Limiting Multiple CSC Convictions for a Single Sexual Act under 9 GCA § 1.22(e): Commentary on People of Guam v. Castro, 2025 Guam 9

Limiting Multiple CSC Convictions for a Single Sexual Act under 9 GCA § 1.22(e):
A Comprehensive Commentary on People of Guam v. Castro, 2025 Guam 9

I. Introduction

The Supreme Court of Guam’s decision in People of Guam v. Joseph Marc Thomas Duenas Castro, Jr., 2025 Guam 9, is a significant contribution to Guam’s criminal sexual conduct (“CSC”) jurisprudence. The case addresses multiple doctrinal areas: sufficiency of evidence in child sex abuse prosecutions; statutory double jeopardy protections under 9 GCA § 1.22(e); the structure and sufficiency of jury instructions in CSC II cases; and the intersection of rape shield protections with a defendant’s confrontation rights.

Castro was convicted in the Superior Court of Guam of:

  • One count of first-degree criminal sexual conduct (CSC I) for sexual penetration (cunnilingus) in a bedroom; and
  • Three counts of second-degree criminal sexual conduct (CSC II) for sexual contact—two at a secluded beach and one overlapping with the cunnilingus in the bedroom.

On appeal, Castro challenged:

  1. The sufficiency of the evidence on all four convictions;
  2. Whether Guam law permits convictions for both CSC I (sexual penetration) and CSC II (sexual contact) when both arise from the same, uninterrupted sexual act;
  3. Whether the “sexual contact” definition—including the purpose-of-sexual-gratification element—must be explicitly repeated in the “essential elements” jury instructions for CSC II; and
  4. Whether the trial court erred by excluding evidence of the child victim’s sexual relationship with a teen boyfriend, notwithstanding Guam’s rape shield statute, allegedly violating Castro’s confrontation rights.

The Supreme Court affirmed most convictions but reversed and ordered dismissal of one CSC II count tied to the same act of cunnilingus as the CSC I count. The ruling establishes an important new precedent: under 9 GCA § 1.22(e), a defendant may not be convicted of both sexual penetration (CSC I) and sexual contact (CSC II) when both charges are based on the same, single, uninterrupted sexual act.

II. Summary of the Opinion

The court, in an opinion by Associate Justice Maraman, ruled as follows:

  1. Sufficiency of the Evidence
    • The evidence was sufficient to support:
      • Two CSC II convictions for sexual contact at the beach (hand-to-penis; hand-to-vagina); and
      • The CSC I conviction for sexual penetration via cunnilingus in the bedroom.
    • The evidence was also sufficient to support the CSC II charge based on oral-genital contact in the bedroom (i.e., the same conduct as the CSC I cunnilingus), viewed in isolation.
  2. Double Jeopardy / 9 GCA § 1.22(e) (Continuing Course of Conduct)
    • Although the evidence supported both the CSC I and the overlapping CSC II for the bedroom incident, the court held that 9 GCA § 1.22(e) bars multiple convictions where CSC I and CSC II are based on the same uninterrupted act of cunnilingus.
    • The CSC II conviction for “causing his mouth to touch the primary genital area” in the bedroom was therefore reversed and dismissed.
  3. Jury Instructions on CSC II
    • The jury instructions, taken as a whole, adequately conveyed the statutory requirement that sexual contact must be reasonably construed as being for sexual arousal or gratification.
      • People v. Baluyot, 2016 Guam 20, the court held there was no (plain) error even though the essential-elements instruction did not repeat the “sexual arousal or gratification” phrase, because it was included in the definition of “sexual contact.”
  4. Rape Shield and Confrontation Rights
    • The trial court did not abuse its discretion in excluding defense efforts to elicit testimony that the child victim had sexual intercourse with a teen boyfriend (M.R.).
    • The evidence was properly excluded as irrelevant under Guam Rule of Evidence 402, and its exclusion did not violate Castro’s confrontation rights or run afoul of the rape shield statute or Rule 412.

The case was remanded for entry of a new judgment and resentencing consistent with the partial reversal.

III. Detailed Analysis

A. Factual and Procedural Background

The victim, K.B., was 9–10 years old during 2019 when the alleged offenses occurred. Castro, an adult living in the household, was indicted on:

  • Two CSC I counts (cunnilingus) on different occasions;
  • Four CSC II counts:
    • Two mirroring the cunnilingus allegations (mouth-to-genitals); and
    • Two for hand-to-genital contact (Castro’s hand on K.B.’s genitals, and K.B.’s hand on Castro’s penis).

