People of Guam Plaintiff-Appellees vs. Jaycee Aaron White Defendant-Appellant

IN THE SUPREME COURT OF GUAM PEOPLE OF GUAM, Plaintiff-Appellee, v. JAYCEE AARON WHITE, Defendant-Appellant. Supreme Court Case No. CRA18-009 Superior Court Case No. CF0632-16 OPINION Cite as: 2020 Guam 19 Appeal from the Superior Court of Guam Argued and submitted on February 26, 2019 Hagåtña, Guam Appearing for Defendant-Appellant: James M. Maher, Esq. Law Office of James M. Maher 238 Archbishop Flores St., Ste. 300 Hagåtña, GU 96910 Appearing for Plaintiff-Appellee: Marianne Woloschuk, Esq. Assistant Attorney General Office of the Attorney General 590 S. Marine Corps Dr. Tamuning, GU 96913 People v. White, 2020 Guam 19, Opinion Page 2 of 14 BEFORE: KATHERINE A. MARAMAN, Chief Justice; F. PHILIP CARBULLIDO, Associate Justice; ROBERT J. TORRES, Associate Justice.1 MARAMAN, C.J.:Ask ⌕

[1]Defendant-Appellant Jaycee Aaron White appeals from a conviction in the Superior Court of Guam for Aggravated Assault (as a Third-Degree Felony), arguing that reversal is necessary because the trial court failed to instruct the jury that it was the prosecution’s burden to disprove White’s justification defense of defense-of-another beyond a reasonable doubt. For the reasons below, we reverse and remand for a new trial. I. FACTUAL AND PROCEDURAL BACKGROUNDAsk ⌕⧉ cite

[2]The following is a summary of the testimony presented at White’s jury trial. On the night in question, White and his friends Brian Cruz, Alfredo Castro, and Richard Ragadio celebrated at a birthday party before going out. After leaving the party, the group of friends drove to Tumon to go to a gentlemen’s club. While standing near the steps leading to the club, Cruz ran up the stairs and yelled at the bouncers. White and Castro struggled to bring Cruz down the stairs and eventually got him back into a vehicle, before attempting to drive away. As the car stopped at the first traffic light, Cruz jumped out of the vehicle and ran back toward the establishment to fight. Ragadio ran after Cruz. On the sidewalk outside the club, Cruz stood hunched over in a fighting stance facing Ragadio and their other friends. After walking closer to Ragadio, Cruz placed his hands on Ragadio and pushed him. Cruz then walked away from Ragadio.Ask ⌕⧉ cite

[3]Shortly thereafter, White ran from across the street and punched Cruz, causing Cruz to fall to the ground. The friends collectively dragged Cruz from the ground into the vehicle. The friends 1 The signatures in this opinion reflect the titles of the justices when this matter was argued and submitted. People v. White, 2020 Guam 19, Opinion Page 3 of 14 drove to Linda’s Coffee Shop and left Cruz in the backseat of the car to sleep while they went inside to eat.Ask ⌕⧉ cite

[4]Police arrived at Linda’s Coffee Shop in response to an unrelated disturbance. Once they arrived, the police found Cruz unresponsive in the backseat of the car. Cruz was then pulled out of the vehicle and taken to the hospital, where he ultimately died from head injuries.Ask ⌕⧉ cite

[5]A grand jury indicted White for Manslaughter (as a First-Degree Felony), Aggravated Assault (as a Second-Degree Felony), and two counts of Aggravated Assault (as a Third-Degree Felony). At trial, White asserted the justification defense of defense-of-another, arguing that the evidence showed he punched Cruz in defense of Ragadio. The People agreed there was “at least enough evidence” to warrant a defense-of-another instruction. Transcript (“Tr.”) at 16 (Jury Trial, Nov. 8, 2017). The court instructed the jury on the elements of White’s theory of defense-ofanother, and the People’s general burden to prove its case beyond a reasonable doubt. The court, however, did not specifically instruct on the People’s burden to disprove the claim of defense-ofanother beyond a reasonable doubt.Ask ⌕⧉ cite

[6]Following deliberations, the jury found White guilty of one count of Aggravated Assault (as a Third-Degree Felony) and not guilty as to the remaining charges. The trial court sentenced White to three years of incarceration. White timely appealed. II. JURISDICTIONAsk ⌕⧉ cite

