People of Guam v Ongiil [2016] GUSC 34 (27 December 2016)

IN THE SUPREME COURT OF GUAM

PEOPLE OF GUAM,

Plaintiff-Appellee,

v.

BLANE NGIRNGESANG ONGIIL,

Defendant-Appellant.

Supreme Court Case No.: CRA15-033
Superior Court Case Nos.: CF0611-14 and CF0674-10

OPINION

Filed: December 27, 2016

Cite as: 2016 Guam 34

Appeal from the Superior Court of Guam
Argued and submitted on May 16, 2016
Hagåtña, Guam

Appearing for Defendant-Appellant: F. Randall Cunliffe, Esq. Cunliffe & Cook 210 Archbishop Flores St., Ste. 200 Hagåtña, GU 96910

Appearing for Plaintiff-Appellee: James C. Collins, 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.

TORRES, C.J.:
[1] Defendant-Appellant Blane Ngirngesang Ongiil appeals from a final judgment sentencing him to three years incarceration for Driving While under the Influence of Alcohol (“DUI”) (As a Third Degree Felony).^[1] Ongiil argues Plaintiff-Appellee People of Guam (“the People”) failed to provide sufficient evidence to obtain a DUI conviction under the fourth-offender statute, the trial court erred by allowing the People to mention Ongiil’s exercise of his right to remain silent in violation of the Fifth Amendment, and he was not provided sufficient notice that his probation in a separate case would be at issue in his sentencing hearing in this case. The People argue that three prior DUI convictions were proven by two separate judgments, Ongiil “opened the door” by introducing evidence of his silence, and Ongiil was provided sufficient notice that his probation in a separate case would be at issue during his sentencing hearing.
[2] For the reasons detailed herein, we affirm in part, reverse in part, and remand to the trial court for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

[3] Ongiil was indicted for Driving While Under the Influence of Alcohol (As a Third Degree Felony), Failure to Have a Driver’s License in Immediate Possession (As a Violation), Failure to Have Insurance (As a Violation), and Straddling (As a Violation). After returning a verdict of guilty on all four charges, the trial court entered judgment and sentenced Ongiil to incarceration for a term of three years. Ongiil timely filed notices of appeal.
[4] At trial, the People called Guam Police Department (“GPD”) Officer Angelo Bueno, Jr. (“Bueno”) to testify. On direct examination Bueno testified that he transported Ongiil from the scene of a traffic stop to a GPD Highway Patrol Station, where he was initially processed. Bueno testified that, at the Highway Patrol Station, Ongiil refused to consent to scientific testing of his blood, urine, or breath:

PEOPLE: [H]ad you read the implied consent form?

BUENO: I read the Guam implied consent form to the individual.

. . . .

I had the individual follow through while I read it to him.

. . . .

The individual refused to sign any documents.

PEOPLE: Okay. And how did he . . . indicate that he refused?

BUENO: He verbally informed me that he didn’t want to sign any documents.

Transcripts (“Tr.”) at 14, 16, 18 (Jury Trial, Jan. 28, 2015).
[5] On cross-examination, counsel for Ongiil asked Bueno about Ongiil’s right to remain silent:

COUNSEL: In fact, Mr. Ongiil has the right not to even say anything to you, right?

BUENO: That’s correct.

COUNSEL: Okay. So he was exercising his right not to talk to you, right? Right?

BUENO: That’s correct.
Id. at 46.
[6] On redirect examination, Bueno testified that he read Ongiil his Miranda rights from a GPD custodial interrogation form. After eliciting this testimony, the People asked Bueno “after you read the Miranda rights, what was the response?” Id. at 58. Counsel for Ongiil objected, arguing the question was “constitutionally impermissible evidence under the Fifth Amendment.” Id. The court overruled the objection.
[7] The People then elicited testimony that Ongiil chose to invoke his right to remain silent:

BUENO: I read each right step-by-step. . . . “You have the right to remain silent. You do not have to talk to me unless you want to do so.” “Anything you say can and will be used against you in a court of law.”

. . . .

PEOPLE: All right. And what was the response?

