~CJ~ 2O2~ SEP 2i~ ~s IN THE SUPERIOR COURT OF GUAM

SOP E~iO?~ ~CJ~Or Gk~i

1 2O2~ SEP 2i~ ~s i~: L~9

3

IN THE SUPERIOR COURT OF GUAM8

9 THE PEOPLE OF GUAM, )

10) CRIIvIINAL CASE NO.: CF0282-19

11 vs. )) DECISION AND ORDER RE:

FRANCIS JEROME TAISACAN,

14 DEFENDANT.

15Introduction

16

17 This matter came before the Honorable Maria T. Cenzon upon Francis Jerome

18 Taisacan’s (“Defendant”) Motion for Reduction of Sentence (“Motion”) filed on March 20,

19 2020. Defendant is represented by Public Defender William Bischoff. The People of Guam filed

20 ..

no opposition to the Motion, however, the Court must nevertheless consider the merits of the21

Motion.’22

23 . . . .

Where a motion is unopposed for failure of the non-moving party to file an opposition, Petition of Quitigua v

24 Flores, 2004 Guam 19 ¶ 27 requires trial courts to consider all applicable law, including cases and statutes whic]may be in opposition to the pending motion and which the non-moving party has the obligation to provide to th

25 court, unless it was made clear that the party had no intention of opposing the motion. CVR 7.1(h) of the LocaRules of the Superior Court of Guam provides that “. . . any opposing party who does not intend to oppose th

26 motion, shall, not later than seven (7) days after the date the last paper on that motion is filed, or the time for film,as elapsed, file and serve a notice of ... non-opposition.” If opposition is intended, then Local Rule CVR 7.1 (d) an

27 CR 1.1 (b)(1) of the Criminal Procedure Rules require a memorandum in support of thereof contain the points aniauthorities upon which the opposing party relies, including citations. The People have failed to file an oppositio:

28 brief with points and authorities nor any non-opposition as required by the Rules. To its dismay, the Court observe

People v. Francis Jerome Taisacan, Criminal Case No. CF0282-1 9Decision and Order Re. Defendant’s Motion for Reduction ofSentence

Page lofl2

1 On June 30, 2020, the Court took the matter under advisement, without oral argument,

2 pursuant to Administrative Rule 06-001 and CVR 7.1(e)(6)(A) of the Local Rules of the

Superior Court. Having reviewed the record and the relevant law, the Court now issues this4

Decision and Order DENYING Defendant’s Motion for Reduction of Sentence. The5

6 sentenced pronounced and imposed by the Court on January 14, 2020, nunc pro tunc to the

7 sentencing date of November 25, 2019, remains unchanged.

8 Background

A. THE CHARGES.

10The People filed a Second Amended Indictment (“Indictment”) charging Defendant

11

12 with six felonies and three misdemeanors, including: HOME INVASION (As a First Degree

13 Felony) with a Special Allegation: Use of a Deadly Weapon in the Commission of a Felony;

14 CONSPIRACY TO COMMIT HOME INVASION (As a First Degree Felony) with a Special

15 Allegation: Use of a Deadly Weapon in the Commission of a Felony; SECOND DEGREE

16 ROBBERY (As a Second Degree Felony) with a Special Allegation: Use of a Deadly Weapon

17in the Commission of a Felony and Special Allegation: Vulnerable Victim; CONSPIRACY TO

18

19 COMMIT SECOND DEGREE ROBBERY (As a Second Degree Felony) with a Special

20 Allegation: Use of a Deadly Weapon in the Commission of a Felony; BURGLARY (As a

21 Second Degree Felony) with a SpecialAllegation: Use of a Deadly Weapon in the Commission

22 of a Felony; CONSPIRACY TO COMMIT BURGLARY (As a Second Degree Felony) with a

23 Special Allegation: Use of a Deadly Weapon in the Commission of a Felony; CR~4INAL

24

25

26 that this is the rule, rather than the exception to the practice of the People, not solely in this, but in many othecriminal cases before it. The Court urges the Office of the Attorney General to ensure that it complies with all Rule~

27 applicable to motions practice in the trial courts of Guam. Failure to comply with the rules of criminal and civilprocedure (as applicable to criminal cases) results in compromised efficiencies of the court and potentially invoke~

28 the canons of the Guam Rules of Professional Conduct.

People v. FrancisJerome Taisacan, Criminal Case No. CF0282-19Decision and Order Re. Defendant’s Motion for Reduction ofSentence

Page 2 of 12

1 TRESPASS (As a Misdemeanor); CONSPIRACY TO COMMIT CRIMINAL TRESPASS (As

2 a Misdemeanor); and THEFT (As a Misdemeanor). Sec. Amend. Indict. (Jul. 10, 2019).

