Chapter 45

GCA Title 8, Chapter 45

Guam Code > Title 8 > Chapter 45

8 GCA CRIMINAL PROCEDURE

CH. 45 FIRST APPEARANCE: PRELIMINARY EXAMINATION

TITLE 8

CRIMINAL PROCEDURE

SOURCE: Enacted by P.L. 13-186 (Sept. 2, 1976) as the Criminal Procedure Code of Guam. Codified in Title 8 Guam Code Annotated by P.L. 15-104:7 (Mar. 5, 1980) and amended as indicated herein. 2007 COMMENT: Prior to being placed in the Guam Code Annotated, criminal procedure statutes were published in 1977 in a hardbound publication entitled ‘Criminal Procedure and P.L. 13 -187’ by the Compiler of Laws. The 1977 publication contained an introduction statement that explained the general intent of Criminal Procedure Code as it existed at the time. The 1977 introduction is included here in its entirety:

[1977] INTRODUCTION

The two laws contained in this Volume are, together with the Criminal and Correctional Code, a product of the Guam Law Revision Commission, which was established by P.L. 12-93. Public Law 13-187 is a law which amends the general laws of Guam to conform with the terminology and sentencing structure of the Criminal and Correctional Code and the Criminal Procedure Code. Most particularly, P.L. 13-187 brings the myriad of separate sentences found throughout the laws of Guam in no set pattern into conformity with the criminal classifications and sentences established by the new Codes. The Criminal Procedure Code (P.L. 13-186) supersedes Part II of the Penal Code of Guam and existing, court-adopted, Rules of Criminal Procedure. The Law Revision Commission, having observed the interaction (and confusion) between Part II of the Penal Code and the Rules of Criminal Procedure, decided that all major criminal rules should be in statutory form. Thus, these Rules are intended to wholly supersede existing Rules of Criminal Procedure. It is for this reason that no ‘Rules of Criminal Procedure’ ado pted by the Court have been attached to this Volume. Those rules which the Court may adopt have not yet been adopted. Even a cursory examination will reveal that the Criminal Procedure Code, as adopted, makes significant changes. Yet this Code is not designed to cause a revolution in Criminal Procedure, only rapid evolution. Special attention should be directed towards the areas of pre-trial release, grand jury proceedings, preliminary examinations, depositions and discovery. The purpose and effect of these changes is explained in the Notes following the pertinent sections. Most of the significant changes in substance are based upon comparable provisions in the more recent federal rules or legislation and on standards proposed by the American Bar Association Project on (Minimum) Standards for Criminal Justice. The original comments and cross-references to sources of this and the other Codes in the series were prepared by the Executive Director of the Law Revision Commission before passage of the Codes. I have added, deleted and modified these comments and notes where necessary to reflect the law as actually passed by the Legislature. It was the expressed desire of the Commission that such comments accompany the publication of these Codes. The various penal sections of law occurring throughout the laws of Guam were enacted separately from each other and from the Penal Code. Thus, each act has tended to set its own penalties without reference to a general system of sentences. Public Law 13-187 amends these penalty sections, among others, to provide each crime with a penalty which conforms to the standard classification found in the Criminal and Correctional Code, namely felonies, felonies by degree, misdemeanor, petty misdemeanor and violation. Individual sentences have been eliminated. The Table of Contents for P.L. 13-187 reflects the section amended, the subject matter of the section and the new penalty or other amendment, or repeal. CHARLES H. TROUTMAN Compiler

8 GCA CRIMINAL PROCEDURE CH. 45 FIRST APPEARANCE: PRELIMINARY EXAMINATION

[1977] NOTE TO ANNOTATIONS

In contrast to the Criminal and Correctional Code, this Code does not contain ‘Sources’, ‘Cross -references’ and ‘Comments.’ Unlike the Criminal & Correctional Code, the Criminal Procedure Code takes from sources which are already enacted as law or promulgated as court rules, either local court rules or the Federal Rules of Criminal Procedure. Thus, no new discussion of intent is needed in most cases. That is already available from the standard sources. Therefore, following each Section of this Code will be a ‘Note’ which will include any necessary commentary and the appropriate citation to the source and any cross-references. No comment or crossreferencing has been added to P.L. 13-187, as this part of the three laws is self-explanatory, amending the remainder of the Government Codes, Civil and Civil Procedure Codes to conform with the substantive revisions of the Criminal & Correctional Code and the Criminal Procedure Code.