[7]We have jurisdiction over appeals from a final judgment of conviction entered by the Superior Court of Guam. See 48 U.S.C.A. § 1424-1(a)(2) (Westlaw through Pub. L. 116-170 (2020)); 7 GCA §§ 3107(b), 3108(a) (2005); 8 GCA §§ 130.10, 130.15(a) (2005). // // People v. White, 2020 Guam 19, Opinion Page 4 of 14 III. STANDARD OF REVIEWAsk ⌕⧉ cite

[8]We review jury instructions and verdict forms not objected to at trial for plain error. See People v. Felder, 2012 Guam 8 ¶ 8. “Plain error is highly prejudicial error.” Id. ¶ 19 (quoting People v. Quitugua, 2009 Guam 10 ¶ 11). The defendant has the burden of establishing: (1) there was an error; (2) the error is clear or obvious under current law; (3) the error affected the defendant’s substantial rights; and (4) reversal is necessary to prevent a miscarriage of justice or to maintain the integrity of the judicial process. Id. (quoting Quitugua, 2009 Guam 10 ¶ 11); see also People v. Perry, 2009 Guam 4 ¶ 9.Ask ⌕⧉ cite

[9]With respect to the first prong of plain error review, “[w]e consider whether the proffered instructions accurately stated the relevant law under a de novo standard,” while considering the jury instructions as a whole and not in isolation. See People v. Gargarita, 2015 Guam 28 ¶ 12.Ask ⌕⧉ cite

[10]To establish prejudice—i.e., that his or her substantial rights were violated—under the third prong of plain error review, a defendant must show there is a “reasonable probability that the error affected the outcome of the trial.” People v. Taisacan, 2018 Guam 23 ¶ 37 (quoting United States v. Marcus, ⟂560 U.S. 258Persuasive authoritynon-Guam — not binding under the reception rule, 262 (2010)). In the context of alleged instructional error, a defendant’s substantial rights are violated where it is reasonably probable he would have been acquitted “had the trial court properly instructed the jury” on the elements of the offense. People v. Ramey, 2019 Guam 11 ¶ 24; Gargarita, 2015 Guam 28 ¶ 23. A defendant’s substantial rights are not affected where the “prosecution presented overwhelming evidence of guilt regarding the issue or element affected by the claimed error.” People v. Kanistus, 2017 Guam 26 ¶ 28. We review the record as a whole, and absent evidence of prejudice, the People will prevail. See Quitugua, 2009 Guam 10 ¶ 31. People v. White, 2020 Guam 19, Opinion Page 5 of 14 IV. ANALYSISAsk ⌕⧉ cite

[11]On appeal, White alleges the trial court erred when it failed to instruct the jury it was the prosecution’s burden to disprove the justification defense of defense-of-another beyond a reasonable doubt.2 Appellant’s Br. at 13-18 (Nov. 6, 2018). In response, rather than addressing the instructional error at dispute, the People argue that White was not entitled to a justification defense instruction because he presented insufficient evidence to support its provision. Appellee’s Br. at 18-24 (Dec. 14, 2018). Based on our review of the record, the People have waived their argument on appeal that an instruction as to defense-of-another was not required.3Ask ⌕⧉ cite

[12]During a conference below, the prosecution agreed that White was entitled to a defenseof-another instruction given the evidence presented. See Tr. at 16 (Jury Trial, Nov. 8, 2017) (Prosecutor: “Force in defense to the third person, I think that there’s at least enough evidence to provide that jury instruction, so I’m okay with inclusion of that.”). The prosecutor also acknowledged White’s defense in his closing rebuttal argument, stating the jury had to determine “whether [White] was acting in defense of Richard Ragadio.” Id. at 66. This agreement by the prosecution to the instruction was not inadvertent, but an explicit and deliberate acquiescence to its provision.Ask ⌕⧉ cite

