GCA Title 8, Chapter 135
8 GCA CRIMINAL PROCEDURE
CH. 135 WRIT OF HABEAS CORPUS
CHAPTER 135 THE WRIT OF HABEAS CORPUS
NOTE: References to Director of Public Safety and Director changed to Chief of Police pursuant to P.L. 17-78:1, which repealed § 5102 GC providing for the Department of Public Safety, and reenacted § 5102 establishing the Guam Police Department. The approach in Chapter 135 has been to preserve the basic substance and form of the present Guam lawmaking only a very few changes, generally in conformance to changes made in the California counterparts. This approach makes available a wealth of California precedent and seems to provide procedures which are reasonably fair and workable.
8 GCA CRIMINAL PROCEDURE
CH. 135 WRIT OF HABEAS CORPUS
§ 135.56. No Recommitment for Same Offense: Exceptions.
- § 135.58. Procedure if Applicant May Leave Territory.
- § 135.60. Apprehension of Person Charged Allowed Under § 135.58.
- § 135.62. Executing Officer to Bring Persons Named to Court (Applicable to § 135.58 only).
- § 135.64. Return in § 135.58 Cases Same as in Other Cases.
- § 135.66. Person Discharged if Custody Illegal; Remanded if Legal.
- § 135.68. Service to be Made Any Time of Day or Night.
- § 135.70. Writs, etc.: Form, Seal; Return to be A Forthwith @ .
- § 135.74. Appeal by Attorney General: No Release Pending Appeal: Bail Permitted.
§ 135.10. Writ of Habeas Corpus Allowed; Generally.
Every person unlawfully imprisoned or restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of such imprisonment or restraint. NOTE: Section 135.10 is identical to former § 1473. See also Cal. Pen. Code § 1473 (same). See generally B. Witkin, California Criminal Procedure Habeas Corpus and Other Extraordinary Writs §§ 788-832 (1963, Supp. 1973).
§ 135.12. Petition for Writ: To Whom Addressed; Form; Contents.
Application for the writ is made by petition to the Superior Court and signed either by the party for whose relief it is intended, or by some person on his behalf, and shall specify: (a) That the person in whose behalf the writ is applied for is imprisoned or restrained of his liberty, the officer or person by whom he is so confined or restrained, and the place where, naming all the parties, if they are known, or describing them, if they are not known; (b) If the imprisonment is alleged to be illegal, the petition shall also state in what the alleged illegality consists; (c) The petition shall be verified by the oath or affirmation of the party making the application. NOTE: Section 135.12 is substantively the same as former § 1474. See also Cal. Pen. Code § 1474 (same except for designation of court). It should be noted that the restraint referred to in Subsection (a) includes both actual and constructive custody. See B. Witkin, California Criminal Procedure Habeas Corpus and Other Extraordinary Writs § 794 (1963, Supp. 1973). As to other policy limitations, see id. §§ 795-798. As to grounds for relief, see id. §§ 799-810. See also § 135.38. As to form of the petition, see id. § 811. See also § 135.14.
8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS
§ 135.14. Application for Writ: Verification; Prior Applications to be Stated; Service Upon Attorney General.
Every application for a writ of habeas corpus shall be verified, and shall state whether any prior application has been made for a writ in regard to the same detention or restraint complained of in the application, and if any such prior application has been made the latter application shall contain a brief statement of all proceedings had therein, to and including the final order made therein, on appeal or otherwise. Whenever the person applying for a writ of habeas corpus is held in custody or restraint by any officer of this Territory or by any peace officer of this Territory, a copy of the application for such writ shall in all cases be served upon the Attorney General at least 24 hours before the time at which said writ is made returnable and no application for such writ can be heard without proof of such service in cases where such service is required. NOTE: Section 135.14 is substantively the same as former § 1475. Compare Cal. Pen. Code § 1475. The California section has a lengthy provision which precludes a new application for a writ to the same court unless there has been a change in the facts or law. Although not so specifically stated, this rule is implicit in the requirement that the application contains a statement regarding prior applications. See generally B. Witkin, California Criminal Procedure Habeas Corpus and Other Extraordinary Writs §§ 798, 814-815 (1963, Supp. 1973).