ABBREVIATIONS USED

• Guam Penal Code is cited as ‘Guam PC § _____,’ or ‘G.P.C. § _____.’
• Government Code of Guam is cited as ‘Govt. Code § _____.’
• Civil Code of Guam is cited as ‘Civ. Code § _____.’
• 1970 Code of Criminal Procedure cited as ‘Code Crim. Proc. § _____.’
• (5)
• 1970 Code of Civil Procedure cited as ‘Code Civ. Proc. § _____.’
• Criminal and Correctional Code of 1977 cited as ‘Crim. & Corr. Code § _____.’
• Criminal Procedure Code of 1977 cited as ‘Crim. Proc. Code § _____,’ or ‘CPC § _____.’
• American Law Institute, Model Penal Code (Proposed Official Draft 1962) cited as ‘M.P.C. § _____.’
• California Joint Legislative Committee for Revision of the Penal Code, Penal Code Revision Project (Tentative Drafts 1, 2, & 3 dated Sept. 1967, June 1968 & July 1969) cited as ‘Cal. § _____ (T.D. (1, 2, or 3), 196_).’
• California Joint Legislative Committee for Revision of the Penal Code, Penal Code Revision Project (Staff Draft entitled ‘The Criminal Code,’ 1971) cited as ‘Cal. § _____ (1971).’
• Massachusetts Criminal Law Revision Commission, Criminal Code of Mass. (Proposed 1972), cited as ‘Mass. ch. § _____.’
• New Jersey Criminal Law Revision Commission, New Jersey Penal Code (Final Report, 1971) (two volumes) cited as ‘1 or 2 N.J. § _____.‘

8 GCA CRIMINAL PROCEDURE

CH. 45 FIRST APPEARANCE: PRELIMINARY EXAMINATION

CHAPTER 45 FIRST APPEARANCE: PRELIMINARY EXAMINATION

• § 45.10. Duty to Deliver Arrestee to Judge, or to Peace Officer.
• § 45.20. Complaint to be Filed; When.
• § 45.30. First Appearance; Statement by Court; Public Defender Allowed.
• § 45.40. Procedure When Public Defender Cannot Serve.
• § 45.45. Waiver of Indictment; of Preliminary Examination.
• § 45.50. Preliminary Examination: Date; Purpose; None Required When Indictment Precedes.
• § 45.60. Preliminary Examination: Procedure.
• § 45.70. Preliminary Examination to be Recorded; Accessibility.
• § 45.80. Procedure Where Probable Cause Shown; Not Shown.

§ 45.10. Duty to Delivery Arrestee to Judge, or to Peace Officer.

(a) An officer making an arrest under a warrant or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before a judge of the Superior Court. (b) Notwithstanding Subsection (a), a private person who has arrested another for the commission of an offense, may deliver him to a peace officer who shall take the person arrested before the judge. (c) The person arrested shall in all cases be taken before the judge within forty-eight (48) hours after the arrest, except that when the forty-eight (48) hour period expires, it is the burden of the government to demonstrate that a bona fide emergency or an extraordinary circumstance existed. SOURCE: Subsection (c) amended by P.L. 29-075:1 (May 9, 2008). NOTE: Section 45.10 is based on the first sentence of former Rule 5 and portions of former §§ 825 and 847 - 849. See also former §§ 821-824. It should be noted that although Subsection (c) sets a maximum time period, the basic test in all cases requires no unnecessary delay. See generally B. Witkin, California Criminal Procedure Proceedings Before Trial §§ 114,117 (1963, Supp. 1973). It should also be noted that this Section does not apply where the arrested person is released pursuant to either §§ 20.60 or 25.10.

§ 45.20. Complaint to be Filed; When.

(a) Where a person is arrested without a warrant, at or before the time he is brought before the court pursuant to § 45.10, the prosecuting attorney shall file a complaint which satisfies the requirements of § 15.10 and affidavits showing probable cause to believe that an offense has been committed and that the defendant has committed it. (b) At or before the time of the defendant ’ s first appearance pursuant to § 45.30, if no determination has previously been made by the court or grand jury that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the court shall make such determination in the manner provided by §§ 15.20 and 15.30. The defendant shall have no right to be present at any hearing leading to such determination. If from the evidence it appears that there is no probable cause to believe that an offense has been committed or that the defendant committed it, the court shall dismiss the complaint and discharge the defendant. Such discharge shall not preclude the government from instituting a subsequent prosecution for the same offense. NOTE: Subsection (a) of § 45.20 is substantively the same as the second sentence of former Rule 5(a). See also Rule 5 of the Federal Rules of Criminal Procedure. Compare former § 849. Subsection (b) is added to satisfy the requirement of a judicial determination of probable cause set forth in Gerstein v. Pugh , 420 U.S. 103 (1975). The subsection makes clear that the defendant has no right of confrontation or cross-examination at this stage of the proceeding. For all practical purposes the procedure is the same as that for determining whether a warrant or summons should issue but occurs after arrest rather than before. This procedure does not, however, obviate the need for an indictment or preliminary examination in felony cases.

