IN THE PASCUA YAQUI COURT OF APPEALS

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

Appellee.

)

PASCUA YAQUI TRIBE, )

) Cause No, CA-22-002

Appellant, ) (CR-22-207)

v. )

)

RICHARD SOTO, JR., ) OPINION AND ORDER

)

)

)

For the Appellant: Coleen Theone, Office of the Prosecutor

For the Appellee: Mark Willimann, Office of the Public Defender

Plevel, Associate Justice

Concurring: Chief Justice Miller and Associate Justice Martinez

This matter comes before the Court of Appeals on appeal from the trial court's decision

dismissing the sole count of the criminal complaint with prejudice. Oral argument was heard on

May 9, 2023.

Jurisdiction

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

3 PYTC §§ 1-1-lO(A) & 2-3-30 et seg. The trial court dismissed the complaint with prejudice,

finding that there was a lack of probable cause at the Initial Hearing Order. That act constitutes

an appealable order. Jn the Matter of Alvarez, CA-17-008 (PYT Ct. App. 2018); Pascua Yaqui

Tribe v. Bustamante, CA-17-004 (PYT Ct. App. 2017).

)

Standard of Review

Our standard of review for trial court decisions dismissing a criminal count or complaint

without prejudice is for abuse of discretion. Pascua Yaqui Tribe v. Rodriguez, CA-19-004, at 2

(PYT Ct. App. Oct. 7, 2019); Pascua Yaqui Tribe v. Bustamante, supra. A trial 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).

Questions Raised

1. What does “willfully”! mean?

2. Cana defense to the charge defeat a probable cause finding?

3. Is dismissal of a charge with prejudice at the probable cause hearing an abuse of

discretion?

Background

The parties did not dispute the general facts as to this matter, but a short recitation is

important for the questions raised.

The Appellee (hereinafter ‘Defendant’) was served with an Order of Protection (OOP) on

Aug 19, 2022, which provides that he was not to have any contact with the listed petitioner and a

child and was not to have any contact with the petitioner’s residence at 5050 W. Wichalakas

which is critical to the questions presented herein. The OOP specifically warned the defendant

that only the court can modify the terms, and that neither party could alter its terms. (Appellant’s

Brief, Ex B). That Order also advised the Defendant as the respondent to the Order of Protection,

he was entitled to a hearing on a written request made to the court. (/d. Ex B, p. 2), The

defendant went to 5050 W. Wichalakas on September 1, 2022, at the invitation of his father the

homeowner ~ a third party not involved nor party to the OOP — despite knowing there was an

order of protection prohibiting him from being at that residence. (Appellant’s Brief, p. 7 and

Attachment D).

At the Initial Hearing, the defendant argued that there was no probable cause as he had

been invited to the residence by the homeowner, while acknowledging that he knew of the Order

of Protection and its terms. (Appellant’s Brief, Attachment C, Transcript of 9-1-2022 hearing;

Attachment A, Probable Cause Affidavit).

The court found that because the homeowner, not the petitioner in the OOP, invited the

defendant to the protected residence, the defendant did not willfully violate the Order of the

court, and thus no probable cause existed. The court then dismissed the complaint with prejudice.

Discussion

1. “Willfully” or “willful” is the same mental state as “intentional.”

The PYT Code section “Disobedience of Lawful Order of Court” provides that “Any

person who shall willfully disobey any order, subpoena, warrant or command duly issued,

made or given by the Pascua Yaqui Tribal Court or any officer thereof shall be deemed guilty of

1 Willful and willfully is spelled two ways throughout different resources, cases, and statutes — either as here, or as

‘wilful’ or ‘wilfully,’ thus it will be spelled in this opinion as it is found in the original cited materials.

an offense.” 4 PYTC § 1-570 (emphasis added). The PYT Code does not define willfully. The

Pascua Yaqui Tribal Council in its Tribal Code has adopted definitions for intentionally and

knowingly:

(1) “Intentionally or with the intent to” means, with respect to a result or to conduct

described by a statute defining an offense that a person’s objective is to cause that result

or to engage in that conduct.

(2) “Knowingly” means with respect to conduct or to a circumstance described by a

statute defining an offense that a person is aware or believes that his or her conduct is of

that nature or that the circumstances exists. It does not require any knowledge of the

unlawfulness of the act or omission.

4 PYTC § 1-41(A).

In looking to other authorities, such as the Arizona statutes, we find that they define

“intentionally” or “with the intent to” much the same as the PYT Code;

(a) “Intentionally” or “with the intent to” means, with respect to a result or to conduct

described by a statute defining an offense, that a person's objective is to cause that result

or to engage in that conduct.

