Chapter 40

8 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 1 CHAPTER 40 RELEASE NOTE : References to Director of Public Safety and Direc tor changed to Chief of Police pursuant to P.L. 17-78:1, which repealed § 5102 GC providing for the Department of Public Sa fety, and reenacted § 5102 establishing the Guam Police Depar tment. NOTE : Release - continues parts of Criminal Rule 46 and of Penal Code Title IX, Chapter I of Part 2 -- 'Bail.' This Chapter incorporates much of the substance of the Federal B ail Reform Act of 1966 (18 U.S.C., Chapter 207). The change in tit le reflects a change from release only upon bail to release subje ct only to those conditions required by the circumstances of the cas e -- a practice now followed by the Superior Court in a different f orm. No provision is made for 'station-house bail' - nev er used on Guam although authorized - because it is expected t hat a citation will be used where such bail may have been used. Co mpare Cr. Rule 46(a) with Chapter 25. See § 20.60, but also § 15.50 where the court may fix conditions of release in the warrant. Title 18 U.S.C. §3149 provides for release of mater ial witnesses. See Cr. Rule 46(b) - bail for witnesses; § 75.40, CPC.

ut also § 15.50 where the court may fix conditions of release in the warrant. Title 18 U.S.C. §3149 provides for release of mater ial witnesses. See Cr. Rule 46(b) - bail for witnesses; § 75.40, CPC. This Chapter does not limit the Judicial Council fr om providing bail in traffic cases, and for a 'forfeit ure of bail' in lieu of fine. See § 1.09, CPC. § 40.10. Release on Bail Generally Permitted. § 40.15. Release on Own Recognizance Defined: When Permitted. § 40.20. Bail Conditions; Defined, When to be Used. § 40.25. Solvency of Sureties to be Assured; Proced ure. § 40.30. Procedure Where Surety Loses Worth. § 40.35. How Surety May be Exonerated; Deposit Sum With Clerk. § 40.40. Procedure for Handling Cash Bail. § 40.45. Bail Bondsman May Arrest Person. § 40.50. Bail Redetermination Hearing; When; Proced ure. § 40.55. Statement to Arrestee Upon Release With Co nditions. § 40.60. Additional Restrictions may be Applied; Ap plication by Prosecutor; Additional Restrictions Listed. § 40.65. Retaking of Defendant Upon Violation of Co nditions. § 40.70. Warrant Upon Failure to Appear. COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 2 § 40.75.

; Additional Restrictions Listed. § 40.65. Retaking of Defendant Upon Violation of Co nditions. § 40.70. Warrant Upon Failure to Appear. COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 2 § 40.75. Actions Allowed Upon Violation of Conditio ns or Failure to Appear. § 40.80. Appeal of Conditions Allowed. § 40.85. Release After Conviction Pending Appeal; C onditions. § 40.90. Penalty for Wilful Failure to Appear: Felo ny if Underlying Offense is Felony; Misdemeanor if Misdemeanor. § 40.95. Procedure Upon Forfeiture of Bail. § 40.10. Release on Bail Generally Permitted. At his first appearance before a judge of the Super ior Court, every person charged with an offense shall be order ed released pending trial in the manner and subject to the cond itions provided by §§ 40.15 and 40.20. NOTE : Section 40.10 is an introductory provision compar able to the first sentence of former Rule 46. 'Excessive bail' is pro scribed by the 8th Amendment of the U.S. Constitution as incorporated into the Organic Act by §§ 1421b(h) and 1421b(u). (48 U.S.C.A. § 1421b). § 40.15. Release on Own Recognizance Defined; When Permitted.

ed by the 8th Amendment of the U.S. Constitution as incorporated into the Organic Act by §§ 1421b(h) and 1421b(u). (48 U.S.C.A. § 1421b). § 40.15. Release on Own Recognizance Defined; When Permitted. (a) As used in this Section, ‘release on own recogn izance’ means release of the person charged without bail an d upon his written agreement to appear in court at all require d times and places and to fully comply with any other court-ord ered conditions and restrictions. (b) The judge shall order the person charged to be released on recognizance, unless the judge determines, in hi s discretion, on the basis of available information, that such a release will not reasonably assure the appearance of the person as r equired or will endanger the safety of any other person or the community. (c) In determining whether there is a substantial r isk of nonappearance by the person charged or that the per son charged will endanger the safety of any other person or the community, the judge shall consider the following factors: (1) the nature of the offense charged, the apparent possibility of conviction and the likely sentence; (2) the history and characteristics of the person COL6/24/20218 GCA