[13]For the People to now argue that the defense-of-another instruction provided by the trial court was “defective” is a complete reversal of their position. Were the court to consider the 2 White further asserts that the trial court erred in failing to instruct the jury that each and every element of a criminal offense is subject to the reasonable doubt standard and that the verdict forms deprived him of the opportunity to have the jury find him guilty of the lesser included offense of misdemeanor assault. Appellant’s Br. at 19, 24 (Nov. 6, 2018). As we agree with White’s first basis for error, we need not reach other issues White raises on appeal. See People v. Cruz, 2020 Guam 11 ¶ 20; Hemlani v. Hemlani, 2015 Guam 16 ¶ 33. 3 “[A]n instruction must be given if there is evidence upon which the jury could rationally sustain the defense.” People v. Root, 2005 Guam 16 ¶ 28 (quoting United States v. Jackson, ⟂726 F.2d 1466Persuasive authoritynon-Guam — not binding under the reception rule, 1468 (9th Cir. 1984) (per curiam)). Whether or not the jury should be instructed as to White’s theory of defense-of-another is a question the trial court is not precluded from considering on remand under the circumstances then presented. People v. White, 2020 Guam 19, Opinion Page 6 of 14 People’s arguments on appeal, we would be allowing them to profit from an error they agreed with during the proceedings below. See People v. Rediger, 2018 CO 32, ¶¶ 34, 36. And, “[w]here a party procures a court to proceed in a particular way and invites a particular ruling, he is precluded from assailing such proceeding and ruling on appellate review.” State v. Hargrove, ⟂293 P.3d 787Persuasive authoritynon-Guam — not binding under the reception rule, 795 (Kan. Ct. App. 2013) (quoting State v. Smith, ⟂652 P.2d 703Persuasive authoritynon-Guam — not binding under the reception rule, 706 (Kan. 1982)). For this reason, and because the jury was ultimately instructed as to the claim of defense-of-another, we reject the People’s argument and address the alleged instructional deficiency for plain error. See Gargarita, 2015 Guam 28 ¶¶ 11-13. A. The Trial Court Committed Error That Was Clear and Obvious Under Current LawAsk ⌕⧉ cite

[14]White argues the trial court’s instructions were erroneous because the jury was not informed that the prosecution bore the burden of disproving defense-of-another beyond a reasonable doubt, nor was the jury informed that it had to acquit White if the prosecution failed to meet its burden in disproving the justification defense.4 Appellant’s Br. at 15. In support of these arguments, White relies on our decision in People v. Gargarita, 2015 Guam 28, for the proposition that when a defendant invokes a justification defense, the trial court must provide clear instructions as to the prosecution’s burden to disprove the defense. Appellant’s Br. at 15-17. We agree and find clear and obvious error in the trial court’s failure to instruct the jury that the prosecution had the burden of proving beyond a reasonable doubt that White did not act in defense of another. 4 White also argues that the instructions were erroneous because the jury was not provided with the “definition of justification.” Appellant’s Br. at 15. We could not discern from White’s brief what he believes should have been in this definition or if he was making the argument that the definition of justification required a separate instruction, similar to the instruction given by the trial court in People v. Gargarita, 2015 Guam 28 ¶ 13. Nonetheless, we addressed this issue in People v. Kotto, 2020 Guam 4, and concluded that our opinion in Gargarita does not hold that a trial court must always instruct that a certain defense is a type of justification defense. See Kotto, 2020 Guam 4 ¶ 39. “The hallmark of our decision in Gargarita is simply that a trial court must ‘instruct the jury that if the prosecution failed to disprove self-defense beyond a reasonable doubt, then the jury must acquit [the defendant] of the charges.’” Id. (alternation in original) (quoting People v. John, 2016 Guam 41 ¶ 35). People v. White, 2020 Guam 19, Opinion Page 7 of 14Ask ⌕⧉ cite

[15]In Gargarita, we held that the trial court committed reversible error by failing to properly instruct the jury on the prosecution’s burden of proof when a justification defense is given. See 2015 Guam 28 ¶¶ 14-18. There, after instructing the jury on the elements of a self-defense claim, the trial court instructed the jury on the definition of a “justification,” stating that “justification is a defense. . . . [and] that the prosecution has the burden of disproving a justification beyond a reasonable doubt.” Id. ¶ 13. We explained that the trial court did not “explicitly state that selfdefense is a justification defense,” and without making that connection or link, the jury may have improperly placed the burden on the defendant to prove that his use of force was lawful. Id. ¶ 15. The trial court also did not instruct the jury it must acquit the defendant if the People failed to disprove self-defense beyond a reasonable doubt. Id. ¶ 17. We held these combined deficiencies to be clear and obvious error. Id. ¶ 19.Ask ⌕⧉ cite