K.B. testified to two episodes:

  • Apaca Point beach (parking lot): Castro diverted a supposed errand to a secluded beach, made her touch his “private area” (penis), moving her hand up and down, and then touched her “private area” (vagina) with his hand, stopping when another car arrived.
  • Bedroom incident: While K.B. played with her sisters, Castro sent the younger children outside, closed the door, made K.B. remove her pants and underwear, forced her legs open, and “licked [her] private area”—she clarified this meant her vagina.

After the People’s case-in-chief, one CSC I and its parallel CSC II (both tied to alleged cunnilingus at the beach) were dismissed for lack of evidence of cunnilingus in that setting. The case went to the jury on:

  • CSC I – cunnilingus in the bedroom; and
  • Three CSC II counts:
    • CSC II (bedroom) – mouth-to-genital “sexual contact” corresponding to the same cunnilingus act;
    • CSC II (beach) – K.B.’s hand on Castro’s penis; and
    • CSC II (beach) – Castro’s hand on K.B.’s vagina.

The jury convicted on all counts. Castro received 30 years for CSC I and 10 years for each CSC II, concurrent with the CSC I sentence. He appealed.

B. Sufficiency of the Evidence for CSC I and CSC II

1. Legal Framework for CSC Offenses

The Guam CSC statutory scheme is codified primarily at 9 GCA §§ 25.10, 25.15, 25.20, and includes:

  • CSC I (9 GCA § 25.15(a)): A person is guilty if they engage in “sexual penetration” with a victim under specified circumstances (e.g., age, authority, force, etc.).
  • “Sexual penetration” (9 GCA § 25.10(a)(9)):
    “Sexual intercourse, cunnilingus, fellatio, anal intercourse or any other intrusion, however slight, of any part of a person's body or of any object into the genital or anal openings of another person's body, but emission of semen is not required.”
  • CSC II (9 GCA § 25.20(a)): A person is guilty if they engage in “sexual contact” with another person under specified circumstances.
  • “Sexual contact” (9 GCA § 25.10(a)(8)):
    “The intentional touching of the victim's or actor's intimate parts or the intentional touching of the clothing covering the immediate area of the victim's or actor's intimate parts, if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.”
  • Victim testimony need not be corroborated (9 GCA § 25.40):
    “The testimony of a victim need not be corroborated.”

The appellate standard is de novo for sufficiency of evidence, but “highly deferential” to the jury. The court reviews whether, viewing the evidence in the light most favorable to the People, any rational trier of fact could find each element beyond a reasonable doubt (Riosen, 2023 Guam 23; Rachulap, 2022 Guam 9; Taitano, 2015 Guam 33).

2. Sufficiency of Evidence for CSC II at the Beach

Castro argued that the People failed to prove the mens rea requirement of “sexual arousal or gratification” for the CSC II counts. The Supreme Court reaffirmed a key principle from earlier cases:

  • No explicit proof of arousal is required. In People v. Callahan, 2022 Guam 13 ¶ 20, and People v. Morales, 2022 Guam 1 ¶ 75, the court held that “specific evidence of sexual arousal or gratification is not required.”
  • Motivation may be inferred. In People v. Enriquez, 2014 Guam 11 ¶ 28, the court approved inferring the purpose of sexual arousal from the defendant’s actions and context, citing State v. Cobb (Ohio Ct. App. 1991).

Here, the evidence showed:

  • Castro took K.B. to a “pretty hidden” area at Apaca Point under a false pretext;
  • He removed his pants and forced K.B. to touch his penis, moving her hand up and down in a gripping motion;
  • He then made K.B. remove pants and underwear and touched her vagina with his hand;
  • He stopped abruptly when another car and family arrived and told K.B. to get dressed.

The court held that a rational jury could infer from this:

  • Intentional touching of intimate parts,
  • In a secluded setting chosen by an adult,
  • Stopped only when potential witnesses arrived,

was “reasonably construed” as being for sexual arousal or gratification. This is consistent with Enriquez, where the defendant’s cessation of genital touching when a third person entered the car supported an inference of sexual motivation.

Accordingly, the CSC II convictions for:

  • Causing K.B.’s hand to touch his penis; and
  • Touching K.B.’s vagina with his hand

were affirmed.