sider the following factors: (1) the nature of the offense charged, the apparent possibility of conviction and the likely sentence; (2) the history and characteristics of the person COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 3 charged, including: (A) length of his/her residence on Guam; (B) his/her employment status and history, and financial condition; (C) his/her family ties and relationships; (D) his/her reputation, character, and mental and physical condition; (E) his/her prior criminal record, if any, including any record of prior release on recognizan ce or on bail; (F) his/her history relating to drug or alcohol abuse; (G) the identity of the reasonable members of the community who will vouch for his/her reliability; (H) whether, at the time of the current offense or arrest, he/she was on probation, on parole, or on o ther release pending trial, sentencing, appeal or comple tion of sentence of an offense under federal, state or l ocal law; and (I) his/her history of compliance with other court orders; (3) the nature and seriousness of the danger the person would pose to the community or to any indivi dual member thereof if released; (4) statements of the alleged

compliance with other court orders; (3) the nature and seriousness of the danger the person would pose to the community or to any indivi dual member thereof if released; (4) statements of the alleged victim or others as t o previous incidences of violence and threats made to the alleged victim; (5) lethality risk assessments or other risk assessments deemed appropriate by the Judiciary of Guam; and (6) any other factors which bear on the risk of wil lful failure to appear or the danger the person would po se to the community or to any individual member thereof if re leased. COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 4 (d) Nothing in this Section shall be misconstrued a s modifying or limiting the presumption of innocence. SOURCE : Section 40.15 amended by P.L. 20-111:1 (Oct. 19, 1989); P.L. 24-239:10 (Aug. 14, 1998), and P.L. 34-071:3 ( Dec. 15, 2017). § 40.20. Bail Conditions; Defined, When to be Used. Where the judge determines that release of the pers on charged on his/her own recognizance will not reason ably assure his/her appearance as required, or will endanger th e safety of any other person or the community, the judge shall impo se the least onerous of the

is/her own recognizance will not reason ably assure his/her appearance as required, or will endanger th e safety of any other person or the community, the judge shall impo se the least onerous of the following conditions which is reason ably likely to assure the person’s appearance as required and the safety of any other person and the community, or, if no single co ndition gives that assurance, the least onerous combination of th e following conditions: (a) placement of the person in the custody of a designated person or organization agreeing to super vise him/her and to assist him/her in appearing in court ; (b) placement of restrictions on the activities, movements, associations, and residence of the perso n; (c) placement of the person under supervision by means of electronic monitoring, including electroni c monitoring with alleged victim stay-away alert tech nology, if available, and subject to the payment of fees or the exemption of fees, and other rules established by t he court for electronic monitoring; (d) execution of a bond in an amount specified by t he judge; such bond in the discretion of the judge to be either unsecured or secured in whole or in part by the dep

ourt for electronic monitoring; (d) execution of a bond in an amount specified by t he judge; such bond in the discretion of the judge to be either unsecured or secured in whole or in part by the dep osit of cash or other property, or by the obligation of qua lified sureties; (e) release of the person during working hours, but with the condition that he/she return to custody at specified times; (f) require the person charged with family violence or violation of a protective order to undergo a lethal ity risk COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 5 assessment or other risk assessments deemed appropr iate by the Judiciary of Guam; or (g) any other condition reasonably necessary to ass ure appearance as required and the safety of any other person and the community. SOURCE: Added by P.L. 13-186 (Sept. 2, 1976). Amended by P.L. 24- 239:11 (Aug. 14, 1998) ( Family Violence Act of 1998 ), and P.L. 34-071:4 (Dec. 15, 2017). NOTE : Section 40.20 is new. It is based on 18 U.S.C. § 3146(a) and ABA, Project on Minimum, Standards for Criminal Jus tice Pretrial Release §§ 5.2, 5.3 (Approved draft 1968). See also former Rule 46(c), (d).

tion 40.20 is new. It is based on 18 U.S.C. § 3146(a) and ABA, Project on Minimum, Standards for Criminal Jus tice Pretrial Release §§ 5.2, 5.3 (Approved draft 1968). See also former Rule 46(c), (d). Subsection (a) follows the basic form of § 314 6 (a)(1). The ABA standards add a separate condition providing for th e supervision of the accused by 'a probation officer or other appropriat e public official.' See § 5.2(b) (ii). Although not specifically so stated, Subsection (a) permits placing the accused under the supervision of any pe rson, including a probation officer other public official. Subsection (c) deals with bonds generally and grants the court broad discretion to fashion the terms of the bond in whatever manner appears necessary. Unlike 1 8 U.S.C. § 3146(a), this Section makes no attempt to list the possible conditions in order of degree of onerousness. The impact of the different conditions on different persons will vary and the court should consider the se differences as they apply in each case. For example, money bail to a ve ry wealthy person would have little impact unless set extremely high.

