Filed 5/25/22 P. v. Machado CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B313222
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA036692)
v.
OSCAR GERALD MACHADO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, William C. Ryan, Judge. Affirmed.
Andrea Keith, 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, Roberta L. Davis and David E. Madeo, Deputy
Attorneys General, for Plaintiff and Respondent.
____________________________
Defendant Oscar Gerald Machado was convicted in 1998 of
second degree burglary of a vehicle and first degree burglary of a
residence. Because defendant previously had been convicted of
two counts of armed robbery, the trial court sentenced him under
the “Three Strikes” law on both counts.
Following passage of Proposition 36, the Three Strikes
Reform Act of 2012, defendant petitioned to recall his sentence.
The trial court issued an order to show cause as to the vehicle
burglary count, but denied the petition as to the residential
burglary count, finding it was ineligible for resentencing under
Proposition 36. Citing the “full resentencing rule,” defendant
nonetheless requested that, should the trial court recall his
sentence on the vehicle burglary, that it reconsider his sentence
on the residential burglary as well and dismiss the prior strikes
pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th
497 (Romero).
The trial court granted the petition to recall defendant’s
sentence on the vehicle burglary, but denied the request to
dismiss the prior strikes on the sentence for the residential
burglary. Defendant moved for reconsideration, contending the
trial court did not consider all the required factors for a Romero
motion. The trial court granted reconsideration and issued a new
memorandum of decision, but maintained its prior ruling denying
the Romero motion.
We reject defendant’s argument on appeal that the trial
court abused its discretion by denying his Romero motion.
Defendant’s criminal history is a pattern of crimes followed by
imprisonment followed by more crimes, supporting the trial
court’s conclusion that defendant is a recidivist within the spirit
of the Three Strikes law. The trial court properly considered
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factors such as defendant’s age at the time of his strike offenses,
his current age, and his record of rehabilitation in prison, and it
was neither arbitrary nor irrational to find these factors did not
weigh in favor of dismissing the strikes.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Criminal history
Defendant was born in May 1969. From 1989 to 1991,
defendant was arrested and convicted on multiple occasions,
including for two counts of misdemeanor petty theft,
misdemeanor carrying a concealed weapon, possession of a
controlled substance, burglary (to which defendant pleaded no
contest as a misdemeanor), giving false identification to a police
officer, taking a vehicle without the owner’s consent, and grand
theft of a vehicle.
On November 8 and 12, 1990, defendant, then age 21,
committed two armed robberies, the strike offenses at issue in
this appeal. During the first, defendant and his brother
approached the victim brandishing handguns, and one of the
perpetrators said, “Give me your wallet or I’ll blow your head off.”
During the second robbery, defendant demanded the victim’s
wallet while placing a handgun against the victim’s head. For
these crimes defendant was convicted in March 1991 of two
counts of second degree robbery, with a firearm enhancement to
which defendant admitted as to one of the counts. He was
sentenced to five years in prison, and paroled in July 1993.
In September 1993, defendant was convicted of receiving
stolen property and sentenced to two years in prison. In
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October 1994, he was convicted of possession of drugs in prison
and sentenced to an additional 32 months.
In March 1998, defendant pried open the door of a locked
vehicle, ransacked the interior, and removed property including
the car stereo. In April 1998, he broke into a car in a parking
complex attached to an apartment building. Defendant was
convicted of second degree burglary of a vehicle (count 1) and
first degree residential burglary (count 2). Because of
defendant’s two prior robbery convictions, the trial court
sentenced him under the Three Strikes law (Pen. Code,1 §§ 667,
subds. (b)–(j), 1170.12.), imposing consecutive 25-to-life sentences
on each count, with an additional five years under section 667,
subdivision (a)(1), for a total of 55 years to life.
2. Petition for resentencing
In April 2013, defendant petitioned for recall of his
sentence and resentencing under section 1170.126, part of
Proposition 36. After proceedings that included an appeal that
reached our Supreme Court (see People v. Johnson (2015)
61 Cal.4th 674),2 the trial court in September 2015 issued an
order to show cause as to count 1, burglary of a vehicle. The
court denied the petition to recall the sentence on count 2,
residential burglary, finding it was a serious felony ineligible for
relief under section 1170.126, subdivision (e)(1).
The People filed an opposition to defendant’s petition in
January 2016. After obtaining numerous requests for extensions
of time, defendant filed a reply to the opposition in October 2018.
1 Unspecified statutory citations are to the Penal Code.
2 The Johnson opinion also addressed defendant’s case.
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In a filing in November 2019, defendant argued that under
the “full resentencing rule,” should the trial court grant his
petition to recall his sentence on count 1, the trial court could
reconsider his entire sentence, including the sentence on count 2.
Defendant requested in that event, the court exercise its
authority under Romero to dismiss the prior strikes underlying
his sentence on count 2.
