People v. Machado

300 Cal.Rptr.3d 801

The PEOPLE, Plaintiff and Respondent,

v.Ernest MACHADO, Defendant and Appellant.

B311023

Court of Appeal, Second District, Division 1, California.

Filed October 31, 2022

Certified for Partial Publication.^*

Derek K. Kowata, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Amanda Lopez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

BENKE, J.^**

When a defendant, under Penal Code ¹ section 1172.6 files a petition for resentencing on a conviction of murder, and the prosecution agrees that the defendant is entitled to relief, "[t]he parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have the murder ... conviction vacated and to be resentenced." ( § 1172.6, subd. (d)(2).) The central question in this case is whether the trial court is bound by the parties’ stipulation, or whether it must review the record to determine whether the defendant is indeed entitled to resentencing.

In this case, the trial court denied defendant and appellant Ernest Machado's petition despite the parties’ stipulation to waive the resentencing hearing. Machado contends that in doing so, the court misinterpreted the statute and violated the doctrine of separation of powers. We disagree and affirm.

It is a core judicial function to "declare the law as it is, and not as either appellant or respondent may assume it to be." ( Bradley v. Clarke (1901) 133 Cal. 196, 210, 65 P. 395.) Although the court must consider the parties’ stipulation, as with any other stipulation, the court must make its own determination of whether the matter to which the parties have stipulated is consistent with the law. That is especially true in criminal cases, where the public interest is at stake. We also reject Machado's contention that the trial court erred by considering the facts as described in the opinion in his original appeal because even assuming any such error, Machado has failed to demonstrate prejudice.

FACTS AND PROCEEDINGS BELOW

A. 1981 Murder and Trial²

During the afternoon of February 9, 1981, John Costantino left his house to walk his dog. He returned 15 to 20 minutes later. As he entered the house, which he shared with his roommate James Galvan, Costantino was grabbed, thrown to the floor, and hit on the back of his head with the butt of a gun. His head was covered by a serape, and his hands and feet were tied. During the assault, Costantino heard two voices. One voice demanded "la coca," meaning cocaine. One demanded money from Costantino and took his wallet, containing $37, from his pocket. Costantino lost consciousness when one of the assailants stepped on his head. On regaining consciousness, Costantino saw the entire house was "torn up" and he found Galvan lying, facedown, on the floor. Galvan had suffered a gunshot wound to his back. He died from the wound.

Based on investigation, in June of 1981, Machado and a companion, Alfred Rodriguez, were charged with the murder of Galvan ( § 187 ), as well as two counts of robbery ( § 211 ), one count of burglary ( § 459 ), one count of assault with force likely to cause great bodily injury ( § 245, subd. (a) ), and one count of attempted robbery ( §§ 211, 664 ). The murder charges included a special-circumstance felony-murder allegation ( § 190.2, subd. (a)(17) ), as well as an allegation that Machado personally used a firearm ( § 12022.5 ).

As part of a plea agreement and at the People's request, on April 27, 1982, the firearm use allegation under section 12022.5 was removed and replaced with an allegation that a principal was armed with a firearm in the commission of the offense ( § 12022, subd. (a) ). In exchange, Machado stipulated the murder allegation be submitted to the court for a bench trial based on the transcript of the preliminary hearing, "within guidelines stipulated to by counsel." The court found Machado guilty of first degree murder and found the principal armed allegation true. The trial court dismissed the remaining charges, including the felony-murder special-circumstance allegation, on the People's motion in the interests of justice. Machado was sentenced to one year in prison for the armed offense and 25 years to life for murder.

This court affirmed Machado's conviction and sentence. (People v. Machado (Dec. 14, 1983, 43164) [nonpub. opn.].)