nt persons will vary and the court should consider the se differences as they apply in each case. For example, money bail to a ve ry wealthy person would have little impact unless set extremely high. On the other hand, money bail even in a low amount to an indigent woul d preclude release. § 40.25. Solvency of Sureties to be Assured; Proced ure. (a) Where a bond secured by a surety is required pu rsuant to this Chapter, the judge may require the person seek ing to be the surety to show by affidavit that he is worth the am ount of the bond and is otherwise responsible. In the affidavit the person may be required to describe the property by which h e proposes to justify and the encumbrances thereon, and to lis t all his other assets and liabilities. The judge may further exami ne the person under oath and may call and examine witnesses to de termined whether the person is qualified. (b) Nothing in this Section precludes the judge fro m allowing two or more sureties to justify severally in amounts less than that expressed in the bond, if the whole justi fication equals the amount required. COL6/24/20218 GCA CRIMINAL PROCEDURE CH.

m allowing two or more sureties to justify severally in amounts less than that expressed in the bond, if the whole justi fication equals the amount required. COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 6 NOTE : Section 40.25 is based on former Rule 46(e)and §§ 1279-1280b. However, § 40.20 now provides the court greater fle xibility in setting the terms of the appearance bond. The bond may be unsec ured or secured, in whole or in part, by deposit or the obligation of s ureties. Because of this flexibility no purpose would be served in requiring the surety to show more than sufficient solvency and responsibility. H ence, this Section eliminates some of the specificity regarding qualif ications of the surety contained in the former sections. If, however, ther e is a fear that the surety's solvency or responsibility may be illusory or temporary the court can require actual deposit. See §§ 40.20, 40.30. § 40.30. Procedure Where Surety Loses Worth. Where a person is released pursuant to this Chapter on an appearance bond secured by a surety, and it is ther eafter shown, on noticed motion, that the surety is no longer wor th the required amount or has become otherwise

sed pursuant to this Chapter on an appearance bond secured by a surety, and it is ther eafter shown, on noticed motion, that the surety is no longer wor th the required amount or has become otherwise insufficient, the co urt may order the furnishing of such additional security as may be required to satisfy the condition imposed and may o rder the person detained until such security is furnished. NOTE : Section 40.30 is based on a portion of former PC § 1310. § 40.35. How Surety May be Exonerated; Deposit Sum With Clerk. A person released pursuant to this Chapter on the c ondition that an appearance bond secured by a qualified sure ty be furnished, may, at any time before declaration of f orfeiture, deposit with the clerk of the court a sum equal to the amount of the bond, and upon the deposit being made the suret y on such bond is exonerated. NOTE : Section 40.35 continues the substance of former § 1296 and a portion of former Rule 46(g). § 40.40. Procedure for Handling Cash Bail. Any deposit required or authorized as a condition o f release may be made by the person released or by any other person. A receipt shall be issued in the name of the deposito r.

r Handling Cash Bail. Any deposit required or authorized as a condition o f release may be made by the person released or by any other person. A receipt shall be issued in the name of the deposito r. If the money remains on deposit at the time of a judgment for th e payment of a fine, the clerk shall, under the direction of the court, if the defendant be the depositor, apply the money in sati sfaction thereof, and after satisfying the fine, shall refun d the surplus, if any, to the defendant. If the person to whom the re ceipt for the COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 7 deposit was issued was not the defendant, the depos it shall be returned to him at any time after the court has ord ered such return and upon the depositor's submission of his r eceipt. NOTE : Section 40.40 continues the substance of former § 1297 but also authorized and provides for the disposition of a de posit made on behalf of the defendant by a third person. Compare Cal. Pen. Code §§ 1295, 1297. Return may be ordered under various circumstances. See § 40.45 (exoneration by surrender of the person released); 40.95 (order setting aside forfeiture of requiring remission); 120.18 (o rder