8 GCA CRIMINAL PROCEDURE CH. 45 FIRST APPEARANCE: PRELIMINARY EXAMINATION

§ 45.30. First Appearance; Statement by Court; Public Defender Allowed.

(a) At the time the defendant is brought before the court pursuant to § 45.10 or appears pursuant to a summons issued pursuant to Chapter 15 (commencing with § 15.10) or a notice to appear pursuant to § 25.20, the court shall inform the defendant;

• of the complaint against him and of any affidavits filed therewith.
• of his right to retain counsel.
• of his right to request the assignment of counsel if he is unable to obtain counsel.
• of the general circumstances under which he may secure his pretrial release. (5) of his right to prosecution by indictment, where such right is available. (6) of his right to a preliminary examination, where such right is available. (7) that he is not required to make a statement and that any statement made by him may be used against him. (b) If the defendant appears without counsel, the court shall ask him if he desires the assistance of counsel. If he desires counsel, the court shall inquire of him whether he is financially able to employ counsel and, if so, whether he desires to employ counsel of his choice or to have counsel assigned to him through the Public Defender Service Corporation. If he desires assignment of counsel, the court shall make such assignment. The court shall assign counsel at public expense if the defendant desires counsel and is financially unable to employ counsel. (c) The defendant shall not be called upon to plead, shall be allowed reasonable time and opportunity to obtain and consult with counsel, and shall be released in the manner and subject to the conditions provided by Chapter 40 (commencing with § 40.10). SOURCE: Subsection (b) amended by P.L. 38-048:3 (Aug. 18, 2025) effective October 1, 2025 pursuant to P.L. 38048:6. NOTE: Section 45.30 is based on the first Paragraph of Rule 5(c) of the Federal Rules of Criminal Procedure (as revised in 1972) and portions of former Rules 5 and 44 and former §§ 858-860. See also former § 987. See generally 8 Moore, Federal Practice § 5.03 (2d ed. 1974).

§ 45.40. Procedure When Public Defender Cannot Serve.

In any criminal or juvenile proceeding in which a person is entitled to be represented by counsel at public expense and because of a conflict of interest the attorneys from the Public Defender Divisions, the attorneys from the Alternate Public Defender Division, and the attorneys from the Private Attorney Panel have properly refused to represent the person, the Board of Trustees of the Public Defender Service Corporation shall appoint private counsel for the person who shall receive reasonable compensation and necessary expenses to be paid by the Public Defender Service Corporation subject to appropriation. SOURCE: Amended by P.L. 38-048:4 (Aug. 18, 2025) effective October 1, 2025 pursuant to P.L. 38-048:6. NOTE: Section 45.40 supersedes a portion of former § 859.

§ 45.45. Waiver of Indictment; of Preliminary Examination.

In any case where the defendant has the right to prosecution by indictment, he may waive such right at any time after he has been advised of his rights pursuant to § 45.30. If the defendant has also waived his right to a preliminary examination, upon waiver of prosecution by indictment, the court shall hold the defendant to answer, and shall order the prosecuting attorney to file, within fifteen days after entry of the order, an information in the court charging the defendant with the offense charged by the complaint.

8 GCA CRIMINAL PROCEDURE CH. 45 FIRST APPEARANCE: PRELIMINARY EXAMINATION

NOTE: Section 45.45 provides the procedure for waiver by the defendant of prosecution by indictment contemplated by § 1.15. Compare former § 682(b); former Rule 7(b). It should be noted that the defendant may waive both prosecution by indictment pursuant to this Section and a preliminary examination pursuant to § 45.50(f), in which case, the court will order an information to be filed. If the defendant waives only his right to an indictment, then he is not deprived of his right to a preliminary examination, unless the prosecuting attorney opts to obtain an indictment. See §§ 1.15; 45.50(d). For dismissal for failure to file an information within the time prescribed, see § 80.60.

§ 45.50. Preliminary Examination: Date; Purpose; None Required When Indictment Precedes.

(a) Except as otherwise provided by this Section and § 45.45, in every case where a preliminary examination is required by §§ 1.15 and 1.17, such examination shall be held within the time set by the court pursuant