State v. Montes

                    SUPREME COURT OF ARIZONA
                             En Banc

STATE OF ARIZONA,                 )   Arizona Supreme Court
                                  )   No. CR-10-0017-PR
                        Appellee, )
                                  )   Court of Appeals
                 v.               )   Division Two
                                  )   No. 2 CA-CR 08-0148
CESAR MONTES,                     )
                                  )   Pima County
                       Appellant. )   Superior Court
                                  )   No. CR20054089
                                  )
                                  )
                                  )   O P I N I O N
__________________________________)


          Appeal from the Superior Court in Pima County
           The Honorable Howard L. Fell, Judge Pro Tem

                      REVERSED AND REMANDED
________________________________________________________________

          Opinion of the Court of Appeals Division Two
             223 Ariz. 337, 223 P.3d 681 (App. 2009)

                             VACATED
________________________________________________________________

TERRY GODDARD, ARIZONA ATTORNEY GENERAL                     Phoenix
     By   Kent E. Cattani, Chief Counsel
          Criminal Appeals/Capital Litigation Section
          Amy M. Thorson, Assistant Attorney General          Tucson
Attorneys for State of Arizona

ROBERT J. HIRSH, PIMA COUNTY PUBLIC DEFENDER              Tucson
     By   David J. Euchner
Attorneys for Cesar Montes
________________________________________________________________

P E L A N D E R, Justice

¶1        We here address whether the Legislature violated the

separation of powers doctrine in 2009 by enacting Senate Bill
(“SB”)     1449,   which      made     retroactive          SB    1145,     a    2006   law

concerning the defense of justification in criminal cases.                                We

hold that SB 1449 was a valid exercise of legislative authority.

                                            I.

¶2            In 2006, the Legislature enacted SB 1145, 2006 Ariz.

Sess. Laws, ch. 199 (2d Reg. Sess.).                   This law amended Arizona’s

self-defense       statute,         Arizona       Revised        Statutes       (“A.R.S.”)

section 13-205(A) (2003), to require the state to “prove beyond

a    reasonable       doubt    that    the        defendant       did    not     act    with

justification”        if   the      defendant       presents       some     evidence      of

justification.        In Garcia v. Browning, we held that SB 1145 did

not apply to criminal offenses occurring before its effective

date     of   April    24,     2006,      because      the       Legislature      had    not

expressly     declared       that   the     law     would    operate      retroactively.

214 Ariz. 250, 254 ¶ 20, 151 P.3d 533, 537 (2007); see A.R.S.

§ 1-244 (2003) (providing that no law is “retroactive unless

expressly declared therein”).

¶3            In 2008, Cesar Montes was tried on multiple charges,

including first-degree murder, stemming from offenses committed

in   2005.      Montes     claimed     he     had    killed       one   victim    in    self

defense.      Based on Garcia and former § 13-205(A) (as it read

before the SB 1145 amendment), the jury was instructed that

Montes had to prove by a preponderance of the evidence that he

had acted in self defense.                  The jury rejected that claim and
                                             2
found Montes guilty of second-degree murder and two counts of

aggravated      assault.         The   court    of    appeals      affirmed   Montes’

convictions and sentences in a memorandum decision.

¶4             Shortly thereafter, effective September 30, 2009, the

Legislature enacted SB 1449, providing that its 2006 amendment

in SB 1145 applied retroactively.                    2009 Ariz. Sess. Laws, ch.

190,   §§   1-2      (1st   Reg.   Sess.).       Senate     Bill    1449   states    as

follows:

       Section 1. Applicability
       Laws 2006, chapter 199 applies retroactively to all
       cases in which the defendant did not plead guilty or
       no contest and that, as of April 24, 2006, had not
       been submitted to the fact finder to render a verdict.

       Section 2. Purpose
       The purpose of this act is to clarify that the
       legislature intended to make Laws 2006, chapter 199
       retroactively applicable to all cases in which the
       defendant did not plead guilty or no contest and that
       were pending at the time the bill was signed into law
       by the governor on April 24, 2006, regardless of when
       the conduct underlying the charges occurred.

¶5             Citing SB 1449, Montes moved for reconsideration in

the    court    of    appeals,     arguing     that    SB   1145    applied   to    him

because his case was still pending trial on April 24, 2006.                         The

court denied Montes’ motion, finding SB 1449 an unconstitutional

attempt “to overrule retroactively a supreme court decision.”