In another filing, defendant requested the trial court
exercise its authority under section 1385 to dismiss the five-year
section 667, subdivision (a)(1) enhancement.
In a memorandum of decision dated November 30, 2020,
the trial court granted the petition to recall the sentence on
count 1. The trial court further granted defendant’s request to
dismiss the section 667, subdivision (a)(1) enhancement.
The trial court denied the Romero request to dismiss the
prior strikes on count 2. In support of the denial, the court
explained that both strikes involved a threat of or potential for
violence, and defendant was armed with a firearm in both
incidents. The court stated, “[S]ociety has a legitimate interest in
the fair prosecution of properly charged crimes and [defendant]
did ultimately commit both strike priors and should be penalized
for his recidivism, which is [the] point of the Three Strikes Law.”
On December 14, 2020, the People, citing directives from
the newly elected District Attorney, withdrew their opposition to
defendant’s petition, and conceded that he was suitable for
resentencing. The People also joined in defendant’s “request to
strike all alleged sentence enhancements.”
On February 8, 2021, defendant filed a motion for
reconsideration of the denial of his Romero request to dismiss the
prior strikes. Defendant contended the trial court failed to
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consider “the nature and circumstances of [defendant’s] present
felonies; the remoteness of the strike priors; [defendant’s] youth
at the time he committed the strike priors; his positive
rehabilitative efforts while in prison; his age; his access to
inpatient and outpatient mental health and chemical dependency
services if released; and his extremely strong family support.”
Defendant also contended the People in their concession agreed
the trial court should grant the Romero motion.
3. The trial court’s ruling
On March 3, 2021, the trial court issued a memorandum of
decision granting reconsideration but again denying the Romero
motion. Regarding defendant’s commitment offenses, i.e., the two
burglaries, the court acknowledged they were remote, having
been committed more than 20 years earlier, and that the victims
were not injured. The court disagreed with defendant, however,
that “ ‘on the spectrum of criminal behavior’ ” the crimes were
“ ‘less reprehensible,’ ” especially given that “burglary of a
residence is a distinct and more serious offense than other
burglaries due to the higher risk to personal safety that
residential burglaries create.”
Regarding the conduct underlying the prior strikes, the
trial court again noted the threat of violence and potential for
violence. The court recognized defendant was a youthful offender
at the time, but noted defendant “continued to commit crimes
until the commitment offenses in 1998, at which time he was no
longer a youth offender.” The court acknowledged the prior
strikes, like the commitment offenses, were at this point remote
in time.
Regarding defendant’s other criminal history, the trial
court “f[ound] that it is extensive but remote, given that he has
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been incarcerated for 22 years since the commitment offense in
1998.”
The trial court noted defendant’s disciplinary record in
prison, which included over 20 serious rule violations,
approximately eight of which involved violence. The most recent
infractions involving violence had occurred in 2012. More
recently, between December 2016 and October 2019, defendant
had been disciplined for alcohol possession, drug possession and
distribution, disobeying orders, attempting to dissuade staff from
reporting a violation, and theft. The court stated, “Given that
[defendant’s] criminal history consisted primarily o[f] drug or
theft offenses [citation], the court finds that his recent
disciplinary history is still highly relevant and is not supportive
of a finding that [defendant] falls outside the spirit of the Three
Strikes law.”
The trial court acknowledged that at 51 years old
defendant was “potentially ‘aging out’ of any real risk of serious
criminality,” but noted defendant was still committing infractions
in prison as recently as October 2019. The court found
defendant’s “rehabilitative programming history was fairly
limited,” noting in particular that despite his history of substance
abuse, defendant had not joined Narcotics Anonymous until 2016.
The court intimated this latter fact undercut defendant’s
suggestion that he would avail himself of drug dependency and
mental health services upon his release.
The trial court found “the People’s concession has no effect
on the factors that the court is required to consider . . . , and that
the court would have reached the same result with or without an
opposition to the Romero motion.”
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The trial court concluded that upon consideration of the
above evidence and factors, defendant was “not outside of the
spirit of the Three Strikes Law,” and the court therefore declined
to dismiss the prior strikes.
On April 27, 2021, the trial court vacated the sentence on
count 1 and resentenced defendant to the high term of six years,
to be served concurrently with the 25-to-life sentence on count 2.
Defendant was 51 years old at the time of resentencing.
Defendant timely appealed.
DISCUSSION
The Supreme Court held in Romero that under section
1385, courts may, “in furtherance of justice,” “strike prior felony
conviction allegations in cases brought under the Three Strikes
Law.” (Romero, supra, 13 Cal.4th at pp. 529–530.) In doing so, a
court “must consider whether, in light of the nature and
circumstances of his present felonies and prior serious and/or
violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside
the [Three Strikes] scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted
of one or more serious and/or violent felonies.” (People v.
