Garcia v. Browning

SUPREME COURT OF ARIZONA
En Banc

DAVID GARCIA, ) Arizona Supreme Court
) No. CV-06-0320-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 06-0040
THE HONORABLE CHRISTOPHER )
BROWNING, Judge of the Superior ) Pima County
Court of the State of Arizona, in ) Superior Court
and for the COUNTY OF PIMA, ) No. CR-20044702
)
Respondent, )
)
and ) O P I N I O N
)
THE STATE OF ARIZONA, )
)
Real Party in Interest. )
__________________________________)

Special Action from the Superior Court in Pima County
The Honorable Christopher Browning, Judge

AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
213 Ariz. 598, 146 P.3d 1007 (2006)

REVERSED
________________________________________________________________

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Taren M. Ellis, Deputy County Attorney
Attorneys for State of Arizona

D. JESSE SMITH Tucson

And

PAYSON & GATTONE Tucson
By Anthony Payson II
Attorneys for David Garcia
ANDREW P. THOMAS, MARICOPA COUNTY ATTORNEY Phoenix
By Diane Gunnels Rowley, Deputy County Attorney
Attorneys for Amicus Curiae Maricopa County Attorney’s Office
________________________________________________________________

R Y A N, Justice

¶1 This case requires us to decide whether recent amendments

to Arizona’s affirmative defense and justification laws apply to

criminal offenses committed before the effective date of the new

statutes. We hold that these changes apply only to offenses committed

on or after the effective date of the amendments.

I

¶2 On December 13, 2004, a Pima County grand jury indicted

David Garcia for first degree murder for events that occurred on

December 5, 2004. Garcia subsequently disclosed several

justification defenses, including self-defense, third-party

defense, and crime prevention. See Ariz. Rev. Stat. (“A.R.S.”) §§

13-404, -405, -406, -411 (2001). At the time of the offense, A.R.S.

§ 13-205 (2001) required that a defendant prove any justification

defense by a preponderance of the evidence.

¶3 Before Garcia’s trial began, however, the legislature

enacted Senate Bill 1145. That bill made several changes to the

criminal code provisions pertaining to affirmative defenses and

justification defenses. See 2006 Ariz. Sess. Laws, ch. 199. Among

other things, the bill amended A.R.S. §§ 13-103(B) and -205(A) to

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provide that justification defenses are not affirmative defenses.

Id. §§ 1-2. The bill also declared that “[j]ustification defenses

describe conduct that, if not justified, would constitute an offense

but, if justified, does not constitute criminal or wrongful conduct.”

Id. § 2 (amending A.R.S. § 13-205(A)). That same section provides

that “[i]f evidence of justification pursuant to [A.R.S. §§ 13-401

to -420 (2001 & Supp. 2006)] . . . is presented by the defendant, the

state must prove beyond a reasonable doubt that the defendant did not

act with justification.”

¶4 The Governor signed Senate Bill 1145 into law on April 24,

2006. Because the bill contained a clause stating that “[t]his act

is an emergency measure that is necessary to preserve the public

peace, health or safety and is operative immediately as provided by

law,” id. § 6, it became effective on that date. See Ariz. Const.

art. 4, pt. 1, § 1(3).

¶5 Shortly thereafter, Garcia filed a motion to remand his

case to the grand jury for a new finding of probable cause because

the grand jury had been instructed on the “now repealed A.R.S. [§]

13-205.” Garcia also asked the superior court to instruct the trial

jury using the new version of A.R.S. § 13-205 (Supp. 2006). The

superior court denied both requests. Garcia then filed a petition

for special action in the court of appeals. That court accepted

jurisdiction and held that the amendments contained in Senate Bill

1145 were intended “to apply to pending cases that had not yet gone

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to trial.” Garcia v. Browning, 213 Ariz. 598, ___, ¶ 26, 146 P.3d

1007, 1016 (App. 2006).1 The court therefore reversed the portion

of the superior court’s order precluding application of the new

version of A.R.S. § 13-205 to Garcia’s trial. Id.

¶6 The State filed a petition for review, which we granted

because this matter concerns an issue of statewide importance on which

lower courts have reached differing conclusions. We have

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

Constitution, A.R.S. § 12-120.24 (2003), and Arizona Rule of

Procedure for Special Actions 8(b).

