Samuel Fuentes v. Tucson City Court Hon. Jay Cranshaw

                                     IN THE
                ARIZONA COURT OF APPEALS
                                   DIVISION TWO


                              SAMUEL FUENTES,
                             Petitioner/Appellant,

                                        v.

                HON. JAY CRANSHAW, CITY MAGISTRATE AND
                           TUCSON CITY COURT,
                        Respondent Judge/Appellees,

                                       and

                        THE STATE OF ARIZONA,
           TUCSON CITY ATTORNEY’S OFFICE, CRIMINAL DIVISION,
                         Real Party in Interest.

                           No. 2 CA-CV 2023-0022
                           Filed December 13, 2023


              Appeal from the Superior Court in Pima County
                             No. C20223736
                The Honorable D. Douglas Metcalf, Judge

                                   AFFIRMED


                                    COUNSEL

Robert S. Wolkin, Tucson
Counsel for Petitioner/Appellant

Tucson City Attorney’s Office, Criminal Division
Michael G. Rankin, Tucson City Attorney
Alan L. Merritt, Deputy City Attorney
By Mari L. Worman, Principal Assistant Prosecuting City Attorney, Tucson
Counsel for Real Party in Interest
                     FUENTES v. HON. CRANSHAW
                         Opinion of the Court



                                  OPINION

Judge Sklar authored the opinion of the Court, in which Vice Chief Judge
Staring and Judge O’Neil concurred.


S K L A R, Judge:

¶1            When a parent is convicted of domestic violence, that
conviction can lead to consequences beyond the criminal sentence.
Applicable here, if the parent is later involved in a divorce or paternity case,
the parent may be required to rebut a statutory presumption against sole or
joint legal decision-making. A.R.S. § 25-403.03(D). Likewise, the parent
may be required to carry an evidentiary burden before being awarded
parenting time. § 25-403.03(F).

¶2             This case concerns whether these and related statutory
consequences apply uniformly at the time of conviction, such that they
would entitle defendants to jury trials in misdemeanor domestic-violence
cases. We conclude that they do not. We therefore affirm the rulings of
both the superior court and the Tucson City Court that Samuel Fuentes is
not entitled to a jury trial on his misdemeanor domestic-violence charges.

           FACTUAL AND PROCEDURAL BACKGROUND

¶3            The parties do not dispute the relevant facts. Fuentes is
accused of initiating an argument in July 2021 with his wife while
intoxicated, then slamming his fists on a car and pushing his wife. This
alleged conduct occurred in the presence of the couple’s three children.

¶4            Later that month, Fuentes was charged in Tucson City Court
with six misdemeanor offenses. Three of them carry a domestic-violence
designation under A.R.S. § 13-3601(H): (1) assault with no injury;
(2) disorderly conduct through noise; and (3) defacing or damaging
property valued less than $250. In addition, Fuentes was charged with
three counts of contributing to the delinquency of a minor. That crime is
not eligible for a domestic-violence determination, though the complaint
improperly listed one count as involving domestic violence.
See § 13-3601(A) (not including contributing to delinquency of minor in list
of domestic-violence eligible offenses).




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                      FUENTES v. HON. CRANSHAW
                          Opinion of the Court


¶5            In December 2021, Fuentes filed a demand for a jury trial. He
argued that in a potential divorce proceeding, a conviction on the
domestic-violence charges would affect his rights concerning legal
decision-making and parenting time. This consequence, he argued,
triggered a jury-trial right under Derendal v. Griffith, 

 (2005).
The respondent judge disagreed and denied Fuentes’s demand in April
2022.

¶6            Fuentes then sought relief via special-action complaint in the
superior court. On December 1, 2022, the superior court ruled against
Fuentes, in effect affirming the denial of the jury trial. This timely appeal
followed.

                         JURY-TRIAL ELIGIBILITY

¶7            We generally review a superior court’s decision in a special
action for an abuse of discretion. Bazzanella, 

. However,
because jury-trial eligibility is a question of law, we independently
determine the merits of such a request de novo. Ottaway v. Smith, 

 (App. 2005).

I.     Scope of jury-trial right

¶8             Under the Arizona Constitution, “[t]he right of trial by jury
shall remain inviolate.” Ariz. Const. art. II, § 23. This provision preserves
common-law jury-trial rights that existed when Arizona became a state.
Crowell v. Jejna, 

 (App. 2007). It therefore entitles a
defendant to a jury trial only if the “statutory offense has a common law
antecedent that guaranteed a right to trial by jury at the time of Arizona
statehood.” Derendal, 

. Fuentes does not argue that the
offenses at issue have common-law antecedents that would entitle him to a
jury trial. We need not address the issue, and we express no opinion on it.

