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NOTE: References to Director of Public Safety and Director changed to Chief of Police pursuant to P.L. 17-78:1, which repealed ยง 5102 GC providing for the Department of Public Safety, and reenacted ยง 5102 establishing the Guam Police Department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

ยง 135.10. Writ of Habeas Corpus Allowed; Generally

ยง 135.12. Petition for Writ: To Whom Addressed; Form; Contents

ยง 135.14. Application for Writ: Verification; Prior Applications to be Stated; Service Upon Attorney General

ยง 135.16. Issuance of Writ: Release Pending Determination

ยง 135.18. Writ: To Whom Directed

ยง 135.20. Writ: Method of Service

ยง 135.22. Consequences of Failure to Honor Writ

ยง 135.24. Return of Writ: What Must be Stated

ยง 135.26. Person to Whom Writ Directed Must Produce the Body

ยง 135.28. Exceptions to ยง 135.26

ยง 135.30. Hearing to be Held Immediately After Return of Writ

ยง 135.32. Proceedings at Hearing: Evidence to be Produced

ยง 135.34. Discharge of Defendant: When; Upon Showing of Illegal Restraint

ยง 135.36. When Defendant to be Remanded to Custody

ยง 135.38. When Defendant May be Discharged if Held Under Process From Guam Courts

ยง 135.40. No Discharge Upon Mere Defect in Commitment Order

ยง 135.42. Defect in Form: Procedure where Person Appears Guilty of an ยง 135.44. Writ Available for Determination of Bail if Not Done Pursuant Offense

to Chapter 40

ยง 135.46. Release Under Chapter 40 Allowed

ยง 135.48. Defendant Not Entitled to Discharge; Remand

ยง 135.50. If Another Person Entitled to Custody of Person, Court May Transfer Custody From Improper to Proper Person

ยง 135.52. Person May be Detained Pending Judgment on Return

ยง 135.54. Defect in Writ No Excuse to Ignore

COL120106 1 8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS ยง 135.56. No Recommitment for Same Offense: Exceptions

ยง 135.58. Procedure if Applicant May Leave Territory

ยง 135.60. Apprehension of Person Charged Allowed Under ยง 135.58

ยง 135.62. Executing Officer to Bring Persons Named to Court (Applicable to ยง 135.58 only)

ยง 135.64. Return in ยง 135.58 Cases Same as in Other Cases

ยง 135.66. Person Discharged if Custody Illegal; Remanded if Legal

ยง 135.68. Service to be Made Any Time of Day or Night

ยง 135.70. Writs, etc.: Form, Seal; Return to be AForthwith@

ยง 135.74. Appeal by Attorney General: No Release Pending Appeal: Bail Permitted

ยง 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 ยง 1473. See also Cal. Pen. Code ยง 1473 (same). See generally B. Witkin, California Criminal Procedure Habeas Corpus and Other Extraordinary Writs ยงยง 788-832 (1963, Supp. 1973)

ยง 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 ยง 1474. See also Cal. Pen. Code ยง 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 ยง 794 (1963, Supp. 1973). As to other policy limitations, see id. ยงยง 795-798. As to grounds for relief, see id. ยงยง 799-810. See also ยง 135.38. As to form of the petition, see id. ยง 811. See also ยง 135.14

COL120106 2 8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS ยง 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 ยง 1475. Compare Cal. Pen. Code ยง 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 ยงยง 798, 814-815 (1963, Supp. 1973)

ยง 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 ยง 40.10) pending the determi- nation of the proceeding

ยง 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

ยง 135.20. Writ: Method of Service

COL120106 3 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

ยง 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

ยง 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 imprison- ment 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 COL120106 4 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

ยง 135.26. Person to Whom Writ Directed Must Produce the Body

Except as provided in ยง 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

ยง 135.28. Exceptions to ยง 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 may proceed 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 ยง 1482. See also Cal. Pen. Code ยง 1482 (same)

ยง 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 ยง 14.83. See also Cal. Pen. Code ยง 1483 (same)

ยง 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 COL120106 5 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 ยง 1484. See also Cal. Pen. Code ยง 1484 (same)

ยง 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 ยง 1485. See also Cal. Pen. Code ยง 1485 (same). It has been revised to conform to ยง 1486 of the California Penal Code. See also ยง 135.48