Williams (1998) 17 Cal.4th 148, 161.)
When a trial court recalls a sentence on one of multiple
counts under section 1170.126, during resentencing the court is
“ ‘ “entitled to consider the entire sentencing scheme,” ’ ” and
“ ‘ “reconsider all sentencing choices,” ’ ” including on counts
ineligible under section 1170.126. (People v. Hubbard (2018)
27 Cal.App.5th 9, 13.) This is referred to as the “ ‘full
resentencing rule.’ ” (Ibid.) The parties do not dispute that
under this rule, the trial court properly could consider
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defendant’s Romero motion as to count 2 after recalling the
sentence on count 1.
A trial court’s denial of a Romero motion is reviewed for
abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367,
374 (Carmony).) Under this standard, “a ‘ “decision will not be
reversed merely because reasonable people might disagree.” ’ ”
(Id. at p. 377.) “[A] trial court does not abuse its discretion unless
its decision is so irrational or arbitrary that no reasonable person
could agree with it.” (Ibid.)
Our Supreme Court has explained that the Three Strikes
law “establishes a sentencing norm,” and “creates a strong
presumption that any sentence that conforms to these sentencing
norms is both rational and proper.” (Carmony, supra, 33 Cal.4th
at p. 378.) The circumstances under which a defendant meeting
the statutory conditions of a Three Strike sentence nonetheless
“ ‘fall[s] outside the spirit of the . . . scheme’ ” “must be
‘extraordinary.’ ” (Ibid.) Thus, “the circumstances where no
reasonable people could disagree that the criminal falls outside
the spirit of the three strikes scheme must be even more
extraordinary.” (Ibid.)
This is not an extraordinary case. Defendant’s prior strikes
were textbook violent felonies, armed robberies in which the
victims were threatened with death by word (“I’ll blow your head
off”) and action (placing a handgun to the victim’s head). After
serving his sentence for those crimes, defendant continued to
commit crimes, albeit less serious ones, and was back in prison
within months. Shortly upon release from that second
incarceration, he committed the two burglaries at issue here,
including one in the parking area of an apartment building, a
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crime the trial court properly noted involved an increased risk to
personal safety given the presence of residents nearby.
Defendant’s history therefore demonstrates a pattern of
recidivism over an eight- or nine-year period in which defendant
was either committing crimes or in prison. Although he qualified
as a youth offender at the time he committed the strike offenses
(see § 3051, subd. (a)(1) [defining “youth offender” as one “who
was 25 years of age or younger . . . at the time of the controlling
offense”), he showed no signs of ceasing his criminality once he
was no longer a youth offender, as the trial court observed. While
we commend his efforts at rehabilitation while in custody, the
trial court was reasonable to conclude defendant has not been a
model prisoner deserving of the extraordinary remedy of vacating
a properly imposed Three Strikes sentence.
Defendant argues his commitment offenses, the burglaries,
were not “the kind of criminal conduct that is within the spirit of
the Three Strikes law,” because they did not involve physical
violence or weapons, no victims were injured, they were not gang-
related, and defendant was struggling with drug dependency at
the time. Defendant also contends “the court failed to
acknowledge” his residential burglary conviction was for
breaking into a vehicle in an apartment parking complex, with no
evidence he entered a residence.
The fact defendant’s commitment offenses were nonviolent
is by no means determinative—the Three Strikes law applies to
“serious” as well as “violent” felonies, and first degree burglary is
an enumerated “serious felony.” (See §§ 667, subd. (b); 1192.7,
subd. (c)(1).) The trial court fully acknowledged defendant’s
particular conviction was for breaking into a vehicle in a
residential parking complex because the court included those
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details in its memorandum of decision. It was not an irrational
or arbitrary conclusion that under those circumstances the
offense was serious and threatened public safety. Targeting a
vehicle anywhere on a residential property increased the risk
defendant would encounter a resident, making the crime more
serious than had he broken into a car on the street.
Defendant argues, “The trial court abused its discretion by
giving insufficient weight to appellant’s youth at the time of his
underlying strikes and the nature of the offenses.” The thrust of
defendant’s argument appears to be that his crimes at this point
are decades in the past, committed when he was in his twenties,
and now that he is in his fifties, he is unlikely to recidivate.
The trial court did not have to credit defendant for two
decades free from additional violent or serious felonies when
defendant has been in prison that entire time. Before his latest
incarceration in 1998, his conduct demonstrated a pattern of
continued criminality despite his prior prison terms. The trial
court reasonably could conclude defendant is the type of offender
the Three Strikes law was designed to dissuade.
Defendant contends the trial court overstated the
significance of his prison infractions, which he contends did not
involve “weapons, assaultive behavior against staff, or gang
behavior,” nor had he any infractions related to drug use.