, 1297. Return may be ordered under various circumstances. See § 40.45 (exoneration by surrender of the person released); 40.95 (order setting aside forfeiture of requiring remission); 120.18 (o rder following acquittal of the defendant). § 40.45. Bail Bondsman May Arrest Person. Any person released pursuant to this Chapter on a d eposit by a third person or an appearance bond secured by a surety, may be arrested by the depositor, surety, or his ag ent, and delivered to the custody of the Chief of Police. T he depositor or surety shall at the same time deliver a copy of his deposit receipt or bond to the Director who shall acknowledge such delivery by a certificate in writing. The Chief of Police shal l take custody of the person arrested and forthwith file the copy of the deposit receipt or bond and his certificate in the Court in which the action is pending and bring the depositor or surety exonerated, and shall, after notice to the prosecuting attorney , either release the person on such new conditions as are reasonably necessary to assure the person’s appearance as required or the s afety of any other person and the community or detain the person until he/she has furnished the

such new conditions as are reasonably necessary to assure the person’s appearance as required or the s afety of any other person and the community or detain the person until he/she has furnished the necessary security. SOURCE : Added by P.L. 13-186 (Sept. 2, 1976). Amended by P.L. 24- 239:12 (Aug. 14, 1998). NOTE : Section 40.45 is based on 18 U.S.C. § 3124, forme r §§ 1300- 1301, and portion of former Rule 46(g). The section continues the generally recognized authority of the depositor or surety to surrender his principal and obtain exoneration. The section also makes clear the court must then review its release decision and either im pose new conditions or detain the accused until a proper appearance bond i s provided. For law did not permit deposits by a third person. This how ever, has been changed in conformity with a procedure authorized i n California. Compare Cal. Pen. Code §§ 1295, 1300. § 40.50. Bail Redetermination Hearing; When; Proced ure. (a) A person for whom conditions of release are imp osed pursuant to this Chapter, and who after twenty-four (24) hours COL6/24/20218 GCA CRIMINAL PROCEDURE CH.

termination Hearing; When; Proced ure. (a) A person for whom conditions of release are imp osed pursuant to this Chapter, and who after twenty-four (24) hours COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 8 from the time of release hearing continues to be de tained as a result of his inability to meet the conditions of r elease, shall, upon application, be entitled to have the condition s reviewed by the Court. The conditions are to be reviewed by the judge or magistrate who imposed them, or by another judge. U nless the conditions of release are amended and the person is thereupon released, the judge or magistrate shall set forth i n writing the reasons for requiring the conditions imposed. (b) A person who is ordered released pursuant to th is Chapter on the condition that he return to custody after specified hours shall, upon application, be entitled to a rev iew by the judge who imposed the condition. Unless the requirement i s removed and the person is thereupon released on another con dition, the judge shall set forth in writing the reasons for co ntinuing the requirement.

imposed the condition. Unless the requirement i s removed and the person is thereupon released on another con dition, the judge shall set forth in writing the reasons for co ntinuing the requirement. (c) Notwithstanding the provisions of Subsections ( a) and (b), if the judge who imposed conditions of release is not available, any other judge may review such conditio ns. (d) If conditions of release are imposed by a magistrate pursuant to §4401, Title 7 of the Guam Code Annotat ed, any judge may review such conditions. SOURCE : Added by P.L. 13-186 (Sept. 2, 1976). Subsectio n (a) amended by P.L. 24-239:13 (Aug. 14, 1998) ( Family Violence Act of 1998 ). Subsection (d) added by P.L. 29-109:3 (Aug. 26, 2008). Subsection (a) amended by P.L. 35-113:3 (Dec. 11, 2 020). NOTE : Section 40.50 is new. It is substantively the sam e as 18 U.S.C. § 3146(d). See also ABA, Project on Minimum Standards for Criminal Justice Pretrial Release § 5.9 (Approved draft 1968 ). Compare former Rule 46(h) and Cal. Pen. Code § 1320. For provision s relating to appeal from an adverse ruling by the judge, see § 40.80. § 40.55. Statement to Arrestee Upon Release With Co ndi- tions.

mpare former Rule 46(h) and Cal. Pen. Code § 1320. For provision s relating to appeal from an adverse ruling by the judge, see § 40.80. § 40.55. Statement to Arrestee Upon Release With Co ndi- tions. (a) Whenever a person is released pursuant to this Chapter, the judge authorizing such release shall issue an o rder which contains a statement of the conditions imposed, if any, informs the person of the penalties applicable to violation s of the conditions of his release, and advises the person t hat a warrant for his arrest will be issued immediately upon any such violation. COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 9 (b) The person charged shall execute an agreement t hat he will appear as required and an acknowledgment that he understands the conditions of his release and the p enalties and forfeitures applicable in the event that he violate s any condition or fails to appear as required. A copy of the order shall be given to the person before he is released. NOTE : Section 40.55 is new. It is based on 18 U.S.C. § 3146(c). § 40.55(b) has no federal statutory counterpart but r eflects the actual practice under the federal statute. See Bail Reform Act Form No.

