IN THE PASCUA YAQUI COURT OF APPEALS

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

)

PASCUA YAQUI TRIBE, )

) Case No. CA-19-004

Appellant, ) (CR-19-080)

V. )

)

ISENA RODRIGUEZ, ) OPINION AND ORDER

)

Appellee. )

)

Appearances: For the Tribe, Oscar J. Flores and Coleen Thoene

For the Defendant, Annamarie L. Valdivia

Plevel, Associate Justice

Concurring: Chief Justice Miller and Associate Justice Martinez

This matter comes before the Court of Appeals on an Appeal by the Tribal Prosecutor on

behalf of the Pascua Yaqui Tribe, appealing a trial court decision dismissing, without prejudice,

a criminal complaint at the Initial Hearing.

Jurisdiction

The Pascua Yaqui Court of Appeals has jurisdiction to hear this matter pursuant to 3

PYTC §2-3-30 et seq.

Facts

On or about January 9, 2019 the defendant was arrested for Injury to Public Property (4

PYTC $1-630), Family Violence (4 PYTC §3-10(B)). The Tribe filed its complaint and

supporting affidavit on January 9, 2019. Appellant’s Exhibit A. At the Initial Hearing on

January 9, 2019, the trial judge dismissed the complaint without prejudice, for want of probable

cause. Specifically, the trial court stated, “the Court does not find sufficient probable cause to

believe the defendant may have committed the alleged [offense] because the alleged time of the

incident is not included in the probable cause statement.” Appellant’s Exhibit B. Essentially, the

trial court found that because the law enforcement officer's supporting affidavit of probable

cause only included a date for when the offense was alleged to have occurred, and not a time that

matched the time listed within the complaint itself, the court could not find probable cause to |

support the charge.

Standard of Review

The appellate court’s standard of review of decisions dismissing a criminal case without

prejudice is for an abuse of discretion. Pascua Yaqui Tribe v. Bustamante, CA-17-004, at 2 (PYT

Ct. App. July 3, 2017). “The court abuses its discretion when it makes an error of law in reaching

a discretionary conclusion or when the record, viewed in the light most favorable to upholding

the trial court’s decision, is devoid of competent evidence to support the decision.” Pascua Yaqui

Tribe v. Coleman, No. CA-15-003, at 2 (PYT Ct. App. Nov. 17, 2015).

Discussion

This appeal is fairly direct. The question is whether upon examination of a complaint and

accompanying probable cause affidavit, the judge should dismiss the complaint without

prejudice for a technical defect with respect to foundational facts. Our guidance first comes from

the current Pascua Yaqui Tribal Code and Rules of Criminal Procedure.

3 PYTC § 2-2-180 provides for Initial Appearances, wherein the court must first

determine if “probable cause exists to continue to detain and prosecute the accused.” /d. at (A).

Probable cause is a determination as to whether it is more likely than not that a crime was

committed and that the accused committed it.

3 PYTC § 2-2-90 states that criminal prosecutions are initiated by the filing of a

complaint. That complaint is “(1) A written statement, describing in ordinary language the

offense committed, including the time and place as nearly as may be determined, and the

name or description of the person alleged to have committed the offense...”

The issue herein, is that language “including a time and place.” The complaint in this

matter, states

On or about January 07, 2019, at approximately 5:00 pm, at or near 5091 W.

Calle Tarook, Defendant, without proper authority, used, injured, or misused any

public, Tribal government or private property, to wit: Broke a window of her

grandmother, Helen Luzania’s home.’

(emphasis in original). The accompanying probable cause affidavit does not specify the

time on January 7, 2019 when the window was broken. Appellant’s Exhibit A. While 3

PYTC § 2-2-90 states that a time and place must be included in a complaint, it is

qualified by the language “as nearly as may be determined.” (emphasis added)

“This suggested tolerance of imprecision built into the criminal process

recognizes the immense potential for error or mistake early in the initiation of

criminal proceedings. At this point in the criminal process, there has been

insufficient time to determine the reliability and veracity of witnesses. The court's

role here is to determine whether the basic information necessary to go forward

with a criminal prosecution have been met, whether reasonable or probable cause

exists that a crime has been committed and whether the case involves an incident

having occurred within the territorial boundaries and involving a person within

the Tribe's jurisdiction.”

PYT v. Baltazar, CA-01-003, page 4. The trial court in this matter dismissed the

complaint for lack of probable cause “because the alleged time of the incident is not

included in the probable cause statement.” Appellant’s Exhibit B.

Probable cause exists where the facts and circumstances within the officers'

knowledge and of which they had reasonably trustworthy information are

sufficient in themselves to warrant a man of reasonable caution in the belief that

an offense has been or is being committed by the person to be arrested.

McKenzie v. Lamb, 738 F.2d 1005 (9th Cir. 1984) (citing Dunaway v. New York, 442

U.S. 200, 208 n. 9, 99 S.Ct. 2248, 2254 n. 9, 60 L.Ed.2d 824 (1979) (quotations and

citations omitted)).

“In dealing with probable cause, however, as the very name implies, we deal with

probabilities. These are not technical; they are the factual and practical

considerations of everyday life on which reasonable and prudent men, not legal

technicians, act. The standard of proof is accordingly correlative to what must be

proved.”

Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

“The rule of probable cause is a practical, nontechnical conception affording the best

compromise that has been found for accommodating these often opposing interests. Requiring

more would unduly hamper law enforcement. To allow less would be to leave law-abiding

citizens at the mercy of the officers' whim or caprice.” /d. at 176. Whether the window was

broken at 5 am or 5 pm is of minor consequence to the charge, particularly as according to the

probable cause statement, the defendant admitted that she broke the window, though claiming it

was an accident. Appellant’s Exhibit A. Additionally, the offense charged does not have an

element of time which is essential to the offense.