State v. Montes, 223 Ariz. 337, 340 ¶ 15, 223 P.3d 681, 684

(App. 2009).         The court of appeals reasoned that, after we held

in Garcia that the statutory changes effected in SB 1145 applied

                                          3
only prospectively, the Legislature could not retrospectively

“chang[e] the statute as interpreted” by this Court.                      Id. at

¶ 13.

¶6          Disagreeing with Montes, another panel of the court of

appeals reached a contrary conclusion in State v. Rios, holding

that “the operative portion of [SB 1449] does not violate the

separation of powers clause,” but rather constitutes “a valid

exercise of the Legislature’s power to retroactively grant new

rights to criminal defendants.”             225 Ariz. 292, ___ ¶ 1, 306

¶ 51, 237 P.3d 1052, 1054, 1066 (App. 2010).

¶7          We granted Montes’ petition for review to consider an

issue of statewide importance and one on which panels of the

court of appeals have issued conflicting opinions.                       We have

jurisdiction    under   Article   6,       Section    5(3)    of   the   Arizona

Constitution and A.R.S. § 12-120.24 (2003).

                                   II.

¶8          The legislative, executive, and judicial branches of

Arizona government are “separate and distinct, and no one of

such departments shall exercise the powers properly belonging to

either of the others.”     Ariz. Const. art. 3.          This separation of

powers, however, is not absolute, but rather provides necessary

flexibility     to   government   and       permits    some    overlap     among

branches.     State ex rel. Woods v. Block, 189 Ariz. 269, 276, 942

P.2d 428, 435 (1997); State v. Prentiss, 163 Ariz. 81, 84-85,
                                       4
786 P.2d 932, 935-36 (1989).           Article 3 prevents one branch of

government    from   encroaching      upon    or    usurping    the     functions

properly belonging to another branch.              See Block, 189 Ariz. at

276, 942 P.2d at 435; Prentiss, 163 Ariz. at 85, 786 P.2d at

436.

¶9           In this case we consider whether, by enacting SB 1449,

the Legislature intruded on powers properly belonging to the

judiciary.     Both Montes and the State correctly acknowledge that

the Legislature could have made SB 1145 retroactive when it was

enacted in 2006.     See Garcia, 214 Ariz. at 254 ¶ 19, 151 P.3d at

537.   The point of contention here is whether the Legislature

could constitutionally do so after our decision in Garcia.                     The

State asserts that SB 1449 is an unconstitutional attempt to

overrule Garcia, and that separation of powers forecloses the

Legislature from making SB 1145 retroactive in the wake of that

opinion.     Montes argues that SB 1449 is constitutional because

Garcia “left open the possibility” that the Legislature could

make the provisions of SB 1145 retroactive “if it so desired.”

We agree with Montes.

¶10          The   question    in     Garcia       was   “not        whether   the

legislature could have made [SB] 1145 retroactive, but rather

whether it did so.”       214 Ariz. at 254 ¶ 19, 151 P.3d at 537.              We

expressly    recognized    that     nothing    prohibited      the    Legislature

from making SB 1145 retroactive.             Id.   Our holding that SB 1145
                                       5
did not apply retroactively rested solely on A.R.S. § 1-244 and

the Legislature’s failure to expressly declare in SB 1145 that

it        applied                   to         offenses        committed   before    its   effective    date.

Garcia, 214 Ariz. at 252-53 ¶¶ 7-11, 151 P.3d at 535-36.

¶11                          Nor did Garcia suggest that “at no time in the future

could the Legislature make [SB 1145] retroactive.”                                                Rios, 225

Ariz. at ___ ¶ 25, 237 P.3d at 1059-60.                                          Thus, the Legislature’s

later enactment of SB 1449 did not “overrule” Garcia.                                               Although

SB 1449 was enacted in response to Garcia, every legislative

enactment retroactively changing a court’s pronouncement on a

statute is not a per se separation of powers violation.                                                  See,

e.g.,              Hale             v.         Wellpinit        Sch.   Dist.   No.   49,   198   P.3d   1021,

1027-28                      (Wash.                    2009)    (holding    legislature’s        retroactive

amendment                        of            statutory         definition,    which      rejected     court

interpretation, did not violate separation of powers).                                                Rather,

the Legislature does not violate separation of powers when it

acts to make a law retroactive without disturbing vested rights,

overruling a court decision, or precluding judicial decision-

making.                   See Rios, 225 Ariz. at ___ ¶ 17, 237 P.3d at 1057.1


                                                            
1
    In support of its holding that SB 1449 “did not usurp or
encroach upon judicial functions by making the new burden of
proof [on self defense] retroactive,” the court in Rios applied
the four-factor test we adopted in Block, 189 Ariz. at 276-78,
942 P.2d at 435-37.   See Rios, 225 Ariz. at ___ ¶¶ 20-24, 237
P.3d at 1058-59. We agree with the result in Rios. But having
rejected the State’s contention that SB 1449 overruled Garcia,
                               6
                                                                                         III.