E : Section 40.55 is new. It is based on 18 U.S.C. § 3146(c). § 40.55(b) has no federal statutory counterpart but r eflects the actual practice under the federal statute. See Bail Reform Act Form No. 2, set forth in ABA, Project on Minimum Standards for Crim inal Justice Pretrial Release, Appendix A, at 77. § 40.60. Additional Restrictions May be Applied; Ap plication by Prosecutor; Additional Restrictions Listed. (a) At the first appearance or at any time thereaft er, upon the application of the prosecuting attorney and a s howing that there exists a danger that the person charged will commit an offense or will seek to intimidate witnesses, or wi ll otherwise unlawfully interfere with the orderly administratio n of justice, the judge may issue an order which: (1) prohibits the person charged from approaching o r communicating with particular persons or classes of persons, except that the order shall not be deemed to prohibit any lawful and ethical activity of the per son’s counsel; (2) prohibits the person charged from going to cert ain described geographical areas or premises; (3) prohibits the person charged from possessing an y dangerous weapon, or engaging in certain

unsel; (2) prohibits the person charged from going to cert ain described geographical areas or premises; (3) prohibits the person charged from possessing an y dangerous weapon, or engaging in certain described activities, or indulging in intoxicating liquors or in certain drugs; (4) requires the person charged to report regularly to and remain under the supervision of an officer of t he court; (5) requires the person charged to undergo drug testing under the supervision of an officer of the court; (6) requires the person charged to be placed under supervision by means of electronic monitoring, subj ect to COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 10 the payment of fees or the exemption of fees, and s ubject to other rules established by the court for electronic monitoring; or (7) requires the person charged with family violenc e or violation of a protective order to undergo a let hality risk assessment or other risk assessments deemed appropr iate by the court. (b) For any person charged with family violence, a judge may issue an order for electronic monitoring or an order for risk assessment without application of the prosecuting a ttorney.

e by the court. (b) For any person charged with family violence, a judge may issue an order for electronic monitoring or an order for risk assessment without application of the prosecuting a ttorney. (c) The person charged shall execute an acknowledgment of the order and be given a copy of the order at th at time. SOURCE : Added by P.L. 13-186 (Sept. 2, 1976). Subsectio n (a)(5) added by P.L. 24-239:14 (Aug. 14, 1998) ( Family Violence Act of 1988 ). Amended by P.L. 34-071:5 (Dec. 15, 2017). 2018 NOTES: Pursuant to P.L. 34-071:6: Section 6. Effective Date. This Act shall become effective six (6) months from the date of enactment . Prior to the amendment by P.L. 34-071:5, this secti on previously read as: (a) At the first appearance or at any time thereaft er, upon the application of the prosecuting attorney an d a showing that there exists a danger that the person charged will commit an offense or will seek to intimidate w itnesses, or will otherwise unlawfully interfere with the ord erly administration of justice, the judge may issue an o rder which: (1) prohibits the person charged from approaching or communicating with particular person s or classes of persons, except that the

erly administration of justice, the judge may issue an o rder which: (1) prohibits the person charged from approaching or communicating with particular person s or classes of persons, except that the order shall not be deemed to prohibit any lawful and ethical activity of the person's counsel; (2) prohibits the person charged from going to certain described geographical areas or premises; (3) prohibits the person charged from possessing any dangerous weapon, or engaging in certain described activities or indulging in intoxicating l iquors or in certain drugs; COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 11 (4) requires the person charged to report regularly to and remain under the supervision of an officer o f the court. (5) require the person charged to undergo drug testing under the supervision of an officer of the Court. (b) The person charged shall execute an acknowledgm ent of the order and be given a copy of the order at that time. NOTE : Section 40.60 is new. It is based on ABA, Project on Minimum Standards for Criminal Justice Pretrial Release § 5 .5 (Approved draft 1968).

