P. v. Machado
Filed 10/2/13 P. v. Machado CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE
DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff
and Respondent,
v.
DELFINO CARDENAS
MACHADO,
Defendant
and Appellant.
B244708
(Los
Angeles County
Super. Ct.
No. BA123888)
APPEAL from a judgment of the Superior
Court of
County,
Craig
E. Veals, Judge. Modified and, as
modified, affirmed with directions.
Vanessa
Place, under appointment by the Court of Appeal,
for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Zee Rodriguez and Connie H. Kan, Deputy Attorneys General,
for Plaintiff and Respondent.
_________________________
Delfino Cardenas Machado appeals
following his convictions by jury on count 1 –
(a)(2))
committed the offense against multiple victims (former § 667.61, subd.
(e)(5)), and three counts of forcible lewd act upon a child (former § 288,
subd. (b)(1); counts 2 through 4) with findings as to each of the three counts
appellant committed kidnapping (former § 667.61, subd. (e)(1)), personally
used a deadly weapon (former §§ 667.61, subd. (e)(4), 12022.3, subd. (a)),
and committed the offense against multiple victims (former § 667.61, subd.
(e)(5)), and with court findings appellant suffered two prior felony
convictions (§ 667, subd. (d)) and two prior serious felony convictions (§ 667,
subd. (a)). The court resentenced
appellant to prison for 210 years to life.
We modify the judgment and, as modified, affirm it with directions.
FACTUAL SUMMARY
The facts of appellant’s offenses are more fully set
forth in Machado II.
usual rules on appeal (People
(1993) 6 Cal.4th 1199, 1206), the evidence presented at appellant’s
July 2008 retrial established that on October 12,
1995,
20-year-old Maria M. (Maria) was at the Union Station in Los Angeles. Appellant, with a child, approached and
offered to help Maria find a bus. Maria
walked with appellant to his apartment, he dropped off the child, and Maria and
appellant left. The two walked towards
an embankment near a freeway. Appellant
threw Maria down, held her in bushes, and forcibly raped her (count 1).
During
the morning of February
28, 1997, 12-year-old Alma S. (Alma) was
at a bus stop waiting for a bus to take her to school. Appellant approached with a child and asked Alma a question. Later that day, Alma
returned to the bus stop en route home.
Appellant was there, seemed to have been waiting for her, and still had
the child. Appellant asked Alma for
help and they walked to an apartment building.
The three entered and went to an apartment.
Appellant,
using a key, opened the apartment’s door and pushed Alma
inside. He threatened Alma with a
knife and pushed her to the floor.
Appellant subsequently removed Alma’s
shorts and underwear from one of her legs, covered her mouth, and spread her
legs. He later orally copulated Alma (count
2), then touched her vagina with his hands (count 3). Appellant exposed his penis and Alma,
trying to delay him, asked him to use protection. Appellant put on a condom while Alma was
trying to persuade him to stop his attack.
He unsuccessfully attempted to penetrate Alma’s
vagina with his penis (count 4).
name="_ftnref4" title="">[4]
Appellant claims (1) the trial court deprived him of his
right to counsel at the October
12, 2012 resentencing hearing and (2) the section
1202.4, subdivision (b) restitution fine must be reduced.
1. The Trial Court Did Not Deprive Appellant of
His Right to Counsel.
a. Pertinent
Facts.
We
decided Machado III, our most recent
decision in this case, on August 22, 2012. On September
21, 2012, the trial court ordered appellant removed from prison. On October 5,
2012,
the court called the case for further proceedings. Appellant, who was in the lockup, was
represented by court-appointed counsel, i.e., Daniel A. Nardoni. After the court and counsel conferred in
chambers, the court continued the matter to October
10, 2012.
On October 10, 2012, the court called the case. The minute order for that date reflects
appellant was in the lockup. The
reporter’s transcript of that date reflects the court indicated neither
appellant nor Nardoni was present but Nardoni had been present earlier and was
aware of the proceedings. Another
attorney was standing in for Nardoni.