3. Sufficiency of Evidence for CSC I – Cunnilingus in the Bedroom

Castro’s primary sufficiency challenge to CSC I was that K.B.’s language was too vague to establish “cunnilingus” and thus “sexual penetration.” He argued:

  • “Vagina” is not specific enough because cunnilingus, by Merriam-Webster’s definition, is “oral stimulation of the vulva or clitoris,” and
  • There was no “further breakdown of anatomy” or technical explanation from K.B.

The court rejected this argument and made several important points:

  1. No “magic words” requirement:
    • Enriquez, 2014 Guam 11 ¶ 19: penetration may be inferred from the totality of evidence; no specific vocabulary is mandated.
    • People v. Mendiola, 2014 Guam 17 ¶ 22: a 14-year-old need not use technical anatomical terms; general descriptions can suffice.
    • Riosen, 2023 Guam 23 ¶¶ 22–23: a victim’s reference to “rape” or similar common terms can support a finding of penetration.
    • Moses, 2022 Guam 17 ¶ 60 (quoting Torre, 68 F.3d 1177): “rape” is the common English word for what Guam’s statute calls CSC I.
  2. Practical vs. technical anatomy:
    • The court emphasized that Guam’s statutory definition of “sexual penetration” (9 GCA § 25.10(a)(9)) is broad and does not require the sort of technical distinctions between vulva, vagina, and clitoris that Castro urged.
    • The focus is on whether an act of oral-genital contact of a sexual nature occurred, not on anatomical precision beyond the capacity of a child witness.
  3. External authority on “cunnilingus”:
    • The court approvingly cited State v. Ludlum, 281 S.E.2d 159 (N.C. 1981), which held that the legislature did not intend cunnilingus to require stimulation of the clitoris or vulva specifically, or penetration by lips/tongue, and defined it as “stimulation by the tongue or lips of any part of a woman’s genitalia.”
    • They also cited People v. Legg (Mich. Ct. App. 1992) and State v. Beaulieu (R.I. 1996), which accepted testimony like “licked her vagina” as sufficient evidence of cunnilingus.

K.B. testified that:

  • Castro forced her to remove pants and underwear;
  • He forced her legs open when she refused to comply;
  • He “went down to [her] area,” brought his face to her “private area,” and “started licking” her “private part,” which she clarified to mean her vagina;
  • Although she struggled to explain further, she confirmed he was licking her “private part.”

The court concluded that this testimony, viewed in context and in light of the child’s age, was more than sufficient for a rational jury to find cunnilingus beyond a reasonable doubt. Thus, the CSC I conviction was affirmed on evidentiary grounds.

4. Sufficiency of Evidence for CSC II – Oral Contact in the Bedroom

The same bedroom conduct (oral-genital contact) formed the basis for a CSC II count: “causing his mouth to touch the primary genital area” of K.B. The court held that:

  • The evidence that Castro’s mouth contacted K.B.’s vagina was clear (from the same testimony supporting CSC I); and
  • Given the broader pattern of sexual abuse (including the earlier beach incident), a rational jury could infer that this contact was for sexual arousal or gratification.

Accordingly, on pure sufficiency grounds, the CSC II (bedroom) conviction was also supportable. The court vacated it solely because of the statutory double jeopardy rule in 9 GCA § 1.22(e), not for lack of evidence.

C. Double Jeopardy and 9 GCA § 1.22(e): One Sexual Act, One Conviction

1. Constitutional and Statutory Background

The Double Jeopardy Clause of the Fifth Amendment, applied to Guam via the Organic Act, protects against “multiple punishments for the same offense.” Traditionally, courts apply the federal Blockburger “same-elements” test: if each offense requires proof of a fact that the other does not, they are not the “same offense” for double jeopardy purposes.

However, Guam’s Legislature has enacted 9 GCA § 1.22, which is more protective than the bare federal constitutional minimum. Section 1.22 provides that while a defendant’s conduct may establish multiple offenses and multiple charges may be brought, the defendant may not be convicted of more than one offense if any of five listed conditions is met. Relevant here is subsection (e):

“When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if: … (e) the offense is defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.”

Guam courts have treated § 1.22 as a legislative implementation—and expansion—of double jeopardy protections, incorporating concepts from the Model Penal Code. The court also notes that CSC II has a scienter requirement (sexual arousal/gratification), whereas CSC I does not, so CSC II is not a lesser included offense of CSC I under subsection 1.22(a) and 8 GCA § 105.58(b)(1) (Cummins, 2010 Guam 19; Songeni, 2010 Guam 20).

