People v. Valentino

Opinion

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3 IN THE SUPERIOR COURT OF GUAM 4 rw' ____ ~ ____ I 5 ) 6 ) CRIMINAL CASE NO. CF0592-1O THE PEOPLE OF GUAM, 7 ) v. ) 8 ) DECISION AND ORDER ON V ALENS VALENTINO, ) DEFENDANT'S MOTION FOR 9 ) DIVERSION, MOTION TO REDUCE Defendant. ) CHARGES, AND MOTION TO STRIKE 10 SUBMISSION OF SEALED CPS RECORDS II --------------------------~) 12 INTRODUcnON 13 This matter came before the Honorable Alberto C. Lamorena IlIon June 14, 2011, 0 14 three motions submitted by Defendant Valens Valentino: motion for diversion; motion to redu 15 16 two charges from felony to misdemeanor; and motion to strike submission of sealed records fo

17 in camera review. Attorney Maria G. Fitzpatrick represented the defendant and Attorne

18 Elizabeth S. Vasiliades represented the People of Guam. Having considered the parties' writt 19 and oral arguments and the applicable law the Court now issues its Decision and Order. 20 FACfUAL HISTORY 21 On October 15, 2010 a grand jury returned an indictment charging the defendant wi 22

23 family violence (as a 3nl degree felony), aggravated assault (as a 2nd degree felony), child ab

24 (as a 3 nl degree felony), and assault (as a misdemeanor). The charges stem from an incident' 25 which the defendant allegedly struck his thirteen year old son with a belt and his fists an 26 dragged the boy across the parking lot by his leg. On October 20, 2010, the defendant filed 27 motion for discovery. On October 21, 2010 the prosecution provided initial discovery. 28

November 16, 2010, the prosecution submitted confidential reports prepared by Child Protectiv

·1· Services (CPS) for in camera inspection to allow this Court to determine whether the record 2 contain discoverable material which should be disclosed to the defendant. 3 DISCUSSION 4 The defendant presents three issues for the Court's consideration. First the defendan 5

6 asserts that he is statutorily eligible for the diversion process and requests that his charges b

7 diverted from criminal proceedings. If his diversion application is denied, the defendant the 8 requests that his felony family violence and aggravated assault charges be reduced t 9 misdemeanor offenses. Finally, the defendant argues that the confidential CPS materials shoul 10

II be stricken from the record. After reviewing the defendant's arguments and the applicable law

12 the Court finds that diversion is not appropriate in this case, that there is no basis for reducing th 13 charges, and that the CPS materials were properly submitted to this Court by the People 14 L Motion for Diversion 15 Any defendant who is not specifically ineligible for diversion under title 9, 16 30.80(a) of the Guam Code may apply to the court for an order granting diversion. 9 GCA 17

18 30.80(e) (2005). Under section 30.80(a), a defendant is statutorily ineligible where th

19 defendant's current charge involves serious bodily injury as defined in title 9, section 16.1O(c) 0 20 the Guam Code. 9 GCA § 30.80(a). Section 16.10(c) defines "serious bodily injury" as "bodil 21 injury which creates: serious permanent disfigurement; a risk of death or serious, permanen 22 disfigurement, severe or intense physical pain or protracted loss or impairment of consciousnes 23

24 or of the function of any bodily member or organ[.]" 9 GCA § 16.1 O(c)

25 The defendant argues that he is not ineligible for diversion because the victim's injurie 26 do not amount to a serious bodily injury. However, the defendant does not offer any evidenti 27 support for his argument. Based on the Attorney General's Declaration - the only relevan 28 document in the record - this Court agrees that the victim does not appear to have suffered

-2- protracted loss or impairment of consciousness or a risk of impaired function of an organ, no 2 was there a risk of death or serious permanent disfigurement. However, support exists for th 3 premise that the victim suffered severe or intense physical pain sufficient to constitute seriou 4 bodily injury. According to the Declaration, the victim was whipped with a belt, struck in th 5

6 face, and dragged across a parking lot by his leg. Responding officers reported that the victim'

7 injuries were serious and required medical attention. The defendant was charged with aggravate 8 assault for having caused serious bodily injury and the grand jury found reasonable cause t 9 return an indictment on this charge. Given the description of the injuries and nature of th 10

II defendant's conduct there is sufficient support for the prosecution's claim that the victi

12 suffered severe bodily injury in the form of severe or intense physical pain, thereby rendering th 13 defendant statutorily ineligible for diversion. 14 IL Motion to Reduce Felony Charges 15 Next, the defendant asks this Court to reduce both his felony family violence and hi 16 felony aggravated assault charges to misdemeanors. 17