B. THE CONVICTION.4

After a jury trial, the jury found Defendant guilty of the First Charge of HOME5

6 INVASION (As a First Degree Felony); the Second Charge of CONSPIRACY TO COMMIT

7 HOME INVASION (As a First Degree Felony) and the attendant Special Allegation: Use of a

8 Deadly Weapon in the Commission of a Felony; the Third Charge of SECOND DEGREE

ROBBERY (As a Second Degree Felony) and the attendant Special Allegation: Vulnerable

10Victim; the Fourth Charge of CONSPIRACY TO COMMIT SECOND DEGREE ROBBERY

11

12 (As a Second Degree Felony) together with the Special Allegation: Use of a Deadly Weapon in

13 the Commission of a Felony; the Fifth Charge of BURGLARY (As a Second Degree Felony);

14 the Sixth Charge of CONSPIRACY TO COMMIT ‘BURGLARY (As a Second Degree Felony)

15 with the attendant Special Allegation: Use of a Deadly Weapon in the Commission of a

16 Felony; the Seventh Charge of CRIMINAL TRESPASS (As a Misdemeanor); the Eighth

17Charge of CONSPIRACY TO COMMIT CRIMINAL TRESPASS (As a Misdemeanor); and

18

19 the Ninth Charge of THEFT (As a Misdemeanor). Judgment (Jan. 16, 2020). In all, Defendant

20 was convicted of two First Degree Felonies, four Second Degree Felonies, three

21 Misdemeanors, and the special allegations of Use of a Deadly Weapon in the Commission of a

22 Felony and Vulnerable Victim. Verdict Forms 1 — 13 (Jul. 11, 2019).

23 /

24“

25

26 /

27 /

28


Page3 of 12

1 C. THE SENTENCE.

2 On November 25, 2019, Defendant was sentenced to a total of forty (40) years of

incarceration, with credit for time served. The Sentence was imposed as follows:24

Charge 1. Home Invasion (As A First Degree Felony): Defendant was sentenced5

6 to fifteen (15) years of imprisonment, with credit for time served, with no suspension or

7 reduction of this term of incarceration. The minimum term of incarceration under the Home

8 Invasion statute (9 G.C.A. §37.110(a) is a minimum of ten (10) years which may not be

suspended or reduced by the court. The maximum term of incarceration is twenty (20) years. 9

10G.C.A. § 80.30(a).

11Charge 2. Conspiracy to Commit Home Invasion (As a First Degree Felony):

12

13 Defendant was sentenced to five (5) years of imprisonment, with credit for time served. The

14 maximum term of incarceration is twenty (20) years. 9 G.C.A. § 80.30(a). This sentence

15 merged into the sentence for the underlying offense of Home Invasion for sentencing purposes.

16 ~ G.C.A. § 1.22; 8 G.C.A. § 105.58.

172.a. Special Allegation: Use of a Deadly Weapon in the

18

19 Commission of a Felony: Defendant was sentenced to five (5) years of imprisonment, with

20 credit for time served. 9 GCA § 80.37(a)(1) and (2) subjects the Defendant to, in addition to

21 the punishment imposed for the commission of such felony, a term of imprisonment for a term

22 of not less than five (5) years nor more than twenty-five (25) years, and a fine of not less than

23 one thousand dollars ($1,000), but not more than five-thousand ($5,000).~

24

25 V

26 2 Judgment (Jan. 16, 2020).~ The Special Allegation: Use of a Deadly Weapon in the Commission of a Felony convictions also require the

27 imposition of a special parole term of not less than three (3) years in addition to such term of imprisonment and noperson convicted and sentenced under that provision shall be eligible for parole or probation until he shall have

28 served at least five (5) years in prison.

People v. FrancisJerome Taisacan, Criminal Case No. CF0282-1 9V Decision and Order Re. Defendant’s Motion for Reduction ofSentence

Page 4 of 12

1 Charge 3. Second Degree Robbery (As a Second Degree Felony): Defendant was

2 sentenced to the mandatory minimum of five (5) years of imprisonment, with credit for time

3 .

served. The maximum term of incarceration is ten (10) years. 9 G.C.A. § 40.20(b). The4

mandatory minimum term of 5 years, by law, shall not be suspended nor may probation be

6 imposed in lieu of the minimum term.

7 3.a. Special Allegation: Vulnerable Victim: Defendant was sentenced

8 to five (5) years of imprisonment, with credit for time served. 9 GCA § 80.37.3 subjects the

Defendant, in addition to the sentence imposed for the commission of the underlying felony, a

10term of imprisonment for a minimum term of five years and no more than twenty-five years for

11

12 a conviction for the Vulnerable Victim Special Allegation.