Thus, the question here is not whether CSC II is included in CSC I (it is not), but whether § 1.22(e) prohibits multiple convictions where both CSC I and CSC II are based on the same uninterrupted sexual act.

2. Prior Guam Precedents on § 1.22(e)

The court situates Castro within a line of decisions interpreting § 1.22(e):

  • People v. Afaisen, 2016 Guam 31:
    • Held that robbery under 9 GCA § 40.20(a)(3) and theft of a motor vehicle under 9 GCA §§ 43.20(a), 43.30(a), arising from the same continuous taking of a car, could not both result in conviction under § 1.22(e).
    • Where § 1.22(e) is violated, the overlapping conviction must be reversed and the charge dismissed.
  • People v. Aldan, 2022 Guam 4:
    • Applied § 1.22(e) to bar two robbery convictions for the same robbery under different subsections of the same statute (9 GCA § 40.20(a)(2) & (3)).
  • People v. Martin, 2018 Guam 7:
    • Articulated a two-part multiplicity analysis:
      1. Determine the “unit of prosecution” intended by the legislature.
      2. Determine whether the conduct constitutes separate and distinct acts (different in time or nature, involving a “new volitional departure”).
    • Held that two CSC I charges could stand when each count was explicitly tied to a “different time” in the indictment and evidence showed two distinct acts of penetration.
  • People v. Santos, 2020 Guam 5:
    • Involved CSC I (sexual penetration in the course of committing bribery) and a separate bribery conviction.
    • Held that § 1.22(e) did not apply to bar convictions under two different statutes where one was a substantive felony (bribery) and the other was CSC I predicated on that felony; instead, the bribery conviction was barred under § 1.22(a) as a lesser-included offense of CSC I as charged.
    • Critically, Santos did not address § 1.22(e) in the context of two CSC provisions within the same statutory scheme based on the identical sexual act.

Castro extends the logic of Afaisen, Aldan, and Martin into the CSC context.

3. The Two-Step Multiplicity Analysis in Castro

The court follows the Martin framework.

(a) Step One: Unit of Prosecution for CSC I and CSC II

In Martin, the court had already held that the unit of prosecution for CSC I (9 GCA § 25.15) is a “separate and distinguishable act of penetration.” In Castro, the court now expressly holds that:

The legislature likewise intended the unit of prosecution for CSC II (9 GCA § 25.20) to be a separate and distinguishable act of sexual contact.

This means that:

  • Each distinct act of penetration is a separate offense of CSC I; and
  • Each distinct act of sexual contact is a separate offense of CSC II.
(b) Step Two: Separate and Distinct Acts vs. One Continuous Act

The court then asks whether the conduct underlying each violation involved a separate and distinct act—either separated in time or different in nature, involving a “new volitional departure.”

The court draws explicitly on:

  • State v. Multaler, 2002 WI 35, 643 N.W.2d 437 (Wis.): acts may be “different in nature” if each involves a new volitional departure, even if they are of the same type.
  • Spicer v. Commonwealth, 442 S.W.3d 26 (Ky. 2014): multiple convictions require a “cognizable lapse” in conduct during which the defendant could reflect and form a new intent.
  • Rodriguez v. State, 449 S.W.3d 306 (Ark. Ct. App. 2014): distinguishes single impulse vs. separate impulses, even if part of a common stream of action.

Applied to Castro:

  • Beach incident: Two CSC II counts involved:
    • Forcing K.B.’s hand to grip and move on Castro’s penis; and
    • Touching K.B.’s vagina with his hand.
    These are discrete acts—distinct contacts with different bodies’ intimate parts. They are “separate and distinguishable” acts and thus support separate CSC II convictions.
  • Bedroom incident: For the bedroom episode, both CSC I and CSC II were based on the same conduct: Castro placing his mouth on K.B.’s vagina and licking it (cunnilingus).
    • The People conceded at trial and on appeal that this was “the same underlying, uninterrupted sexual act.”
    • There was no evidence of any additional or intermediate act (e.g., separate hand contact, separate oral contact before or after penetration) that could be parsed as a distinct sexual contact motivated by a new volitional departure.

Therefore, as to the bedroom conduct:

  • There was one unit of prosecution for CSC I (cunnilingus/sexual penetration); and
  • Only that same single act supports CSC II (sexual contact), with no separate sexual contact distinct from the penetration.