¶12                          In finding SB 1449 unconstitutional, the Montes court

relied primarily on State v. Murray, 194 Ariz. 373, 982 P.2d

1287 (1999), and State v. Fell, 209 Ariz. 77, 97 P.3d 902 (App.

2004),                aff’d               on        other               grounds,                    210           Ariz.               554,            115           P.3d             594

(2005).                     See Montes, 223 Ariz. at 339-40 ¶¶ 9-11, 223 P.3d at

683-84.                     We agree with the court in Rios, however, that those

cases are not controlling here.                                                                  See Rios, 225 Ariz. at ___ ¶ 26

& nn.6-7, ___ ¶ 36, 237 P.3d at 1060 & nn.6-7, 1062 (discussing

Murray and Fell).

¶13                          In         Murray,                   we         struck                 down             a        statute                  retroactively

restricting a defendant’s vested right to parole eligibility.

194 Ariz. at 374-75 ¶ 6, 982 P.2d at 1288-89.                                                                                              In that case, the

Legislature had enacted a measure retroactively requiring flat-

time sentences, responding to our holding in State v. Tarango,

185 Ariz. 208, 212, 914 P.2d 1300, 1304 (1996), that certain

prisoners could not be given such sentences.                                                                                               Murray, 194 Ariz.

at 374-75 ¶¶ 4, 6, 982 P.2d at 1288-89.                                                                                            In holding that the

statute                  violated                     separation                        of         powers,                  we         noted               that             parole

eligibility                          on         sentencing                         is         a        “substantive                            right”                 and            the

Legislature                          “‘may                not            disturb                   vested                 substantive                           rights                  by

retroactively                               changing                      the             law            that              applies                     to          completed

                                                                                                                                                                                               
                                                                                                                                                                                               
the sole premise for the alleged separation of powers violation,
we find no need to employ Block’s four-part test.
                                7
events.’”               Id. at 375 ¶ 6, 982 P.2d at 1289 (quoting San Carlos

Apache Tribe v. Superior Court, 193 Ariz. 195, 205 ¶ 15, 972

P.2d 179, 189 (1999)).2

¶14                  Senate Bill 1449’s operative provision, in contrast,

does not disturb vested rights.                                         The State does not argue, nor

does the law suggest, that the government has a vested right to

a conviction, at least when, as here, a case is pending trial or

on direct appeal.                             Cf. State v. Morris, 378 N.E.2d 708, 715

(Ohio         1978)          (holding             that         statute    that       retroactively    reduced

penalties               for        drug         offenses            did   not       violate   separation    of

powers).

¶15                  The court of appeals in Fell held that a legislative

attempt to “retroactively nullify” this Court’s interpretation

of a sentencing statute violated separation of powers.                                                     209

Ariz. at 82 ¶ 17, 97 P.3d at 907.                                            But as Rios noted, “[t]he

issue in Fell was whether the Legislature could retroactively

amend          sentencing                statutes              to   permit      a    court    to   apply   more

                                                            
2
    San                Carlos invalidated
                             various statutory provisions on
separation of powers grounds as a legislative attempt to
prescribe rules of decision in pending cases. 193 Ariz. at 210
¶ 33, 972 P.2d at 194 (citing United States v. Klein, 80 U.S.
128, 146-47 (1871)).    The rule of decision doctrine is not
implicated here, however, because SB 1449 does not involve the
Legislature “adjudicat[ing] pending cases by defining existing
law and applying it to fact.”   Id. at ¶ 34.   Senate Bill 1449
does not limit any court’s ability to weigh evidence, nor does
it mandate a specific factual finding based on particular
evidence. See Rios, 225 Ariz. at ___ ¶ 51, 237 P.3d at 1066.