18 a. The Family Violence Charge

19 Title 9, sections 30.20(b) and (c) of the Guam Code grant a trial court the discretion t

20 reduce a felony family violence charge to a misdemeanor. These statutory provisions state: 21 (b) Upon a written, noticed motion ... the defendant may move that a felony 22 charge filed pursuant to this § 30.20 be reduced to a misdemeanor. Whether any charge shall proceed as a misdemeanor or a felony rests within the 23 discretion of the court. 24 (c) In determining whether any felony charge filed pursuant to this § 30.20 should 25 be reduced to a misdemeanor, the court shall consider the following factors, among others: 26

27 1. The extent or seriousness of the victim's injuries;

28 2. The defendant's history of violence against the same victim whether charged or uncharged;

-3- 3. The use of a gun or other weapon by the defendant; 2

3 4. The defendant's prior criminal history;

4 5. The victim's attitude and conduct regarding the incident; 5 6. The involvement of alcohol or other substance, and the defendant's 6 history of substance abuse as reflected in the defendant's criminal history and other sources; and 7

8 7. The defendant's history of and amenability to counseling.

9 9 G.C.A. § 30.20(b), (c)(1)-(7). However, section §30.20(d) states: \0 [i]f the court, after hearing, finds substantial evidence that a victim suffered serious bodily injury as defined in subsection (c) of § 16.10 of this title, no felony II filed under this § 30.20 shall be reduced to a misdemeanor unless the court finds 12 that due to unusual circumstances a reduction of the charge is manifestly in the interest of justice. \3 9 GCA § 30.20(d). The defendant claims in his moving papers that the above factors weigh i 14

15 favor of a reduction of the charges. And though the defendant's memorandum of points an

16 authorities does not contain any argument or evidence in support of his claim, he does indicat 17 that he would offer support at the hearing. (Def.' s Mem. Supp. M. to Reduce Charges, 4 18 However, the defendant did not, in fact, present any argument or evidence at the hearing relate 19 to his motion to reduce. 20

21 Notwithstanding the defendant's failure to support his own motion, this Court analyze

22 the above statutory factors based on information and evidence in the record and concludes tha 23 reduction of the charges is not appropriate. Certain factors do weigh in favor of reducing th 24 charges. For instance, there is no indication that the defendant has any prior history of violence 25 Moreover, the incident did not involve any allegations of alcohol or other substance abuse 26

27 though the defendant's prior criminal history indicates an arrest for DUL As for the sevent

28 factor, there is some indication that the defendant would be amenable to counseling as he h

-4- apparently completed anger management counseling. And as for the fifth factor, there is n 2 evidence regarding the defendant's attitude and conduct regarding the incident other than the fac 3 that he entered anger management, which weighs slightly in favor of the defendant. 4 The first and third factors, however, both weigh heavily against reducing the famil 5

6 violence charge to a misdemeanor. According to the Attorney General's Declaration, the mino

7 victim received what responding officers considered to be "severe physical injuries" tha 8 required the victim to be transported to Guam Memorial Hospital for medical attention. Th 9 allegations suggest that the defendant inflicted at least some of the injuries by Whipping th 10

11 minor with a belt. Although the record may not establish "substantial" evidence of serious bodil

12 injury sufficient to preclude a reduction of the charges under section 30.20(d), the Court find 13 that the extent of the alleged injuries and the alleged use of a belt warrant denial of th 14 defendant's request for a reduction ofthe charges. 15 The defendant offers a second argument for reduction of the family violence charge i 16

17 which he claims that this charge, as drafted, does not contain any ''verbiage'' to indicate it

18 felony nature based upon the section 30.20(c) factors. As described above, this section provide 19 guidance to a court when determining a request by a defendant to reduce his charge, and nothin 20 in this or any other section requires that the prosecution describe its reasons for charging th 21 crime of family violence as a felony rather than a misdemeanor. Unlike other criminal provision 22

23 that state specific requirements necessary to elevate the charge to felony status and which mus

24 be accordingly pleaded, section 30.20(a) leaves it up to the discretion of the prosecution: "An 25 person who intentionally, knowingly, or recklessly commits an act of family violence, as define 26 in § 30.10 of this Chapter, is guilty of a misdemeanor, or of a third degree felony." 9 GCA 27

28 30.20(a) (emphasis added). And though a prosecutor should, of course, consider the factors in

