
ofprosecution
prosecution on
onthe
theadministration
administrationof
ofjustice
justice
People v.
v. Tosiuo,
Tosiuo, Criminal
Criminal Case
Case No. CF0665-24
CF0665-24
Decision Decision and Order Re.
Re. Defendant's
Defendant's Motion
Motion to Dismiss with Prejudice Page 8 of 10 is little to to none
none because
because the
the People
People have
have already
already obtained
obtained an
an Indictment
Indictment charging
charging Defendant
Defendant with
2 the June 11, 2024, 2024, events,
events, in
in addition
addition to new
new charges, and the statute oflimitations of limitations does not apply 3 prosecution, nor
to bar prosecution, nor has has Defendant
Defendant shown that witnesses are unavailable unavailable or that evidence is 4
5 missing or deteriorated. See Aromin ,r 24 Aron 'll 24 (the
(thetrial
trial court
courtcorrectly
correctly found
found that
that the
the defendant
defendant failed
6 to support a showing of of actual prejudice, such as witness availability availability or that
that evidence
evidence is missing
7 or deteriorated). In absence of such showing of of prejudice, the Court finds that the second Aromin Aron
8 factor weighs against dismissal with prejudice.
9 c. C. Dismissal with prejudice prejudice is not an appropriate appropriate sanction in this matter.
sanction in matter.
10
11 11 The Court
Court finally
finally Tums to the third factor in Aromin:
turns to Aron impact of reprosecution prosecution on the
12 12 administration of justice.
administration of justice. "Dismissal "Dismissal with
with prejudice
prejudice is
is aa stronger
stronger sanction,
sanction, yet
yet '[i]t is beyond
13 13 question that 'dismissal without prejudice prejudice is
is not
not aa toothless
toothless sanction.""
sanction."" People v. Corpus, Corpuz, 2019
14 Guam 1 ,r 1127 (citing United
27 (citing United States.
States. v.v. Bert,
Bert, 814 F.3d 70,
70, 82
82 (2d
(2d Cir.
Cir. 2016);
2016), see also Aron in 1],r 25.
Aromin
15 15 "Dismissal "Dismissal without without prejudice requires the People to obtain a new indictment indictment and potentially face 16 16
17 17 dismissal on statute of limitations grounds." Id.
Id.
18 18 Here, following the dismissal of of the relevant charges in CF0428-24, the People indicted 199 1 u . .
Defendant in
the Defendant in thls this matter ten (10) days later on September September 20, 2024. The People would stlll still be
20 20 within the statute of limitations to to bring this matter to
to trial
trial if
zfthis
this matter were
were to be dismissed,
21
albeit the time albeit the time would would run
run until
until June
June ll, 2026,pursuant
11,2026, pursuantto
to 88GCA
GCA§§10.20(c).5
10.20(c). 5 Thus,
Thus, the
the Court
Court
22
23 finds that these set of facts facts do
do not require
require the more serious sanction of dismissal with prejudice,
24 and this factor weighs against dismissal with prejudice.
25 The Court
Court takes judicial
judicial notice
notice of Defendant's conviction conviction in CF428-24
CF428-24 and that he
26 26 continues to be held in that case pending appeal of of his conviction. As such, his detention in this 27 27
28 28
People People v.
v. Tosiuo,
Tosiuo, Criminal
Criminal Case No. CF0665-24 Decision Decision and
and Order Re. Defendant's Motion Motion to Dismiss
Dismiss with Prejudice
Page 9 of
of 10
case pending trial does not prejudice him in any way, but instead allows him to receive pre-trial 2 detention credit, which inures to his benefit.
3 Upon review of the three Aromin factors in consideration of Defendant's Motion, the 4
5 Court finds that the Defendant has failed to establish bad faith on the part of the prosecution in
6 dismissing the June 11, 2024 charges in CF428-24 because the People almost immediately
7 obtained an Indictment in this case including those and additional charges; the seriousness of the 8 allegations and the impact on the victims in this case and the community and the lack of prejudice 9 to the Defendant weigh heavily against dismissal.
10
11 CONCLUSION
12 For the above reasons, the Defendant's Motion to Dismiss with Prejudice is DENIED. 13 The Court shall issue trial dates under separate cover.
14 SO ORDERED this 22nd day of September, 2025.
15
16
17
18 Judge, Superior Court of Guam 19
20
21
22
23
24 SERV!CIE vgA IE~MABl I acknowledge that an electronic 25 copy of the original was e-mailed to:
AG,, PrPn
26
27 Date: q {idd5nme: {o::['/341v1. 28 Ar:,i,./p,. ti:2 ~o,~,,_-- oeputy Clerk, Sup ~urt of Guam
People v. Tosiuo, Criminal Case No. CF0665-24 Decision and Order Re. Defendant'·s Motion to Dismiss with Prejudice Page 10 of IO