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SUPREME COURT OF ARIZONA En Banc STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) CESAR MONTES, ) ) Appellant. ) ) ) ) ) __________________________________) Arizona Supreme Court No. CR-10-0017-PR Court of Appeals Division Two No. 2 CA-CR 08-0148 Pima County 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 By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Amy M. Thorson, Assistant Attorney General Attorneys for State of Arizona Phoenix Tucson 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.). self-defense statute, Arizona This law amended Arizona s Revised Statutes ( A.R.S. ) section 13-205(A) (2003), to require the state to prove beyond a reasonable doubt that the the defendant defendant did presents not some act evidence with justification if of justification. In Garcia v. Browning, we held that SB 1145 did not apply to criminal offenses occurring before its effective date of expressly April 24, declared 2006, that because the law the would Legislature operate had not 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. defense. Montes claimed he had killed one victim in self 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. 190, §§ 1-2 (1st Reg. Sess.). 2009 Ariz. Sess. Laws, ch. 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 the Citing SB 1449, Montes moved for reconsideration in 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. jurisdiction under Article 6, Section 5(3) of We have 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 branches. to government and permits some overlap among 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). government from encroaching Article 3 prevents one branch of upon or properly belonging to another branch. usurping the functions 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. 537. See Garcia, 214 Ariz. at 254 ¶ 19, 151 P.3d at 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. expressly recognized 214 Ariz. at 254 ¶ 19, 151 P.3d at 537. that nothing from making SB 1145 retroactive. 5 prohibited Id. the We Legislature Our holding that SB 1145 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. Ariz. at ___ ¶ 25, 237 P.3d at 1059-60. Rios, 225 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. e.g., Hale 1027-28 amendment v. (Wash. of Wellpinit 2009) statutory Sch. Dist. (holding No. 49, 198 legislature s definition, which P.3d See, 1021, retroactive rejected interpretation, did not violate separation of powers). court 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 decisionmaking. 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 flattime 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. at 374-75 ¶¶ 4, 6, 982 P.2d at 1288-89. statute violated eligibility on Legislature may retroactively separation sentencing not changing of is powers, a disturb the law Murray, 194 Ariz. In holding that the we noted substantive vested that that right substantive applies to parole and rights the by 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. (Ohio 1978) penalties Cf. State v. Morris, 378 N.E.2d 708, 715 (holding for drug that statute offenses did that not retroactively violate reduced 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. Ariz. at 82 ¶ 17, 97 P.3d at 907. 209 But as Rios noted, [t]he issue in Fell was whether the Legislature could retroactively amend sentencing statutes to permit                                                              2   San Carlos invalidated a court to apply more 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. Thus, Rios, 225 Ariz. at ___ n.7, 237 P.3d at 1060 n.7. 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. ¶¶ 10-12, 97 P.3d at 905-06. ¶16 first Fell, 209 Ariz. at 80-81 No such concerns exist here. We also reject the State s argument, raised for the 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] conduct that qualifies as a criminal offense ). 1449 is a valid exercise of 9 the the type of Therefore, SB Legislature s power to 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. ch. 190, § 2 (1st Reg. Sess.). 2009 Ariz. Sess. Laws, 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. powers does not Although the doctrine of separation of 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. 538 ¶¶ 30, 32, 991 See Cronin v. Sheldon, 195 Ariz. 531, P.2d 231, 238 (1999) (concluding that, although the preamble to the Employment Protection Act (EPA) unconstitutionally usurp powers judicial manifest[ed] authority doctrine, the in the legislature s violation preamble was intent to of of the separation not law and did not that the invalidate the operative statutory text of the EPA). V. ¶19 For the foregoing reasons, we hold 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 11 _____________________________________ Michael D. Ryan, Justice (Retired) 12