Assuming arguendo defendant’s characterization of his
infractions is correct, the fact remains that he has committed
many infractions in prison, and thus the trial court reasonably
could find he had not shown such rehabilitative progress in
prison as to override the considerations militating against his
Romero request.
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This case is not comparable to People v. Avila (2020)
57 Cal.App.5th 1134 (Avila), cited by defendant. In Avila, the
defendant was convicted in 2018 of attempted second degree
robbery and attempted extortion after he demanded “rent” money
from two sidewalk fruit vendors and squashed several bags of
their oranges. (Id. at p. 1139.) Avila admitted to three previous
strike convictions: a second degree robbery and assault with a
knife in 1990, and a second degree robbery in 1992. (Id. at
pp. 1140–1141.) The trial court denied his Romero motion and
sentenced him to 25 years to life plus 14 years. (Id. at p. 1139.)
Division Three of this court held the trial court abused its
discretion by denying the Romero motion. (Avila, supra,
57 Cal.App.5th at p. 1138.) The appellate court reasoned that the
trial court incorrectly believed it could not consider either the
remoteness in time of the strike offenses or defendant’s youth at
the time he committed those offenses as mitigating factors. (Id.
at pp. 1141–1142.) Those factors weighed in favor of granting the
Romero motion, concluded the appellate court, because the
strikes were “committed when [the defendant] was of diminished
culpability based on his age,” and the defendant had not
committed a violent felony since, “showing that the severity of his
record is decreasing.” (Id. at pp. 1143, 1145.) His last felony
offense had been in 2008 for drug possession, an offense since
reclassified as a misdemeanor. (Id. at p. 1143.)
The appellate court disagreed with the trial court’s
characterization of the commitment offenses, the attempted
robbery and extortion, as “brutal” and “violent,” when “Avila
did not use a weapon or otherwise use physical violence against
the victims, nor did he make any specific threats. He squashed
oranges.” (Avila, supra, 57 Cal.App.5th at p. 1142.) Although
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subsequent to his strike offenses he had been convicted of a
number of less serious offenses, “[m]uch of his criminal conduct
appears to be related to his drug addiction rather than to sinister
motives and falls well outside the realm of what could be
considered the work of a career criminal.” (Id. at p. 1145.)
The appellate court further noted that the defendant was
47 years old at the time of sentencing, and the sentence imposed
“means he will likely die in prison.” (Avila, supra, 57 Cal.App.5th
at p. 1144.) “The length of a sentence is the ‘overarching
consideration’ in deciding whether to strike a prior conviction
because the underlying purpose of striking a prior conviction is
the avoidance of unjust sentences.” (Ibid.)
In addition to finding the trial court had abused its
discretion, the appellate court concluded the sentence imposed
constituted cruel and unusual punishment under the California
Constitution: “Life in prison for destroying fruit, even when done
by someone with a criminal record in the course of an attempted
robbery, robs recidivist sentencing of its moral foundation and
renders the solemn exercise of judicial authority devoid of
meaning.” (Avila, supra, 57 Cal.App.5th at p. 1151.)
The issue in Avila was whether it was just, and indeed
constitutional, to sentence a 47-year-old to life in prison based on
crimes he committed decades earlier at ages 18 and 20, when his
current offense was, as the appellate court put it, “squash[ing]
oranges.” (Avila, supra, 57 Cal.App.5th at p. 1142.)
The instant case does not present an equivalent issue.
When defendant received his Three Strikes sentence, his strikes
were not remote, having been committed only eight years earlier,
and defendant had been in prison most of the intervening period.
There thus was a pattern of recidivism over a relatively short
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period between the strikes and commitment offenses, a pattern
absent in Avila.
In Avila, moreover, the defendant had significant periods of
time out of custody since committing his strike offenses in which
to demonstrate his lack of violent criminality. Defendant here
cannot be judged by the same rubric, because he has been in
prison most of his life since committing the 1990 robberies. Thus,
whereas the span of time in Avila provided assurance the
defendant was not in fact the type of recidivist targeted by the
Three Strikes law, there is no such assurance in the instant case.
In further contrast to Avila, there is no indication the trial
court failed to consider the appropriate factors, such as
defendant’s youth or the remoteness of the strike offenses. The
trial court expressly acknowledged those factors, but ruled they
were outweighed by other considerations. Also unlike Avila,
there is no indication the trial court misunderstood or
mischaracterized the severity of the commitment offenses. As we
have discussed, burglary of a portion of a residential property is a
serious and potentially dangerous offense, even if the perpetrator
never enters an actual residence.
Lastly, the concern in Avila that the trial court was
effectively sentencing a 47-year-old to die in prison is not present
here. Defendant began serving his 25-to-life sentence on count 2
in 1998, and therefore has completed most of his required
minimum sentence already.
In short, Avila is distinguishable, and there was nothing
irrational or arbitrary about the trial court’s ruling.
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED.
BENDIX, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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