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 
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(“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 
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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 
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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, 
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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 
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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 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, 
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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. 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. 
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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. 
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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 
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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. 
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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)