Substantiating this point, Felder cites to case law from the Appellate Division of the District Court of Guam that held that second degree CSC was an included offense of first degree CSC. Appellant's Br. at 5 (citing People v. Lastimoza, No. 82-0017A, 1983 WL 29940 (D. Guam App. Div., Aug. 16, 1983)). Felder now believes, however, that this court's holdings in People v. Cummins, 2010 Guam 19, and People v. Songeni, 2010 Guam 20, that second degree CSC is not an included offense of first degree CSC, compels this court to reverse Felder's conviction. Appellant's Br. at 8.
Essentially, Fegarido argues that the Fourth Degree CSC conviction is a constructive amendment to the indictment. See People v. Songeni, 2010 Guam 20 ¶ 25 ("Convictions on crimes not charged in the indictment constitute 'constructive amendments' to indictments . . . ."). "[W]e adhere to the settled rule that failure to object to a jury instruction before the jury retires to consider its verdict precludes reversal except where there is a plain error affecting substantial rights.
"[W]e review jury instructions de novo when they are challenged as a misstatement of the law." Guam Top Builders, Inc. v. Tanota Partners, 2012 Guam 12 ¶ 9 (citing People v. Songeni, 2010 Guam 20 ¶ 9 & n.1). The trial court's jury instructions are reviewed for plain error where no objection to the instructions was made at trial.
While we generally review the trial court's formulation of jury instructions for abuse of discretion, we review jury instructions de novo when they are challenged as a misstatement of the law. See People v. Songeni, 2010 Guam 20 ¶ 9 & n.1 (citations omitted); Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir. 2001) (citations omitted). Since the trial judge is in the best position to determine if a jury's answers are inconsistent, we review the decision for abuse of discretion.
]" Id. at ¶21. In two opinions filed in December 2010, the Supreme Court of Guam ruled that second degree CSC is not a lesser included offense of first degree CSC. See People of Guam v. Cummins, 2010 Guam 19, and People of Guam v. Songeni, 2010 Guam 20. The Petitioner then appealed to the Supreme Court of Guam, raising two issues on appeal.
However, we use the terms "lesser-included offenses" and "included offenses" interchangeably under 8 GCA § 105.58. See People v. Songeni, 2010 Guam 20; People v. Cummins, 2010 Guam 19 ¶ 16; People v. Demapan, 2004 Guam 24 ¶¶ 9-12; Angoco v. Bitanga, 2001 Guam 17 ¶ 13; Aguirre, 2004 Guam 21 ¶ 18 (framing the issue of a case involving "included offense" as whether charges against defendant were "lesser included" offenses). (a) The jury, or the judge if a jury trial is waived, may find the defendant guilty of any offense, the commission of which is included in that with which he is charged.
See Tr. at 31-32 (Jury Trial, June 30, 2014). Because Second Degree CSC is not a lesser included offense of First Degree CSC, see People v. Songeni, 2010 Guam 20 ¶ 27; People v. Cummins, 2010 Guam 19 ¶ 8, the sexual penetration, aiding or abetting, and force or coercion elements that were established for two of the counts of First Degree CSC can therefore carry over to satisfy the requisite elements for the three charged counts of Second Degree CSC. Martin also testified that in his interview with police he admitted he had touched the victim's breasts.
[*P42] Under Guam law, an attempt to commit a criminal act is a crime separate and apart from the crime constituting the actual commission of the criminal act. See People v. Flores, 2004 Guam 18 ¶ 12 (referring to "the crime of attempt"); People v. Angoco, 2004 Guam 11 ¶ 25 n.8 (noting that "[a]ttempted robbery is a lesser-included offense of robbery"); 9 GCA § 13.10 (2005) ("A person is guilty of an attempt to commit a crime when, with intent to engage in conduct which would constitute such crime were the circumstances as he believes them to be, he performs or omits to perform an act which constitutes a substantial step toward commission of the crime."); 8 GCA § 105.58 (2005) (noting that an "attempt" to commit a crime may be a lesser included offense of the actual crime); cf. People v. Songeni, 2010 Guam 20 ¶ 15 ("[I]t is clear that an 'attempted crime' under Guam law differs from the crime of which it is an inchoate version only insofar as it was not a completed version of that crime."). Only the separate crime of attempt requires proof of a "substantial step" in furtherance of its commission.
While we generally review the trial court's formulation of jury instructions for abuse of discretion, we review jury instructions de novo when they are challenged as a misstatement of the law. See People v. Songeni, 2010 Guam 20 ¶ 9 & n.1 (citations omitted); Voohries-Larson v. Cessna Aircraft Co., 241 F.3d 707, 713 (9th Cir. 2001) (citations omitted). Since the trial judge is in the best position to determine if a jury's answers are inconsistent, we review the decision for abuse of discretion.