Ariz. Rev. Stat. Ann. § 13-105. Additionally, and unlike the Pascua Yaqui Code, Arizona

statutes do define willfully in its general statutes; “’[w]ilfully’ means, with respect to conduct or

to a circumstance described by a statute defining an offense, that a person is aware or believes

that the person's conduct is of that nature or that the circumstance exists.” A.R.S. § 1-215(42),

In Arizona courts willful has been found to mean “‘with respect to conduct or to a

circumstance described by a statute defining an offense, that a person is aware or believes that

the person's conduct is of that nature or that the circumstance exists.” State v. Burke, 238 Ariz.

322, 98 (Ct. App. 2015), In defining willfully in another case, the Arizona Supreme Court found

“(t]he word ‘wilfully’ in ARS § 13-541 does not add a specific intent element. “Wilfully', when

applied to the intent with which an act is done or omitted, implies simply a purpose or

willingness to commit the act, or make the omission referred to. It does not require any intent to

violate law, or injure another or to acquire any advantage.”” State v. Bell, 113 Ariz. 279, 281, 551

P.2d 548, 550 (1976)

It is unclear from the Pascua Yaqui Tribal Code what the intent of the Tribal Council was

in using the term “willfully” in 4 PYTC § 1-570. When interpreting statutory text, “our inquiry

begins with the statutory text, and ends there as well if the text is unambiguous.” BedRoc Ltd,

LLC v. United States, 541 U.S. 176, 183 (2004). “Where Congress does not furnish a definition

of its own, we generally seek to afford a statutory term “its ordinary or natural meaning.”

(citation omitted) HollyFrontier Cheyenne Ref., LLC v. Renewable Fuels Ass'n, 141 S. Ct. 2172,

2176 (2021); see also, Tomczyk v. Garland, 25 F 4th 638, 644 (9th Cir. 2022) (when the code

text does not define the words, we look at their ordinary meanings).

According to Black’s Law Dictionary, “willful” means “Voluntary and intentional, but

not necessarily malicious, A voluntary act becomes willful, in law, only when it involves

conscious wrong .. ., or at least inexcusable carelessness, whether the act is right or wrong.”

Willful, Black's Law Dictionary (11th ed. 2019). According to Oxford English Dictionary, willful

is defined as “[a]sserting or disposed to assert one's own will against persuasion, instruction, or

command; governed by will without regard to reason; determined to take one's own way;

obstinately self-willed or perverse. Done on purpose or wittingly; purposed, deliberate,

intentional; not accidental or casual. Voluntarily, of free will.” Willful, Oxford English

Dictionary Online, Oxford University Press, March 2023. www.oed.com/view/Entry/229028.

In the present matter, the defendant went to 5050 W Wichalakas on September 1, 2022

while knowing there was an order of protection prohibiting him from being at that residence, yet

he went anyway — he was not forced, coerced or tricked into being at the protected residence, and

it was not an accident that he went to the protected residence, he went there under his own power

and volition. He intentionally went to the residence at 5050 W Wichalakas on September 1,

2022.

The trial court in this matter improperly implied meaning to the statute, beyond what it

states in the text, and what the plain meaning of the words are. In its Initial Hearing Order, the

court states, “The Court found that there is not probable cause to find that the Defendant

willfully disobeyed the Order of Protection as his Father told him to come to his house.”

(Appellant’s Brief, Attachment C, Initial Hearing Order) However, the court even recognized

that the defendant had knowledge of the OOP and that the defendant voluntarily and of his own

volition went to the residence, “[i]t, it looks like, uhm, this may be a case of that, uhm, that the

Defendant knew about the order, but, uhm, he thought because his father, uhm, asked him to

come over, I think it was to do something with the, the outside of the house, the yard, uhm, that

maybe he thought it was okay because of his dad's statement.” (Appellant’s Brief, Attachment C,

Initial Hearing Order p. 8).

Unfortunately, the court imposed a higher level of culpability. The court dismissed this

complaint for lack of evidence that the defendant had the criminal mental state for the case to

proceed. However, the mental state according to the plain language of the statute is that the

offender voluntarily, did on purpose or wittingly, consciously wrong, intentionally took an action

— in this case, went to the protected residence -- in contravention and violation of the terms of the

OOP. No other mental state is required.

At oral argument in this matter, the parties agreed that a willful act should be construed

the same as an intentional act. Based upon the plain meaning of “willfully” it is clear that it

refers to the conduct or actions of the defendant not necessarily the result or consequences of the

conduct, that the conduct was intentional, not accidental or casual, and done voluntarily, of one’s

own free will. Taken together, ‘willfully’ and ‘intentionally’ are the same mental state.

