Unpublished Disposition, 923 F.2d 863 (9th Cir. 1991)

MEMORANDUM^** 

Bermin Iyar appeals from a judgment of the Appellate Division of the District Court of Guam affirming his conviction in the Superior Court of Guam. After a jury trial, Iyar was convicted of second degree aggravated assault in violation of 9 Guam Code Ann. Secs. 19.20(a) (1) and 80.30, and possession and use of a deadly weapon in the commission of a felony in violation of 9 Guam Code Ann. Sec. 80.37. Iyar contends the Superior Court erred by failing to instruct the jury that it need not unanimously acquit him of the greater charge before considering lesser-included offenses. We have jurisdiction under 48 U.S.C. § 1424-3(c) and we affirm.

Guam law requires a timely objection to jury instructions in a criminal case in order to preserve for appeal issues concerning the instructions. 8 Guam Code Ann. Sec. 90.19(c). Because Iyar neither requested different instructions at trial nor timely objected to those given, we review for plain error the Superior Court's instructions to the jury. See Territory of Guam v. Ignacio, 852 F.2d 459, 462 (9th Cir. 1988). "Plain error is 'highly prejudicial error affecting substantial rights [,] and is found only in exceptional circumstances.' " United States v. Ramos, 861 F.2d 228, 230 (9th Cir. 1988) (quoting United States v. Harris, 738 F.2d 1068, 1072 (9th Cir. 1984)).

The law of Guam appears to offer no guidance on "acquittal first" instructions. Where Guam law is unclear, California cases are especially persuasive. Territory of Guam v. Ojeda, 758 F.2d 403, 406 (9th Cir. 1985).¹  No California case suggests that the trial judge must instruct the jury sua sponte that it need not unanimously acquit the defendant of the greater charge before considering lesser-included offenses. We believe that it would be contradictory for Guam law to provide that such an omission could be plain error. Cf. United States v. Jackson, 726 F.2d 1466, 1469 (9th Cir. 1984) (as a matter of federal law, an instruction that specifically precludes consideration of a lesser-included offense until the jury has unanimously acquitted the defendant of the greater offense is proper if the defendant did not make a timely objection). Accordingly, we hold that as a matter of Guam law the trial court's omission did not amount to plain error.

AFFIRMED.