[16]The cases of People v. John, 2016 Guam 41, and People v. Kotto, 2020 Guam 4, lend further credence to the proposition that a trial court must properly instruct the jury on the prosecution’s burden to disprove a justification defense. In John, we concluded that the trial court committed clear and obvious error under Gargarita when it failed to instruct the jury it must acquit the defendant if the prosecution “failed to meet its burden on the issue of self-defense even if all of the elements of the charges against [the defendant] were met.” John, 2016 Guam 41 ¶ 36. Most recently, in Kotto, we clarified: [O]ur decision in Gargarita does not hold that a trial court must always instruct the jury that self-defense is a justification defense. Rather, we found the instructions in Gargarita erroneous because the trial court had provided ‘convoluted instructions’ that stated that the People bear the burden on any justification defense, but then failed to directly link that instruction and the appropriate burden of proof to the defendant’s claim of self-defense. 2020 Guam 4 ¶ 39 (quoting Gargarita, 2015 Guam 28 ¶ 17). We further stated that “[t]he hallmark of our decision in Gargarita is simply that a trial court must ‘instruct the jury that if the prosecution People v. White, 2020 Guam 19, Opinion Page 8 of 14 failed to disprove self-defense beyond a reasonable doubt, then the jury must acquit [the defendant] of the charges.’” Id. (second alteration in original) (quoting John, 2016 Guam 41 ¶ 35); see also People v. De Soto, 2016 Guam 12 ¶ 25 (“Self-defense requires a specific burden of proof instruction ‘to avoid juror confusion about who has the burden of proof on the self-defense issue.’” (quoting State v. Marchi, ⟂243 P.3d 556Persuasive authoritynon-Guam — not binding under the reception rule, 562 (Wash. Ct. App. 2010))).Ask ⌕⧉ cite

[17]Here, the proffered instructions were even more deficient than the instructions we found to be erroneous in Gargarita. While the trial court gave separate instructions on the prosecution’s general burden to prove guilt beyond a reasonable doubt and on the elements of defense-of-another (which includes when force may be justified in protecting third persons), the court did not instruct the jury on the prosecution’s burden to disprove White’s claim of defense-of-another beyond a reasonable doubt. See Tr. at 72-76 (Jury Trial, Nov. 8, 2017); see also id. at 78-79 (stating elements of claim that prosecution must prove beyond a reasonable doubt but not mentioning defense-ofanother). Thus, unlike in Gargarita, the jury was not given any instruction that the prosecution bore the burden of disproving a justification defense, let alone that if the prosecution failed to meet its burden, the jury must acquit White of the charges. Without these instructions, the jury may have impermissibly placed the onus on White to prove that he acted in defense of another during the altercation at dispute.Ask ⌕⧉ cite

[18]Though we have not specifically applied the underlying premise of Gargarita in a defenseof-another claim, that this rule applies in this context is clear and obvious under current law. See John, 2016 Guam 41 ¶¶ 36-37; Gargarita, 2015 Guam 28 ¶¶ 19-22; see also People v. Root, 2005 Guam 16 ¶ 18 n.3 (“[T]he prosecution bears the burden of proving beyond a reasonable doubt that the defendant’s actions do not include acts of self-defense, or acts in defense of others, whatever the case may be.”). Moreover, because of the close relationship between self-defense and defense- People v. White, 2020 Guam 19, Opinion Page 9 of 14 of-another, see §9 GCA § 7.88Guam Code Annotatedstatute — binding(a)(1) (2005), both of which are justification defenses under Guam law, our reasoning in Kotto, John, and Gargarita apply in this context. Thus, the trial court’s failure to provide specific instructions as to the prosecution’s burden to disprove White’s justification defense beyond a reasonable doubt was error, and the error was clear and obvious under Guam law. B. The Error Affected White’s Substantial RightsAsk ⌕⧉ cite

