People of the Territory of Guam v. Fejeran

• Decision Date: 30 November 1982
• Docket Number: No. 81-1512,81-1512
• Citation: 687 F.2d 302
• Parties: The PEOPLE OF THE TERRITORY OF GUAM, Plaintiff-Appellee, v. Gregory Junior FEJERAN, a/k/a Gregory Cruz, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 302

687 F.2d 302

The PEOPLE OF THE TERRITORY OF GUAM, Plaintiff-Appellee, v. Gregory Junior FEJERAN, a/k/a Gregory Cruz, Defendant-Appellant.

No. 81-1512.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 14, 1982.

Decided Sept. 15, 1982.

Rehearing and Rehearing En Banc Denied Nov. 30, 1982.

Richard A. Pipes, Arriola & Cowan, Agana, Guam, for defendant-appellant.

Leslie R. Weatherhead, Asst. Atty. Gen., Agana, Guam, for plaintiff-appellee.

Appeal from the United States District Court for the Territory of Guam.

Before BROWNING, Chief Judge, and SKOPIL and NORRIS, Circuit Judges.

PER CURIAM:

Gregory Fejeran was convicted on two counts of murder after a jury trial in the Superior Court of Guam. He appealed unsuccessfully to the Appellate Division of the District Court of Guam. He raises the same issues on appeal to this court.

Appellant contends his trial in the Superior Court violated the double jeopardy clause of the fifth amendment, imposed upon Guam by the fourteenth amendment, because appellant had been put in jeopardy for the same offense in an earlier proceeding in the Juvenile Court of Guam. He also contends that the district court erred in refusing to instruct the jury on manslaughter.

I.

In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Supreme Court held a juvenile is put in jeopardy within the meaning of the fifth amendment if he is subjected to a proceeding that may result in an adjudication that he has committed criminal acts, and that may put his liberty and reputation at risk. 421 U.S. at 529, 537-38, 95 S.Ct. at 1785, 1789-90. The Appellate Division of the District Court of Guam held Breed inapplicable on the ground the juvenile court had no power under section 255 of the Guam Code of Civil Procedure (as amended by P.L. 14-141, section 15) to determine whether appellant had engaged in criminal acts, but only to determine whether his case should be heard in the juvenile court or transferred to the superior court. The district court said:

(T)he Certification Hearing which defendant complains of could not have resulted in an adjudication of criminal delinquency, because by its own terms a Section 255 Hearing merely authorizes the judge to determine in which forum the actual adjudicatory hearing is to proceed. Here there was no jurisdiction for the lower court to have judged defendant a delinquent in violation of the law; therefore, the defendant's liberty and reputation were not threatened as was the case in Breed, supra.

The conclusion of the Appellate Division was sound if the court correctly interpreted the Guam statute, "for it is settled that an accused cannot be placed in jeopardy by a court lacking jurisdiction to decide his case." Hall v. McKenzie, 575 F.2d 481, 484 (4th Cir. 1978).

Determinations of local law by the District Court of Guam are given great deference, Chase Manhattan Bank v. Gems-By-Gordon, Inc., 649 F.2d 710, 712 (9th Cir. 1981); Schenck v. Government of Guam, 609 F.2d 387 (9th Cir. 1979), particularly those relating to the interpretation of local legislation. People of Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1260 (9th Cir. 1981). The territorial court's rulings in this respect "will not be reversed unless clear and manifest error is shown." Gumataotao v. Government of Guam, 322 F.2d 580, 582 (9th Cir. 1963). See also Bonet v. Texas Co., 308 U.S. 463, 470-71, 60 S.Ct. 349, 353, 84 L.Ed. 401 (1940); DeCastro v. Board of Commissioners of San Juan, 322 U.S. 451, 64 S.Ct. 1121, 88 L.Ed. 1384 (1941).

The Appellate Division's interpretation of the Guam statute as providing for a certification hearing confined to whether the juvenile should be dealt with as an adult, followed by a proceeding in the juvenile or superior court in which the juvenile's conduct is adjudicated, is a reasonable one.

