THE PEOPLE, Plaintiff and Respondent, v. ERNEST MACHADO, Defendant and Appellant.
B311023 (Los Angeles County Super. Ct. No. A561089)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE
Filed 10/31/22
CERTIFIED FOR PARTIAL PUBLICATION†
APPEAL from an order of the Superior Court of Los Angeles County, Dorothy L. Shubin, Judge. Affirmed.
Derek K. Kowata, under appointment by the Court of Appeal,
_____________________
† Pursuant to
When a defendant, under
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.) 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,
Based on investigation, in June of 1981, Machado and a companion, Alfred Rodriguez, were charged with the murder of Galvan (
As part of a plea agreement and at the People‘s request, on April 27, 1982, the firearm use allegation under
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.) Under the new law, to be convicted of felony murder, a defendant must have been the actual killer (
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.”
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
If a defendant makes a prima facie case that he is eligible for resentencing under section 1172.6, the court must “hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial sentence.” (
Prior cases have addressed the second sentence of
Contrary to Machado‘s claim, the plain language of
The first sentence of
In every other situation of which we are aware, courts are not bound by the parties’ stipulations but must subject them to some form of review. In civil cases, entry of a stipulated judgment “is a judicial act that a court has discretion to perform. Although a court may not add to or make a new stipulation without mutual consent of the parties [citation], it may reject a stipulation that is contrary to public policy [citation], or one that incorporates an erroneous rule of law [citation]. ‘While it is entirely proper for the court to accept stipulations of counsel that appear to have been made advisedly, and after due consideration of the facts, the court cannot surrender its duty to see that the judgment to be entered is a just one, nor is the court to act as a mere puppet in the matter.’ [Citation.]” (California State Auto. Assn. Inter-Ins. Bureau v. Superior Court (1990) 50 Cal.3d 658, 664.) The equivalent in a criminal case is a plea bargain, and “the trial court may decide not to approve the terms of a plea agreement negotiated by the parties” on the ground that it “does not believe the agreed-upon disposition is fair.” (People v. Segura (2008) 44 Cal.4th 921, 931.) If a district attorney enters a stipulation contrary to law, the stipulation is “not binding on the court.” (People v. Jones (1936) 6 Cal.2d 554, 555.) We must presume that the Legislature was aware of this case law and intended a stipulation under the first sentence of
But this interpretation fails to take into account the overall structure of the statute. In order to reach a final eligibility hearing, the defendant must make only “a prima facie case showing that [he] is entitled to relief.” (
The Legislature did not intend to allow defendants to obtain relief upon the minimal showing of a prima facie case. It provided a safeguard in the form of the final eligibility hearing under
The district attorney‘s discretionary decision regarding whether to stipulate to a defendant‘s eligibility is no substitute for the court‘s determination of the issue, as this case shows. The district attorney‘s special directive instructs prosecutors in Los Angeles County to stipulate to resentencing in cases where the defendant was not the actual killer, and where the prosecution agreed to drop a felony-murder special-circumstance allegation as a part
Machado argues that our interpretation of the statute is incorrect on the ground that we may not adopt a “judicial construction that renders part of the statute ‘meaningless or inoperative’ ” (Hassan v. Mercy American River Hospital, supra, 31 Cal.4th at pp. 715-716). But we do not agree that our interpretation of the first sentence of
Senate Bill No. 1437. (
B. The Trial Court Did Not Violate the Doctrine of Separation of Powers
The California Constitution establishes separate executive, legislative, and judicial branches, and “vest[s] each branch with certain ‘core’ [citation] or ‘essential’ [citation] functions that may not be usurped by another branch.” (People v. Bunn (2002) 27 Cal.4th 1, 14; see
We are not persuaded. The court did not institute charges, examine witnesses, or conduct an investigation into the facts. Instead, the court
C. Any Error in the Trial Court‘s Reliance on Facts from the Prior Appellate Opinion Was Harmless
In the alternative, Machado contends that the trial court erred by relying on facts derived from this court‘s prior opinion in his case as a basis for denying his petition for resentencing him.
At the time the trial court denied Machado‘s petition, the former section 1170.95, subdivision (d)(3) provided that “[t]he prosecutor and the petitioner may rely on the record of conviction” at the hearing to determine the defendant‘s eligibility, and courts had held that it was proper to consider prior appellate opinions as part of the record of conviction. (See, e.g., People v.Lewis (2021) 11 Cal.5th 952, 972.) Subsequently, however, the Legislature enacted Senate Bill No. 775, which amended the statute to provide that ordinary rules of evidence regarding hearsay apply to the admission of evidence at eligibility hearings, and that “[t]he court may also consider the procedural history of the case recited in any prior appellate opinion.” (Stats. 2021, ch. 551, § 2, amending § 1170.95, subd. (d)(3), italics added.) Machado contends that the facts recited in an appellate opinion are ordinarily inadmissible as hearsay (see Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 884-885), and that the court erred by considering the fact section of the opinion in his original appeal as part of its review of the record of his conviction.
We need not decide this question because, even if we assume the trial court erred by taking into account the facts as described in the prior appellate opinion in his case, Machado has failed to show that he suffered any prejudice. Because a defendant is entitled to resentencing proceedings under section 1172.6 only under statute, not the Constitution, we review for error pursuant to the standard established in People v. Watson (1956) 46 Cal.2d 818. (See People v. Lewis, supra, 11 Cal.5th at p. 973.) Under this standard, the defendant must ” ‘demonstrate there is a reasonable probability that in the absence of the error he . . . would have obtained a more favorable result.’ ” (Id. at p. 974.) Machado has not met this standard. He has not shown any way in which the facts summarized in this court‘s original opinion differ from those in the preliminary hearing, such that he might have obtained a more favorable result if the court had not considered the prior opinion.
DISPOSITION
The trial court‘s order denying the petition for resentencing is affirmed.
CERTIFIED FOR PARTIAL PUBLICATION
BENKE, J.*
We concur:
ROTHSCHILD, P. J.
BENDIX, J.
* Retired Associate Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to