II

A

¶7 No law is “retroactive unless expressly declared therein.”

A.R.S. § 1-244 (2002). As we held in State v. Coconino County Superior

Court (Mauro): “Unless a statute is expressly declared to be

retroactive, it will not govern events that occurred before its

effective date.” 139 Ariz. 422, 427, 678 P.2d 1386, 1391 (1984).

Thus, absent a clear expression of retroactivity, a newly enacted law

applies only prospectively. See State v. Fell, 210 Ariz. 554, 560,

¶ 21, 115 P.3d 594, 600 (2005).

1
The court of appeals, however, declined to consider Garcia’s
challenge to the grand jury proceedings because “the grand jury was
instructed in accordance with the law that existed at the time it
indicted Garcia.” Garcia, 213 Ariz. at ___, ¶ 6, 146 P.3d at 1010.

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¶8 The legislature plainly knows how to provide for the

retroactivity of measures that it enacts. For example, House Bill

2132 and Senate Bill 1461, both considered by the same legislature

that enacted Senate Bill 1145, incorporated detailed sections on the

retroactivity of those bills. House Bill 2132 specifically provided

that the amended section “applies retroactively to taxable periods

beginning from and after June 30, 1999.” 2006 Ariz. Sess. Laws, ch.

171, § 2. Senate Bill 1461 stated that “[s]ections 2 and 3 of this

act are effective retroactively to July 1, 2006.” Id. ch. 391, § 8.

Senate Bill 1145, in contrast, contains no provision regarding

retroactivity. Id. ch. 199.

B

¶9 The court of appeals acknowledged that A.R.S. § 1-244

requires an express declaration for a new law to apply retroactively,

and “[t]hus, statutes are presumptively prospective in application.”

Garcia, 213 Ariz. at ___, ¶ 9, 146 P.3d at 1010-11 (citing Aranda v.

Indus. Comm’n, 198 Ariz. 467, 470, ¶ 10, 11 P.3d 1006, 1009 (2000)).

But, without any further discussion of § 1-244, the court turned to

the emergency provision of Senate Bill 1145. Id. at ___, ¶ 9, 146

P.3d at 1011. The court found the phrase “operative immediately” in

section 6 of Senate Bill 1145 unclear. Id. The court of appeals,

therefore, looked beyond the language of Senate Bill 1145 to determine

whether the legislature may have “intended the statute to apply to

cases like Garcia’s that had not yet gone to trial when the statute

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went into effect, notwithstanding that the offense occurred before

the effective date.” Id. The court concluded that the legislature’s

intent was “to make the provisions applicable as soon as lawfully

possible . . . regardless of whether the legislature considered such

an application to be prospective or retroactive.” Id. at ___, ¶ 14,

146 P.3d at 1012.

¶10 But the “operative immediately” language in an emergency

clause simply means that the bill will go into effect on the date it

is signed by the Governor instead of ninety days after the end of the

legislative session. See Ariz. Const. art. 4, pt. 1, § 1(3); see also

Clark v. Boyce, 20 Ariz. 544, 547, 185 P. 136, 137 (1919). That

language has no effect on whether the bill applies to antecedent

events. Accordingly, the court of appeals erred in finding unclear

the phrase “operative immediately as provided by law” in the emergency

clause of Senate Bill 1145; the court thus had no reason to turn to

legislative history to determine the legislature’s intent as to when

the changes to the affirmative defenses and justification defenses

became effective. Ariz. Newspapers Ass’n v. Superior Court, 143 Ariz.

560, 562, 694 P.2d 1174, 1176 (1985) (“If statutory language is not

subject to different interpretations, we need look no further than

the text of the statute to determine legislative intent.”).

¶11 In A.R.S. § 1-244, the legislature has plainly directed

that we are not to look to external sources, such as legislative

history, to determine whether a statute is to be applied

6
retroactively. The court of appeals, therefore, erred in examining

the legislative history of Senate Bill 1145.2 It should instead have

applied the plain language of § 1-244.