4. The Holding: CSC I and CSC II Cannot Both Be Convicted for the Same Cunnilingus Act

The court’s key doctrinal holding is:

9 GCA § 1.22(e) prohibits a defendant from being convicted of both CSC I (sexual penetration) and CSC II (sexual contact) when both charges are based on the same underlying, uninterrupted act of sexual penetration (here, cunnilingus).

The court reasons:

  • In many CSC cases, “almost any act of sexual penetration” is also necessarily sexual contact (intentional touching of intimate parts) that can reasonably be construed as being for sexual arousal or gratification.
  • If § 1.22(e) did not apply in such circumstances, defendants would routinely face multiple convictions and punishments for a single sexual act, which is inconsistent with both the statute’s text and double jeopardy principles.
  • Therefore, where only a single act of penetration is proven, and the CSC II count is based solely on that same act, § 1.22(e) bars convictions for both offenses.

The court accordingly:

  • Affirmed the CSC I conviction (cunnilingus in the bedroom);
  • Affirmed the two CSC II convictions for the distinct beach acts; and
  • Reversed and ordered dismissal of the CSC II conviction for oral contact in the bedroom (Second Charge, Count One) as violating § 1.22(e).

This is a major clarification: prosecutors may charge CSC I and CSC II in the alternative for the same sexual episode, but they may not obtain separate convictions for both when both rest on the same single sexual act. At most, one conviction survives for that act.

5. Relationship to Blockburger and Legislative Intent

The court notes that under a strict Blockburger analysis, CSC I and CSC II are distinct offenses (CSC II requires proof of scienter for sexual gratification; CSC I does not). But Guam’s § 1.22(e) is not a mere restatement of Blockburger; it is a broader legislative limit on cumulative punishments for continuous conduct.

The opinion briefly acknowledges criticisms of Blockburger as overly mechanical and inadequate to fully protect double jeopardy interests, and underscores that:

  • Legislative intent is the ultimate touchstone for cumulative punishment questions (Missouri v. Hunter, 459 U.S. 359 (1983)); and
  • Guam’s Legislature has chosen to adopt a more structured, protective scheme via § 1.22, including the continuing-course-of-conduct rule in subsection (e).

Castro thus stands as a clear statement that in Guam’s CSC context, double jeopardy is informed by both constitutional minima and the legislature’s express statutory limitations on cumulative conviction.

D. Jury Instructions on CSC II: Incorporation of “Sexual Contact” Definition

Castro argued that his CSC II convictions should be vacated because the trial court did not list “for the purpose of sexual arousal or gratification” as an explicit element in the CSC II “essential elements” instructions, even though that phrase appeared in the separate definitional instruction for “sexual contact.”

The record showed:

  • The jury was instructed:
    • That CSC II required “sexual contact” with a person under 14; and
    • In a separate definition, that “sexual contact” includes intentional touching of intimate parts “if that intentional touching can reasonably be construed as being for the purpose of sexual arousal or gratification.”
  • Defense counsel did not object at trial; review was therefore for plain error.

Relying on People v. Baluyot, 2016 Guam 20, the court reiterated:

  • Instructions must be read as a whole. It is sufficient if the overall charge accurately conveys the elements of the offense, even if the mens rea appears in a definitional instruction rather than in the elemental instruction.
  • In Baluyot, as here, the defendant argued that the specific phrase “for the purpose of sexual arousal or gratification” had to be repeated in the elements list; the court rejected that view.

Castro attempted to distinguish Baluyot by noting that the jury here had to navigate instructions for both CSC I and CSC II, but the court was not persuaded. It held:

  • The instructions tracked the statutory language of 9 GCA §§ 25.10(a)(8) and 25.20(a);
  • They clearly identified “sexual contact” as an element and defined “sexual contact” to include the sexual gratification purpose; and
  • Thus, there was no error, much less clear or obvious error, and no plain-error relief was warranted.

Notably, the court nevertheless recommended that trial courts adopt a more user-friendly model, akin to Michigan’s Model Criminal Jury Instruction 20.2, which incorporates the sexual-purpose language directly into the elements. This suggestion, though non-binding, is a practical guide for future CSC II instructions.

