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
2 

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 
3 

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 
4 

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. 
5 

¶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 
6 

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 
7 

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’”). 
8 

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 
9 

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 
10 

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. 
11 

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 
12 

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