People of Guam v Afaisen [2016] GUSC 31 (8 November 2016)

IN THE SUPREME COURT OF GUAM

THE PEOPLE OF GUAM,

Plaintiff-Appellee,

v.

TOMMY JOHN QUICHOCHO AFAISEN,

Defendant-Appellant.

Supreme Court Case No.: CRA15-021
Superior Court Case No.: CF0626-14

OPINION

Filed: November 8, 2016

Cite as: 2016 Guam 31

Appeal from the Superior Court of Guam
Argued and submitted on February 19, 2016
Dededo, Guam

Appearing for Defendant-Appellant: Leevin T. Camacho, Esq. Law Office of Leevin T. Camacho 194 Hernan Cortez Ave., Ste. 216 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: Marianne Woloschuk, Esq. Assistant Attorney General Office of the Attorney General Prosecution Division 590 S. Marine Corps Dr., Ste. 706 Tamuning, GU 96913

BEFORE: ROBERT J. TORRES, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; KATHERINE A. MARAMAN, Associate Justice.

CARBULLIDO, J.:

[1] Defendant-Appellant Tommy John Quichocho Afaisen appeals a final judgment convicting him of two counts of Attempted Murder (as a First Degree Felony); two counts of Aggravated Assault (as a Second Degree Felony); Robbery (as a Second Degree Felony); Theft of a Motor Vehicle (as a Second Degree Felony); Terrorizing (as a Third Degree Felony); and Special Allegations of Possession and Use of a Deadly Weapon in the Commission of a Felony affiliated with each charge and count except Theft of a Motor Vehicle. Afaisen seeks reversal of one of the Attempted Murder convictions and its corresponding Special Allegation, and reversal of the Theft of a Motor Vehicle conviction based on double jeopardy violations.
[2] For the reasons stated herein, we hereby affirm the Attempted Murder convictions and sentences; we reverse the Theft of a Motor Vehicle conviction and vacate the corresponding sentence; and remand to the trial court to dismiss the Theft of a Motor Vehicle conviction, and enter an amended final judgment not inconsistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] On or about the early morning hours of December 4, 2014, Afaisen and Irvin White schemed to rob a third party. At trial, Irvin testified that he did not want to use his own truck to rob the third party; as a result, they both searched for a vehicle. In White’s truck, Afaisen and White drove to the parking lot of the Days Inn in Tamuning. They attempted to steal one vehicle that was parked in the Days Inn parking lot, but to no avail. Thereafter, they entered the Days Inn, where there was one employee on the night shift. With a gun in hand, Afaisen and White approached the employee, pointed the gun at him and asked, “Where is it?” The employee testified that Afaisen and partner took several items, including the Days Inn cash box, hotel keys, his wallet, iPad, backpack, and keys to his Nissan Sentra.
[4] Afaisen and White exited the building and used the just-stolen keys to drive off in the employee’s vehicle, which was located in the parking lot of the Days Inn. At trial, surveillance video was shown corroborating the occurrence of the described events. After Afaisen and White left, the Days Inn employee called the police.
[5] Driving on Ypao Road, two Guam Police Department officers, Anthony Borja and J.D. San Nicolas, spotted the Nissan Sentra. A high-speed chase through the Tamuning area ensued. Officer Borja testified that the chase led the parties near the Guam Premier Outlets, and that as they passed Applebee’s restaurant, he heard a pop sound. His partner, Officer San Nicolas, yelled, “Oh, man, gunshots . . . gunshots!” Transcript (“Tr.”), at 9 (Jury Trial Day 2, Feb. 3, 2015). Officer Borja further testified that while still in pursuit of the Nissan Sentra and as the parties passed Micropac, he heard two more gunshots that were directed toward both officers. Several events occurred thereafter, and both Afaisen and White were ultimately apprehended.
[6] A Grand Jury indicted Afaisen on December 12, 2014, charging him with the following: (1) two counts of Attempted Murder (as a First Degree Felony), for intentionally and knowingly attempting to cause the death of another human being, that is Officer Anthony A. Borja and Officer Jon Derek San Nicolas, in violation of 9 GCA §§ 16.40(a)(1), 13.60(a) and (b), with two Special Allegations (Possession and Use of a Deadly Weapon in the Commission of a Felony), in violation of 9 GCA § 80.37; (2) two counts of Aggravated Assault (as a Second Degree Felony), in violation of 9 GCA § 19.20(a)(1), with two Special Allegations (Possession and Use of a Deadly Weapon in the Commission of a Felony), in violation of 9 GCA § 80.37; (3) Robbery (as a Second Degree Felony), in violation of 9 GCA § 40.20(a)(3), with a Special Allegation (Possession and Use of a Deadly Weapon in the Commission of a Felony), in violation of 9 GCA § 80.37; (4) Theft of a Motor Vehicle (as a Second Degree Felony), in violation of 9 GCA §§ 43.20(a) and 43.30(a); and (5) Terrorizing (as a Third Degree Felony), in violation of 9 GCA § 19.60(a) and (b), with a Special Allegation (Possession and Use of a Deadly Weapon in the Commission of a Felony), in violation of 9 GCA § 80.37. Record on Appeal (“RA”), tab 12 at 2-5 (Indictment, Dec. 12, 2014). After a jury trial, Afaisen was found guilty of all charges. Thereafter, the trial court sentenced Afaisen on April 8, 2015. He was sentenced to the following:

A. That as to CHARGE ONE:

1. Count One of ATTEMPTED MURDER (As a lst Degree Felony), in violation of 9 G.C.A. §§ 16.40(a)(1), 13.60(a) and (b), the Defendant shall serve TEN (10) YEARS imprisonment, CONCURRENT to all charges except SPECIAL ALLEGATION charges;
2. Count One of Special Allegation (Possession and Use of a Deadly Weapon in the Commission of a Felony), in violation of 9 G.C.A. § 80.37, the Defendant shall serve FIVE (5) YEARS imprisonment, CONSECUTIVE to all charges.