¶9              The Arizona Constitution also entitles criminal defendants to
“a speedy public trial by an impartial jury of the county in which the offense
is alleged to have been committed.” Ariz. Const. art. II, § 24. We construe
this provision consistently with the United States Constitution’s Sixth
Amendment. Derendal, 

. Under the Sixth Amendment,
jury trials are available only for serious, not petty, crimes. Blanton v. City of
North Las Vegas, 

 (1989) (“It has long been settled that there
is a category of petty crimes or offenses which is not subject to the Sixth
Amendment jury trial provision.”) (citations and internal quotations
omitted).


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                     FUENTES v. HON. CRANSHAW
                         Opinion of the Court


¶10            The United States Supreme Court has held that where an
offense’s maximum term of imprisonment is six months, the offense is
presumptively petty. 

. In Arizona, the maximum term of
imprisonment for class-one misdemeanors is six months.                A.R.S.
§ 13-707(A). Thus, our case law generally holds that defendants accused of
class-one misdemeanors are presumptively not entitled to jury trials.
E.g., Derendal, 

; Benitez v. Dunevant, 

(2000) (collecting cases).

¶11             However, that presumption is rebuttable.            Where the
maximum incarceration term does not exceed six months, the offense can
still warrant a jury trial if it subjects the defendant to additional
consequences reflecting a legislative determination that the offense is
serious. See Derendal, 

. To rebut the presumption,
a defendant must show: (1) the consequences arise directly from Arizona
statutory law; (2) the consequences approximate the severity of the loss of
liberty implicated in a prison term; and (3) the consequences apply
“uniformly to all persons convicted of a particular offense.” Id. ¶¶ 22-25.
Applying this test, our supreme court has held that a requirement to
register as a sex offender rebuts the presumption and entitles the defendant
to a jury trial. Fushek v. State, 

 (2008).

¶12          In this case, Fuentes’s misdemeanor domestic-violence
charges are presumptively not jury eligible. See A.R.S. §§ 13-1203(B)
(assault committed intentionally or knowingly is class-one misdemeanor);
13-2904(A)(2), (B) (disorderly conduct through noise is class-one
misdemeanor); 13-1602(B)(6) (criminal damage is class-two misdemeanor
where amount is less than $250).         We must address whether a
domestic-violence designation overcomes that presumption, in light of the
consequences in divorce and paternity cases.

II.    Background     on     domestic-relations         consequences       of
       domestic-violence offenses

¶13          The domestic-violence designation applies to enumerated
offenses where the defendant and victim have a qualifying relationship.
Section 13-3601(A) lists both the offenses and relationships. See also
§ 13-3601(H) (requiring indictment and other charging documents to
contain domestic-violence designation where offense qualifies as domestic
violence). Fuentes’s charges for assault, disorderly conduct, and damaging
or defacing property are enumerated offenses. See § 13-3601(A). To the
extent Fuentes’s wife and children are considered victims, his relationship
with them would qualify. See § 13-3601(A)(1), (2), (4). A domestic-violence


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                     FUENTES v. HON. CRANSHAW
                         Opinion of the Court


designation does not change the substantive charge. State ex rel. McDougall
v. Strohson, 

 (1997). However, a conviction of an offense
with a domestic-violence designation can have collateral consequences,
such as a federal prohibition on possessing firearms. 

 at 124 (citing 

(g)(9)).

¶14           A domestic-violence conviction can also lead to consequences
where the offender seeks legal decision-making and parenting time in a
divorce or paternity case. As to legal decision-making, Section 25-403.03(D)
imposes a “rebuttable presumption that an award of sole or joint legal
decision-making to the parent who committed the act of domestic violence
is contrary to the child’s best interests.” This presumption applies only
where a court determines that the parent has committed an act that meets a
definition of “domestic violence” in Section 25-403.03(D). As we will
explain, not all acts giving rise to domestic-violence convictions will do so.

¶15            With respect to parenting time, Section 25-403.03(F) requires
a parent who has committed domestic violence—which is not defined for
purposes of subsection (F)—to carry the burden of proving “to the court’s
satisfaction that parenting time will not endanger the child or significantly
impair the child’s emotional development.” If the parent meets that
burden, “the court shall place conditions on parenting time that best protect
the child and the other parent from further harm.” § 25-403.03(F).