Unlike the California statute involved in Breed, which required a threshold determination by the juvenile court that the juvenile "had violated any law of this state," Cal.Welfare Inst.Code §§ 602, 701, the Guam statute confers jurisdiction on the juvenile court over any juvenile who "is alleged to have violated" the law (emphasis added). Guam Code Civ.P. § 252(a)(4). Rule 20(e) (J)(2) of the Rules of Procedure for the Juvenile Court of Guam, which "govern(s) the practice and procedure in the juvenile court in all proceedings coming within the jurisdiction of the court" (Rule 1), provides:

Upon filing of such a petition (for certification), the court shall schedule it for preliminary hearing for the sole purpose of determining whether the juvenile should be certified to the criminal court for prosecution as an adult. The evidence to be presented and considered at such preliminary hearing, including the examination and cross-examination of the juvenile and other witnesses, shall relate only to the issue to be decided by the court at such hearing, and not to the issues of guilt or innocence of the charge or of probable cause.

We are advised by the Attorney General of Guam that Guam's juvenile court has adhered consistently to the "rule that a certification hearing is distinct from an adjudicatory hearing, and has required a separate adjudicatory hearing even where it has elected to retain jurisdiction over juveniles rather than certify them." We have been furnished copies of orders of the juvenile court reflecting this practice. Appellant has offered nothing to the contrary.

The Guam statute would have been unconstitutional if read as requiring or permitting an adjudication of criminal conduct (see Rios v. Chavez, 620 F.2d 702 (9th Cir. 1980); Sims v. Engle, 619 F.2d 598 (6th Cir. 1980)), and it was appropriate to adopt the interpretation that would sustain its validity. Industrial Union Dep't, AFL-CIO v. American Petroleum Institute, 448 U.S. 607, 646, 100 S.Ct. 2844, 2866, 65 L.Ed.2d 1010 (1979).

Appellant argues that his guilt of the offenses charged was in fact litigated at the certification hearing. On the contrary, the transcript reflects that the hearing was devoted solely to appellant's amenability to treatment as a juvenile. This was the purpose announced by the trial judge at the outset. Counsel for both sides directed their arguments solely to whether appellant should be treated as an adult, and the court's judgment included no adjudication that appellant had committed criminal acts. Although evidence was received regarding the circumstances surrounding the alleged offenses, there is nothing to suggest it was considered for any purpose other than determining appellant's amenability to treatment, an issue to which it was obviously relevant (Brown v. Cox, 481 F.2d 622, 631-32 (4th Cir. 1973)), or as bearing upon the sufficiency of the evidence to justify criminal prosecution. Rios, supra, 620 F.2d at 707; see Breed, supra, 421 U.S. at 536, 538 & n.18, 95 S.Ct. at 1789, 1790 & n.18. ¹

We conclude Fejeran was not twice placed in jeopardy.

II.

Fejeran was charged with two counts of violation of section 16.30 of Guam's Criminal and Correctional Code (Criminal Code) for having "knowingly cause(d)" the deaths of Officers Iglesias and Lizama. Section 16.30 provides:

(a) Except as provided in Section 16.40, criminal homicide constitutes murder when: (1) it is committed intentionally or knowingly; or (2) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.

(b) Murder is a felony of the first degree but a person convicted of murder may be sentenced to life imprisonment notwithstanding any other provisions of law; provided, however, that any person convicted of murder which is a felony of the first degree shall not be eligible for parole nor shall his sentence be suspended.

Fejeran requested the court to instruct the jury on manslaughter, using the words of section 16.40(a), which provides:

(a) Criminal homicide constitutes manslaughter when: (1) it is committed recklessly, or (2) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a reasonable person in the defendant's situation under the circumstances as he believes them to be. The defendant must prove the reasonableness of such explanation or excuse by a preponderance of the evidence.

(b) Manslaughter is a felony of the second degree.

The trial court denied the request, stating there was no "reasonable explanation or excuse as set forth in Section 16.40." Fejeran argues the court's refusal to instruct the jury on manslaughter was reversible error because the record contains "evidence fairly tending to bear upon the issue ...."

It has long been "beyond dispute that the defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973). See also Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 134, 76 S.Ct. 685, 687, 100 L.Ed. 1013 (1956). This principle was first announced in Stevenson v. United States, 162 U.S. 313, 323, 16 S.Ct. 839, 843, 40 L.Ed. 980 (1896):

A judge may be entirely satisfied from the whole evidence in the case that the person doing the killing was actuated by malice; that he was not in any such passion as to lower the grade of the crime from murder to manslaughter by reason of any absence of malice; and yet if there be any evidence fairly tending to bear upon the issue of manslaughter, it is the province of the jury to determine from all the evidence what the condition of mind was, and to say whether the crime was murder or manslaughter.

Rule 31(c) of the Federal Rules of Criminal Procedure...