2. A potential defense to the charge does not defeat a probable cause finding.

"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." PYT v. Montana, CA-21-239 at p.2; see also

PYT y. Rodriguez, CA-19-004 at p.2. “It “requires only a probability or substantial chance of

criminal activity, not an actual showing of such activity.” //linois v. Gates, 462 U.S. 213, 243-44

n. 13 (1983).

When deciding probable cause, the court is not deciding guilt beyond a reasonable doubt.

“Conclusive evidence of guilt is not necessary to establish probable cause. Mere suspicion,

common rumor, or even strong reason to suspect are not enough, however.” McKenzie v. Lamb,

738 F.2d 1005, 1008 (9th Cir.1984) (citing Henry v. United States, 361 U.S, 98, 101 (1959)).

The court’s ruling here appears to be the result of the court improperly considering whether

evidence regarding the father's invitation would result in the prosecution being unable to prove

guilt beyond a reasonable doubt. That is not the standard for making a finding of probable cause.

Id; U.S. Const., amend IV.

Whether the defendant has any claim of a defense to the charge, or a valid challenge to a

lawfully issued OOP, is not determinative of the probable cause finding. “[T]the purpose of the

[probable cause] hearing is for the State to produce competent evidence to convince the

magistrate that a trial should be held; resolution of non-affirmative defenses is premature at the

preliminary hearing stage if the evidence is controverted.” Brailsford v. Foster, 242 Ariz. 77, 85,

393 P.3d 138, 146 (Ct. App. 2017). Here, whether the defendant was justified in violating the

OOP due to the invitation of a non-party to the OOP is in question, and a matter for the trier of

fact, and is not a bar to the probable cause finding. Further, any attack on the validity or breadth

of the OOP is to be made before the court which issued such. The court here improperly allowed

a collateral attack on the OOP in this separate criminal matter. The defendant was challenging

the terms of the OOP in the criminal probable cause hearing, which is not proper; in allowing

such, the court abused its discretion.

3. Dismissal with prejudice was improper.

Pursuant to Pascua Yaqui Code, “[a]t the initial appearance of any person who was

arrested without a warrant and against whom no verified complaints have been filed, the court

shall, after informing the accused of his or her rights, as outlined below, first determine whether

or not probable cause exists to continue to detain and prosecute the accused, and if not, shall

order the accused released from custody immediately.” 3 PYTC § 2-2-180. And while the

defendant has the right to challenge the probable cause finding pursuant to 3 PYTC § 2-2-

300(C), nothing in that provision provides for dismissal with prejudice.

Dismissal with prejudice at the Probable Cause hearing is an abuse of discretion. The

remedy pursuant to PYT Code for a finding of no probable cause is either release of the

defendant from custody or pretrial detention, or dismissal without prejudice, as no prejudice has

attached at the Initial Hearing stage. See, PYT v. Valencia, CA-19-005 (2019),

Conclusion

The trial court in this matter abused its discretion in finding no probable cause, by

misinterpreting the meaning of willfully, finding lack of probable cause based upon disputed

evidence of a justification, and by dismissing the case with prejudice. The court incorrectly

considered evidence that was for the trier of fact, and which did not defeat probable cause.

Further, the court’s dismissal with prejudice is not permitted by the statute.

The September 1, 2022, Order dismissing the complaint with prejudice is hereby

reversed, and this case is remanded for further proceedings consistent with this Opinion and

Order.

HEREBY ORDERD this 16" day of May, 2023.

Tuna l

Hon. Rebecca Plevel

Concurring:

Kibet )- eke,

Interim Chief Justice Robert J. Miller

Justice Kendra A. Martines

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION, ARIZONA

PASCUA YAQUI TRIBE

Appellant APPELLATE CASE NO: CA-22-002

Vs.

RICHARD SOTO, JR. TRIBAL COURT CASE NO: CR-22-207

Appellee

APPELLANT’S REPLY BRIEF

Malena Acosta,

Chief Prosecutor

Coleen Thoene, Madelynn Franklin

Deputy Prosecutors

Pascua Yaqui Office of the Prosecutor

7777 S. Camino Huivisim

Bldg. A, 2"! Floor

Tucson, AZ 85757

Telephone: (520) 876-6251

Malena.Acosta@pascuayaqui-nsn.gov

Coleen. Thoene@pascuayaqui-nsn.gov

Madelynn.Franklin@pascuayaquinsn.gov

Attorneys for the Pascua Yaqui Tribe

TABLE OF CONTENTS

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I. THE EVIDENCE PROVIDED TO THE TRIAL COURT DURING THE

INITIAL HEARING ESTABLISHED CLEAR PROBABLE CAUSE TO

BELIEVE THAT THE DEFENDANT WILLFULLY WENT TO A

PROTECTED ADDRESS IN VIOLATION OF THE ORDER ISSUED

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TABLE OF AUTHORITIES

Authority Page Number

Pascua Yaqui statutes

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REQUEST FOR ORAL ARGUMENT

The Defendant/Appellee’s Response does not take a petition regarding the request for oral

argument. The Tribe renews its request for an oral argument pursuant to 3 PYTC § 2-3-180, 3

PYTC § 2-3-260(C)(6) and/or (D).