[19]Next, we address whether the trial court’s error affected White’s substantial rights, which requires that he “demonstrate that the error was prejudicial (i.e., that if affected the outcome of the case).” Ramey, 2019 Guam 11 ¶ 23 (quoting People v. Mendiola, 2010 Guam 5 ¶ 24); see also Gargarita, 2015 Guam 28 ¶ 23. White must establish by a “reasonable probability” that but for the claimed error the result of the proceeding would have been different. See Taisacan, 2018 Guam 23 ¶ 37 (collecting cases).5 As we “may consult the whole record when considering the effect of any error on substantial rights,” United States v. Vonn, ⟂535 U.S. 55Persuasive authoritynon-Guam — not binding under the reception rule, 59 (2002); see also United States v. Dominguez Benitez, ⟂542 U.S. 74Persuasive authoritynon-Guam — not binding under the reception rule, 83 (2004) (observing that a court reviewing for plain error is “informed by the entire record”), we also look to whether the consequences of the error were mitigated or cured by other factors, such as other jury instructions; see Gargarita, 2015 Guam 28 ¶ 14 (recognizing ambiguous instructions “can be cured when read in conjunction with 5 We previously held that “errors do not affect substantial rights when the prosecution presented overwhelming evidence of guilt regarding the issue or element affected by the claimed error.” People v. Kanistus, 2017 Guam 26 ¶ 28 (citing People v. Perry, 2009 Guam 4 ¶¶ 43, 46, 49). While overwhelming evidence of guilt may demonstrate that an error did not affect a defendant’s substantial rights, we have previously analyzed the third prong of plain error review by focusing on the prejudicial impact of the instructional error on the verdict as opposed to the strength of the evidence. See Cruz, 2020 Guam 11 ¶¶ 17-18; People v. Taisacan, 2018 Guam 23 ¶ 37; People v. Hill, 2018 Guam 3 ¶ 13; People v. Jones, 2006 Guam 13 ¶¶ 45-46. Because the error here is instructional in nature, our focus under the circumstances is “whether the instructional mistake had a probable impact on the jury’s finding that the defendant was guilty.” Gargarita, 2015 Guam 28 ¶ 23 (quoting United States v. Jackson, ⟂569 F.2d 1003Persuasive authoritynon-Guam — not binding under the reception rule, 1010 (7th Cir. 1978)). People v. White, 2020 Guam 19, Opinion Page 10 of 14 other instructions”); People v. Jones, 2006 Guam 13 ¶ 28 (stating instructions should be “considered and reviewed as a whole” rather than in isolation).Ask ⌕⧉ cite

[20]White argues that it is likely that the jury would have returned a verdict in his favor had it been adequately instructed on the prosecution’s burden of disproving beyond a reasonable doubt his justification defense of defense-of-another.6 Appellant’s Br. at 17. To support this argument, White directs the court to testimony showing that Cruz was the initial aggressor against Ragadio. Id. White further maintains that because he “relied almost exclusively on his claim of defense-ofanother,” absent proper instructions, “it is reasonably likely the jury misunderstood its role in determining whether White acted in defense-of-another.” Id. We agree.Ask ⌕⧉ cite

[21]White’s theory of defense-of-another was the cornerstone of his defense, and the trial hinged on this issue. Thus, it was crucial that the jury be properly instructed as to its responsibilities in adjudicating White’s justification defense. Here, unlike in Gargarita and John, there was a complete failure by the trial court to properly assign the burden of proof as to disproving a justification defense.7 The failure by the trial court to inform the jury of its responsibilities in adjudicating the justification defense interfered not only with the jury’s role of weighing the evidence, but with the defendant’s due process rights which protect him from conviction except upon proof beyond a reasonable doubt. See Perry, 2009 Guam 4 ¶¶ 11-12, 49.Ask ⌕⧉ cite

