Garcia v. Browning

• Decision Date: 05 September 2006
• Docket Number: No. 2 CA-SA 2006-0040.,2 CA-SA 2006-0040.
• Citation: 146 P.3d 1007,486 Ariz. Adv. Rep. 10,213 Ariz. 598
• Parties: David GARCIA, Petitioner, v. Hon. Christopher ROWNING, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.
• Court: Arizona Court of Appeals

213 Ariz. 598

146 P.3d 1007

486 Ariz. Adv. Rep. 10

DAVID GARCIA, Petitioner,

v.HON. CHRISTOPHER BROWNING, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and THE STATE OF ARIZONA, Real Party in Interest.

2 CA-SA 2006-0040

COURT OF APPEALS OF ARIZONA, DIVISION TWO, DEPARTMENT B

September 5, 2006, Filed

COUNSEL: For Petitioner: D. Jesse Smith and Anthony Payson, Tucson.

For Real Party in Interest: Taren M. Ellis, Barbara LaWall, Pima County Attorney, Tucson.

For Arizona Attorneys for Criminal Justice, Amicus Curiae: Daniel L. Kaplan, Osborn Maledon, P.A., Phoenix.

JUDGES: PHILIP G. ESPINOSA, Judge.CONCURRING: PETER J. ECKERSTROM, Presiding Judge, J. WILLIAM BRAMMER, JR., Judge.

OPINION BY: PHILIP G. ESPINOSA

OPINION

ESPINOSA, Judge.

This special action presents the issue whether the current version of A.R.S. § 13-205, Arizona's statute on affirmative defenses, enacted as an emergency measure pursuant to article IV,pt. 1, § 1(3) of the Arizona Constitution and effective on April 24, 2006, applies to criminal defendants such as petitionerDavid Garcia who allegedly committed first-degree murder before the effective date of the statute but whose case has yet to be tried.We find it does and conclude the respondent judge erred when he determined otherwise.

BACKGROUND

On December 13, 2004, Garcia was charged by indictment in CR-20044702 with first-degree murder, allegedly committed on December 5, 2004.In accordance with the version of § 13-205 then in effect, the grand jury was instructed that justification defenses, including self-defense, are affirmative defenses that a defendant must prove by a preponderance of the evidence.Garcia thereafter disclosed various justification defenses, including self-defense, third-party defense, and crime prevention.SeeA.R.S. §§ 13-404,13-406,13-411.

In April 2006, the legislature passed Senate Bill 1145, which amended the language of § 13-205 to exclude justification defenses from among the affirmative defenses that can be raised in a criminal action.2006 Ariz. Sess. Laws, ch. 199, § 2, effective April 24, 2006;see also2006 Ariz. Sess. Laws, ch. 199, § 1(amendingA.R.S. § 13-103(B) to provide that an "[a]ffirmative defense does not include any justification defense pursuant to chapter 4 of this title").Section 13-205(A) now provides that, if a defendant presents any "evidence of justification pursuant to chapter 4 of this title[,] . . . the state must prove beyond a reasonable doubt that the defendant did not act with justification."Section 6 of chapter 199 provides as follows: "This act is an emergency measure that is necessary to preserve the public peace, health or safety and is operative immediately as provided by law."The governor signed S.B. 1145 on April 24, 2006, and it became effective on that date.SeeAriz. Const. art. IV, pt. 1, § 1(3).

Garcia filed his second motion to remand the case to the grand jury soon after, requesting that it be instructed on the justification defenses pursuant to the current version of § 13-205.Garcia also filed a motion to instruct the jury in accordance with the new statute at the upcoming trial.After a status conference on May 9, the respondent judge denied the motions, finding that, based on the legislature's clear intent, the statute was not retroactively applicable and, therefore, did not apply to Garcia's case.1 This special action followed.

SPECIAL ACTION JURISDICTION

Although Garcia challenges the respondent judge's denial of his motion to remand for a new probable cause determination, seeRule 12.9, Ariz. R. Crim. P., 16A A.R.S., at oral argument on the special action petition, the parties agreed the respondent judge had stated that, were the new version of § 13-205 applicable, he would remand the case to the grand jury.Garcia also argues implicitly in his petition for special action and his supplemental memorandum, and argued directly at oral argument, that his challenge relates equally to the respondent judge's ruling that he would not instruct the trial jury according to the current version of the statute, a finding, essentially, that the new version of the statute is inapplicable to Garcia's case.The determination of whether the statute applies to him will affect the manner in which the parties prepare for and conduct the trial and, of course, how the jury will be instructed.

For a variety of reasons, we accept jurisdiction of this special action.A trial court's ruling on a challenge to a grand jury's finding of probable cause is not reviewable by appeal; rather, review must be obtained by special action.State v. Gortarez, 141 Ariz. 254, 258, 686 P.2d 1224, 1228(1984).However, because the grand jury was instructed in accordance with the law that existed at the time it indicted Garcia, we would not be inclined to accept jurisdiction of this special action were that the only issue Garcia was raising.And, although Garcia conceded at oral argument that a challenge to jury instructions is raisable on appeal, we nevertheless find it appropriate to accept special action jurisdiction in this case.