¶16          In addition, courts determining legal decision-making and
parenting time must consider “all factors that are relevant to the child’s
physical and emotional well-being.” A.R.S. § 25-403(A). This includes
“[w]hether there has been domestic violence or child abuse pursuant to
§ 25-403.03.” § 25-403(A)(8). The issue we confront is whether these
domestic-relations consequences satisfy Derendal’s three-prong test.

III.   Application of Derendal—the undisputed prongs

¶17           The first Derendal prong is whether the consequences arise
directly from Arizona statutory law. 

. Because they flow
from Sections 25-403 and 25-403.03, this prong is satisfied.

¶18           Derendal’s second prong requires the consequences to
“approximate in severity the loss of liberty” entailed by a prison term.
Derendal, 

. The parties agree that the domestic-relations
consequences would satisfy this prong. Specifically, they point to the
potential implications that these consequences would have on Fuentes’s
fundamental right to parent. We generally do not decide issues that are


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                     FUENTES v. HON. CRANSHAW
                         Opinion of the Court


undisputed and unnecessary to resolving an appeal, so we assume without
deciding that the parties are correct. See State v. Milke, 

(1993) (noting that reviewing courts should not address issues that are
unnecessary to disposition of appeal).

IV.    Application of Derendal—uniformity

¶19           The parties dispute the third Derendal prong, which requires
that the domestic-relations consequences apply uniformly. Derendal, 

.

       A.     Background on uniformity requirement

¶20           The uniformity requirement protects against the jury-trial
right applying to some defendants but not others, even though they are
charged with the same substantive crime. Fushek, 

. It also
ensures that the jury-trial right is determined based on “the seriousness of
the offense,” not “the impact of a conviction on an individual defendant.”
Derendal, 

.

¶21           In evaluating uniformity, we look to whether “the
consequence would apply to every person convicted.” Fushek, 

. Thus, for consequences to apply uniformly, they must apply “at
the time of conviction.” 

 This requirement means that “without more”
than the conviction itself, the sentencing court may impose the
consequence. Id. ¶ 15. Otherwise, it would imply that “some persons
would be entitled to a jury trial and others would not, although charged
with exactly the same substantive Arizona crime.” Strohson, 

. Only when the consequence applies uniformly to everyone convicted
of an offense can it be said to reflect the legislature’s judgment concerning
“the seriousness of the offense,” rather than merely the severity of its
impact on a single defendant. Derendal, 

.

¶22            The uniformity requirement is illustrated by Fushek, in which
the defendant was charged with ten misdemeanors accompanied by a
special allegation of sexual motivation under A.R.S. § 13-118. If proven,
that allegation would authorize the court to require the defendant to
register as a sex offender. Fushek, 

. Fushek concluded that
the potential registration requirement applied uniformly to all defendants
charged with that special allegation, even though the sentencing court
retained discretion not to require registration. Id. ¶¶ 15-16.




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                     FUENTES v. HON. CRANSHAW
                         Opinion of the Court


¶23            By contrast, where a misdemeanor drug conviction could lead
to restrictions on a defendant’s ability to obtain an occupational license, the
consequences do not apply uniformly. Id. ¶ 15 (citing Stoudamire v. Simon,

 (App. 2006)). Rather, they apply only to defendants who
later decide to seek the license. Id.; see also Buccellato v. Morgan, 

 (App. 2008) (holding that possible loss of business permit did not
apply uniformly because under city code, revocation required conviction
on multiple charges).

       B.     Defining the substantive crime

¶24          In applying the uniformity requirement, the parties first
disagree as to how broadly we should define the crime in determining
whether the domestic-relations consequences apply uniformly. Fuentes
argues that we should define the crime as limited to misdemeanor
domestic-violence offenses where the defendant and victim have a child in
common. By contrast, the state argues that we should define the crime more
broadly as including all domestic-violence misdemeanors. This would
include not only defendants who have children in common with the victim,
but those with other qualifying relationships, such as current and former
spouses, other relatives, certain children who resided with the defendant,
and current and former romantic partners. § 13-3601(A)(1)-(6).

¶25           We agree with the state.                The domestic-relations
consequences at issue do not depend on which qualifying relationship
resulted in the offense being classified as domestic violence. For example,
the defendant would face those consequences regardless of whether the
domestic-violence conviction involved a victim who was married to the
defendant, lived in the same household, or had a common child. Compare
§ 13-3601(A)(1)-(6), with § 25-403.03(D). But if jury eligibility turned on only
one of these relationships—the presence of a common child—the state
could simply allege and prove a different qualifying relationship. The
common child would no longer be relevant to the crime. Thus, under
Fuentes’s theory, jury eligibility would depend on the state’s choice to
proceed based on one qualifying relationship or another, even though the
charges, convictions, and consequences are the same.

