People v. Machado

Filed 10/31/22
CERTIFIED FOR PARTIAL PUBLICATION†

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, B311023
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. A561089)
v.

ERNEST MACHADO,

Defendant and Appellant.

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, 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.
_____________________

†
Pursuant to California Rules of Court, rules 8.1105(b) and
8.1110, this opinion is certified for publication except for part C of
the Discussion.
 When a defendant, under Penal Code1 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.) 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.

1Unless otherwise specified, subsequent statutory
references are to the Penal Code.

2
 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, face-
down, 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

2 We agree with both parties that the facts of the murder
are not necessary for the determination of the issues in this
appeal. We present this statement of facts, which we have
adopted from the presentation in respondent’s brief, only to
present background context.

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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.) 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

4
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

3In 2021, the Legislature enacted Senate Bill No. 775
(2021-2022 Reg. Sess.) (Stats. 2021, ch. 551), which clarified and
amended certain aspects of Senate Bill No. 1437.

5
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

4 The document is posted on the district attorney’s web site,
at https://da.lacounty.gov/sites/default/files/pdf/SPECIAL-
DIRECTIVE-20-14.pdf> [as of Oct. 27, 2022]. We take judicial
notice of this document.

6
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.

5Under section 1172.6, subdivision (d)(3), the admission of
evidence from preliminary hearings is limited. In this case,
however, the parties submitted the transcripts of the preliminary
hearing to the court as the evidence on which the court
determined Machado’s guilt in a bench trial. We assume that the
transcripts were admissible in the resentencing proceedings
because the parties tried the case to the bench based on these
transcripts, and Machado does not argue otherwise.

7
 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 evidence does not support such
eligibility.
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.” (§ 1172.6, subd. (d)(1).) Section
1172.6, subdivision (d)(2) provides a way “to streamline the
process.” (People v. Ramirez (2019) 41 Cal.App.5th 923, 932.)
That subdivision provides as follows: “The parties may waive a
resentencing hearing and stipulate that the petitioner is eligible
to have the murder, attempted murder, or manslaughter
conviction vacated and to be resentenced. If there was a prior
finding by a court or jury that the petitioner did not act with
reckless indifference to human life or was not a major participant
in the felony, the court shall vacate the petitioner’s conviction
and resentence the petitioner.” (§ 1172.6, subd. (d)(2)).

8
 Prior cases have addressed the second sentence of section
1172.6, subdivision (d)(2) and have held that when a jury (People
v. Clayton (2021) 66 Cal.App.5th 145, 155-157) or trial court
(People v. Harrison (2021) 73 Cal.App.5th 429, 440-441) has
acquitted a defendant of a felony-murder special-circumstance
finding under section 190.2, subdivision (a)(17), this constitutes
“a prior finding . . . that the petitioner did not act with reckless
indifference to human life or was not a major participant in the
felony” (§ 1172.6, subd. (d)(2)), and that in these cases, section
1172.6, subdivision (d)(2) requires granting the defendant’s
petition for resentencing. We are aware of no case interpreting
the first sentence of subdivision (d)(2), however. It is therefore a
matter of first impression whether a stipulation by the parties
also requires the trial court to grant the defendant’s petition.
Contrary to Machado’s claim, the plain language of section
1172.6, subdivision (d)(2) does not dictate that the court must
vacate the defendant’s sentence in all cases where the parties so
stipulate. As we have noted above, subdivision (d)(2) addresses
two distinct situations. The second sentence states that “[i]f
there was a prior finding by a court or jury that the petitioner did
not act with reckless indifference to human life or was not a
major participant in the felony, the court shall vacate the
petitioner’s conviction and resentence the petitioner.” (§ 1172.6,
subd. (d)(2)). Because the statute states that when the condition
is met, the court “shall vacate” the conviction, cases that have
considered the question have held unanimously that a prior
finding of no reckless indifference to human life or major
participation indeed requires the court to vacate the defendant’s
conviction. (See People v. Harrison, supra, 73 Cal.App.5th at

9
pp. 440-441; People v. Clayton, supra, 66 Cal.App.5th at pp. 155-
157; People v. Ramirez, supra, 41 Cal.App.5th at p. 932.)
The first sentence of section 1172.6, subdivision (d)(2),
however, contains no such mandatory language, providing merely
that “[t]he parties may waive a resentencing hearing and
stipulate that the [defendant] is eligible . . . to be resentenced.”
Nothing in the text of the statute requires the court to accede to
the parties’ request. In the absence of specific language to the
contrary, we infer that the Legislature intended courts to treat a
stipulation under the first sentence in section 1172.6, subdivision
(d)(2) in the same way they treat any other stipulation. (See
Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709,
715 [“The words of the statute should be given their ordinary and
usual meaning and should be construed in their statutory
context”].)
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