Findings

The trial court in this case abused its discretion by imposing requirements on the probable

cause determination which were unwarranted.

This matter is remanded for proceedings consistent with this Order.

ORDERED this 7th of October, 2019.

Tula?

Hon. Rebecca Plevel

We CONCUR:

Kiet )- ec,

Interim Chief Justice Robert J. Miller

Justice Kendra A. Martinez

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION, ARIZONA

PASCUA YAQUI TRIBE,

OFFICE OF THE PROSECUTOR

APPELLATE CASE NO: CA-19-004

Appellant

VS.

TRIBAL COURT CASE NO: CR-19-080

ISENA RODRIGUEZ,

Respondent

PETITIONER/APPELLANT’S REPLY BRIEF

Oscar J. Flores,

Chief Prosecutor

Coleen Thoene,

Deputy Prosecutor

Pascua Yaqui Office of the Prosecutor

7777 S. Camino Huivisim

Bldg. A, 2™ Floor

Tucson, AZ 85757

Telephone: (520) 876-6251

Oscar.J.Flores@pascuayaqui-nsn.gov

Coleen. Thoene@pascuayaqui-nsn.gov

Attorneys for the Pascua Yaqui Tribe

TABLE OF CONTENTS

TABLE OF AUTHORITIES.......ccccssssssssssssssssssscsssessessscssssssssssssssscacsassncesssseacsneseesesesstseessenesecteassossarsesersaes 3

REQUEST FOR ORAL ARGUMENT uu... ccessssssscccsscsscessssssscssesscscassncsscasensessoussessesesseausaeseeaceeesesenseeveses 4

STATEMENT OF JURISDICTION .00...tcessssesesescscsecscsscessssessecsscsssosssssensscsssscsessesesescecenesceesecsesevesersesenes 4

STATEMENT OF THE CASE ou... cssssscsssssessescsccscsesesssessessessscescecsnsacenencscsssacsenenesessenesescessocseseceseesecenes 4

ISSUES PRESENTED FOR REVIEW ou... secssscssessesceseccessesesscsssoccsenssssssacessessscssesesseseecsssesecnsessenenscssees 4

STANDARD OF REVIEW... cccsssssssssssesccsssssssssecescsnsscessscesessessssencasensscssensscsseaesestenessssssessseseceeseseseseacesenes 5

LAW AND ARGUMENT. ......cccccsssssssssssscsccsessseseserssesesssesseasssscesssscssceaseessesacessessaessensssesseasseeasensensessetsereeses 8

I. Nothing in the Pascua Yaqui Tribal Code Requires that Information Relating to a Time of

Offense Match Between the Text of the Charging Document and its Supporting Affidavit of

PrObADl€ Cause. ses.scscsesssoossesssvescnsssvessessrvessenevssnesnsovessessvenovsnbienesetesesssuaciwescesssenaancuseaseaesadessssnaeeeadsesiasies 8

Il. The Complaint Provided the Appellee with Adequate Notice as to the Charge She Faced So that

She Could Prepare Her Defense, and her Arguments Regarding Prejudice to Her and the

Victim are Misplaceh, ..........ssscsscsssssescsccsscscecssscsccesssssssecsencescescescsseesessssessscssceecesesssscessessnsessesseseaseees 11

CONCLUSION AND REMEDY SOUGHT... ccscsscsssssssesccsscssscssssssssesseccasesssssacsssosecesseasseescenseessecers 13

CERTIFICATE OF SERVICE wu... seccssssssssscescessensessssscescssssessensesssesseaseasessssessessessesessesesensessesscessensees 14

TABLE OF AUTHORITIES

Authority Page Number

Pascua Yaqui Cases

In the Matter of Alvarez, CA-17-008 (PYT Ct. App., Jun. 19, 2018)... ccccccscsceseeseeeeeseees 6

PYT v. Baltazar, CA-01-003 (PYT Ct. App., Sept. 12, 2001), ....cccccecseeseeseteeseeees 6,8,10-12

PYT vy. Bustamante, CA-17-004 (PYT Ct. App., Jul. 3, 2017)....cccccccccsecesecssceseteseseseeeseeens 5

PYT v. Miranda, CA-08-015, p.22 (PYT Ct. App. Mar. 29, 2009) .o...cccccccceceseessseseeseses 5,6

Pascua Yaqui Tribal Code

@ PY TC § 3-20 sccssnsscsusmcavvennsnnsiscasanneensin sass ceattwantia isdshiinn cheansnsnaanntantesrnannsunnaconeansvexennaansnnenee 11

Pascua Yaqui Rules

3 PYTC § 2-2-90 oe eiceicesccessessessessseeseesseceseesseeseesseessecesseeseecssessscsesssuesssseeseeesseesesaeenses 8,9, 10

B-PYTC § 2-2-90 oo. cecececccsccsesssescsececeseesecseeseeseseecseeeseesecsesaecseeseeseesecaeaeeaecaecseceseesecassceaees 12

Federal Cases

Hamling v. United States, 418 U.S. 87, 94 S.Ct 2887 (1974) ...cccccccccccssessesecessseteseeseestseeeees 1]

Illinois v. Gates, 462 U.S. 213, 236 (1983), ...cccccccscccessccesscccsecessecssecssccssscesssceseeceseeensccsseseeeees 6

United States v. Alfonso, 143 F.3d 772 (2d Cir. 1998) oooccccccccccccesccesccssceesscessecesseesssensens 7,11

United States v. Gonzalez-Roque, 301 F.3d 39 (2d Cir. 2002) .o..cecceccecccccsceesscessecessceseeseeeees 7