STANDARD OF REVIEW

The parties agree that the standard of review to be applied to this case, based on current

Pascua Yaqui Appellate Court precedent is an “abuse of discretion” standard.

ISSUES PRESENTED FOR REVIEW

The Defendant’s Response has not raised any additional issues for review other than those

outlines in the Tribe’s Opening Brief.

STATEMENT OF THE CASE

I. Facts and Proceedings Below:

The factual and procedural summary set forth by Defendant largely mirrors the one

included in the Tribe’s Opening Brief. However, it includes a factual proffer that was never

presented to the Trial Court. Specifically, the Defendant asserts that the Victim “does not

commonly reside at the address where [the] Defendant was located.” Response, p. 5. A review of

the transcript from the September 1, 2022, see Opening Brief, Attachment D, and of the affidavit

of probable cause, see Opening Brief, Attachment A, p.2-4, shows that this proffered fact was not

presented to the trial court at the time of the initial hearing.!

Il. Summary of the Argument

The Defendant’s Response does not dispute the fact that a valid protective order was issued

in OP-22-034, or that it prohibited the Defendant from contacting the Victim or the Wichalakas

address at issue. Similarly, the Defendant acknowledges that he made statements at the time of

the investigation indicating that he knew about the protective order and was at the Wichalakas

address at the request of his father. Instead, he asserts only that there was no probable cause to

believe that he had committed the offense of Disobedience of Lawful Order of Court, 4 PYTC §

1-570, because there was no evidence to support a finding that he possessed a “willful” mens re.

Response at p.4

Disobedience of Lawful Order of Court is, in many regards, a strict liability offense. If a

court order exists, it must be followed unless and until the court modifies or rescinds it. Choosing

to violate a court’s order upon invitation of a third party still constitutes a violation of 4 PYTC §

1-570. As was discussed extensively in the Tribe’s Opening Brief, more than ample evidence was

' It was also not proffered by counsel at the time of the hearing, and its basis is unclear as of the time of this Reply’s

filing.

2

presented demonstrating that the Defendant chose to go to the Wichalakas address. This choice

was made with full knowledge of the protective order’s restrictions, and, thus, was done in a

willful, knowing, and intentional manner. A review of these facts — even when examined in the

light most favorable to sustaining the lower court’s order — shows that the trial court abused its

discretion when it dismissed the case pending against the Defendant.

LAW AND ARGUMENT

I. The Evidence Provided to the Trial Court During the Initial Hearing Established

Clear Probable Cause to Believe that the Defendant Willfully went to a Protected

Address in Violation of the Order Issued in OP-22-034.

The Defendant is correct that the Tribe’s argument “conflates [a person’s] willful presence

in a location with a willful violation of a court order.” Response, p.5. That is because, in the

circumstances of this particular case, the Defendant’s willful presence at a protected location and

his willful violation of a court order pertaining to that same location are, in fact, one and the same.

Indeed, the circumstances of this case demonstrate that the Defendant willfully chose to go to an

address despite knowing it was protected under court order. That willful choice satisfies the mens

re requirements of 4 PYTC § 1-570. Accordingly, the trial court’s dismissal of the case for want

of probable cause constituted an abuse of discretion.

It is clear that a protective order was issued in OP-23-034 on August 16", 2022, and

subsequently served upon the Defendant. Opening Brief, Attachment B. It is also clear that the

protective order also prohibited the Defendant from being at the address of 5050 W. Wichalakas.

Id. at p.1.* It is also clear that the Defendant received written notice that the court alone had the

? Courts possess the power to specifically tailor their orders and rulings to a given situation based on the unique facts

of a particular case. For instance, it is relatively commonplace for protective or “conditions of release orders” that

prohibit a defendant from contacting a victim to carve out exceptions for certain types of allowable contact. For

instance, an order may specifically allow contact to occur between parties as part of an unrelated family court matter

regarding child custody issues. The order issued in OP-22-034 did not include any specific exceptions allowing the

3

power to rescind or modify the terms of the protective order, and that any violations of the court’s

order could result in criminal prosecution. Jd. at p.2-3. The Defendant was at the Wichalakas

address on September 1, 2022, only thirteen days after the order of protection was served upon

him. See generally Opening Brief, Attachment A. A police officer investigating a report of him

being at the address saw him there when he arrived. Jd. The Defendant admitted to knowing about

the protective order. Jd. He then said that he had gone to the address upon the invitation of his

father, a third party who was not involved in proceedings relating to OP-23-034 and the issuance

of the protective order. /d. The Defendant further stated that he believed that he could be at the

Wichalakas address because his father invited him. Jd. At no point was it ever suggested that the

Defendant was at the address because he believed that the court had somehow altered or rescinded

the protective order.