ยง 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

ยง 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; COL120106 6 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 ยง 1487. See also Cal. Pen. Code ยง 1487 (same). As to grounds for relief generally, see B. Witkin, California Criminal Procedure Habeas Corpus and Other Extraordinary Writs ยงยง 799-810 (1963, Supp. 1973)

ยง 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 ยง 1488. See also Cal. Pen. Code ยง 1488 (same)

ยง 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 ยง 40.10) or recommit him to custody as may be just and legal

COL120106 7 8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS NOTE: Section 135.42 is substantively the same as former ยง 1489. See also Cal. Pen. Code ยง 1489 (same)

ยง 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 pursuant to Chapter 40 (commencing with ยง 40.10), such person is entitled to a writ of habeas corpus for the purpose of obtaining such determination, upon averring that fact in his petition, without alleging that he is otherwise illegally confined

NOTE: Section 135.44 is substantively the same as former ยง 1490. See also Cal. Pen. Code ยง 1490 (same)

ยง 135.46. Release Under Chapter 40 Allowed

Any judge before whom a person is brought on a writ of habeas corpus pursuant to ยง 135.44 may order the release of such person in the manner and subject to the conditions provided by Chapter 40 (commencing with ยง 40.10)

NOTE: Section 135.46 is substantively the same as former ยง 1491. See also Cal. Pen. Code ยง 1491

ยง 135.48. Defendant Not Entitled to Discharge Remand

If a party brought before the court on the return of the writ is not entitled to discharge or release, the court shall remand him to custody or place him under the restraint from which he was taken, if the person under whose custody or restraint he was legally entitled thereto

NOTE: Section 135.48 is substantively the same as former ยง 1492. See also Cal. Pen. Code ยง 1492 (same)

ยง 135.50. If Another Person Entitled to Custody of Person, Court May Transfer Custody From Improper to Proper Person

In cases where any party is held under illegal restraint or custody, but any other person is entitled to the restraint or custody of such party, the court may order such party to be committed to the restraint or custody of such person as by law entitled thereto

NOTE: Section 135.50 is substantively the same as former ยง 1493. See also Cal. Pen. Code ยง 1493 (same). These statutory provisions, as well as California's, on their face deal only with complete relief, i.e., the person is either remanded to custody or discharged (except for release on bail or other conditions in criminal matters). In fact, the person may be remanded but any illegal restraints may be ordered removed. This COL120106 8 8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS Adeclaration of rights@ procedure is a case law development which does not, however, find expression in the statute. See B. Witkin, California Procedure Habeas Corpus and Other Extraordinary Writs ยงยง 798-790 (1963, Supp. 1973)

ยง 135.52. Person May be Detained Pending Judgment on Return

Until judgment is given on the return, the court before whom any party may be brought on such writ, may commit him to the custody of the Chief of Police, or place him in such care or under such custody as his age or circumstances may require

NOTE: Section 135.52 is substantively the same as former ยง 1494. See also Cal. Pen. Code ยง 1494 (same)

ยง 135.54. Defect in Writ No Excuse to Ignore. No writ of habeas corpus can be disobeyed for defect of form, if it sufficiently appear therefrom in whose custody or under whose restraint the party imprisoned or restrained is, the officer or person detaining him, and the court before whom he is to be brought

NOTE: Section 135.54 is substantively the same as former ยง 1495. See also Cal. Pen. Code ยง 1495 (same)

ยง 135.56. No Recommitment for Same Offense: Exceptions

No person who has been discharged by the order of the court upon habeas corpus can be again imprisoned, restrained, or kept in custody for the same cause, except in the following cases: (a) If he has been discharged from custody on a criminal charge, and is afterwards committed for the same offense, by legal order or process; (b) If, after a discharge for defect of proof, or for any defect of the process, warrant, or commitment in a criminal case, the prisoner is again arrested on sufficient proof and committed by legal process for the same offense

NOTE: Section 135.56 is substantively the same as former ยง 1496. See also Cal. Pen. Code ยง 1496 (same)