United States v. Linick, 195 F.3d 538 (9" Cir. 1999)...cccccccscssssssssesssssscsvsscecsvsvsesesececersevsveeees 7

United States v. Neill, 166 F.3d 943 (9! Cir, 1999) ...ccccccccccccssssesesessssesessssssesesesvsesvensecssesvees 1]

United States v. Spillone, 879 F.2d 514 (9! Cir, 1989) vcccccccecccssccssecsesvsrssecsvsvecsesesecsvsevseeses 7

REQUEST FOR ORAL ARGUMENT

Although the Appellee has indicated a belief that oral arguments are not necessary in this

case, see Appellee’s Response Brief, at 10. The Tribe reiterates its justification for requesting

such argument as outlined in its Opening Brief. See Appellant’s Opening Brief, at 5. The Tribe

further incorporates the arguments detailed below, many of which turn upon the nuances of case

interpretation, which can differ amongst litigants, as further evidence that oral argument would

be in the interests of justice in this particular case.

STATEMENT OF JURISDICTION

The parties agree that the Court of Appeals has jurisdiction over this matter. See

Appellant’s Opening Brief, at 6-7; Appellee’s Response Brief, at 1.

STATEMENT OF THE CASE

Based on the arguments and facts outlined in the Appellee’s Response Brief, no additions

or corrections need to be made to the factual or procedural recitation outlined in the Tribe’s

Opening Brief.

ISSUES PRESENTED FOR REVIEW

No new issues have been presented to this Court for review based on the Appellee’s

response, save a disagreement between the parties as to what standard of review is appropriate

for this case.

STANDARD OF REVIEW

The parties disagree as to what standard of review is appropriate for this appeal. That

disagreement is based upon a conflicting interpretation of earlier Pascua Yaqui Appellate cases,

and whether those cases adequately address the specific issue raised in this appeal. The Appellee

correctly notes that, previously, this Court had reviewed general dismissals of complaints under

an “abuse of discretion” standard. The Appellee then suggests, incorrectly, that because this

court has used an “abuse of discretion” standard in the past, PYT v. Miranda, CA-08-015, p.22

(PYT Ct. App. Mar. 29, 2009), “is irrelevant.” Appellee’s Response Brief, at 7. However, a

closer analysis of the Pascua Yaqui Court of Appeals cases cited by both parties demonstrates

that this Court has never reviewed whether a trial court’s probable cause determination involves

a mixed question of law and fact. Indeed, the local cases cited by the parties, even though they

reviewed dismissals, simply did not address the issue of dismissals based on whether sufficient

evidence exists to support a finding of probable cause.

For instance, in PYT v. Bustamante, CA-17-004 (PYT Ct. App., Jul. 3, 2017), this Court

was asked to review whether the trial court abused its discretion by dismissing a complaint that

failed to include proper statutory language and citations relating the defendant’s charges.

Ultimately, the Court found that there had been no abuse of discretion. However, the Court did

not address the issue of probable cause.' Years earlier, in Jn the Matter of Alvarez, CA-17-008

' This case relied upon PYT v. Gonzalez, CA-07-017 (PYT Ct. App., Oct. 9, 2007), and, more specifically, briefings

that had been submitted by the parties as part of that older appeal. This case was not cited in the Tribe’s Opening

Brief. The Appellee correctly points out that Gonzalez ruling was designated as an “Order,” and not as an Opinion,

thereby making it akin to a memorandum decision that may care persuasive authority in certain contexts, without

being of precedential value. However, it is also important to note that the Court did not ever address the issue of

sufficiency of probable cause — and, indeed, could not — because the prosecution had failed to submit a copy of its

affidavit of probable cause as part of the record on appeal, and local rules prohibit consideration of materials that are

not a part of the trial court record. /d. In short, Gonzalez did not address the issues involved here.

5

(PYT Ct. App., Jun. 19, 2018), this Court reviewed whether the trial court abused its discretion

in dismissing a juvenile complaint. The specific issue before the Court at that time did not

concern probable cause or its sufficiency. Instead, it involved determining whether statutory

time limits for filing a complaint as to an arrested juvenile barred the prosecution from refiling it

as a non-arrest matter when the first complaint was dismissed for an identification-related error.

Even PYT y. Baltazar, CA-01-003 (PYT Ct. App., Sept. 12, 2001), which is the only local case

to discuss whether location or date issues are fatal to the form of a complaint, did not address

that issue in the context of probable cause.

Because there is no local case law that specifically addresses the unique issue presented

in this appeal, looking to extra-jurisdictional law is relevant, persuasive, and allowable under

Miranda, CA-18-015, at 22. For instance, the Appellee, although claiming that Miranda is

irrelevant, cites to Illinois v. Gates, 462 U.S. 213, 236 (1983), for the proposition that de novo

review of a magistrate’s probable cause determination is inappropriate. That case, however, like

the cases discussed above, fails to address the unique issue involved here. Gates discussion and

review of probable cause was done primarily in the context of search warrant affidavits. In it,

the United States Supreme Court indicated that “[f]inely-tuned standards such as proof beyond a

reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in

the magistrate’s decision” to issue a warrant. Jd. at 235. “While an effort to fix some general,

numerically precise degree of certainty corresponding to probable cause may not be helpful, it is

clear that only the probability, and not a prima facie showing, of criminal activity is the standard

of probable cause.” Jd. (citations and quotations omitted). The Supreme Court ultimately

indicated that, when issuing a warrant, a court need only to have a “substantial basis ... for

conclud[ing] that a search would uncover evidence of wrongdoing.” Jd. at 236-237 (internal

quotations omitted, alterations in original). Gates never touched upon probable cause in the

context of charging documents, or the standard of review that should be used when reviewing a

court’s charging determination.