13 Charge 4. Conspiracy to Commit Second Degree Robbery (As a Second Degree

14 Felony): Defendant was sentenced to five (5) years of imprisonment, with credit for time

15 served. 9 G.C.A. § 80.30(b) provides a minimum term of incarceration of three (3) years and no

16 more than ten (10) years. This sentence merged with the underlying offense of Second Degree

17Robbery for the purpose of sentencing. 9 G.C.A. § 1.22; 8 G.C.A. § 105.58.

18

19 4.a. Special Allegation: Use of a Deadly Weapon in the Commission

20 of a Felony: Defendant was sentenced to the minimum permissible term for conviction of this

21 special allegation: five (5) years of imprisonment, with credit for time served. 9 GCA §

22 80.37(a)(1) and (2) subjects the Defendant to, in addition to the punishment imposed for the

23 commission of such felony, a term of imprisonment for a term of not less than five (5) years

24nor more than twenty-five (25) years, and a fine of not less than one thousand dollars ($1,000),

25

26 but not more than five-thousand ($5,000). See, fn. 3.

27

28

People v. FrancisJerome Taisacan, Criminal Case No. CF0282-1 9Decision and Order Re. Defendant’s Motion for Reduction ofSentence

PageS of 12

1 Charge 5. Burglary (As a Second Degree Felony): Defendant was sentenced to

2 five (5) years of imprisonment, with credit for time served. 9 GCA § 37.20(b) subjects

Defendant to a minimum sentence of imprisonment of five (5) years and no more than ten (10)4

years. Additionally, the minimum term imposed shall not be suspended nor may probation be

6 imposed in lieu of the minimum term nor shall parole or work release be granted before

7 completion of the minimum five (5) year term. This sentence also merged with the sentence for

8 Home Invasion, as the same elements of the offense were incorporated. 9 G.C.A. § 1.22; 8

G.C.A. § 105.58.

10Charge 6. Conspiracy to Commit Burglary (As a Second Degree Felony):

11

12 Defendant was sentenced to five (5) years of imprisonment, with credit for time served. 9 GCA

13 § 80.30(b) imposes upon Defendant a minimum sentence of not less than three (3) years and a

14 maximum of not more than ten (10) years. This sentence also merged with the sentence for

15 underlying offense of Burglary for the purpose of sentencing. 9 G.C.A. § 1.22; 8 G.C.A.

16 §105.58.

176.a. Special Allegation: Use of a Deadly Weapon in the Commission of a

18

19 Felony: Defendant was sentenced to the minimum permissible term for conviction of this

20 special allegation: five (5) years of imprisonment, with credit for time served. 9 GCA §

21 80.37(a)(1) and (2) subjects the Defendant to, in addition to the punishment imposed for the

22 commission of such felony, a term of imprisonment for a minimum term of five (5) years nor

23 more than twenty-five (25) years, and a fine of not less than one thousand dollars ($1,000), but

24not more than five-thousand ($5,000). See, fn. 3.

25

26 Charge 7. Criminal Trespass (As a Misdemeanor). Defendant was sentenced to

27 one year of imprisonment, with credit for time served. 9 GCA §37.30 provides that a

28


Page 6 of 12

1 Defendant may be sentenced to imprisonment for a maximum term not to exceed one (1) year.

2 This sentence merges with Home Invasion charge for the purposes of sentencing. 9 G.C.A.

§ 1.22; 8 G.C.A. § 105.58.4

Charge 8. Conspiracy to Commit Criminal Trespass (As a Misdemeanor).5

6 Defendant was sentenced to a term of one (1) year of imprisonment, with credit for time

7 served, pursuant to 9 G.C.A. §37.30. This sentence merges with the underlying offense of

8 Home Invasion for purposes of sentencing. 9 G.C.A. § 1.22; 8 G.C.A. § 105.58.

Charge 9. Theft (As a Misdemeanor). Defendant was sentenced to one (1) year of

10imprisonment, with credit for time served. This sentence merges with the offense of Robbery

11

12 (As a First Degree Felony) for purposes of sentencing. 9 G.C.A. §1.22; 8 G.C.A. § 105.58.