¶26            Alternatively, under Fuentes’s theory, jury eligibility would
depend on the defendant’s own assertion—irrelevant to the criminal case—
that the defendant shares a child in common with the victim. In that
situation, the jury-trial right would depend on a personal circumstance of
the defendant that has not been alleged, need not be proven, and is not
relevant at trial. The jury-trial right cannot turn on personal circumstances


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                     FUENTES v. HON. CRANSHAW
                         Opinion of the Court


such as this. See Strohson, 

 (“[W]e have never determined
jury eligibility based upon an analysis of the individual defendant before
the court.”). We therefore do not define the substantive crime as limited to
domestic-violence offenses in which the defendant and victim have a
common child. Instead, our uniformity analysis examines whether the
domestic-relations consequences apply uniformly at the time of conviction
to all defendants convicted of domestic-violence offenses.

       C.     Applicability of consequences at time of conviction

¶27           Turning to the uniformity analysis itself, we first address
whether the domestic-relations consequences apply at the time of
conviction. We conclude that they do not. They are not even dependent on
a conviction. Rather, the legal decision-making consequences depend on
whether the defendant’s conduct meets the definition of Section
25-403.03(D). Similarly, the parenting-time consequences depend on
whether the conduct constituted “domestic violence” under Section
25-403.03(F), which does not define the term. Not all offenses that
constitute domestic violence under Section 13-3601(A)—which again, is the
relevant statute in criminal cases—will also do so under A.R.S.
§ 25-403.03(D) or (F). For example, while Section 13-3601 requires only a
qualifying offense and qualifying relationship, Section 25-403.03(D)
requires the offender to have committed one of three types of acts against
the “other parent.” These are:

              1.    Intentionally, knowingly or recklessly
              causing or attempting to cause sexual assault or
              serious physical injury;

              2.      Plac[ing] a person in reasonable
              apprehension of imminent serious physical
              injury to any person; [or]

              3. Engag[ing] in a pattern of behavior for which
              a court may issue an ex parte order to protect
              the other parent who is seeking child custody or
              to protect the child and the child’s siblings.

§ 25-403.03(D)(1)-(3).

¶28          This case illustrates the differences between the two statutes.
As applied here, depending on the facts—which are not before us, and on
which we express no opinion—a future court might find that even if


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                     FUENTES v. HON. CRANSHAW
                         Opinion of the Court


Fuentes were convicted, his conduct did not satisfy Section 25-403.03(D)’s
definition of domestic violence. See Engstrom v. McCarthy, 

,
¶ 16 (App. 2018) (directing superior court to make factual findings
concerning whether acts constituted domestic violence under subsection
(D)).

¶29            Specifically, Fuentes’s charges concern a shove, disorderly
conduct through noise, and damaging or defacing property. A court might
find that even if proven, this conduct did not involve serious physical injury
or imminent reasonable apprehension of such injury. § 25-403.03(D)(1)-(2).
Likewise, although Fuentes correctly points out that the alleged conduct
could justify an ex parte order of protection under A.R.S. § 13-3602, a court
might still find that it was not the “pattern of behavior” required by Section
25-403.03(D)(3). A court might also find that it did not constitute domestic
violence for purposes of Section 25-403.03(F). Any conviction would be
relevant to these findings. See §§ 25-403(A)(8), 25-403.03(C)(1), (D). But it
would not be conclusive.

¶30            Thus,    the    domestic-relations      consequences     arise
independently in a separate proceeding. That proceeding addresses
differently defined behavior that might, in individual cases, overlap with
elements of a domestic-violence offense. Those consequences cannot satisfy
the test in Derendal, which extends the jury-trial right based on “additional
grave consequences that attend a misdemeanor conviction.” Derendal, 

.

¶31           The comparison between this case and Fushek illustrates the
point. The allegation of sexual motivation at issue in Fushek entitled the
defendant to a jury trial “because every time a special allegation of sexual
motivation is filed, the defendant against whom the allegation is made faces
possible sex offender registration as part of the sentencing court’s
disposition of the case.” Fushek, 

. Where sexual
motivation is alleged and proven, the sentencing court may order
sex-offender registration based solely on that proven allegation, “without
more.” Id.; see A.R.S. § 13-3821(C). The court extends the jury-trial right
whenever the state has made such an allegation, because only then does the
conviction trigger the consequence. See Fushek, 

.