At least two federal circuits have, however, indicated that appellate review of dismissals,

when they involve mixed questions of law and fact, or pure questions of law, warrant de novo

review. See Opening Brief, at 8-9. See United States v. Linick, 195 F.3d 538, 541 (9" Cir.

1999); United States v. Alfonso, 143 F.3d 772, 776 (2d Cir. 1998); United States v. Spillone, 879

F.2d 514, 520 (9" Cir. 1989); United States v. Gonzalez-Roque, 301 F.3d 39, 44 (2d Cir. 2002).

Although those cases, also, did not review charging decisions based on a sufficiency of probable

cause argument, the cases, as detailed more fully in the Tribe’s Opening Brief, clearly

demonstrate that review of a charging document can—and often do—involve a nuanced

interplay between factual and legal interpretation.

The issue presented by this appeal involves a mixed question of law and fact, and this

nuanced interplay demands de novo review. Probable cause in the context of charging

documents, much like warrant decisions, involves very specific factual determinations.

However, whether probable cause for criminal charges depends upon proof of a specific time of

offense, is a purely legal question. Furthermore, probable cause to support a charge requires an

understanding not only of the legal definition of probable cause, but what elements are required

by the statutory language of offense, and how those legal considerations interact with rules

regarding forms of complaint. The factual and legal interpretive issues are intimately intertwined

and virtually inseparable from each other from an analytical standpoint.

Because the issues presented in this case involve a mixed question of law and fact, de

novo review 1s appropriate. However, in the event that this Court determines, instead, that an

“abuse of discretion” standard of review should be used, the trial court’s dismissal decision still

resulted in error.

LAW AND ARGUMENT

I. Nothing in the Pascua Yaqui Tribal Code Requires that Information Relating to a

Time of Offense Match Between the Text of the Charging Document and its

Supporting Affidavit of Probable Cause.

Nothing in the Pascua Yaqui Tribal Code requires that the prosecution even submit an

affidavit of probable cause. And yet, the Appellee attempts to argue that unless the information

contained in such an affidavit matches the information provided in a complaint exactly, it renders

the complaint fatally flawed and prevents a court from finding probable cause. As will be

discussed below, this interpretation is incorrect.

The Appellee’s argument is a variation of the one presented in Baltazar, yet not one that

obviates the rule or reasoning of that case. 3 PYTC § 2-2-90(A) defines a complaint as “a

written statement of the essential facts constituting an offense, signed by a law enforcement

officer or a prosecutor, or made upon oath before a judge, and charging that a named individual

has committed a particular criminal case.” This “written statement” is the charging document

itself, not the affidavit of probable cause submitted alongside it. See 3 PYTC § 2-2-90(C)

(indicating that the prosecution “may have” an officer or witness “verify the written complaint by

signing an affidavit or other signed statement to be attached to the complaint”). In fact, under

the Tribal Code, a signed statement is not necessary, as the prosecution may, instead, elect to

provide a statement “made upon oath before a judge.” 3 PYTC § 2-2-90(A). 3 PYTC § 2-2-

90(D) also appears to suggest that a written affidavit is unnecessary. Jd. (“If the complaint, or

the complaint taken together with other signed statements, is sufficient to establish probable

8

cause to believe that a crime has been committed by the person charged,” then a criminal case

may proceed.) (emphasis added).

A complaint, such as the one submitted in this case, See Tribe’s Opening Brief, Exhibit

A, typically submits the facts relevant to the charge within the language of the charge itself. For

example, here, the Appellee was charged as follows:

On or about January 7, 2019, at approximately 5:00 p.m., at or near [the victim’s

address], Defendant, without proper authority, used, injured, or misused any

public, Tribal, government, or private property, to wit: Broke a window at her

grandmother, [H.L.’s] house.

Id.

“(T]he essential facts constituting the offense” under 3 PYTC § 2-2-90(A), in this case, were that

the Appellee was alleged to have broken a window in her grandmother’s house. While the Tribal

code permits the prosecution to submit a signed affidavit along with the complaint—which the

Tribe did here—does not change the permissive nature of 3 PYTC § 2-2-90(C). Nor does it

change the language of 3 PYTC § 2-2-90(D), which indicates that probable cause can be based

on “the complaint, or the complaint together with other signed statements....” The Tribe has

located no statutory or appellate case law requiring the prosecution to file an affidavit.? Likewise

it has found no such law requiring that the affidavit—as opposed to the complaint—contain

information as to the time of offense, and the Appellee’s has also failed to cite any such law.

Indeed, 3 PYTC § 2-2-90(C) only requires that the complaint contain information as to the time

of offense “as nearly as may be determined.”

* The Tribe notes that, as a matter of local unwritten legal custom, the prosecution typically files written affidavits

with its complaints. However, while this is a matter of local custom, it is not codified as a requirement under the

Pascua Yaqui Tribal Code. Nor does this custom change the fact that the Tribal Code does not require that affidavits

include a time of offense, or that any such time that may be listed match exactly with the time listed in the criminal

complaint.

9

Based on the reasons outlined above, the Appellee’s attempts to distinguish Baltazar fail.

And, as noted above and in its Opening Brief, although Baltazar did not specifically address

whether proof of things such as time, date, or location go to the heart of probable cause, it clearly

discussed how those elements of complaint form should be treated under our laws.

The court’s role when reviewing a complaint “is to determine whether the basic

information necessary to go forward with a criminal prosecution have been met, whether

reasonable or probable cause exists that a crime has been committed and whether the case

involves an incident having occurred within the territorial boundaries and involving a person

within the Tribe’s jurisdiction.” Baltazar, CA-01-003, at 4. “[T]he court is determining whether

a gross error exists leading to an erroneous conclusion as to the reasonableness or probability of

the conclusion that a crime has been committed.” /d. The Court specifically addressed whether,

under an older version of 3 PYTC § 2-2-90(A)-(D), errors in dates, or location render a

complaint fatally flawed. /d. at 3. The Court, after an extensive analysis, found that it does not.