"[T]he availability of an appeal does not foreclose the exercise of this court's discretion to accept jurisdiction."Ariz. Dep't of Pub. Safety v. Superior Court, 190 Ariz. 490, 493, 949 P.2d 983, 986(App.1997).The remedy by appeal may be inadequate, such as here, if the case proceeded under an incorrect version of the statute, which could affect the outcome of the case.Seeid. at 493-94, 949 P.2d at 986-87.Additionally, the interpretation and application of a statute is a question of law, which is subject to this court's de novo review.Citizens Telecomms. Co. of White Mountains v. Ariz. Dep't of Revenue, 206 Ariz. 33, P21, 75 P.3d 123, 128(App.2003).Questions of law are particularly appropriate for review by special action.SeeState ex rel. Romley v. Fields, 201 Ariz. 321, P4, 35 P.3d 82, 84(App.2001);see alsoChartOne, Inc. v. Bernini, 207 Ariz. 162, P8, 83 P.3d 1103, 1106-07(App.2004)(interpretation of state constitution and civil rule of procedure is question of law appropriately reviewed by special action).And, given the frequency with which justification defenses are raised in criminal proceedings, the issue raised in this special action likely will arise in numerous pending cases, making the applicability of § 13-205"a question of statewide importance to the judiciary and the litigants who come before it in [criminal] matters."Anderson v. Contes, 212 Ariz. 122, P4, 212 Ariz. 122, 128 P.3d 239, 241(App.2006);see alsoBrush Wellman, Inc. v. Lee, 196 Ariz. 344, P5, 996 P.2d 1248, 1250(App.2000);O'Brien v. Escher, 204 Ariz. 459, P3, 65 P.3d 107, 108(App.2003)(cases presenting purely legal issues that are of first impression and statewide importance and that could readily recur in other cases are particularly appropriate for special action review).

For these reasons, and because we conclude the respondent judge abused his discretion by finding the current version of § 13-205 inapplicable to Garcia's case, we accept jurisdiction and grant Garcia special action relief.Twin City Fire Ins. Co. v. Burke, 204 Ariz. 251, P10, 63 P.3d 282, 285(2003)("[W]hen a judge commits an 'error of law . . . in the process of reaching [a] discretionary conclusion,'he may be regarded as having abused his discretion."), quotingGrant v. Ariz. Pub. Serv. Co., 133 Ariz. 434, 456, 652 P.2d 507, 529(1982).

DISCUSSION

Section 1-244, A.R.S., provides that "[n]o statute is retroactive unless expressly declared therein."Thus, statutes are presumptively prospective in application.SeeAranda v. Indus. Comm'n, 198 Ariz. 467, P10, 11 P.3d 1006, 1009(2000).Because § 13-205 was enacted as an emergency measure, it became "operative immediately as provided by law."2006 Ariz. Sess. Laws, ch. 199, § 6;seeAriz. Const. art. IV, pt. 1, § 1(3).The legislature, however, did not specify what immediately operative meant.If a statute's language is unclear, we"'consider other factors such as the statute's context, history, subject matter, effects and consequences, spirit, and purpose.'"State v. George, 206 Ariz. 436, P6, 79 P.3d 1050, 1054(App.2003), quotingState v. Fell, 203 Ariz. 186, P6, 52 P.3d 218, 220(App.2002).And, if a statute remains unclear after considering those factors, "'the rule of lenity dictates that any doubt should be resolved in favor of the defendant.'"State v. Tarango, 185 Ariz. 208, 210, 914 P.2d 1300, 1302(1996), quotingState v. Pena, 140 Ariz. 545, 549-50, 683 P.2d 744, 748-49(App.1983), aff'd, 140 Ariz. 544, 683 P.2d 743(1984).Considering the legislative history discussed below, we believe the legislature intended the statute to apply to cases like Garcia's that had not yet gone to trial when the statute went into effect, notwithstanding that the offense occurred before the effective date.Whether such an application is prospective or whether it is regarded as a retroactive application of the law, there is no constitutional or statutory impediment to such an application.

"The primary goal of statutory construction is to give effect to the intent of the legislature."Cornman Tweedy 560, LLC v. City of Casa Grande, 213 Ariz. 1, P8, 213 Ariz. 1, 137 P.3d 309, 311(App.2006).In determining the legislature's intent in enacting a statute, appellate courts may consider the statute's legislative history, including the minutes of any legislative hearings.SeeHayes v. Continental Ins. Co., 178 Ariz. 264, 269 n.5, 872 P.2d 668, 673 n.5(1994);State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 596, 667 P.2d 1304, 1311(1983);State v. Lammie, 164 Ariz. 377, 379, 793 P.2d 134, 136(App.1990).Before 1997, when a defendant raised the slightest evidence that his or her criminal conduct had been justified, the burden shifted to the state to prove beyond a reasonable doubt that the defendant's conduct had not been justified.See...