13 D. THE COURT CONSIDERED FACTORS RELATING TO DEFENDANT’SCRIMINAL HISTORY AS WELL AS ANY MITIGATING FACTORS PRIOR

14 TO IMPOSING SENTENCE.

15 The nature of the charges for which Defendant was convicted as well as the mandatory

16 enhancement sentences attendant to each of the Special Allegations for which Defendant was

17also convicted, when considered in conjunction with the Defendant’s extensive criminal

18

19 history as well as additional factors, resulted in the imposition of a sentence which was, in

20 context, still very close to the minimum allowable under the sentencing statutes. During the

21 Sentencing Hearing on November 25, 2019, the Court adopted the findings set forth in the

22 Presentence Investigation Report (to which there were no objections), indicating that

23 Defendant had two prior felony convictions and was on parole at the time of the commission of

24the crimes in this case. Sentencing Hearing at 3:04:24 to 3:32:48 (Nov. 25, 2019). The Court

25

26 found further that Defendant did not qualify for “first offender” guidelines under 9 G.C.A.

27 § 80.31 because of his multiple prior convictions; that there is undue risk that during the period

28


Page7ofl2

1 of a suspended sentence or probation (if such suspension or probation was available which, by

2 law, neither were), that Defendant would commit another crime; that Defendant had just been

3released from the Department of Corrections shortly before the commission of the crimes for

4which he was convicted in this case; that a lesser sentence would depreciate the seriousness of

5

6 the offense and the impact on the victim, who was, by definition a “vulnerable victim;” that the

7 Defendant was on parole at the time of the offenses; and that the Defendant had not expressed

8 any remorse nor taken any responsibility for his actions. No evidence of mitigating

circumstances was presented during the Sentencing Hearing. However, the Court did declare

10that, with the exception of the sentence for the Home Invasion conviction, the minimum term

11

12 was appropriate in this case. Sentencing Hearing at 3:30:45 (Nov. 25, 2019). Additionally, the

13 Home Invasion statute mandates a ten (10) year minimum term of incarceration which cannot

14 be suspended or reduced. 9 G.C.A. §37.110(a).

15 E. COURT IMPOSED CONSECUTIVE SENTENCES

16 The Court ordered that Defendant shall serve all the sentences (which had not been

17merged into another offense) consecutively, and further that each of the mandatory five (5)

18

19 year terms attendant to each of the Special Allegations be served consecutively, for an

20 additional cumulative term of twenty (20) years. Judgment (Jan. 16, 2020). This resulted in a

21 cumulative term of imprisonment of forty (40) years.

22 Law and Analysis

23 A. Defendant’s Motion Complies with the Procedural Requirements of Guam’s

24 Enabling Statute.

25 The reduction of a sentence after entry of judgment is governed by 8 GCA § 120.46.

26 When the movant makes no claim of legal error, in either the sentence itself or in the manner it

27was imposed, the statute sets forth both the procedural threshold for invocation and the nature

23


Page 8 of 12

1 of the substantive relief available:

2 The court may correct an illegal sentence at any time and may correct a sentence

3 imposed in an illegal manner within the time provided herein for the reduction ofsentence. The court may reduce a sentence within one hundred twenty (120) days

4 after the sentence is imposed, or within one hundred twenty (120) days afterreceipt by the court of a mandate issued upon affirmance of the judgment or

5 dismissal of the appeal, or within one hundred twenty (120) days after entry of

6 any order or judgment of the Supreme Court of Guam, having the effect ofupholding a judgment of conviction.

78 GCA § 120.46.

8In this instance, Defendant has properly his statutory right to request a reduction of his

10 sentence by timely filing this Motion on March 20, 2020- one hundred sixteen (116) days after

11 being sentenced by the Court.

12 B. The Parallel Federal Provisions are Persuasive.

13 There is no Guam Case law squarely addressing motions to reduce sentence brought

14under 8 GCA § 120.46 and the Guam statute is identical to former Fed. R. Crim. Proc. 35(a)

15

16 and the first sentence of (b), therefore, the Court looks to persuasive Federal cases discussing

17 the former Rule 35 (in existence until November 1, 1987, when the current Rule 35 became

18 effective through Pub. L. 98-473).

19 The Federal cases hold that the purpose of a motion to reduce sentence under formeiE

20Rule 35, as mirrored in the Guam statute, is to provide the trial court with discretion “to decide

21

22 if, on further reflection, the original sentence now seems unduly harsh.” U.S. v. Maynard, 485

23 F.2d 247, 248 (9th Cir. 1973). It is essentially a plea for leniency. See U.S. v. Carrillo, 947

24 F.2d 951 (9th Cir. 1991) (citing U.S. v. Smith, 650 F.3d 206, 208 (9th Cir. 1981) (quoting

25 Maynard, supra)); United States v. Thayer, 857 F.2d 1358, 1360 (9th Cir. 1988) (a motion to

26 . . . .

reduce sentence is essentially a plea for leniency). When considering Defendant s request for27

leniency after sentence is imposed, the Court reviews the plea for the evidence of redemptive28


Page 9 of 12

1 facts which were not available at the time of sentencing or for compelling arguments,

2 sufficiently persuasive for the court to reconsider and reweigh the factors evaluated at the

Defendant’s initial Sentencing Hearing.4

Motions for reduction of sentence are addressed to the district court’s discretion. Flores5

6 v. United States 238 F.2d 758, 760 (9th Cir. 1956). The rule does not require that court to hear

7 oral argument or to hold a hearing. United States v. Krueger, 454 F.2d 1154, 1155 (9th Cir.

