People of the Territory of Guam v. Frankie Agualo Ulloa

903 F.2d 1283 PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee, v. Frankie Agualo ULLOA, Defendant-Appellant. No. 88-1470. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 29, 1989. Decided May 24, 1990. Jeffrey A. Cook, Cunliffe & Cook, Agana, Guam, for defendant-appellant. J. Nicholas Bostic, Asst. Atty. Gen., Agana, Guam, for plaintiff-appellee. Appeal from the United States District Court for the District of Guam, Appellate Division. Before BROWNING, PREGERSON and THOMPSON, Circuit Judges. PREGERSON, Circuit Judge: 1 Frankie Agualo Ulloa appeals from a decision of the District Court of Guam, Appellate Division 1 reversing the Guam Superior Court's judgment of acquittal non obstante veredicto (n.o.v.) and reinstating the jury's guilty verdict on the charge of unlawful possession and use of a deadly weapon in the commission of a felony. Ulloa argues that the appellate division lacked jurisdiction to entertain the appeal of the government of Guam. He also argues that even if the appellate division had jurisdiction, it erred in setting aside the superior court's judgment. For the reasons discussed below, we reverse. BACKGROUND 2 On January 15, 1987,…

Frankie Agualó Ulloa appeals from a decision of the District Court of Guam, Appellate Division 1 reversing the Guam Superior *1284 Court’s judgment of acquittal non obstan-te veredicto (n.o.v.) and reinstating the jury’s guilty verdict on the charge of unlawful possession and use of a deadly weapon in the commission of a felony. Ul-loa argues that the appellate division lacked jurisdiction to entertain the appeal of the government of Guam. He also argues that even if the appellate division had jurisdiction, it erred in setting aside the superior court’s judgment. For the reasons discussed below, we reverse.

BACKGROUND

On January 15, 1987, Frankie Agualó Ulloa was indicted for robbery in the first degree, first degree criminal sexual conduct, and unlawful possession and use of a deadly weapon in the commission of a felony.

At the conclusion of a jury trial in the Superior Court of the Territory of Guam, Ulloa was convicted of robbery in the third degree and criminal sexual conduct in the second degree, both as lesser and included offenses of the original charges. The jury also found Ulloa guilty of the separate offense of possession or use of a deadly weapon in the commission of…

concurring:

I concur, but write separately because in my view it is necessary only to decide that the district court’s judgment of acquittal n.o.v. is not an order “reducing the degree of the offense or the punishment imposed.” See 8 G.C.A. 130.20(a)(4); People v. Drake, 19 Cal.3d 749, 756 , 139 Cal.Rptr. 720, 723 , *1288 566 P.2d 622, 625 (1977). The judgment is not such an order, and as a result the government’s appeal is not permitted by section 130.20(a)(4).