-5- 30.20(c) when detennining the appropriate charge so as to ensure that a court will not overtu 2 her decision, see People v. Perez, 1999 Guam 2 ~ 12, the fact that a prosecutor does not provide 3 a written description of her reasons within the indictment or elsewhere is not a valid basis fo 4 reducing the charge. 5

6 b. The Aggravated Assault Charge 7 The defendant also argues that his aggravated assault charge should be reduced to a

8 misdemeanor. That charge provides: 9 On or about October 5, 2010, in Guam, VALENS VALENTINO did commit the 10 offense of Aggravated Assault, in that he did recklessly cause serious bodily injury to another, that is, V.K.V. in violation of9 GCA § 19.20(a)(2). 11

12 (Indictment, Criminal Case No. CF0592-10). The defendant claims that the prosecution offers n

13 evidence to support the allegation of serious bodily injury and therefore the charge should b 14 reduced to a misdemeanor. However, the defendant offers no legal authority that would allo 15 this Court to reduce a felony aggravated assault charge to a misdemeanor. In contrast to title 9 16 section 30.20 of the Guam Code, which explicitly allows for a felony family violence charge t 17

18 be reduced to a misdemeanor, nothing in chapter 19 of the same title confers similar authorit

19 upon a court to reduce an aggravated assault charge to misdemeanor assault. The prosecutio 20 exercised its discretion in charging the crime as a felony and supports this decision wit 21 allegations that the defendant caused serious bodily injury to another. The prosecution need no 22 offer evidence or present its evidence prior to trial. Unless there is simply no evidence to suppo 23

24 the grand jury's reasonable cause finding that the defendant committed the alleged acts - a

25 argument not presented by the defendant - this Court need not employ its time and resource 26 analyzing an issue that must ultimately be decided by the trier of fact following a trial. 27 IlL Motion to Strike Confidential CPS Records 28

-6- On November 16, 2010, the prosecution submitted confidential CPS records to the Cou 2 for in camera review to allow the Court to determine whether the documents contain informatio 3 material to the defense. The defendant objects to the submission arguing that the prosecutio 4 should have provided the report as part of discovery, that the submission of the CPS record 5

6 constitutes contempt of court because it violates a court Order sealing the corresponding PIN

7 case, I and that submission of the records without providing the documents to the defendan 8 constitutes an improper ex-parte communication. The prosecution asserts that the submission 0 9 confidential material to the Court, rather than to the defendant, was proper and in conformanc 10

II with its ongoing obligation to provide discovery.

12 At the outset, this Court notes an apparent discrepancy in the defendant's arguments. The 13 defendant asserts that the records should not have been provided because they constitute 14 evidence in a case that was sealed as provided by title 19, section 13311(a) of the Guam Code. 15 However, the defendant also argues that he is entitled to receive the entire CPS file because it 16

17 represents discoverable material that was requested by the defendant. Section 13311(a) states:

18 Any testimony or other evidence produced by a party in a child protective proceeding under this Chapter which would otherwise be unavailable may be 19 ordered by the court to be inadmissible as evidence in any other territorial civil or 20 criminal action or proceeding, if the court deems such an order to be in the best interests of the child. 21 19 GCA § 13311(a). As discussed below, the defendant is statutorily entitled to view CP 22

23 records. Furthermore, the Court is statutorily entitled to view the records and provide certai

24 confidential material to a party. Therefore, the CPS records here are not "otherwise unavailable' 25 to the defendant and the defendant is not barred from receiving such records by a court orde 26

28 I The Order to Seal Case in Case No lP736-1 0 provides that "this matter is sealed and ... any testimony, admissions or evidence produced by a party in these proceedings shall be inadmissible as evidence in any other territorial civil or criminal action or proceeding."

-7- applying section 13311(a). Based on this interpretation of the statute as well as this Court's belie 2 that the defendant would not support a position that would preclude his access to potentiall 3 exculpatory material, this Court proceeds with the understanding that a court may review th 4 confidential records to ensure that a defendant is not barred access to infonnation that is bot 5

6 favorable and material to his defense. See Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987).