order and be given a copy of the order at that time. NOTE : Section 40.60 is new. It is based on ABA, Project on Minimum Standards for Criminal Justice Pretrial Release § 5 .5 (Approved draft 1968). It supplements the authority to impose condi tions granted by § 40.20 and makes explicit the court's power to impos e reasonable restrictions on the accused's activities pending tr ial. See also 18 U.S.C. § 3146(e). The purpose of this Section is to prohibit acts before they occur. The section is distinguished in this respect from § 40.75 which deals with a violation of the court's order or other changes i n circumstances. § 40.65. Retaking of Defendant Upon Violation of Conditions. (a) Upon the ex parte application of the prosecutin g attorney and a showing that the person charged has willfully violated the conditions of his release, any judge may issue a wa rrant directing that the person be arrested and taken forthwith bef ore the court in which the action is pending. (b) Where it would be impracticable to secure a war rant pursuant to Subsection (a), any peace officer havin g reasonable grounds to believe that a person released pursuant to this Chapter has violated the conditions

d be impracticable to secure a war rant pursuant to Subsection (a), any peace officer havin g reasonable grounds to believe that a person released pursuant to this Chapter has violated the conditions of his release may arre st the person and take him forthwith before the court in which th e action is pending. COURT DECISIONS : D.C. GUAM APP. DIV. 1979. Because there was no evidence before the Superior Court to suppor t the revocation of appellate's release on bail in that the defendant h ad not violated any of his conditions of release, defendant's arrest for viola tion of bail was improper and defendant was ordered to be released on origina l conditions of bail with the additional condition that he observe a cur few at his parents house between the hours of 9:00 p.m. and 6:00 a.m. People v. Ulloa, Anthony, D.C.Guam 1979, Crim. #79-00065A. NOTE : Section 40.65 is based on ABA, Project on Minimum Standards for Criminal Justice Pretrial Release § 5.6 (Approv ed draft 1968). General law has always permitted the arrest and sur render of a defendant by a surety who feared his principal was about to d isappear. See § 40.45 and former § 1300.

se § 5.6 (Approv ed draft 1968). General law has always permitted the arrest and sur render of a defendant by a surety who feared his principal was about to d isappear. See § 40.45 and former § 1300. Under the procedures provided by this Chapter it is COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 12 necessary to vest a similar authority in the proper public officers. It should be noted, however, that Subsection (a) merel y authorizes a warrant to be issued, it does not require the court to do so. Where the showing is weak or the violations are insignificant , the court may refuse to issue a warrant and issue an order to show cause or require a noticed motion as a prerequisite to further judicial action . Similarly Subsection (b) is conditioned upon circumstances where securin g a warrant would be impracticable. Arbitrary and unreasonable arrests a re not authorized and should not be tolerated. The purpose of this Section is to provide for arres t where there is a threat of nonappearance. Nothing in this Section is intended to limit the normal authority of a police officer to arrest the person without a warrant for a subsequent offense.

rres t where there is a threat of nonappearance. Nothing in this Section is intended to limit the normal authority of a police officer to arrest the person without a warrant for a subsequent offense. See generally §§ 20.15 an d 20.20 (arrest without a warrant). Separate authority for the issu ance of a warrant where the person fails to appear as required is provided by § 40.70. § 40.70. Warrant Upon Failure to Appear. Upon the failure of a person released pursuant to t his Chapter to appear as required, the court in which t he action is pending may issue a warrant directing that the pers on be arrested and taken before it forthwith. COURT DECISIONS : D.C. GUAM APP. DIV. 1979. Where there is no evidence that defendant would not subsequently appe ar, he may not be arrested under this Section for violation of bail. People v. Anthony Ulloa, D.C.Guam 1979, Crim. #79-00065A. NOTE : Section 40.70 continues the substance of a portio n of former § 1310. As to penalties for failure to appear, see § 40.90. § 40.75 Actions Allowed Upon Violation of Condition s or Failure to Appear. (a) When a person is brought before the court pursu ant to §§ 40.65 or 40.70, or, when after a noticed hearing,

ee § 40.90. § 40.75 Actions Allowed Upon Violation of Condition s or Failure to Appear. (a) When a person is brought before the court pursu ant to §§ 40.65 or 40.70, or, when after a noticed hearing, t he court finds that a person released pursuant to this Chapter has willfully violated the conditions imposed on his release or t hat a change in circumstances or new evidence shows a need for the imposition of different or additional conditions upon the pers on's release, the court may order the imposition of such conditio ns as are reasonably necessary to assure the person's appeara nce as required (and his compliance with any conditions im posed pursuant to this Chapter). (b) Notwithstanding Subsection (a), where the court finds that the person has willfully violated the conditio ns imposed on COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 13 his release or that an indictment or information ha s been filed charging the person with the commission of an offen se while released in the pending action, the court may revok e the person's release. COURT DECISIONS : D.C. GUAM, APP. DIV. 1979.