8 1972) (citing Gilinsky v. United States, 335 F.2d 914, 916-917) (9th Cir. 1964).

9

10 C. The Factors Cited By Defendant Do Not Support Reduction of Sentence.

11 Defendant requests the Court to reduce his sentence from forty (40) years to the twenty-

12 five (25) year minimum sentence that could have been imposed. Mot. at 2 (Mar. 20, 2020). To

13 support his request, Defendant cites four factors. First, Defendant asserts that “the victim in

14 this case herself expressed a belief that forty years is a bit much.” Mot. at 2 (Mar. 20, 2020).

15Second, Defendant asserts that no violence occurred during the incident. Third, Defendant

16

17 asserts that no verbal threats were made. Finally, Defendant asserts that he did not physically

18 harm or attempt to harm the victim. See Id.

19 In reviewing Defendant’s Motion, the Court considered whether the argument

20 presented was sufficiently persuasive for the Court to reconsider and reweigh the factors used

21at Defendant’s initial Sentencing Hearing. The Court also considered the presence of any

22

23 redemptive facts that were not available at the time of sentencing. The Court finds that

24 Defendant’s motion fails flat.

25 Nothing in Defendant’s moving papers differs in any way from what was presented

26 during the Sentencing Hearing. The only evidence in Defendant’s moving papers was a

27 statement pui~ortedly made by the victim in this case (a vulnerable victim, by definition, and

28


Page 10 of 12

1 as found by the jury) to the media that the sentence is “a bit much.” However, by Defendant’s

2 own admission, the victim could not recall the interview with the media “or much about the

case anymore.” Mot. at p. 2. Moreover, Defendant’s reliance on this Court’s decision in People4

of Guam v. Kurt Anderson Damian, Criminal Case No. CFO1O7-14 (Motion to Reduction of5

6 Sentence (Dec. 12, 2016), is wholly misplaced. In fact, this Court denied Defendant Damian’s

7 similar request for leniency, not once, but twice. See also, People of Guam v. Kurt Anderson

8 Damian, Criminal Case No. CFO1O7-14 (Motion For Reconsideration (Nov. 20, 2017)). The

Court, having acknowledged Defendant’s personal progress while incarcerated, indicated that

10the proper forum to address Defendant’s Damian’s request is the Parole Board. Id. at p. 5. This

11is an avenue available to the Defendant here, in due time.4

12

13 The Court finds that Defendant has not provided the Court with any information or

14 arguments which it failed to consider at the time of sentencing, nor has Defendant presented

15 any new factual or legal arguments which would warrant a reduction in sentence. With regard

16 to the first factor, the Court is considerate of the victim’s opinion; however, the Court finds

17that the victim’s opinion is a redemptive fact insufficient to merit a reduction of Defendant’s

18

19 sentence. Thus, the Court finds that the original sentence imposed upholds the notions of

20 equity and justice in light of all the circumstances in this matter. Therefore, the Court holds

21 that a sentence reduction is not warranted at this time.

22

23 /

24“

25

26

27 ~ The Court points out that the Guam Supreme Court found no irregularities in the Court’s sentencing of Defendant

28 Damian and affirmed this Court’s sentence in People v. Kurt Anderson Damian, 2016 Guam 8.


Page 11 of 12

1 Conclusion

2 Based on the foregoing, Defendant’s Motion for Reduction of Sentence is DENIED.

SO ORDERED this SEP 24 2020

CL~7 HONORABLE MARIA T. CENZON

JUDGE, SUPERIOR COURT OF GUAM8

9

10

11

12

13

14

15

16

17

18

19

20

21

22 SERVICE VIA E-MAILI acknowledge that an electroniccopy of the original wa~ e-mailed to:

23 1¼ Pre.c’~di~o~-,

Dafe:~1thb~e: 9~

~c~26 D~puty l~erk~~~ior Court of Guam

27

28


Page 12 of 12

Documents

~CJ~ 2O2~ SEP 2i~ ~s IN THE SUPERIOR COURT OF GUAM