B. Resentencing Proceedings

In 2018, the Legislature enacted Senate Bill No. 1437 (2017-2018 Reg. Sess.), which abolished the natural and probable consequences doctrine in cases of murder and limited the application of the felony-murder doctrine. (See People v. Gentile (2020) 10 Cal.5th 830, 842-843, 272 Cal.Rptr.3d 814, 477 P.3d 539.) Under the new law, to be convicted of felony murder, a defendant must have been the actual killer ( § 189, subd. (e)(1) ); or acted with the intent to kill in aiding, abetting, or soliciting the murder (id. , subd. (e)(2)); or have been "a major participant in the underlying felony and acted with reckless indifference to human life" (id. , subd. (e)(3)). The legislation also enacted section 1170.95, subsequently renumbered section 1172.6, which established a procedure for vacating murder convictions for defendants who could no longer be convicted of murder because of the changes in the law and resentencing those who were so convicted. (Stats. 2018, ch. 1015, § 4, pp. 6675-6677.)³

Machado filed a petition for resentencing under section 1170.95 on December 27, 2018. The People filed an opposition, in which they alleged Machado was not entitled to relief because there was evidence showing he was the actual killer, and he was a major participant in the underlying felony, and further, that he acted with reckless indifference to human life. In support of their position, the People submitted the transcript of Machado's preliminary hearing. On December 2, 2020, following additional briefing, the court concluded Machado had set forth a prima facie case for relief and issued an order to show cause.

On December 7, 2020, the Los Angeles County District Attorney issued a special directive establishing a new policy for its attorneys in handling resentencing petitions. According to this document, in all cases where a defendant was charged with a felony-murder special circumstance, but the defendant was not the actual killer and the special-circumstance allegation was dropped as part of plea negotiations, "this [o]ffice will not attempt to prove the individual is ineligible for resentencing. This [o]ffice will stipulate to eligibility per [former] section 1170.95 [, subdivision] (d)(2)." (Los Angeles County District Attorney Special Directive 20-14 (2020) p. 5, ¶ 7.)⁴ Three days later, the People informed the court that in light of the new sentencing directives, they would not be contesting Machado's eligibility for resentencing, and stipulated to his eligibility.

After hearing argument by counsel, the court declined to grant Machado's petition for resentencing on the basis of the stipulation alone. Instead, the court stated that it "has a duty to review whether the court accepts the stipulation or not. ... [A]nd I take no position on what the [district attorney]’s policy is. That's up to the [district attorney]. But, ultimately, it's a ruling by the court. And since we have a record of conviction, I think it's incumbent upon the court to consider it and consider the case law and then make a determination."

At a hearing on January 19, 2021, the People reiterated they were not participating in the hearing and would offer no evidence or argument intended to meet their burden of proof. Machado contended that the stipulation required the court to resentence him. The court disagreed and concluded that the text of the statute, as well as the legislative history, mandate that the court consider the record of conviction before deciding whether to accept a stipulation.

The court stated that the People were free not to introduce new evidence and to stipulate to a defendant's eligibility, but "I don't think that [the] People have the power to say to the court ‘you may not consider the record of conviction.’ " The court asked Machado's attorney if he intended to introduce any new evidence in support of his petition. Machado declined to do so and asked the court not to consider statements in the record of conviction that were based on hearsay statements from his codefendant. The court granted Machado's motion. It took judicial notice of the record of conviction, including the transcript of the preliminary hearing,⁵ the Court of Appeal opinion, the minutes of the plea and sentencing hearings, and the abstract of judgment.

The court concluded Machado was ineligible for resentencing "because he could be found guilty beyond a reasonable doubt of first degree murder under amended section 189 as a major participant who acted with reckless indifference to human life in the commission of the felony murder." In reaching this conclusion, the court relied on evidence from the record of conviction showing that Machado helped plan the robbery of a known drug dealer, that he insisted on having a loaded gun, and that he was present at the scene of the shooting but did nothing to intervene.

This timely appeal is from the court's denial of the resentencing petition.

DISCUSSION

A. The Stipulation Did Not Bind the Trial Court to Vacating Machado's Conviction

Machado contends that the plain language of section 1172.6, subdivision (d)(2) requires the trial court to accede to the parties’ stipulation and resentence him. We disagree. The court must accept the parties’ stipulation under section 1172.6, subdivision (d)(2), only in the sense that the court must consider the stipulation when determining whether the defendant is eligible for resentencing, but a stipulation does not bind the court to resentence the defendant if the...