n ha s been filed charging the person with the commission of an offen se while released in the pending action, the court may revok e the person's release. COURT DECISIONS : D.C. GUAM, APP. DIV. 1979. The fact that a defendant has been charged by police with an offens e does not bring him within the provisions of Subsection (b), 8 GCA § 40 .75. The defendant must have an indictment or information filed agains t him before Subsection (b) can be a ground for bail revocation. People v. Anthony Ulloa , D.C. Guam 1979, Crim. #79-00065A. This case may h ave been modified by the amendment of 8 GCA § 1.15 dealing w hen indictments, information and complaints may be brought. SUPERIOR COURT 1980. The Superior Court has jurisdi ction to determine revocation of defendant's release while t he defendant's appeal is pending. People v. James , Sup. Ct. 1980, Cr. #18S-80. NOTE : Section 40.70 is new. It is based on 18 U.S.C. § 3143 and ABA, Project on Minimum Standards for Criminal Justice P retrial Release §§ 5.7, 5.8. (Approved draft 1968). See also 18 U.S.C. § 3146(e) and former § 1310. Under Subsection (a), the court is granted rather broad authority to modify its prior release order on a

al Release §§ 5.7, 5.8. (Approved draft 1968). See also 18 U.S.C. § 3146(e) and former § 1310. Under Subsection (a), the court is granted rather broad authority to modify its prior release order on a showing that such modification is needed. Subsection (b), on the other hand, is more limited in that the court must find either that there have been willful violations of his prior order or that a court or grand jury has found proba ble cause to believe that the person released has committed a subsequent crime while released on the pending charge. In the latter circumstances, preventive detention seems constitutionally permissible. § 40.80. Appeal of Conditions Allowed. (a) In any case in which a person is detained or re leased on a condition requiring him to return to custody afte r specified hours, after review of his application pursuant to § 40.50, or in which a person's release is revoked pursuant to § 4 0.75, an appeal may be taken. (b) Any order appealed pursuant to Subsection (a) s hall be affirmed if it is supported by the proceedings belo w. If the order is not so supported, the court may remand the case for a further hearing, or may, with or without additional evidenc e,

) s hall be affirmed if it is supported by the proceedings belo w. If the order is not so supported, the court may remand the case for a further hearing, or may, with or without additional evidenc e, order the person released pursuant to either §§ 40.15 or 40.2 0. (c) Any appeal pursuant to this Section shall be de termined promptly. COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 14 COURT DECISIONS : D.C. GUAM APP. DIV. 1980. Pursuant to § 40.80 of this Title, the District Court of Guam has discretion to modify the conditions of release rather than to order a re mand and direct that the Superior Court make such an order. People v. Jones , D.C. App. Guam 1980, D.C. Cr. #80-0013A. NOTE : Section 40.80 is new. It is substantively the sam e as 18 U.S.C. § 3147 and provides an immediate appeal from a pretri al order detaining the appellant. See generally 9 Moore, Federal Pract ice &&209.01-209.05 (1973). § 40.85. Release After Conviction Pending Appeal; C ondi- tions. (a) A person who has been convicted of an offense a nd is either awaiting sentence or has filed an appeal, sh all be released pursuant to §§ 40.15 or 40.20 pending the impositio n of sentence or the final

person who has been convicted of an offense a nd is either awaiting sentence or has filed an appeal, sh all be released pursuant to §§ 40.15 or 40.20 pending the impositio n of sentence or the final determination of the appeal, by the co urt having jurisdiction of the case, unless the court has reas on to believe that no one or more conditions of release will reas onably assure that the person will not flee or pose a danger to a ny other person or the community. If such a risk of flight or dange r is believed to exist, or if it appears that an appeal is frivolous or taken for delay, the person may be ordered detained. (b) The provisions of § 40.80 shall not apply to pe rsons described in this Section. However, other rights to judicial review of conditions of release or orders of detent ion shall not be affected. NOTE : Section 40.85 is new. It is substantively the sam e as 18 U.S.C. § 3148. Compare former Rule 46(a)(2) and former §§ 12 72 and 1273. See also Fed. R. App. P. 9(b). See generally B. Witkin, California Criminal Procedure Appeal §§ 673-680 (1963) (bail on appeal) ; 9 Moore, Federal Practice &&209.06-209.08 (1973). § 40.90.