[22]And because there was contradictory evidence on whether White’s act of punching Cruz constituted a justifiable use of force in defense of Ragadio, the absence of an instruction as to the burden of proof prejudiced White. Had the burden of proof of disproving the justification defense 6 Because the People argue that White was not entitled to a defense-of-others instruction, despite agreeing to its inclusion during the trial below, they articulate no arguments in their brief as to whether the instructional error affected White’s substantial rights. 7 In both Gargarita and John, the trial court instructed that the prosecution bore the burden of disproving beyond a reasonable doubt the justification defense raised by the defendant. See Gargarita, 2015 Guam 28 ¶ 13; John, 2016 Guam 41 ¶ 34. People v. White, 2020 Guam 19, Opinion Page 11 of 14 been adequately explained to the jury, there is a reasonable probability the jury would have determined the prosecution had failed to meets its burden of disproving that White did not act in defense of another. See Gargarita, 2015 Guam 28 ¶¶ 29-30 (listing cases finding prejudice when trial court failed to instruct on burden of proof as to justification defense); see also State v. Olander, 1998 ND 50, ¶¶ 25-26, 575 N.W.2d 658, 665 (finding prejudice when there is conflicting evidence on self-defense and trial court fails to instruct on burden of proof). Should the jury conclude this as part of its fact-finding functions, it would have led to an acquittal of White.Ask ⌕⧉ cite

[23]Moreover, the failure of the trial court to provide specific instructions as to the prosecution’s burden to disprove White’s justification defense was not cured or mitigated when read in conjunction with other instructions. See Gargarita, 2015 Guam 28 ¶ 14 (recognizing ambiguous instructions “can be cured when read in conjunction with other instructions”). As in Gargarita, neither the prosecution nor defense counsel clarified during closing arguments it was the prosecution’s burden to disprove White’s justification defense. The only notable instruction provided to the jury as to the burden of proof was a general instruction, which stated that the burden is always on the prosecution to prove guilt beyond a reasonable doubt. The instruction, however, did not clarify this burden of proof applied to disproving the justification defense presented by White. The lack of any instruction as to the prosecution’s burden to show that White did not act in defense of another likely confused and misled the jury into believing that White had the burden of proving his justification defense, when the prosecution had the burden to disprove the defense beyond a reasonable doubt.Ask ⌕⧉ cite

[24]The jury instructions provided by the trial court may have further confused how the jury was to assess White’s justification defense. For example, the trial court instructed the jury as to the legal definition for defense-of-another, i.e., force in defense of third persons, under 9 GCA § People v. White, 2020 Guam 19, Opinion Page 12 of 14 7.88, but then failed to expressly link this defense with the general requirements of self-defense, which is stated in the defense-of-another statute. See Tr. at 75-76 (Jury Trial, Nov. 8, 2017); see also §9 GCA § 7.88Guam Code Annotatedstatute — binding (expressly linking the justification of defense-of-another to self-defense under §9 GCA § 7.84Guam Code Annotatedstatute — binding). Thus, the jury was deprived of any instruction as to the requirement that the defendant believe that the use of force is “immediately necessary” to protect another person. §9 GCA § 7.84Guam Code Annotatedstatute — binding (2005); see also §9 GCA 7.88Guam Code Annotatedstatute — binding(a)(1). Furthermore, the trial court provided a “weaker and less satisfactory evidence” instruction that applied equally to both the prosecution and defense.8 See Tr. at 74 (Jury Trial, Nov. 8, 2017). This may have further confused the jury into believing that White had the burden of offering evidence to show he acted in defense of another, when the prosecution had the sole burden to disprove the justification defense. While these deficiencies were not expressed by the parties, we raise them here to demonstrate that the prejudice resulting from the trial court’s failure to adequately instruct on the burden of proof was exacerbated by other deficient jury instructions. Under these circumstances, we conclude that White satisfied his burden in showing that the obvious error affected his substantial rights. C. Reversal is Necessary to Prevent a Miscarriage of Justice and to Maintain the Integrity of the Judicial ProcessAsk ⌕⧉ cite

[25]As the error affected White’s substantial rights, we must finally consider whether reversal is necessary to prevent a miscarriage of justice or to maintain the integrity of the judicial process.Ask ⌕⧉ cite