§ 135.16. Issuance of Writ: Release Pending Determination.
Any judge authorized to grant the writ, to whom a petition therefor is presented, shall, if it appears that the writ ought to issue, grant the same without delay; and if the person by or upon whose behalf the application for the writ is made be detained upon a criminal charge, may release him pursuant to Chapter 40 (commencing with § 40.10) pending the determination of the proceeding.
§ 135.18. Writ: To Whom Directed.
The writ shall be directed to the person having custody of for restraining the person in whose behalf the application is made, and shall command him to have the body of such person before the court, at the time and place therein specified.
§ 135.20. Writ: Method of Service.
8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS
If the writ is directed to the Chief of Police or other ministerial officer of the court out of which it issues, it shall be delivered by the clerk to such officer without delay, as other writ are delivered for service. If it is directed to any other person, it shall be delivered to the Chief of Police who shall serve it upon such person by delivering a copy to him without delay. The Chief of Police shall then make his return on the original to the court of issuance. If the person to whom the writ is directed cannot be found, or refuses admittance to the officer or person serving or delivering such writ, it may be served or delivered by leaving it at the residence of the person to whom it is directed or by affixing it to some conspicuous place on the outside either of his dwelling house or of the place where the party is confined or under restraint.
§ 135.22. Consequences of Failure to Honor Writ.
If the person to whom the writ is directed refuses, after service, to obey the same, the court or judge, upon affidavit, shall issue an attachment against such person, directed to the Chief of Police, commanding him forthwith to apprehend such person and bring him immediately before such court or judge; and upon being so brought, he must be committed to the jail until he makes due return to such writ, or is otherwise legally discharged.
§ 135.24. Return of Writ: What Must be Stated.
The person upon whom the writ is served shall state in his return, plainly and unequivocally: (a) Whether he has or has not the party in his custody, or under his power or restraint; (b) If he has the party in his custody or power, or under his restraint, he shall state the authority and the cause of such imprisonment or restraint; (c) If the party is detained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return, and the original produced and exhibited to the court on the hearing of such return; (d) If the person upon whom the writ is served had the party in his power or custody, or under his restraint, at any time prior or subsequent to the date of the writ of habeas corpus, but has transferred such custody or restraint to another, the return shall state particularly to
8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS
whom, at what time and place, for what cause, and by what authority such transfer took place; (e) The return shall be signed by the person making the same, and except when such person is a sworn public officer and makes such return in his official capacity, it shall be verified by his oath.
§ 135.26. Person to Whom Writ Directed Must Produce the Body.
Except as provided in § 135.28, the person to whom the writ is directed, if it is served, shall bring the body of the party in his custody or under his restraint, according to the command of the writ.
§ 135.28. Exceptions to § 135.26.
When, from sickness or infirmity of the person directed to be produced, he cannot, without danger, be brought before the court, the person in whose custody or power he is may state that fact on his return to the writ, verifying the same by affidavit. If the court is satisfied of the truth of such return, and the return to the writ is otherwise sufficient, the court mayproceed to decide on such return, and to dispose of the matter as if such party had been produced on the writ, or the hearing thereof may be adjourned until such party can be produced. NOTE: Section 135.28 is substantively the same as former § 1482. See also Cal. Pen. Code § 1482 (same).
§ 135.30. Hearing to be Held Immediately After Return of Writ.
The court before whom the writ is returned shall, immediately after the return, proceed to hear and examine the return, and such other matters as may be properly submitted to his hearing and consideration. NOTE: Section 135.30 is substantively the same as former § 14.83. See also Cal. Pen. Code § 1483 (same).
§ 135.32. Proceedings at Hearing: Evidence to be Produced.