C

¶12 Although the mandate of A.R.S. § 1-244 is clear, that does

not end our analysis. We must determine whether the court of appeals,

in holding that the operative event was the trial, gave retroactive,

rather than prospective, effect to Senate Bill 1145. A statute is

not necessarily “‘retroactive in application simply because it may

relate to antecedent facts.’” Aranda, 198 Ariz. at 472, ¶ 24, 11 P.3d

at 1011 (quoting Tower Plaza Invs. Ltd. v. DeWitt, 109 Ariz. 248, 250,

508 P.2d 324, 326 (1973)). If the provisions of Senate Bill 1145 apply

only to the conduct of the trial, as Garcia contends, then application

of the new justification defense statutes is required. If, on the

2
We note that the legislative history cited by the court of
appeals, see Garcia, 213 Ariz. at ___, ¶¶ 11-13, 146 P.3d at 1011-12,
which consists primarily of comments of individual legislators, does
not necessarily lead to that court’s conclusion that the legislature
intended the bill to apply to cases that had not yet been tried. See
City of Tucson v. Consumers for Retail Choice, 197 Ariz. 600, 604-05,
¶ 14, 5 P.3d 934, 938-39 (App. 2000) (noting that statements of
individual legislators are not necessarily indicative of full
legislature’s intent). In any event, legislative history does not
satisfy A.R.S. § 1-244’s requirement that the law expressly declare
that it is retroactive. See Ariz. Legis. Council, The Arizona
Legislative Bill Drafting Manual § 4.11, at 41 (2006), available at
http://www.azleg.state.az.us/alisPDFs/council/bdmwog2006.pdf
(stating that A.R.S. § 1-244 requires “that the retroactivity of a
statute be ‘expressly declared’”).

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other hand, Senate Bill 1145 regulates primary conduct, then it cannot

be applied to antecedent acts.

¶13 The court of appeals concluded that “a defendant’s trial

is the operative event for applying a statutory amendment that was

enacted as an emergency measure, rendering it effective immediately.”

Garcia, 213 Ariz. at ___, ¶ 26, 146 P.3d at 1016. Further, the court

reasoned that the application of the new version of A.R.S. § 13-205

to Garcia’s trial was prospective because the law became effective

before his trial began, and only affected “how the parties . . .

prepare for trial and how trial is to be conducted.” Id.

¶14 We disagree. First, Arizona cases have consistently held

that the date of the offense is the operative event for retroactivity

analysis when a new statute regulates primary conduct. See Mauro,

139 Ariz. at 427, 678 P.2d at 1391; see also In re Shane B., 198 Ariz.

85, 87, ¶ 7, 7 P.3d 94, 96 (2000); cf. Landgraf v. USI Film Prods.,

511 U.S. 244, 291 (1994) (“Most statutes are meant to regulate primary

conduct, and hence will not be applied in trials involving conduct

that occurred before their effective date.”) (Scalia, J., concurring

in the judgment). Second, Senate Bill 1145 does not merely affect

the conduct of trial, but rather also regulates primary conduct. The

bill not only shifts the burden of proof from the defendant to the

state, which now must prove beyond a reasonable doubt that a

defendant’s actions were not justified, but also declares that

conduct that is justified “does not constitute criminal or wrongful

8
conduct.” A.R.S. § 13-205(A); 2006 Ariz. Sess. Laws, ch. 199, § 2.

This shift in the burden of proof will impact police investigations

and prosecutorial charging decisions. More importantly, applying the

amended statutes here to conduct that occurred before April 24, 2006,

alters the legal consequences that attached to such conduct at the

time it was committed, giving the statutes retroactive effect. See

Zuther v. State, 199 Ariz. 104, 109, ¶ 15, 14 P.3d 295, 300 (2000)

(citing Landgraf, 511 U.S. at 270; San Carlos Apache Tribe v. Superior

Court, 193 Ariz. 195, 205, ¶ 15, 972 P.2d 179, 189 (1999)); see also

Tower Plaza Invs. Ltd., 109 Ariz. at 250, 508 P.2d at 326. Because

application of the provisions of Senate Bill 1145 to events that

occurred before the effective date of the amendments attaches new

legal consequences to those events, it violates the clear directive

of A.R.S. § 1-244.