                                                                    8
aggravating facts in a case which arose before the amendment and

to overrule” our decision in State v. Viramontes, 204 Ariz. 360,

64    P.3d    188   (2003),       which   “limit[ed]     the    aggravators        [that]

could be applied under the law in effect at the time of the

crime.”        Rios, 225 Ariz. at ___ n.7, 237 P.3d at 1060 n.7.

Thus,   the     statute     at    issue   in    Fell    not    only    overruled      this

Court’s prior opinion, to the detriment of defendants, but also

had    ex    post   facto    implications.           Fell,     209    Ariz.   at    80-81

¶¶ 10-12, 97 P.3d at 905-06.              No such concerns exist here.

¶16            We also reject the State’s argument, raised for the

first        time   in      its     supplemental        brief,        that    SB      1449

unconstitutionally disturbs victims’ rights “in the finality of

a defendant’s conviction.”                The Arizona Constitution provides

that “a victim of crime has a right . . . [t]o a speedy trial or

disposition and prompt and final conclusion of [a] case after

the conviction and sentence.”              Ariz. Const. art. 2, § 2.1(A)(10)

(“Victims’ Bill of Rights”).               But that provision does not give

victims a vested right to sustaining a conviction on appeal.

See State ex rel. Thomas v. Klein, 214 Ariz. 205, 209 ¶ 14, 150

P.3d 778, 782 (App. 2007) (recognizing that the Legislature may

“effectively limit the scope of the Victims’ Bill of Rights” by

“decriminaliz[ing]       certain     conduct    or     redefin[ing]     the    type     of

conduct that qualifies as a criminal offense”).                         Therefore, SB

1449    “is     a   valid     exercise     of    the     Legislature’s        power    to
                                            9
retroactively grant new rights to criminal defendants.”                                                                    Rios,

225 Ariz. at ___ ¶ 52, 237 P.3d at 1066.3

                                                                                    IV.

¶17                          We         address                 separately          section       2   of   SB    1449,     which

states that the bill’s “purpose . . . is to clarify that the

legislature intended to make [SB 1145] retroactively applicable

to all cases” specified in section 1.                                                            2009 Ariz. Sess. Laws,

ch.          190,             §       2       (1st             Reg.   Sess.).             Rios     found     this    provision

“superfluous to [the] separation of powers analysis” but, even

if deemed unconstitutional, severable from and not fatal to SB

1449’s                operative                       provision          in     section       1.       225      Ariz.    at   ___

¶¶ 29-34, 237 P.3d at 1060-62.

¶18                          We agree.                          Although “the doctrine of separation of

powers                 does               not            permit       us       to    accept        legislative          messages

regarding the meaning of its past actions,” State v. Rodriguez,

153 Ariz. 182, 187, 735 P.2d 792, 797 (1987), section 2 contains

no operative language, see Rios, 225 Ariz. at ___ ¶ 33, 237 P.3d

at         1061.                    However                    section     2    is    characterized,            it   does     not

undermine the constitutionality of the operative and unambiguous

                                                            
3
   We do not address the various equal protection and due process
concerns first raised at oral argument by the State, which
suggested that SB 1449’s retroactive application of SB 1145 to
some but not all defendants, and its establishment of April 24,
2006, as the cut-off date, are arbitrary, under-inclusive, and
lack a rational basis.      Nor do we address how SB 1145, as
amended by SB 1449, might apply to post-conviction proceedings
under Rule 32, Arizona Rules of Criminal Procedure.
                                                                               10
provision in section 1.               See Cronin v. Sheldon, 195 Ariz. 531,

538   ¶¶    30,     32,    991    P.2d    231,     238    (1999)   (concluding        that,

although the preamble to the Employment Protection Act (EPA)

unconstitutionally           “manifest[ed]         the    legislature’s        intent    to

usurp      judicial       authority      in   violation     of     the   separation      of

powers      doctrine,”       the     preamble       was    not     law   and    did     not

invalidate the operative statutory text of the EPA).

                                              V.

¶19           For     the        foregoing       reasons,     we     hold      that     the

Legislature acted within its proper authority by enacting SB

1449.      We therefore reverse Montes’ convictions and sentences,

vacate the court of appeals’ opinion, and remand the case to the

superior court for further proceedings.


                                    _____________________________________
                                    A. John Pelander, Justice


CONCURRING:


_____________________________________
Rebecca White Berch, Chief Justice


_____________________________________
Andrew D. Hurwitz, Vice Chief Justice


_____________________________________
W. Scott Bales, Justice




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_____________________________________
Michael D. Ryan, Justice (Retired)




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