The parties appear to largely agree as to all these facts but differ as to whether these facts

show a willful choice on the part of the Defendant. Contrary to the Defendant’s arguments, his

actions at the time of the offense show that he willfully chose to be at the Wichalakas address. See

also Response, p.5 (“Certainly, Mr. Soto was located at the incident location in question. And it

is not a question that he arrived there on his own volition.”) (emphasis added). This same willful

choice, in this instance, just happened to also constitute a willful choice to violate the court’s plain

and clear protective order.

It is also important to reiterate that, at the initial hearing, the trial court appeared to

acknowledge that the evidence showed that the Defendant made a conscious choice to be at the

Wichalakas address because “maybe he thought it was okay” to be there because of his father’s

invitation. Opening Brief, Attachment C, p. 8. Moreover, the court later upheld protective order’s

validity and went so far as to tell the Defendant could not “go over there unless the Court orders

Defendant to be at the Wichalakas address so long as he was on certain parts of the property, or exceptions allowing

the Defendant to be at the address upon the invitation of another person.

4

that...you can.” Jd. at 9-10. The court then repeated “{D]on’t go over there no matter who says

for you to go over unless it’s the Courts, says that you can... okay?” Id. These statements were

simply additional warnings that the Defendant could not choose to be at the Wichalakas address,

even upon invitation, absent a change to the protective order.

Because there is clear evidence that the Defendant acted willfully as required by 4 PYTC

§ 1-570, the trial court abused its discretion in determining that there was insufficient probable

cause to move forward with the criminal case.? Accordingly, the requested relief should be granted.

> Although the Defendant briefly argues that there was no evidence that the Defendant knew that the Victim would be

at the residence, or that he went to the residence with the intent to contact the victim, see Response, p.5, this argument

ignores crux of this case. The Defendant was specifically charged for being at the Wichalakas address in violation of

a court order prohibiting him from being there. See Opening Brief, Attachment A.

5

CONCLUSION AND REMEDY SOUGHT

In this case, the trial court abused its discretion in finding that there was no probable cause

to believe that the Defendant had violated 4 PYTC § 1-570 based on a finding that he had not acted

in a willful manner despite clear evidence showing that he made a willful and intentional choice

to be at a protected address. Based on the reasons and arguments set forth above and in the Tribe’s

Opening Brief, the Tribe respectfully requests that the trial court’s ruling be vacated, and that the

case be remanded for further proceedings.

pi

RESPECTFULLY submitted this ka th day of January, 2023.

P SCA YAQUI PROSECUTOR

As Ly, a

Coleen Thoene

Chief Prosecutor Deputy Prosecutor -

Nowy ¢ZE4

Madely anklin

Deputy Prosecutor

CERTIFICATE OF SERVICE

I 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 §. Camino Huivisim

Tucson, AZ 85757

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

Stuart de Haan

Stuart.deHaan@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 Veronica Darnell

Pascua Yaqui Tribal Court

7777 8. Camino Huivisim

Tucson, AZ 85757

Dated this [sth day of January, 2023.

Wig PASCUA YAQUI PROSECUTOR

f [ Whe CAA

Maléna“Acosta’*—~ ~~ C

oleen Thoene

Chief Prosecutor Deputy Prosecutor

W497

Madelynit Franklin

Deputy Prosecutor

Sworn before me this ! 's day of Sona , 2023

YVETTE § GRADILLAS

Notary Public - Arizona

Pima County

Commission # 585864

~My Comm. Expires Jul 13, 2024

IN THE PASCUA YAQUI COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE,

Appellant,

APPELLATE CASE NO. CA-22-002

PASCUA YAQUI TRIBAL COURT NO.

CR-22-207

Vv.

RICHARD SOTO JR..,

)

)

)

)

)

)

)

Appellee.

)

APPELLEE RESPONSE BRIEF

PASCUA YAQUI PUBLIC DEFENDER

Stuart de Haan

Senior Staff Attorney

4725 W. Calle Tetakusim, Bldg. B

Tucson, AZ 85757

(520) 883-5013

Attomey for Appellee Richard Soto Jr.