The party brought before the court, on the return of the writ, may deny or controvert any of the material facts or matters set forth in the return, or except to the sufficiency thereof, or allege any fact to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge. The court shall thereupon proceed in a summary way to hear such proof as may be produced against such imprisonment or detention, or in favor of the same, and to dispose of such party as the justice of the case may require, and have full power and authority to require and compel the attendance of witnesses by
8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS
process of subpoena and attachment, and to do and perform all other acts and things necessary to a full and fair hearing and determination of the case. NOTE: Section 135.32 is substantively the same as former § 1484. See also Cal. Pen. Code § 1484 (same).
§ 135.34. Discharge of Defendant: When; Upon Showing of Illegal Restraint.
If no legal cause is shown for the imprisonment or restraint, or for the continuation thereof, the court shall discharge the party from the custody or restraint under which he is held. NOTE: Section 135.34 is substantively the same as former § 1485. See also Cal. Pen. Code § 1485 (same). It has been revised to conform to § 1486 of the California Penal Code. See also § 135.48.
§ 135.36. When Defendant to be Remanded to Custody.
The court, if the time during which the party may be legally detained in custody has not expired, shall remand such party, if it appears that he is detained in custody:
- (a) By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction; or,
- (b) By virtue of the final judgment or decree of any competent court of criminal jurisdiction, or of any process issued upon such judgment or decree.
§ 135.38. When Defendant May be Discharged if Held Under Process From Guam Courts.
If it appears on the return of the writ that the prisoner is in custody by virtue of process from any court of this Territory, or judge or officer thereof, such prisoner may be discharged in any of the following cases, subject to the restrictions of 135.36:
- (a) When the jurisdiction of such courts or officer has been exceeded;
- (b) When the imprisonment was at first lawful, yet by some act, omission, or event which has taken place afterwards, the party has become entitled to a discharge;
8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS
(c) When the process is defective in some matter of substance required by law, rendering such process void; (d) When the process, though proper in form, has been issued in a case not allowed by law; (e) When the person having the custody of the prisoner is not the person allowed by law to detain him; (f) Where the process is not authorized by any order, judgment, or decree of any court, nor by any provision of law; (g) Where a party has been committed on a criminal charge without reasonable or probable cause. COURT DECISIONS : D.C. Guam App. Div., People v. Santos , D.C. Cr. 85-006A (1985). Defendant has no grounds to seek a writ of habeas corpus when he could have raised the same issues several times in past proceedings and when the sentence was within the bounds permitted by law. NOTE: Section 135.38. is substantively the same as former § 1487. See also Cal. Pen. Code § 1487 (same). As to grounds for relief generally, see B. Witkin, California Criminal Procedure Habeas Corpus and Other Extraordinary Writs §§ 799-810 (1963, Supp. 1973).
§ 135.40. No Discharge Upon Mere Defect in Commitment Order.
If any person is committed to prison, or is in custody of any officer on any criminal charge, by virtue of any warrant of commitment of a judge, such person shall not be discharged on the ground of any mere defect of form in the warrant of commitment. NOTE: Section 135.40 is substantively the same as former § 1488. See also Cal. Pen. Code § 1488 (same).
§ 135.42. Defect in Form: Procedure Where Person Appears Guilty of an Offense.
If it appears to the court, by affidavit or otherwise, or upon the inspection of the process or warrant of commitment and such other papers in the proceedings as may be shown to the court, that the party is guilty of a criminal offense, or ought not to be discharged, the court, although the charge is defective or unsubstantially set forth in such process or warrant of commitment, shall cause the complainant or other necessary witnesses to be subpoenaed to attend at such time as ordered, to testify before the court; and upon the examination he may discharge the party, release him pursuant to Chapter 40 (commencing with § 40.10) or recommit him to custody as may be just and legal.
8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS
NOTE: Section 135.42 is substantively the same as former § 1489. See also Cal. Pen. Code § 1489 (same).
§ 135.44. Writ Available for Determination of Bail if Not Done Pursuant to Chapter 40.
When a person is imprisoned or detained in custody on any criminal charge, for want of a judicial determination regarding his release pu