[26]Like in Gargarita, the instructional error here “went to a pivotal issue in the case and may have been the difference between a finding of guilt or innocence.” 2015 Guam 28 ¶ 36. Both White and the prosecution acknowledged that the trial hinged on whether White was acting in defense of Ragadio. And as we stated, the prosecutor informed the jury it had to determine 8 In People v. Cruz, 2020 Guam 11, we cautioned against the provision of a “weaker and less satisfactory evidence” instruction that applied equally to both the prosecution and defense because of its propensity to confuse the burden of proof. See also People v. Lessard, 2019 Guam 10 ¶ 11; People v. Aldan, 2018 Guam 19 ¶ 18. People v. White, 2020 Guam 19, Opinion Page 13 of 14 “whether [White] was acting in defense of Richard Ragadio.” Tr. at 66 (Jury Trial, Nov. 8, 2017). Without proper instructions as to how the jury was to adjudicate this issue, omission by the trial court of an instruction on the burden of proof as to the justification defense affected the fairness of the trial and the jury’s truth-ascertainment function. While we recognize that “[r]eversal for plain error is permissive, not mandatory,” Ramey, 2019 Guam 11 ¶ 25 (quoting Quitugua, 2009 Guam 10 ¶ 46), we find this case distinct from Gargarita and its progeny because the record here is silent of any instruction as to the prosecution’s burden to disprove a justification defense. See Gargarita, 2015 Guam 28 ¶¶ 13, 34-39 (finding reversible error even when trial court instructed as to prosecution’s burden to disprove justification defense); John, 2016 Guam 41 ¶¶ 34, 49 (finding instructional error even with instruction that explained prosecution’s burden to disprove justification defense, but ultimately finding defendant’s substantial rights were not affected); Kotto, 2020 Guam 4 ¶¶ 40-42 (finding no error because trial court properly instructed as to prosecution’s burden to disprove justification defense).Ask ⌕⧉ cite

[27]“Proper instructions about the burden of proof . . . implicate fundamental due process,” Olander, 1998 ND 50, ¶ 27, 575 N.W.2d at 665, and we have “made clear that due process requires the jury to use the correct standard of proof,” Perry, 2009 Guam 4 ¶ 12. Those due process considerations give “a criminal defendant the right to have a jury determine, beyond a reasonable doubt, his guilt of every element of the crime with which he is charged.” Id. (quoting United States v. Gaudin, ⟂515 U.S. 506Persuasive authoritynon-Guam — not binding under the reception rule, 522-23 (1995)). Thus, “[t]he prosecution bears the burden of proving all elements of the offense charged and must persuade the factfinder ‘beyond a reasonable doubt’. . . .” Id. (quoting Sullivan v. Louisiana, ⟂508 U.S. 275Persuasive authoritynon-Guam — not binding under the reception rule, 277-78 (1993)); see also Kanistus, 2017 Guam 26 ¶ 26 (“The law is clear that jury instructions are to relay to a jury that it must find all elements of a crime beyond a reasonable doubt in order to find a defendant guilty.”). Because our precedent People v. White, 2020 Guam 19, Opinion Page 14 of 14 establishes that it is the prosecution’s burden to disprove a justification defense, failure to provide clear and specific burden of proof instructions erodes a defendant’s due process rights.Ask ⌕⧉ cite

[28]Based on the record before us, the failure of the court to properly instruct the jury as to the burden of proof may have placed the onus on White to prove that he acted in defense of Ragadio during the altercation at dispute, when the prosecution had the burden to disprove the defense beyond a reasonable doubt. This is impermissible burden-shifting, and excusing the trial court’s failure to instruct on the burden of proof undermines fundamental due process and “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Kanistus, 2017 Guam 26 ¶ 31 (alteration in original) (quoting United States v. Young, ⟂470 U.S. 1Persuasive authoritynon-Guam — not binding under the reception rule, 15 (1985)). Therefore, reversal is necessary to prevent a miscarriage of justice and to maintain the integrity of the judicial process.Ask ⌕⧉ cite

[29]As a defendant’s right to be found guilty only upon proof beyond a reasonable doubt is sacrosanct and fundamental to due process, we remind the trial courts that our precedent requires that it must instruct the jury as to the prosecution’s burden to disprove a justification defense when properly raised. See Kotto, 2020 Guam 4 ¶ 39; John, 2016 Guam 41 ¶ 35; De Soto, 2016 Guam 12 ¶ 25; Gargarita, 2015 Guam 28 ¶ 21. V. CONCLUSIONAsk ⌕⧉ cite

[30]We REVERSE the judgment of conviction and REMAND for a new trial. /s/ F. PHILIP CARBULLIDO Associate Justice /s/ ROBERT J. TORRES Associate Justice /s/ KATHERINE A. MARAMAN Chief JusticeAsk ⌕⧉ cite