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

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TRIBAL CASE LAW

PYT v. Bustamante, CA-17-004 (PYT Ct. App. 2018);

PYT v. Rodriguez, CA-19-004 (PYT Ct. App. 2019)

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

PYT v. Baltazar, CA-01-003 (PYT Ct. App. 2015)

CASE LAW

State v. Hoskins, 199 Ariz. 127 (Ariz. 2000)

State v. Blackmore, 186 Ariz. 630 (Ariz. 1996)

State v. Solano, 187 Ariz. 512 (Ariz.App. 1996)

State v. Hutton, 110 Ariz. 339 (Ariz. 1974)

State v. Howard, 163 Ariz. 47 (Ariz. App.1989).

US. v. Crapser, 472 F.3d 1141 (9th Cir. 2007).

State v. Valle, 196 Ariz. 324 (Ariz.App.2000).

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

Maryland v. Pringle, 540 U.S. 366 (2003)

State v. Adams, 18 Ariz.App. 292 (1972).

State v. deBoucher, 660 P.2d 471 (Ariz. App. 1982)

Michigan v. Summers, 452 U.S. 692 (1981)

Beck v. Ohio, 379 U.S. 89 (1964).

TRIBAL STATUTES

Constitution of the Pascua Yaqui Tribe, § 1(h)

4 PYTC § 1-570

3 PYTC § 2-2-180

3 PYTC § 1-1-10

3 PYTC § 2-3-90

3 PYTC § 2-2-300

iii

STATEMENT OF THE CASE

Appellant is the Pascua Yaqui Tribe Office of the Prosecutor and Appellee is Richard Soto,

Jr. (Mr. Soto). This case was heard for an Initial Appearance on September 1, 2022 at 1:30pm. The

case involved a single count of Disobedience of a Lawful Order of Court pursuant to 4 PYTC § 1-

570 alleged to have occurred on that same day.

The court heard arguments regarding the Probable Cause for the complaint and ultimately

determined that there was not sufficient evidence to proceed with the prosecution. 3 PYTC § 2-2-

180. The reason given by the court was that there was no evidence that the defendant had the

requisite criminal intent required by the statute.

The affidavit submitted by law enforcement presented facts including the Mr. Soto’s reason

for being at the residence and his understanding of the parameters of the order of protection

lawfully served on him. The suspect candidly admitted knowledge of the order, his und erstand ing

of it, and gave a reason as to why he was at the residence. The court found, based on the evidence

presented, that the Tribe did not meet the burden of proof necessary to continue with prosecution.

The case was dismissed which lead to this instant appeal.

JURISDICTIONAL STATEMENT

I. Tribe’s Jurisdiction

The Pascua Yaqui Tribal Court had jurisdiction under 3 PYTC § 1-1-10 because the Tribe

charged Mr. Soto, an enrolled Indian, with offenses enumerated in the Tribal Code. The charges

allegedly occurred within the boundaries of the Pascua Yaqui Reservation. See 3 PYTC § 1-1-10

(B).

Il. Court of Appeal Jurisdiction

Pursuant to the Rules of Appellate Procedure, “[t]he Pascua Yaqui Tribe or prosecutor shall

not appeal a judgment acquitting a defendant in a criminal case.” 3 PYTC § 2-3-90(F). The plain

language of the statute indicates that appeals in criminal matters by defendants is permitted.

STANDARD OF REVIEW

The standard of review is for an abuse of discretion. PY7 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. 2015). In PYT v. Coleman, this Court held, “[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.” CA-15-003 (Ct. of App. 2015) (citing to Michaelson

v. Garr, 234 Ariz. 542, 544, 323 P.3d 1193, 1195 (Ariz. App. 2014)).

ARGUMENT

II. The Trial Court Did Not Abuse Its Discretion by Dismissing the Case

a. The Trial Court Has Significant Deference In Determining Probable

Cause

A defendant in a criminal proceeding has the right to challenge a criminal complaint for

lack of probable cause. 3 PYTC § 2-2-300(C). All criminal prosecutions for violations of

the Pascua Yaqui Tribal Code must be initiated by the filing of a criminal complaint in the

Tribal Court. 3 PYTC § 2-2-90 (A). When a person is arrested without a warrant, the Court

must review the complaint together with other sworn statements to determine whether

probable cause exists to allow the prosecution to proceed. 3 PYTC § 2-2-90 and 3 PYTC § 2-

2-180 (A). Although not explicitly stated, these provisions of the Pascua Yaqui Judicial Titles

and Codes demonstrate that when a person is arrested and charged with a violation of the law,

it is the Tribe that bears the burden of establishing probable cause.