Id}.

> The Appellee argues that Baltazar dealt primarily with discrepancies between a charging document and its

supporting affidavit. Instead of citing to case law, the Appellee attaches as support a copy of the defendant’s

response filed with this Court in Baltazar. This response was filed in 2001, eighteen years before the case at bar.

Additionally, the arguments contained in the 2001 response were ultimately rejected by this Court when it issued its

ruling. The Tribe is uncertain whether it has been attached with the intent that this Court adopt the arguments

contained in said brief in foto, or if Appellee’s intent was to attach the brief in solely in support of its argument that

Baltazar is factually distinguishable from this case. Regardless, the Tribe is unaware of any authority holding that

such a practice is proper, even in an appellate context.

* It is important to note that the 2001 response relied heavily on caselaw that is distinguishable from the issues

presented in this case, and which largely focused on violations of Nevada speedy trial rules. See e.g. State v. Austin,

482 P.2d 284, 87 Nev. 81, 82, 482 P.2d 284, 284 (1971) (per curiam) (upholding a dismissal when the prosecution

requested multiple continuances based on its failure to subpoena witnesses, to locate evidence, or for other reasons

not listed in the opinion); Maes v. Sheriff; Clark Cty., 86 Nev. 317, 319, 468 P.2d 332, 333 (1970) (upholding

dismissal when the prosecution requested leave to provide proof of good cause for its failure to pursue a preliminary

hearing, but failed to provide said proof); McNair v. Sheriff, Clark Cty., 89 Nev. 434, 514 P.2d 1175 (1973) (finding

dismissal was appropriate where prosecution made an unsupported motion to continue a preliminary hearing, only to

file a grand jury indictment on the same charges, and where it appeared that the prosecution was willful or

consciously indifferent about the delay).

10

II. The Complaint Provided the Appellee with Adequate Notice as to the Charge She

Faced So that She Could Prepare Her Defense, and her Arguments Regarding

Prejudice to Her and the Victim are Misplaced.

As discussed in the Tribe’s Opening Brief, the Complaint filed in this case adequately

provided the Appellee with notice of the charge against her and an opportunity to begin

preparing her defense. United States v. Neill, 166 F.3d 943 (9" Cir. 1999); Hamling v. United

States, 418 U.S. 87, 117, 94 S.Ct 2887, 2907 (1974). A charging document “need do little more

than to track the language of the statute charged and state the time and place (in approximate

terms) of the alleged crime.” United States y. Alfonso, 143 F.3d 772, 776-77 (2™ Cir. 1998)

(emphasis added). The Appellee has cited to no case law from any jurisdiction that says

otherwise. Instead, the Appellee — while admitting that “the officer may have performed a valid

arrest in this case, based on the totality of the circumstances” — argues that the affidavit

submitted in support of the complaint needed to provide notice of the time of offense. This

argument is directly contradicted by Baltazar. As argued extensively in the Tribe’s Opening

Brief, the Tribal Code has a “tolerance of imprecision built into the criminal process [that]

recognizes the immense potential for error or mistake early in the initiation of criminal

proceedings.” Baltazar CA-01-003, at 4. This “tolerance” is premised on the fact, at the early

stages of the criminal process, the parties have not had an opportunity “to determine the

reliability and veracity of witnesses.” Accordingly, the Appellee’s argument in this regard

should be rejected.

The Appellee also attempts to argue, without support, that the listed victim have suffered

neither prejudice, nor a violation of their own right to speedy resolution under local Victims’

Rights laws because the complaint in this case was dismissed without prejudice,. See 4 PYTC §

5-20. This Court indicated in Baltazar that a trial court has a duty to balance the sometimes

11

conflicting rights of an accused and his victim. Baltazar, CA-01-003, at 4-5. In describing that

balancing act, this Court stated, “The court’s superior concern ... must be whether a justice can

be accomplished which takes into account these competing concerns. This becomes more

important in the early stages of the criminal process when a confrontational opportunity to

examine the factual basis for the complaint has not yet happened.” Jd. The victim in this case

reported to police that the Appellee had broken a window in her house, and that she wanted to

have the Appellee removed from the premises as a result. Once the case proceeded to court, the

victim was entitled to a just, speedy, and fair resolution of the case through the course of the

normal legal process. The fact that the complaint was dismissed as a result of the trial court’s

misinterpretation of 3-PYTC § 2-2-90 and whether time is an element that must be considered

when analyzing probable cause was error. That error resulted in the Appellee being released

without conditions that might have been relevant to the victim’s safety or peace. It also resulted

in the case being continued into the future, denying her a speedy resolution. The passage of

time, as lawyers and courts are well aware, also tend to result in degradation of memories or

other evidence, thereby making the search for truth at trial more difficult for both parties. Thus,

the Appellee’s argument that the victim suffered no prejudice is short sighted and unpersuasive.

12

CONCLUSION AND REMEDY SOUGHT

The trial court’s dismissal of the complaint against the Defendant at the initial hearing

was contrary to the Pascua Yaqui Tribal Code and relevant case law. The Appellant respectfully

requests this Court reverse the trial court’s ruling, reinstate the complaint, and remand the case to

the trial court for further proceedings.

RESPECTFULLY submitted this 17" day of April, 2019.

a ( 7 _———_.