E. Rape Shield, Relevance, and the Right to Confront

1. Rape Shield Framework in Guam

Guam’s rape shield provisions appear in:

  • 6 GCA § 8207(b):
    “Evidence of specific instances of a person's past sexual conduct is not admissible in any trial if an issue in such trial is whether such person was a victim of criminal sexual conduct…”
  • Guam Rule of Evidence 412, which similarly excludes evidence of a victim’s prior sexual behavior, subject to limited exceptions.

Evidence rules 401–403 also apply:

  • GRE 401 – relevance: evidence must make a consequential fact more or less probable.
  • GRE 402 – irrelevant evidence is inadmissible.
  • GRE 403 – even relevant evidence may be excluded if its probative value is substantially outweighed by dangers like unfair prejudice, confusion, or waste of time.

2. Confrontation Clause and Limits on Cross-Examination

The Sixth Amendment guarantees the right “to be confronted with the witnesses against” the accused. That right is principally enforced through cross-examination (Davis v. Alaska, 415 U.S. 308 (1974)). Guam cases emphasize:

  • The right is to an opportunity for effective cross-examination, not cross-examination in whatever manner the defense prefers (Ojeda, 2011 Guam 27; Kitano, 2011 Guam 11).
  • Trial judges have wide latitude to limit cross-examination based on concerns of relevance, prejudice, harassment, or confusion (Delaware v. Van Arsdall, 475 U.S. 673 (1986); Kotto, 2020 Guam 4).
  • The Confrontation Clause is generally satisfied if the defense has a fair opportunity to expose potential weaknesses in the witness’s testimony (Jesus, 2009 Guam 2; Owens, 484 U.S. 554 (1988)).

3. Application in Castro: Evidence of Victim’s Sexual Activity with M.R.

At trial, defense counsel:

  • Did not meaningfully impeach K.B. on her denial of sexual relations with M.R., despite having that opening;
  • Instead, called M.R. in the defense case-in-chief and attempted to ask whether he had sexual intercourse with K.B.;
  • The People objected on relevance grounds; the trial court sustained the objection under GRE 402.

Castro argued on appeal that:

  • The excluded evidence was relevant to show:
    • K.B.’s prior sexual knowledge and familiarity with male genitalia (to explain her purported inability to describe Castro’s penis); and
    • Alternative sources of injury or knowledge that could undermine her credibility.
  • Excluding it violated his Sixth Amendment confrontation rights and was inconsistent with the Ninth Circuit’s decision in LaJoie v. Thompson, 217 F.3d 663 (9th Cir. 2000).

The Supreme Court of Guam rejected these arguments:

  • Relevance:
    • Even if K.B. had sexual intercourse with M.R., that would not make it more or less likely that she could describe Castro’s penis, because she testified that her eyes were closed when she touched Castro’s penis and she did not see it.
    • Thus, the proposed evidence would not materially undermine her explanation for lacking visual detail about Castro’s anatomy.
    • The trial court’s determination that the evidence was irrelevant under GRE 402 was not an abuse of discretion.
  • Confrontation rights:
    • Castro had the opportunity to cross-examine K.B. about inconsistencies and sources of knowledge; he simply chose a narrow line of questioning.
    • The exclusion of this specific question to M.R. did not deprive Castro of a fair opportunity to expose weaknesses in the prosecution’s case.
  • Distinguishing LaJoie:
    • In LaJoie, the excluded evidence involved the complainant’s extensive prior sexual abuse by multiple men, which had direct bearing on alternative sources of the very sexual knowledge and trauma at issue. It was excluded solely due to a procedural misstep (late notice), and the Ninth Circuit found that exclusion to be arbitrary in the context of habeas review.
    • By contrast, in Castro:
      • The trial court decided the issue on substantive relevance grounds, not as a procedural sanction.
      • The proffered evidence was much narrower and less probative than in LaJoie.
    • Hence, LaJoie does not compel a different result.

Because the evidence was properly deemed irrelevant, the court found no need to parse exceptions to Guam’s rape shield statute or Rule 412. It simply held that there was no abuse of discretion and no violation of Castro’s confrontation rights.

4. Practical Lessons for Practitioners

Castro signals several practical points:

  • Defense counsel seeking to introduce evidence of a complainant’s prior sexual conduct must:
    • Present a specific, non-speculative theory of relevance;
    • Show how the evidence materially affects a consequential issue (e.g., identity, alternative source of injury, credibility in a concrete way); and
    • Anticipate the strong presumption against such evidence under the rape shield regime.
  • Merely asserting “alternative source of knowledge” is insufficient unless:
    • The knowledge truly overlaps with, and could reasonably explain, the complainant’s description of the charged conduct; and
    • The defense can tie that alternative source tightly to specific testimony (e.g., “she could only know X if…”).
  • Confrontation rights are best protected by vigorous—and focused—cross-examination of the complainant at trial, rather than by belated attempts to introduce sexual history through third parties.