7 Even where due process requires that a court review confidential records in camera, 8 defendant generally does not have a right to unfettered access to such materials. See Ritchie, 48 9 U.S. at 60. In Pennsylvania v. Ritchie, the United States Supreme Court considered whether 10

11 criminal defendant had a constitutional right to obtain confidential records in possession 0

12 Pennsylvania's Children and Youth Services ("CYS"). Id. at 43-45. The defendant in Ritchie ha 13 issued a subpoena duces tecum demanding production of confidential reports held by CYS. CY 14 refused any disclosure citing confidentiality laws. Id. After a hearing, the trial judge, who ha 15 not fully reviewed the CYS reports as allowed by Pennsylvania statute, denied the defendan 16

17 access to the records. Id. The United States Supreme Court held that where a state law explicitl

18 provides for review of confidential records by a court, federal constitutional principles of du 19 process require that the trial court perfonn an in camera review to determine whether the record 20 contain infonnation favorable to the defense and material to a detennination of guilt 0 21 punishment. Id. at 57-58. The Court also held that a defendant is not entitled to complete acces 22

23 to records because a court's in camera review is sufficient to satisfy due process requirements

24 Id. at 59-61. 25 Here, the laws of Guam allow a court to review confidential documents to detennine thei 26 relevancy to a criminal proceeding. Like the Pennsylvania statute in Ritchie allowing cou 27

28 review of confidential documents, title 19, section 1321O(b)(2) of the Guam Code allows a co

-8- to access protected CPS records. Such access is limited, however, to "inspection by the cou 2 only, unless the court determines that disclosure of the records to interested parties is necess 3 for the resolution of an issue pending before it." 19 GCA § 1321 O(b)(2). While the statut 4 authorizes certain other parties to access confidential CPS reports, see 19 GCA § 1321 0(b)(1) 5

6 (8), Guam law prohibits disclosure of such information to third persons by any party except

7 provided by statute: "Any person who will willfully releases or permits the release of any suc 8 information to persons or agencies not permitted by this section shall be guilty of a felony of th 9 third degree." 19 GCA 1321O(a). In this case, the prosecution had statutory authority to acces IO

II the CPS records. It provided those records to this court for in camera inspection rather th

12 releasing them directly to the defendant. In doing so the prosecution complied with statutory an 13 constitutional principles. This Court reviewed the CPS records and determines that a smal 14 portion of the materials contains discoverable information that will be released to the defendant. 15 The defendant is not, however, limited only to the information released to him by thi 16

17 Court. Title 19, section 13210(c) authorizes a perpetrator of child abuse to view specifie

18 confidential CPS records: 19 At any time, a victim or alleged victim of child abuse, the parents of a victim or 20 alleged victim of child abuse, or a perpetrator or alleged perpetrator of child abuse, after a court proceeding has been initiated regarding the abuse, may 21 review, upon written request, all information contained in the central register or in any report filed pursuant to § 13203, except information which would identify the 22 reporter of the abuse. 23 19 GCA 1321O(c) (emphasis added). Notwithstanding this Court's review and limited release 0 24 information, the defendant is free to submit a request to CPS to review the specified documents. 25

26 Finally, this Court dismisses the defendant's remaining claims that the prosecution di

27 not comply with discovery requests and violated a court order by disclosing information from 28 sealed case. By submitting the materials to this Court for in camera review the prosecutio

-9- Rlt;INAL

complied with its ongoing duty to disclose discoverable, or in this case, potentially discoverabl 2 material to the defendant. Moreover, there is little indication that the prosecution took the CP 3 report from a sealed court record. Though copies of the CPS materials may form a portion of th 4 sealed record in the PINS case, the original records are maintained in state files and mad 5

6 available to certain individuals and agencies, including the Office of the Attorney General. A

7 previously discussed, the defendant has a right to access certain CPS records. Furthermore, th 8 prosecution did not submit the CPS records as evidence in this case in violation of the Order 9 rather, the documents were merely provided as part of discovery and disclosed only to the Court 10

II By attempting to provide the defendant with potentially favorable material the prosecution ha

12 done nothing less than meet its statutory and constitutional obligations and this Court finds n 13 impropriety in such action. 14 CONCLUSION 15 Based on the foregoing the defendant's motion for diversion is DENIED. The defendant' 16 motion to reduce felony charges to misdemeanors is DENIED. The defendant's motion to strik 17

18 is DENIED. Having reviewed the confidential CPS reports the Court finds that one page of th

19 records contains discoverable material. A true and correct copy of the relevant page of the CP 20 report is attached hereto and labeled Exhibit "A." The Court hereby ORDERS that the remainin 21 CPS records filed with the Court remain sealed. A trial setting will be held on December 13 22 2011, at 3:00 p.m. 23

24 IT IS SO ORDERED this 1i h day of November

28 NOV t< 7 2011 ORltlINAL -10-