Oscar’J. Flores Coleen Thoene

[se Pyosecut Deputy Prosecutor

13

CERTIFICATE OF SERVICE

[hereby certify that the Tribe’s pleading was delivered this date to:

Benjamin Casey

Ben.Casey@pascuayaqui-nsn.gov

Clerk of the Court of Appeals

Pascua Yaqui Court of Appeals

7777 S. Camino Huivisim

Tucson, AZ 85757

And that one (1) copy of the Tribe’s pleading was delivered, this date to:

Annamarie Valdivia

Annamarie. Valdivia@pascuayaqui-nsn.gov

Pascua Yaqui Office of the Public Defender

7474 S. Camino de Oeste

Tucson, AZ 85757

And that one (1) copy of the Tribe’s pleading was delivered this date to:

Associate Judge Margaret Flores

Pascua Yaqui Tribal Court

7777 8. Camino Huivisim

Tucson, AZ 85757

Dated this _17th_ day of May, 2019.

Coleen Thoene HH

Deputy Prosecutor

hn

Sworn before me this tt day of _} J UY , 2019

m YVETTE L. GRADILLAS 4

Notary Public - State of Arzona

PIMA COUNTY

Commission

July 13, 2020

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE, ) APPELLATE CASE NO. CA-19-005~ 7

Appellee, )

vs. ) PASCUA YAQUI TRIBAL COURT NO.

) CR-19-080

ISENA RODRIGUEZ, )

Appellant.

)

)

)

APPELLEE’S RESPONSE BRIEF

PASCUA YAQUI PUBLIC DEFENDER

Annamarie L. Valdivia

Senior Staff Attorney

PYT Bar #10267

4725 W. Calle Tetakusim, Building B

Tucson, AZ 85757

(520) 883-5013

Attorney for Appellee Isena Rodriguez

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....... cc cesssssssssecescesscesssssssesesssessessesesesssensssseeesssesssaesseeseessesesesseseess ii

I. JURISDICTIONAL STATEMENT 0.0... cccccccesccssessesesseeseceeseeseecsecesecsaecseceseessecssesecatersensees 1

Il. ISSUE PRESENTED FOR REVIEW 10.0... .ccccccccceseesessesseesseeseeseeseessesecsecsecaeessesesseeataceneeaes 2

B. Whether the trial court abused its discretion when it dismissed, without prejudice to

refiling, a complaint alleging that an incident occurred at a specific time despite the

failure of any time to be indicated in the supporting probable cause affidavit, or

other statement of the officer known by the court or prosecutor?..........ccccccceeeeee 2

UI. STATEMENT OF THE CASE sssessscsssasassssasasscoccaasns chaaisaansonss cncnnenseansvonnrananuorsceneansanavecsne 3

A. Summary of Incident and Arrest ..........cccccccccscccseesscesseeseeessccseescesecesseesscsccsseenseeucess 3

B. Summary of Trial Court Proceedings............cccccessesceseesscesscsscescesecseesececseessesseseeeees 3

IV. SUMMARY OF ARGUMENT... cecceccsssceseesseesseesseeeeeeseesseeseesesesecessesesasessseaeessseseasenes 6

Vv ARGUMENT sicssisssssenceuassnsnnacessnsseiccaxaniniass svete da sake saed sbaadnnannsdancnencenennnaanaeseaneersneeneennemeenesen 7

A. Standard of Review .......ccccesssesssesecsecssceseeseesecseceeesseesecseceaecseesaseaseaeesesseeatesecseseecnees 7

B. [eptte fr Rete W sssccssessavesonssvscss cssavasansnsvnes casnarscanenenanneacasaonaansncteesermnietonsenvenenaevarenonce 8

Whether the trial court abused its discretion when it dismissed, without prejudice to

refiling, a complaint alleging that an incident occurred at a specific time despite the

failure of any time to be indicated in the supporting probable cause affidavit, or

other statement of the Officer known by the court or prosecutor? ...........ccceeeeees 8

1. The Trial Court did not abuse its discretion when it dismissed without

prejudice to refiling a complaint where an Officer failed to provide any

approximate time of the incident in the supporting affidavit. .............0..0..0. 8

VI. CONCLUSION .... ce cecccecceseeeseeseceseeseeeseenseesseeacesecseesasessecessessseesseaeesaeensessecsesensenecateseenece 10

CERTIFICATE OF SERVICE o0....cccceceescssssseescesceseenecsseesesseeaecsesaecseesaeesecaecaeesussecsecsecsasaeeassasaeeaes 11

TABLE OF AUTHORITIES

CASES

Illinois v. Gates, 462 U.S. 213, 236, (1983)... .ccccccssscccecescessevcecceseseencnsecesccsnenensneuaeacs 8

In the Matter of Alvarez, CA-17-008 (PYT Ct. App. 2018).........ccccececcecceeneeeeeenen suena es 1,7

Michaelson v. Garr, 234 Ariz. 542, 544, (Ariz. App. 2014)...........cccc ccc cceccee ees eeeeneeeeeen ees 7

PYT vy. Baltazar, CA-01-003 (PYT Ct. App. 2001)..... 0... cece cece enc ec ee eeene essa en eseenenenees 1,7

PYT v. Bustamante, CA-17-004 (PYT Ct App. 2018)... :sccesecsssenncsscasscssvesescevesancessceses 1,7

In PYT v. Coleman, CA-15-003 .......... cc ccc cece cece cece cece ecuecccueeecuseeuueecuseeuseeeneecuaereeees 7,9

PYT v. Gonzalez, CA-07-017 (PYT Ct. App. 2007)... 0... cece cece eee e nee e ec eeeeeeeenenseeseeneeeeaes 7

PYT v. Miranda, CA-08-015 (PYT Ct. App. 2009)... . ccc c ee ce ec ee eee ecee ee ee eeeeeeeeeeneenenes 7

STATUTES

4PYTC § 1-630 ...1, 3,4

4 PYTC§ 3-10(B)...1,4

3 PYTC § 2-2-90...4, 6

3 PYTC § 2-3-240.....7, 9

il

I. JURISDICTIONAL STATEMENT

The Court of Appeals has jurisdiction to review this case as the Tribe has the ability to

appeal dismissal of a complaint prior to trial, whether or not dismissal is with or without prejudice.