IV. Complex Concepts Simplified

1. CSC I vs. CSC II (First vs. Second Degree CSC)

  • CSC I (First Degree) generally involves sexual penetration—for example, intercourse, oral sex (cunnilingus/fellatio), anal intercourse, or any insertion (however slight) into genital or anal openings.
  • CSC II (Second Degree) involves sexual contact—intentional touching of intimate parts (or clothing covering them), which a reasonable person would see as done for sexual arousal or gratification.

2. Sexual Penetration vs. Sexual Contact

  • Sexual penetration covers:
    • Vaginal intercourse;
    • Penis-to-mouth oral sex (fellatio);
    • Mouth-to-vagina oral sex (cunnilingus);
    • Anal intercourse; and
    • Any insertion of any body part or object into genital/anal openings.
  • Sexual contact covers:
    • Intentional touching of breasts, genitals, buttocks, inner thighs, etc., or clothing over those areas;
    • But only if it can reasonably be viewed as for sexual arousal or gratification.

3. Cunnilingus

“Cunnilingus” is oral sex performed on a female’s genital area. The court, following Ludlum, interprets it as:

Stimulation by the tongue or lips of any part of a woman’s genitalia.

It does not require:

  • Penetration of the vaginal canal by the tongue or lips; or
  • Proof that a specific sub-part (e.g., clitoris or vulva) was targeted.

4. “Unit of Prosecution” and “Continuing Course of Conduct”

  • Unit of prosecution: what the legislature counts as “one crime” under a statute. For CSC:
    • Each separate act of penetration = one CSC I;
    • Each separate act of sexual contact = one CSC II.
  • Continuing course of conduct under 9 GCA § 1.22(e):
    • If a statute defines an offense in terms that could encompass ongoing behavior, the law may treat that behavior as one “course of conduct.”
    • Where the defendant’s course of conduct is “uninterrupted,” the statute may bar multiple convictions unless the law clearly permits breaking that conduct into separate time periods.
    • The courts ask: Were there distinct acts (separated in time, nature, or intent) or just one continuous act?

5. “Volitional Departure”

A “volitional departure” is a meaningful break in the defendant’s conduct—an opportunity to stop and then decide to commit a new act. If:

  • The defendant completes one sexual act, then after some lapse or change in circumstances initiates a new sexual act, that may be a separate offense.
  • If the conduct is one continuous movement (e.g., one continuous oral-genital contact), without such a break, it is one offense even if it could technically be described in multiple ways (penetration plus contact).

6. Scienter / Mens Rea

  • Mens rea is the mental state required for a crime.
  • CSC I, as interpreted in Cummins and Songeni, does not require proof that the defendant acted for sexual arousal; it is effectively strict liability as to sexual purpose.
  • CSC II does require proof that the touching can reasonably be seen as for sexual arousal or gratification (the scienter element).

7. Standards of Review

  • De novo review (e.g., for sufficiency of evidence, double jeopardy): the appellate court re-examines the issue fresh, though for sufficiency it defers to the jury on credibility.
  • Abuse of discretion (e.g., evidentiary rulings): the appellate court asks whether the trial court’s decision was clearly against the logic of the facts or unjustified.
  • Plain error (e.g., unobjected jury instructions): the appellant must show a clear/obvious error affecting substantial rights and that reversal is needed to prevent a miscarriage of justice.

V. Broader Impact and Future Directions

1. Charging and Sentencing in CSC Cases

Castro will likely alter prosecutorial charging strategies in CSC cases:

  • Prosecutors remain free to charge both CSC I and CSC II relating to the same sexual episode, but:
    • When both counts are based on a single, uninterrupted act of penetration (e.g., one episode of cunnilingus), only one conviction can stand under § 1.22(e).
    • Courts may need to require the People either to:
      • Elect which count to pursue to conviction; or
      • Accept that one of the post-verdict convictions must be vacated and dismissed.
  • Where there are multiple acts even in a short time frame—e.g., hand-to-genital touching followed by cunnilingus, then digital penetration—the People may:
    • Differentiate counts by specific acts; and
    • Obtain multiple convictions if each act is separately proven and involves a distinct volitional departure.