BUENO: Uh, Mr. Ongiil refused to acknowledge any of his rights or waive it [sic].
Id. at 58-59. Bueno also testified that Ongiil did not speak to him or make any incriminating statements before being advised of his Miranda rights.
[8] Ongiil moved for acquittal on the DUI charge after close of the People’s case-in-chief. The trial court denied his motion.
[9] During presentation of his case, Ongiil opted to testify in his own defense. Ongiil testified that Bueno did not read him the implied consent form. He did not testify regarding the Miranda form or his refusal to answer questions.
[10] During closing arguments, the People did not mention Ongiil’s Miranda rights or his exercise of the right to remain silent. Defense counsel, however, raised Ongiil’s Fifth Amendment privilege against self-incrimination and his exercise of the attendant right to remain silent. First, defense counsel stated the following: “[Ongiil] said I’m not going to talk, which had [sic] a right to, and I’m not going to sign anything.” Tr. at 38 (Jury Trial, Jan. 30, 2015). Next, counsel stated that Ongiil waived his right not to testify at trial: “Ongiil didn’t have to testify, yet he testified. . . . [T]o tell you the truth.” Id. at 42.
[11] The People filed a Sentencing Memorandum, one week prior to sentencing. The Sentencing Memorandum included the following:

[Ongiil] was found guilty of the crimes in this case while about six months away from completing all conditions of probation under CF0674-10. . . . The People also ask that the Court revoke [Ongiil’s] probation in CF0674-10 and sentence [Ongiil] to three (3) years jail to be served concurrently with the sentence in this case.

Record on Appeal (“RA”), CF0611-14, tab 56 at 3 (Sentencing Mem., Mar. 6, 2015). During sentencing, the trial court revoked Ongiil’s probation in case CF0674-10.

II. JURISDICTION

[12] The Supreme Court of Guam has jurisdiction over this appeal pursuant to 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 114–248 (2016)), and 7 GCA §§ 3107 and 3108(a) (2005).

III. STANDARD OF REVIEW

[13] Issues of statutory interpretation in criminal matters are subject to de novo review. See People v. Camacho, 2015 Guam 37 ¶ 10.
[14] “Where a defendant has raised the issue of sufficiency of evidence by motion for acquittal in the trial court, the denial of the motion is reviewed de novo.” People v. Fegarido, 2014 Guam 29 ¶ 18 (citing People v. Anastacio, 2010 Guam 18 ¶ 10).
[15] We review an alleged violation of the Fifth Amendment de novo. People v. Muritok, 2003 Guam 21 ¶ 10 (citing United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991)).
[16] We generally review the trial court’s revocation of probation for abuse of discretion. People v. Angoco, 1998 Guam 10 ¶ 4 (citing United States v. Daly, 839 F.2d 598, 599–600 (9th Cir. 1988)). We review de novo the issue of whether the trial court infringed upon a defendant’s constitutional rights. See People v. Cruz, 2016 Guam 15 ¶¶ 16, 18 (reviewing alleged violation of Fifth and Sixth Amendments de novo); People v. Diego, 2013 Guam 15 ¶ 8 (“Evidentiary rulings which infringe on constitutional rights are reviewed de novo.” (citation omitted)); People v. Naich, 2013 Guam 7 ¶ 22 (“We review a constitutional speedy trial claim de novo.” (citation omitted)); People v. Manila, 2005 Guam 6 ¶ 10 (“The grant of a motion to dismiss on double jeopardy grounds is reviewed de novo.” (citations omitted)).

IV. ANALYSIS

A. Whether Two Judgments of Conviction May Satisfy the Three-Conviction Requirement of 16 GCA § 18107
[17] Ongiil argues there was insufficient evidence to convict him under 16 GCA § 18107 because he was previously convicted of DUI only twice, instead of three times, as required by the statute. See Appellant’s Br. at 8 (Dec. 21, 2015). Specifically, he argues that because only two judgment documents were presented at trial, the People failed to prove that he had three separate “convictions.”^[2] Id. The People argue that a single judgment document may prove multiple convictions and that the two judgments satisfied the three-conviction requirement of 16 GCA § 18107. Appellee’s Br. at 20-22 (Dec. 31, 2015).
[18] Ongiil was charged with Driving While Under the Influence of Alcohol (“DUI”) (As a Third Degree Felony). RA, CF0611-14, tab 40 at 1-2 (Am. Indictment, Jan. 26, 2015). This charge included both the basic crime of DUI, 16 GCA § 18102(a),^[3] as well as a violation of the “fourth offender” DUI statute, 16 GCA § 18107.
[19] Title 16 GCA § 18107 is a repeat offender statute that establishes a more severe penalty for DUI when committed within five years of three other “separate [DUI] convictions”:

If any person is convicted of a violation of § 18102 of this Chapter and the offense occurred within five (5) years of three (3) or more separate convictions