PYT v. Bustamante, CA-17-004 (PYT Ct. App. 2018); Jn the Matter of Alvarez, CA-17-008 (PYT

Ct. App. 2018); and PYT v. Baltazar, CA-01-003 (PYT Ct. App. 2001). In the present case, the

Pascua Yaqui trial court dismissed a complaint file on January 9, 2019 without prejudice without

prejudice to refile. The complaint alleged Defendant/Appellee Isena Rodriguez, an enrolled

member of the Pascua Yaqui Nation, broke a window at her grandmother’s house, constituting an

injury to public property/family violence in violation of 4 PYTC § 1-630 and 4 PYTC§ 3-10(B)

on or about January 7, 2019 at approximately 5:00 p.m.. The probable cause statement/affidavit

submitted by the Tribe in support of the complaint at the initial hearing failed to notify the court

or the Defendant of the time she was alleged to have committed the charged crime. The Tribe’s

charging prosecutor indicated a time on the complaint, however, at the hearing no explanation was

offered for the source of that time.

Il. ISSUE PRESENTED FOR REVIEW

A. Whether the trial court abused its discretion when it dismissed, without prejudice to

refiling, a complaint alleging that an incident occurred at a specific time despite the

failure of any time to be indicated in the supporting probable cause affidavit, or other

statement of the officer known by the court or prosecutor?

Il. STATEMENT OF THE CASE

A. Summary of Incident and Arrest

The following information was obtained from Appellant’s Exhibit A-C (Criminal

Complaint and Probable Cause Affidavit, Initial Hearing and Order of Dismissal and Transcripts

of Initial Hearing). Ms. Rodriguez makes no admissions as to any elements of the charges.

On January 9, 2019 at 5:49 a.m., Helen Luzania, arrived at the front gate of the Pascua

Yaqui Police Department and made contact with the Pascua Yaqui Police Department’s Officer

Kevin Wells. Ms. Luzania requested assistance from the police department in removing her

granddaughter, Isena Rodriguez from her home. Ms. Luzania informed Officer Wells that she

kicked her granddaughter out of her home after her granddaughter broke a window with a rock on

January 7, 2019.

Officer Kevin Wells informed Ms. Luzania about the formal process in the nation of having

tenants removed and drove Ms. Luzania home so he could further investigate the situation. After

reading Miranda rights, Officer Wells spoke with Ms. Rodriguez, who allegedly indicated that she

accidently broke the window after getting mad and swinging a broom. There was no discussion

with Ms. Rodriguez of the date and time that the incident occurred and no time of the alleged

incident was included in the affidavit. Ms. Rodriguez was arrested at 6:23 a.m. and detained for

violation of 4 PYTC § 4-1-630— Injury to Public Property and referred to the Tribe for prosecution.

B. Summary of Trial Court Proceedings

On January 09, 2019 at 11:11 a.m., a one-count complaint was filed alleging the following:

“On or about January 7, 2019, at approximately 5:00 p.m., at or near 5091 W. Calle Tarook,

Defendant, without proper authority, used, injured, or misused any public, Tribal, government or

private property, to wit: Broke a window at her grandmother, Helen Lucania’s house” This was

in alleged to be a violation of 4 PYTC § 1-630 and 4 PYTC § 3-10(B) Injury to Public

Property/Family Violence. Appellant’s Exhibit A.

At the Initial Hearing, the trial court made a finding that the information contained on

the criminal complaint as to the time of the incident did not match the information

contained in the affidavit filed by Officer Wells as the affidavit did not give an approximate

time of the offense. The trial court cited to the requirement of the tribal code requiring that

all criminal complaints filed in tribal court need to include both a date and time and that

the information be supported by a sworn statement or affidavit. 3 PYTC § 2-2-90. The trial

court further stated that “it’s not clear as to what time the allegation actually occurred

according to [her] reading of the probable cause statement.” Appellant’s Exhibit C at p. 7.

The Tribe argued in rebuttal that time was not an element of the offense and that the

defendant had been sufficiently apprised of the allegation and charge against her. The Tribe

stated that another prosecutor, Kendrick Wilson, added “5:00 p.m.” to the complaint, but

only speculated as to how Mr. Wilson came up with that time. The Tribe further requested

that dismissal be without prejudice. Defense argued that knowing the time of the incident

was important to allow Ms. Rodriguez the opportunity to defend herself. She also indicated

that her client denied that the incident occurred on January 7, 2019. The Defense argued

that dismissal could be without prejudice to permit the Tribe to refile the complaint and

affidavit with the accurate information “where Defense can work with the case properly

defend the client.” /d. at 9.

The trial court dismissed the complaint without prejudice to refiling due to the missing

information in the affidavit as the complaint and supporting affidavit did not comport with

the requirements of the tribal code. Jd. at 9-10. No where in the transcripts or the initial

hearing order did the court make a finding that time is an essential element of the offense.

IV. SUMMARY OF ARGUMENT

The trial court dismissed without prejudice a complaint where an officer failed to include

information relating to the time a specific incident occurred, in violation of 3 PYTC § 2-2-90.