Probable cause to arrest exists when reasonably trustworthy information and circumstance

would lead a person of reasonable caution to believe that a suspect has committed the offense for

which he is being arrested. State v. Hoskins, 199 Ariz. 127, 14 P.3d 997, 1007-08 (Ariz. 2000). In

addition, whether officially arrested or not, persons cannot be held without probable cause, even

briefly, under conditions resembling formal arrest. State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347,

1349 (1996); State v. Solano, 187 Ariz. 512, 516, 930 P.2d 1315, 1319 (Ariz.App. 1996).

Probable cause cannot rest upon a mere suspicion that a crime has occurred. State v. Hutton,

110 Ariz. 339, 341, 519 P.2d 38, 40 (1974); State v. Howard, 163 Ariz. 47, 50, 785 P.2d 1235, 1238

(App.1989). Even reasonable suspicion is not a rubber stamp, and probable cause, a higher evidentiary

bar to clear, certainly is not. Reasonable suspicion requires “a particularized and objective basis” for

suspecting the person of criminal activity. U.S. ». Crapser, 472 F.3d 1141, 1147 (9th Cir. 2007).

Probable cause, however, requires not just objective and articulable indicia of the criminal activity but

that indicia must also be “credible,” “substantial” and “persuasive.” State v. Valle, 196 Ariz. 324, 328,

331, 996 P.2d 125, 129, 132 (Ariz.App.2000).

The Pascua Yaqui Judicial Titles and Codes do not contain a definition of the term “probable

cause.” As the United States Supreme Court observed, “probable cause is a fluid concept — turning

on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced

to a neat set of legal rules.” I/linois v. Gates, 462 U.S. 213, 232 (1983). In defining “probable cause,”

the Court has observed that “[t]he substance of all the definitions of probable cause is a reasonable

ground for belief of guilt, and that the belief of guilt must be particularized with respect to the person

to be searched or seized.” Maryland v. Pringle, 540 U.S. 366,371 (2003) (internal quotation marks and

citations omitted).

"Reviewing courts pay great deference to a magistrate's determination of probable cause.

State v. Adams, 18 Ariz.App. 292, 501 P.2d 561 (1972)." State v. deBoucher, 660 P.2d 471,

135 Ariz. 220 (Ariz. App. 1982) The Tribe claims that the trial court abused its discretion in

that it either redefined the term “willfully”, or granted the defendant’s father the authority to

alter the order with his invite to the incident location. Neither of these claims correctly

defines the issue. The court dismissed this complaint for lack of evidence that the defendant

had the criminal mental state for the case to proceed. The court has the authority to make

this determination at this stage of the proceeding.

Under the Fourth Amendment, a warrantless arrest requires probable cause. See

Michigan v. Summers, 452 U.S. 692, 700, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981). “Probable

cause to arrest exists when officers have knowledge or reasonably trustworthy information

sufficient to lead a person of reasonable caution to believe that an offense has been or is

being committed by the person being arrested.” Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223,

13 L.Ed.2d 142 (1964).

US. v. Lopez, 482 F.3d 1067 (9th Cir. 2007). What the affidavit and information

assessed by the Trial Court lacked in this probable cause hearing was any indication of

mental culpability. Here, the court reviewed the affidavit, the order, and rightfully

determined that no crime had been committed. Any reasonably trustworthy information

gleaned during this investigation showed the opposite — that the homeowner invited the

Defendant to the house to do yard work.

There was no indication that Mr. Soto had gone to that house in knowing violation of

the order, but to help his father outside, or within the curtilage of the home. He had no

indication of making contact with the plaintiff of the order of protection, nor did he had any

knowledge that she was at this location. In fact, it was indeed his father that lived there, not

the plaintiff. The father who had invited him to the house. It is factually and legally possible

to be at a specific location without »//fully violating an order. That was the finding of the

court here.

b. Willfully Being at a Location is Distinguishable From Willfully

Disobeying an Order of Court

"

[Wilful means an act is done intentionally..." State v. Carriger, 143 Ariz. 142, 692

P.2d 991 (Ariz. 1984). The Tribe conflates the willful presence in a location with a willful

violation of a Court Order. Certainly, Mr. Soto was located at the incident location in

question. And it is not a question that he arrived there on his own volition. What was in

question from the outset of the case was whether or not he realized that his presence there

was unauthorized. Even if there was a legal document that related to this issue and he

acknowledged its existence, the court still must determine, in the totality of the

circumstances, if the defendant’s presence in the location was a willful or intentional

violation of the court order.

The information that the court had at the probable cause hearing was that Mr. Soto

was at that address was not to see the plaintiff, or that he even knew she was at that location.