This promotes proportionality in punishment and consistency with legislative intent, while still permitting vigorous prosecution of multiple distinct acts within a single encounter.

2. Evidence and Trial Practice in Child Sexual Abuse Cases

The opinion continues a consistent line of cases emphasizing:

  • Victim testimony alone suffices for CSC convictions (9 GCA § 25.40; Riosen, Bosi, Perez, Flores), especially for vulnerable child victims.
  • No requirement of technical anatomical detail:
    • Children may testify using terms like “private area” or “private part” and simple descriptions like “licked me there,” which, in context, can support findings of penetration or sexual contact.
  • Prosecutorial duty to develop clear, element-by-element testimony:
    • The court again warns prosecutors to elicit specific testimony to avoid speculation and withstand sufficiency challenges.

3. Jury Instructions: Moving Toward Clearer Model Charges

Although the court found no error in the instructions here, its explicit recommendation to adapt Michigan’s CSC II model instruction is significant. It suggests:

  • Guam trial courts should consider:
    • Embedding the “for sexual arousal or gratification” language directly in the element list; and
    • Using structured, plain-English formulations to reduce juror confusion.
  • Defense counsel should:
    • Request such clarifying instructions; and
    • Preserve objections if the instructions fail to clearly incorporate statutory elements.

4. Confrontation, Rape Shield, and Relevance

Castro reinforces the proposition that:

  • Rape shield protections and relevance rules can legitimately limit cross-examination without violating the Confrontation Clause, so long as:
    • The defense has a reasonable opportunity to challenge the complainant’s credibility and testimony overall; and
    • The excluded evidence is not central to the defense theory in a way that makes the trial fundamentally unfair.
  • Defense efforts to introduce sexual history must be carefully tailored and well-founded in relevance, not speculative or designed merely to impugn character.

5. Doctrinal Coherence in Double Jeopardy

By applying § 1.22(e) to CSC I and CSC II within the same statutory scheme, the court:

  • Brings CSC doctrine into alignment with robbery and theft precedents (Afaisen, Aldan);
  • Clarifies that § 1.22(e) is not limited to multiple counts under a single statute—it can apply across statutes when they remediate the same continuous conduct, particularly within a single subject-matter scheme such as CSC;
  • Mitigates the risk that the more serious CSC I offense will be automatically accompanied by a redundant CSC II conviction for the identical act.

Future litigation may further refine:

  • How finely courts should parse “acts” within a sexual encounter;
  • Whether juries must be told to agree unanimously on specific acts for each count; and
  • The practical boundaries of “volitional departure” in close temporal sequences of abuse.

VI. Conclusion

People v. Castro, 2025 Guam 9, is a substantial contribution to Guam’s criminal law, particularly in the field of sexual offenses. The decision:

  • Affirms that children’s straightforward, non-technical descriptions—like “he licked my private area”—can suffice to prove cunnilingus and sexual penetration beyond a reasonable doubt.
  • Clarifies that “sexual contact” need not be proven by direct evidence of sexual arousal; intent may be inferred from the defendant’s actions and the surrounding circumstances.
  • Establishes an important new precedent: under 9 GCA § 1.22(e), a defendant cannot be convicted of both CSC I and CSC II when both charges arise from the same single, uninterrupted act of sexual penetration, such as cunnilingus. One conviction must be set aside and dismissed.
  • Confirms that jury instructions incorporating the sexual gratification element in the definition of “sexual contact,” rather than repeating it in the elements list, are acceptable—while encouraging clearer model instructions going forward.
  • Reaffirms that rape shield provisions and relevance rules may legitimately cabin inquiries into a victim’s sexual history without violating confrontation rights, especially where the proffered evidence is tangential or speculative.

Taken together, these holdings advance three core values:

  1. Protection of vulnerable victims through realistic evidentiary standards and no-corroboration rules;
  2. Fairness in punishment by preventing multiple convictions for a single sexual act; and
  3. Procedural integrity via sensible limits on cross-examination and clear guidance on jury instructions.

As Guam courts continue to interpret CSC statutes and 9 GCA § 1.22, Castro will be a central authority on how to treat overlapping sexual penetration and sexual contact charges arising from the same conduct, and on the balance between robust prosecution of child sexual abuse and constitutional protections for the accused.

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