10
“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 section 1172.6,
subdivision (d)(2) to be subject to review by the court, like any
other stipulation.
Machado contends that the Legislature, in enacting section
1172.6, intended for the final eligibility hearing to be an
adversarial proceeding at which the prosecutor must “prove a
defendant’s guilt beyond a reasonable doubt.” If the prosecution
stipulates to the defendant’s eligibility for resentencing and
declines to offer evidence that the defendant remains guilty of
murder under the amended law, then according to Machado,
there is no basis on which the trial court can say that the
prosecution carried its burden of proof.
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.” (§ 1172.6, subd. (c).) As
our Supreme Court has noted, this is a “ ‘very low’ ” bar. (People
v. Lewis (2021) 11 Cal.5th 952, 972.) It requires showing only
that the defendant is not ineligible as a matter of law, with no
regard for what the facts of the case suggest actually occurred.
(See ibid.) In one case, People v. Offley (2020) 48 Cal.App.5th
588, this court held that a defendant made a prima facie case for
relief even though the evidence suggested strongly that the

11
defendant was guilty of murder under a still valid theory—the
defendant personally fired a gun at the vehicle in which the
victim was traveling. Nevertheless, because it was logically
possible that the jury convicted the defendant under a theory
outlawed by Senate Bill No. 1437, we held that he made a prima
facie case for relief. (Id. at p. 599.)
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 section 1172.6, subdivision (d), allowing the court to
evaluate the evidence and determine whether a defendant is
indeed culpable of murder, attempted murder, or voluntary
manslaughter under current law. If the court were required to
grant resentencing in all cases where the parties stipulate, this
safeguard would not exist. The purpose of Senate Bill No. 1437
was “to more equitably sentence offenders in accordance with
their involvement in homicides,” and to reduce “lengthy
sentences that are not commensurate with the culpability of the
individual.” (Stats. 2018, ch. 1015, § 1, subds. (b), (e).) By
allowing the court to review the parties’ stipulations, our
interpretation of section 1172.6, subdivision (d)(2) helps ensure
that relief goes only to those who are entitled to it.
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 of plea negotiations. (See Los Angeles County District

12
Attorney Special Directive 20-14, supra, p. 5, ¶ 7.) Nothing in the
text of the first sentence in section 1172.6 indicates that
defendants are eligible for resentencing in all cases in which the
prosecutor made such a concession in plea negotiations.
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 subdivision (d)(2) of section
1172.6 has this effect. Although the prosecution’s stipulation
does not require the court to grant the defendant’s petition, it
does require the court take the stipulation into account as a
significant point in favor of granting the defendant’s petition.
The court is not bound by the stipulation, but it may not ignore it
either.6 In addition, the stipulation benefits the defendant by
ensuring that the prosecution will not offer new evidence or argue
against granting his petition. That is all the stipulation achieves.
The trial court still has a duty to examine the evidence already in
the record, namely the record of the defendant’s conviction, along
with any evidence the defendant chooses to introduce on his own
behalf, so that the court can determine whether that evidence
“prove[s], beyond a reasonable doubt, that [he] is guilty of murder
or attempted murder under California law as amended by”

6 We interpret the trial court’s statement that “I don’t have
to accept your stipulation” as consistent with this requirement.
The court meant only that it was not required to grant Machado
relief, not that it intended to disregard the stipulation.

13
Senate Bill No. 1437. (§ 1172.6, subd. (d)(3).) That is what the
court did in this case.
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 Cal. Const., art. III, § 3.) “It is well settled that
the prosecuting authorities, exercising executive functions,
ordinarily have the sole discretion to determine whom to charge
with public offenses and what charges to bring.” (People v. Birks
(1998) 19 Cal.4th 108, 134.) Machado contends that the trial
court violated this doctrine by essentially acting as prosecutor in
this case, instituting and directing criminal charges against him.
In doing so, he argues that the court committed judicial
misconduct.
We are not persuaded. The court did not institute charges,
examine witnesses, or conduct an investigation into the facts.
Instead, the court exercised the judicial function of examining the
evidence already in the record to determine whether the law
entitled Machado to the relief he sought. Indeed, Machado’s
proposed interpretation of the law would risk violating the
doctrine of separation of powers: A district attorney may, of
course, set policies and decide as a matter of prosecutorial
discretion which defendants to charge with which offenses,

14
consistent with statutory and constitutional requirements.7 But
the determination of a sentence is a core judicial function.
(Manduley v. Superior Court (2002) 27 Cal.4th 537, 554.) As our
Supreme Court has explained, “once the decision to prosecute has
been made, the disposition of the matter is fundamentally
judicial in nature.” (Ibid.) If Machado’s interpretation were
correct, the prosecution and the defendant could jointly agree to
the correct interpretation of the law in the defendant’s case,
reducing the court to a mere rubber stamp. We are aware of no
law that would render courts irrelevant in the exercise of one of
their core functions, and we will avoid any interpretation of
section 1172.6 that would do so.
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.

7 In some circumstances, the law limits prosecutorial
discretion. For example, if a defendant is charged with a felony,
section 667, subdivision (f)(1) requires the prosecutor to plead
prior strike convictions. (See People v. Laanui (2021) 59
Cal.App.5th 803, 815.) We note that the legality or merits of the
district attorney’s special directive are not before this court and
we thus do not address these issues.

15
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.

16
 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
article VI, section 6 of the California Constitution.

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