ยง 135.58. Procedure if Applicant May Leave Territory

When it appears to any court, authorized by law to issue the writ of habeas corpus, that anyone is illegally held in custody, confinement, or restraint, and that there is reason to believe that such person will be carried out of the jurisdiction of the court before whom the application is made, or COL120106 9 8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS will suffer some irreparable injury before compliance with the writ of habeas corpus can be enforced, such court may cause a warrant to be issued, reciting the facts, and directed to the Chief of Police, commanding such officer to take such person thus held in custody, confinement, or restraint, and forthwith bring him before such court, to be dealt with according to law

NOTE: Section 135.58 is substantively the same as former ยง 1497. See also Cal. Pen. Code ยง 1497 (same). See generally B. Witkin, California Criminal Procedure Habeas Corpus and Other Extraordinary Writs ยง 819 (1963)

ยง 135.60. Apprehension of Person Charged Allowed Under ยง 135.58

The court may also insert in a warrant issued pursuant to ยง 135.58 a command for the apprehension of the person charged with such illegal detention and restraint

NOTE: Section 135.60 is substantively the same as former ยง 1498. See also Cal. Pen. Code ยง 1498 (same)

ยง 135.62. Executing Officer to Bring Persons Named to Court (Applicable to ยง 135.58 only)

The officer to whom a warrant issued pursuant to ยง 135.58 is delivered shall execute it by bringing the person therein named before the court who directed the issuing of such warrant

NOTE: Section 135.62 is substantively the same as former ยง 1499. See also Cal. Pen. Code ยง 1499 (same)

ยง 135.64. Return in ยง 135.58 Cases Same as in Other Cases

The person alleged to have the party under illegal confinement or restraint make return to a warrant issued pursuant to ยง 135.58 as in case of a writ of habeas corpus, and the same may be denied, and like allegations, proofs, an trial may thereupon be had as upon a return to a writ of habeas corpus

NOTE: Section 135.64 is substantively the same as former ยง 1500. See also Cal. Pen. Code ยง 1500 (same)

ยง 135.66. Person Discharged if Custody Illegal; Remanded if Legal

If the party is held under illegal restraint or custody, he shall be discharged; and if not, he shall be restored to the care of custody of the person entitled thereto

NOTE: Section 135.68 is substantively the same as former ยง 1501. See also Cal. Pen. Code ยง 1500 (same)

COL120106 10 8 GCA CRIMINAL PROCEDURE CH. 135 WRIT OF HABEAS CORPUS ยง 135.68. Service to be Made Any Time of Day or Night

Any writ or process authorized by this Chapter may be issued an served on any day or at any time

NOTE: Section 135.68 is identical to former ยง 1502. See also Cal. Pen. Code ยง 1502 (same)

ยง 135.70. Writs, etc.: Form, Seal; Return to be โ€œForthwithโ€

All writs, warrants, process, and subpoenas authorized by the provisions of this Chapter shall be issued by the clerk of the court, and except subpoenas, shall be sealed with the seal of the court and served and returned forthwith, unless the court shall specify a particular time for any return

NOTE: Section 135.70 is substantively the same as former ยง 1503. See also Cal. Pen. Code ยง 1503 (same)

ยง 135.74. Appeal by Attorney General: No Release Pending Appeal: Bail Permitted

An appeal may be taken to the Guam Supreme Court by the Attorney General from a final order of the Superior Court made upon the return of a writ of habeas corpus discharging a defendant after his conviction, in all criminal cases prosecuted in a court of record. If an appeal is taken, the defendant shall not be discharged from custody pending a final decision upon the appeal and he shall be retaken into custody if he has been discharged, provided, however, that the Guam Supreme Court may order his release pursuant to Chapter 40 (commencing with ยง 40.10)

NOTE: Section 135.74 supersedes former ยง 1506. Compare Cal. Penal Code ยง 1506. Because of the Supreme Court decision in Territory of Guam v. Olsen, 97 S. Ct. 1774, No. 76-439 (1977), the reference in this Section and all others to the Supreme Court of Guam must read the AAppellate Division of the District Court.@ The Supreme Court of the U.S. held that the Guam Legislature had no power to create a Guam Supreme Court

In 1992, the Legislature passed P.L. 21-147, creating a Supreme Court of Guam under the amended Organic Act. However, this court does not become operational until sometime in the future. That law provided that all references to the Appellate Division should, once again, refer to the Supreme Court of Guam, so that this section may be taken literally once the new Supreme Court of Guam comes into being

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