D

¶15 Although the court of appeals maintained that the

provisions of Senate Bill 1145 were “prospectively applicable, not

retroactive,” Garcia, 213 Ariz. ___, ¶ 21, 146 P.3d at 1014, it

recognized that our decision in Mauro decided a similar issue solely

on the basis of A.R.S. § 1-244, id. at ___, ¶ 23, 146 P.3d at 1015

(citing Mauro, 139 Ariz. at 427, 678 P.2d at 1391).

¶16 In Mauro, the defendant was charged with first degree

murder and child abuse. 139 Ariz. at 423, 678 P.2d at 1387. He claimed

insanity as a defense to the charges. See id. When the alleged

9
offenses occurred, “a defendant could rebut the presumption of sanity

by introducing evidence which generated substantial and reasonable

doubt as to his sanity. The burden was then on the state to prove

the accused’s sanity beyond a reasonable doubt.” Id. at 426, 678 P.2d

at 1390 (citations omitted). Before trial, however, the legislature

amended the insanity defense to require “the accused . . . prove he

is not criminally responsible by reason of insanity. He carries his

burden of proof if he introduces clear and convincing evidence.” Id.

(citing A.R.S. § 13-502(B) (Supp. 1983-84)). Despite the defendant’s

argument that the amended insanity defense would violate the Ex Post

Facto Clause, U.S. Const. art. I, § 10, cl. 1, the Court, citing A.R.S.

§ 1-244, decided that the prior version of the insanity defense

applied to the defendant’s case because it found no express language

that made the new revisions retroactive. Id. at 427, 678 P.2d at 1391.

¶17 The court of appeals attempted to distinguish this case

from Mauro. Garcia, 213 Ariz. at ___, ¶¶ 22-23, 146 P.3d at 1015.

The court believed that in this case, unlike in Mauro, “the

legislative history of § 13-205 and its enactment as an emergency

measure clearly reflect the legislature’s intent to give the statute

immediate application.” Id. at ¶ 23. As discussed above, however,

nothing in the legislative history or the bill’s enactment as an

emergency measure demonstrates the legislature’s intent to make the

amendments to the affirmative defense and justification statutes

apply to conduct that occurred before the statute’s effective date.

10
See Mauro, 139 Ariz. at 427, 678 P.2d at 1391. Therefore, Mauro cannot

be distinguished from this case based on legislative intent.

¶18 The court of appeals further attempted to distinguish Mauro

on the ground that ex post facto considerations “potentially were

implicated” in that case. Garcia, 213 Ariz. at ___, ¶ 23, 146 P.3d

at 1015. But as discussed above, in Mauro we expressly did not address

whether the change in the burden of proof for an insanity defense would

violate ex post facto proscriptions; instead we decided the case

solely on the basis of the plain language of A.R.S. § 1-244. 139 Ariz.

at 427, 678 P.2d at 1391.

E

¶19 Finally, the court of appeals reasoned that the provisions

of Senate Bill 1145 could be applied to criminal cases in which the

offense occurred before the bill’s effective date, even if that gave

the statute retroactive effect, because the court found “no

constitutional or statutory impediment to such an application.”

Garcia, 213 Ariz. at ___, ¶ 26, 146 P.3d at 1016. We agree that nothing

in the United States Constitution or the Arizona Constitution

prohibits applying Senate Bill 1145 to defendants who committed their

offenses before the effective date of the amendments; it is undisputed

that the Ex Post Facto Clause is not implicated here. But that is

not the issue before us. The question is not whether the legislature

could have made Senate Bill 1145 retroactive, but rather whether it

did so. Because § 1-244 plainly requires an express declaration from

11
the legislature before a law can apply retroactively, it proscribes

the result reached by the court of appeals.

III

¶20 In sum, the legislature did not expressly declare in Senate

Bill 1145 that it applied to criminal offenses committed before its

effective date. The bill’s changes to the criminal code’s affirmative

defense and justification defense provisions therefore apply only to

offenses occurring on or after its effective date of April 24, 2006.

IV

¶21 For the foregoing reasons, we reverse the opinion of the

court of appeals and remand the case to the superior court for further

proceedings consistent with this opinion.

_______________________________________
Michael D. Ryan, Justice

CONCURRING:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Rebecca White Berch, Vice Chief Justice

_______________________________________
Andrew D. Hurwitz, Justice

_______________________________________
W. Scott Bales, Justice

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