It is notable that the plaintiff in the order of protection does not commonly reside at the

address where he was located. His father resides at that location; the father who invited him

there.

c. The Trial Judge Did Not Redefine the English Language or Give

Extrajudicial Authority to a Civilian

The Tribe’s claim that the conduct of the Defendant here was clearly a violation of

the law based on the mens rea element of a “willful” mental state was certainly not shared by

the trial judge. There is no dispute that an order of protection was granted and served. The

only question, and the one that the court relied upon, was the motivation for being at the

location.

It does not require an overhaul of the definition of a commonly understood term to

determine an element of an offense has not been shown at the probable cause level. In the

affidavit reviewed by the court, Mr. Soto gave a statement to the police about his intentions.

He did not flee the scene and was forthcoming with officers. It is commonplace for a judge

to take the statements lawfully obtained by law enforcement into consideration when making

a determination on probable cause. The role of the court in these circumstances it to make

common sense decisions based on information obtained at the scene.

“In dealing with probable cause... 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.” PYT v. Rodriguez, CA-19-004.

Unsurprisingly, the Tribe failed to find the statutory or case-based authority that

would allow for a judge to grant extrajudicial authority to a civilian. The reason being that

this is preposterous and not at all what happened here, or most likely in any other case. A

prosecutor disagreeing with a ruling against their position does not implicate a whimsical and

fantastic legal theory as an explanation. The judge merely found that by the evidence

presented, there was no showing of the required statutory mental element of this offense

which is within their broad discretionary authority. This disagreement does not constitute a

per se abuse of discretion.

I. CONCLUSION

Wherefore, Mr. Soto respectfully requests this Court to uphold the ruling of the trial court’s

finding that there was insufficient probable cause in this matter for the Tribe to continue

prosecution.

RESPECTFULLY SUBMITTED: January 4, 2023.

PASCUA YAQUI PUBLIC DEFENDER

/s/Stu_ de Haan

Stuart de Haan

Senior Staff Attorney

4725 W. Calle Tetakusim, Bldg. B

Tucson, AZ 85757

(520) 883-5023

Attorney for Appellee

CERTIFICATE OF COMPLIANCE

This brief complies with the provisions set forth in 3 PYTC Part IJ, Chapter 2-3.

PASCUA YAQUI PUBLIC DEFENDER

/s/Stu_de Haan

PASCUA YAQUI PUBLIC DEFENDER

Stuart de Haan

Senior Staff Attorney

4725 W. Calle Tetakusim, Bldg. B

Tucson, AZ 85757

(520) 883-5023

Attomey for Appellee

CERTIFICATE OF SERVICE

On January 4, 2023, the original and five copies of the Appellees Response Brief were filed,

and conforming copies were sent to the following:

Pascua Yaqui Office of the Prosecutor

Deputy Prosecutor

Coleen Thoene

7777 8. Camino Huivisim, Bldg. A

Tucson, AZ 85757

Richard Soto, Appellee

PASCUA YAQUI PUBLIC DEFENDER

/s/Stu de Haan

PASCUA YAQUI PUBLIC DEFENDER

Stuart de Haan

Senior Staff Attorney

4725 W. Calle Tetakusim, Bldg. B

Tucson, AZ 85757

(520) 883-5023

Attorney for Appellee

PASCUA YAQUI PUBLIC DEFENDER

7474 S. Camino de Oeste

Tucson, Arizona 85757

Stuart de Haan

Attorney for Appellant

IN THE PASCUA YAQUI

noLUA YAQUE TRBAL COU

PED DATE AND TEE

22DEC-S AMIN: 2h

SOCKET NO

ne (D

COURT OF APPEALS

IN AND FOR THE PASCUA YAQUI INDIAN RESERVATION

PASCUA YAQUI TRIBE,

Appellant,

vs.

RICHARD SOTO JR.,

Appellee.

ee ee

Case No. CA-22-002

Tribal Court No. CR-22-207

MOTION FOR EXTENSION OF TIME FOR

FILING RESPONSE BRIEF

Appellant, through counsel and pursuant to 3 PYTC § 2-3-70 (B) , Pascua Yaqui Rules of Appellate

Procedure, respectfully moves this to Court to enter an

Appellee’s response brief by approximately 30 days.

The Tribe has no objection to this motion.

order extending the time for the filing of the

WHEREFORE Appellant respectfully moves this Court to enter an order extending the time for

the filing of the Appellant’s opening brief.

DATED this ___5th _ day of December, 2022.

PASCUA YAQUI PUBLIC DEFENDER

Ls[Stu de Haan

Stuart de

Haan

Senior Staff Attorney

ORIGINAL hand delivered this date

PYT Court of Appeals:

COPY of the foregoing emailed this date

PY Prosecutor’s In-Box by:

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