¶32           It is not so simple here. The domestic-relations consequences
at issue do not depend on the allegations that must be alleged and proven
to sustain a criminal conviction. Nor do they apply at the time of
conviction, as Derendal requires. With or without a conviction, the
consequences apply on separately defined grounds. They do not, therefore,


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                     FUENTES v. HON. CRANSHAW
                         Opinion of the Court


reflect a legislative determination concerning the seriousness of any
domestic-violence offense. See Derendal, 

.

       D.     Uniform application of the consequences

¶33           Of course, in many cases where a defendant is convicted of a
domestic-violence offense, the underlying conduct will also constitute
domestic violence under Section 25-403.03(D) and (F). We next address
whether even for that subset of defendants, the consequences apply
uniformly. We conclude that they do not. First, those consequences apply
only to offenders who later become involved in a divorce or paternity case
that implicates legal decision-making or parenting time. For other
offenders, the consequences will never apply.

¶34           Even for offenders involved in such cases, the superior court
may not mechanistically prohibit a parent who has committed a
domestic-violence offense from exercising joint legal decision-making or
parenting time. Rather, Section 25-403.03’s most definitive rule is that a
court may not order joint legal decision-making if the domestic violence
was “significant” or if the offender has a “significant history of domestic
violence.” § 25-403.03(A). But that prohibition applies only if the court
makes the additional factual finding that the domestic violence was
“significant.” See DeLuna v. Petitto, 

, ¶ 15 & n.6 (App. 2019).
The domestic violence’s significance is not at issue in a criminal case and
will therefore not be addressed until the divorce or paternity proceeding.
Thus, this consequence does not apply uniformly to defendants convicted
of domestic violence.

¶35            On all other issues, domestic violence’s relevance in divorce
and paternity cases is both fact-specific and discretionary. For example,
where the domestic violence was not “significant” or part of a “significant
history,” the superior court must consider the factors in Section 25-403.03(E)
to determine if the offender has rebutted the presumption against legal
decision-making authority. Id. ¶ 12 (requiring courts to “make specific
findings on the record that there is sufficient evidence to rebut the
presumption” and to consider all factors included under Section
25-403.03(E)). These factors look broadly to the child’s best interests,
rehabilitation efforts by the offending parent, and subsequent domestic
violence. Id.; Olesen v. Daniel, 

 (App. 2021) (“[T]he statute
explicitly invites the offending parent to present evidence of a change in
circumstances.”). Rather than requiring a uniform result, these factors
allow courts wide discretion to determine the relevance of a
domestic-violence conviction to legal decision-making.


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                     FUENTES v. HON. CRANSHAW
                         Opinion of the Court


¶36            The same is true as to Section 25-403.03(F)’s burden of
persuasion concerning parenting time. In determining whether the
offender has demonstrated that parenting time “will not endanger the child
or significantly impair the child’s emotional development,” the superior
court must make specific findings that explain its reasoning and
conclusions. Engstrom, 

, ¶ 18 (quoting § 25-403.03(F)). These
fact-specific findings can address any relevant issue, such as the parties’
physical and mental health, their more recent history, and the amount of
time that has passed since the domestic violence. See, e.g., In re Marriage of
Morris & Mandel, 

, ¶ 25 (App. 2023). Beyond that, a court has
significant discretion in imposing conditions on the exercise of parenting
time, including those delineated in the statute. See § 25-403.03(F)(9)
(allowing court to impose “any other condition that the court determines is
necessary to protect the child, the other parent and any other family or
household member”).

¶37           Finally, after engaging in these analyses, the superior court
must consider the domestic violence in the context of numerous other
statutory factors concerning the child’s best interests. § 25-403(A). As to
each of these factors, the court must make specific findings if legal
decision-making or parenting time is contested. § 25-403(B); Olesen, 

.      Only after doing so may the court enter legal
decision-making and parenting-time orders. And after that, such orders are
subject to potential modification after one year—sooner under certain
circumstances—if one parent files a petition to modify. See A.R.S.
§ 25-411(A).

¶38           In short, rather than applying uniformly to all defendants at
the time of conviction, consequences attendant to a domestic-violence
conviction apply in a fact-specific, discretionary manner, sometimes long
after the conviction, if at all. Fuentes’s contrary argument undermines the
reasoning behind Derendal’s uniformity requirement. It looks not to “the
seriousness of the offense,” but to the severity of its impact on some
defendants. See Derendal, 

. We therefore conclude that
the domestic-relations consequences do not satisfy the third prong of
Derendal.

                              DISPOSITION

¶39          Fuentes is not entitled to a jury trial on his misdemeanor
domestic-violence charges. We affirm the judgment of the superior court.




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