and 1273. See also Fed. R. App. P. 9(b). See generally B. Witkin, California Criminal Procedure Appeal §§ 673-680 (1963) (bail on appeal) ; 9 Moore, Federal Practice &&209.06-209.08 (1973). § 40.90. Penalty for Willful Failure to Appear: Fel ony if Underlying Offense is Felony; Misdemeanor if Misdem eanor. (a) Any person released pursuant to this Chapter wh o willfully fails to appear before any court or judge as required is: (1) guilty of a felony, if he was released in conne ction with a charge of felony, or while awaiting sentence or pending appeal of any offense. COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 15 (2) guilty of a misdemeanor, if he was released in connection with a charge of any offense not a felon y. (b) If any person released pursuant to this Chapter fails to appear, without sufficient excuse, before any court or judge as required, such fact shall be noted by the court in which the person was to appear in its minutes and any securit y which was given or pledged for his release shall immediately be declared forfeited. NOTE : Section 40.90 is new. It is based on 18 U.S.C. § 3150.

person was to appear in its minutes and any securit y which was given or pledged for his release shall immediately be declared forfeited. NOTE : Section 40.90 is new. It is based on 18 U.S.C. § 3150. See also ABA, Project on Minimum Standards for Criminal Just ice Pretrial Release § 1.3 (Approved draft 1968). Compare former Rule 46(f)(1) and § 1305 and Cal. Pen. Code §§ 1305, 1319.4, 1319.6. Although Subsection (b) provides forfeiture, such forfeiture may be set aside. See § 40.95. § 40.95. Procedure Upon Forfeiture of Bail. (a) Upon the declaration of a forfeiture pursuant t o § 40.90, the clerk of the court shall mail notice of the for feiture to any surety or depositor, other than the person required to appear. The clerk shall execute an affidavit of mailing and pla ce it in the court's file in the case. (b) The surety or depositor may, not later than thi rty days after the mailing of the notice of forfeiture, appl y by noticed motion to have the forfeiture set aside. After hear ing, the court may set aside the forfeiture, upon such conditions as it may impose, if it appears that justice does not require enforcement of the forfeiture.

ave the forfeiture set aside. After hear ing, the court may set aside the forfeiture, upon such conditions as it may impose, if it appears that justice does not require enforcement of the forfeiture. (c) If after thirty days from the mailing of the no tice of forfeiture, the forfeiture has not been set aside a nd no motion to set aside is pending, the court shall on motion of the prosecution attorney enter a judgment of default and execution may issue thereon. Payments made in satisfaction of a judgmen t entered pursuant to this Section shall be deposited in the general fund of the Territory. By entering into a bond a surety sub mits to the jurisdiction of the court and irrevocably appoints the clerk of the court as his agent upon whom any papers affecting h is liability may served. His liability may be enforced on motion without the necessity of an independent action. The motion and such notice of the motion as the court prescribes may be served on the clerk COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 16 of the court, who shall forthwith mail a copy to th e surety to his last known address.

otion as the court prescribes may be served on the clerk COL6/24/20218 GCA CRIMINAL PROCEDURE CH. 40 RELEASE 16 of the court, who shall forthwith mail a copy to th e surety to his last known address. (d) Where money deposited with the clerk is declare d forfeited pursuant to § 40.90, the clerk with whom it is deposited shall, upon entry of a judgment of default pursuant to this Section, pay the money deposited into the general f und of the Territory. (e) At any time after entry of judgment pursuant to Subsection (c), the court may remit it in whole or in part upon application by the judgment debtor on noticed motio n and a showing that justice does not require endorsement o f the judgment. NOTE : Section 40.95 is based on former Rule 46(f) and § § 1305-1307. However, former Rule 46 provided no time limits for setting aside a forfeiture while former §§ 1305 and 1306 had very n arrow limits (10 days). Section 40.95 increases the initial period t o 30 days during which the surety or depositor may move to have the declar ation of forfeiture set aside and, like the federal law, places no time lim its on a motion seeking remission of a judgment.

o 30 days during which the surety or depositor may move to have the declar ation of forfeiture set aside and, like the federal law, places no time lim its on a motion seeking remission of a judgment. As under prior law, no att empt is made here to specify precise grounds for setting aside a forfeit ure or remitting a judgment. Section 40.95 permits such action simply as justice requires. It should be noted, however, that unlike under former § 1305, there is no requirement that the person who was required to app ear, actually appear. Reasons that the court might consider include death , illness, or detention by other authorities. Compare Cal. Pen. Code § 1305 . However, these reasons are neither exhaustive nor necessarily comp elling. Similarly, the effect, if any, of a dismissal of the charge after nonappearance is left to the judgment of the court. Compare former § 1306. ---------- COL6/24/2021