While the issue in the present case appears to be similar to the issue presented in PYT v. Baltazar,

CA-01-003, this case is distinguishable for a number of reasons. First, in the present case, the Tribe

made up a time to include in the complaint without any supporting information. Second, in the

present case, the Tribe failed to include any information regarding the time the incident occurred

which is a requirement of the tribal code. In Baltazar; the complaint was dismissed with prejudice

where a series of corrections were made by the Tribe as to the location and to date of the offense

but where defendant had notice of the time and date alleged due to the multiple filings of the

complaint and supporting affidavits. In the present case, dismissal was without prejudice to

refiling, so neither the Tribe nor the alleged victim in this case was prejudiced by the trial court’s

dismissal and the Tribe. The court did not abuse its discretion since the Tribe had an option to

amend the complaint to include the essential fact of time, and re-file the charge.

V. ARGUMENT

A. Standard of Review

The standard of review in this case is abuse of discretion. PYT v. Bustamante, CA-17-004

(PYT Ct. App. 2018); In the Matter of Alvarez, CA-17-008 (PYT Ct. App. 2018); and PYT v.

Baltazar, CA-01-003 (PYT Ct. App. 2001). Therefore, PYT v. Miranda, CA-08-015 (PYT Ct. App.

2009) is irrelevant as there is no absence of controlling Pascua Yaqui Law with regards to the

standard of review in this case. Jn PYT v. Coleman, CA-15-003 (PYT Ct. App. 2015), this Court,

citing to Michaelson v. Garr, 234 Ariz. 542, 544, (Ariz. App. 2014), held that “[t]he court abuses

its discretion when it makes an error of law in reaching a discretionary conclusion or “when the

record’ viewed in the light most favorable to upholding the trial court’s decision, is devoid of

competent evidence to support the decision.”

De novo review would allow this Court to evaluate the affidavit and the complaint to see if

sufficient facts were alleged to support a finding of probable cause. This was contemplated in PYT

v. Gonzalez, CA-07-017 (PYT Ct. App. 2007). However, this decision is designated as an “Order”

rather than an “Opinion.” Therefore, it is not precedent. 3 PYTC § 2-3-240. The United States

Supreme Court has cautioned appellate courts from reviewing de novo a trials courts probable

cause finding. See J/linois v. Gates, 462 U.S. 213, 236, (1983) (“Similarly, we have repeatedly said

that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form

of de novo review. A magistrate's “determination of probable cause should be paid great deference

by reviewing courts.”) (Bold added.)

B. Issue for Review

Whether the trial court abused its discretion when it dismissed, without prejudice to

refiling, a complaint alleging that an incident occurred at a specific time despite the

failure of any time to be indicated in the supporting probable cause affidavit, or other

statement of the Officer known by the court or prosecutor?

1. The Trial Court did not abuse its discretion when it dismissed without

prejudice to refiling a complaint where an Officer failed to provide any

approximate time of the incident in the supporting affidavit.

PYT v. Baltazar, supra, is a case that involved a complaint where the defendant was

accused of committing a crime which resulted in bodily injury to the alleged victim. Exhibit A

(Baltazar Opinion). At the time of the initial hearing, it became apparent that the arresting officer

made a clerical error in the first affidavit that was filed and the Tribe moved orally to correct the

first complaint. When counsel for the defendant objected to an oral amendment on the complaint,

the Tribe moved to dismiss the complaint without prejudice to refiling and proceeded to refile the

complaint to reflect the date listed in the affidavit.

After the case proceeded for a short while, the Tribe moved again to make additional

amendments to the complaint and affidavit to reflect the correct location of the incident. It was

discovered shortly after that the officer had again made a clerical mistake regarding the date of the

incident. The trial court dismissed the case with prejudice upon motion by defense. The Tribe

appealed the dismissal stating that dismissal was based on simple deficiency. Appellee argued that

dismissal was warranted as it was unfair to subject the defendant to multiple affidavits regarding

the same incident. In its response brief, appellee admitted that at some point, the information in

the complaints and affidavits were correct. Exhibit B (PYT v. Baltazar, supra Appellee’s Brief in

Response). The Pascua Yaqui Appellate Court held that “when a dismissal [of a criminal

complaint] is reached so early in the criminal process, it is incumbent upon the court to state with

specificity how such errors do prejudice the defendant. It is not enough that it is an inconvenient

to the defendant ... But, in a ‘victim’ case, as stated above, the Tribe stands in a trust position to

ensure that justice is accorded to all parties.”

The Baltazar case is highly distinguishable to the present case in its tolerance of slight

errors. In Baltazar, the defendant was put on notice of the correct date and location of the offense

multiple times throughout the proceedings. That distinction cannot be overstated. In the present

case, Ms. Rodriguez was not placed on any notice of the time she was accused of having violated

the law by the complaining Officer. Instead she was given an approximate time of 5:00 p.m., a

time nowhere stated in the Officer’s supporting affidavit of probable cause. The Tribe’s charging

prosecutor filled in a time, but does not indicate where or how the time was discovered by him.

The charging prosecutor did not cover the initial hearing and therefore could not explain how that

time came arose to include in the complaint. To date, Ms. Rodriguez never received any additional

information on the alleged time that the incident occurred. There was no allegation of a clerical

error nor a motion to amend the complaint to reflect the information in the affidavit. This is

contrary to the requirements of 3 PYTC § 2-2-90(A)-(D).

While it does appear that the officer may have performed a valid arrest in this case, based

on the totality of the circumstances, review for abuse of discretion requires this Court to ask not if

there was probable cause to arrest, but whether or not “the record’ viewed in the light most

favorable to upholding the trial court’s decision, is devoid of competent evidence to support the

decision.” Coleman, supra. (external citations omitted). When viewed from this perspective, it is

clear that the complaint lacked specificity of time to survive the Tribal Code’s requirement.

Here dismissal of the charges against Ms. Rodriguez were without prejudice to refiling.

The trial court dismissed the complaint to allow the Tribe and Officer Wells to make the necessary

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