The parties jointly requested the matter trail to October 12, 2012. The
prosecutor indicated Nardoni was making the request to accommodate his
calendar. The prosecutor also indicated
she had provided to the court and Nardoni a supplemental sentencing memorandum.
On October 10, 2012, the prosecutor filed a 17-page sentencing
memorandum. The memorandum indicated the
trial court had tried the case and was familiar with its facts. The memorandum also stated, “The People have
attached portions of the trial transcript relevant to the operation of PC
sections 667.6(c) and (d) hereto as Exhibit A.â€
Attached to the memorandum
was exhibit A, consisting of 30 pages of the transcript of Alma S.’s 2008
retrial testimony as to the facts pertaining to counts 2 through 4. In the memorandum, the People argued the
trial court should impose the sentence on count 3 consecutively to the sentence
on count 2, and impose the sentence on count 4 consecutively to the sentence on
count 3, as mandated under former section 667.6, subdivision (d) or, if not
mandated by that subdivision, as an exercise of the trial court’s discretion
under former section 667.6, subdivision (c).
Appellant filed no sentencing memorandum. On October 12, 2012, the court called the
case. Appellant, in the lockup, was
represented by Nardoni. The court
continued the case.
On
October 19, 2012, the court called the case for resentencing. Appellant and Nardoni were present. Nardoni stated there was a “defense motion to
continue†and the court asked for the basis for the motion. Nardoni replied, “[Appellant] wants to have
more time to address or more time to provide information to the court that the
sentence that is about to be imposed or will be imposed is likely an illegal
sentence based on the definite sentence aspect. [¶] Specifically,
Mr. Machado indicated to me that he believes initially the information
contained in the charges failed to allege 667.6(c) of the Penal Code or
subsection (d) of the same section as well as 1170.1(a). This is
information that Mr. Machado has provided.â€
(Sic.) Nardoni added, “Personally I don’t see where
that goes, but I will submit it.â€
The
court ruled the basis for the continuance motion was invalid because there was
no requirement the information allege the theory upon which the court might
sentence appellant, or the theory upon which the People proposed that the court
sentence appellant.
title="">[5] Nardoni stated he realized the sentence the
court was about to impose was very complex.
The court later commented, “given our discussions about this case to
date off the record,†the court did not know if either party wished to be
heard. The prosecutor submitted the
matter based on her sentencing memorandum, and Nardoni submitted the matter and
purported to reserve all rights concerning appellant’s sentence.
The
court later stated, “. . . I do not have the legal file, but a collection of
various minute orders and other documentation which unfortunately isn’t very
helpful to me. [¶] However, I do remember this case distinctly and
we have been discussing it and I do have my own file as to this matter. I
have reviewed that file which would include my notes taken from or during the
testimony of witnesses on the case and I have been afforded or provided a copy
of the relevant portions of the transcript in this matter as would concern
sentencing, so I am prepared to proceed.â€
The court asked if there
were any reason sentence should not be pronounced. Nardoni replied no. However, appellant purported to object
personally. Appellant personally argued
that because Machado III had
indicated the trial court would have sentencing discretion following remand,
appellant needed to discuss his sentence with Nardoni so Nardoni could become
familiar with appellant’s case.
Appellant stated he had not had an opportunity to talk with Nardoni and
there was a “mistake on status†that appellant wished to discuss with him.
The
court indicated that every time the court previously had been prepared to
pronounce sentence, appellant had a last-minute continuance request, and it was
clear appellant had employed, and would employ, any dilatory tactic to avoid
imposition of sentence. The court
stated, “You have spoken to your attorney. You are familiar with the
issues here. There has been a good deal of time that has passed since the
matter was first referred back to this court, and the reason for that is not
only logistically getting you here and being prepared from the court’s
standpoint to proceed on this matter, but also to afford you the additional
opportunity to consider various issues and give you a chance to talk to your
attorney. [¶] So you made good use of all of that and I am prepared
to proceed on this case without further delay.â€
Nardoni asked for leniency in the court’s exercise of its sentencing
discretion.
The court, on October 19,
2012, resentenced appellant to prison for 210 years to life, consisting of (1)
45 years to life as to count 1 (15 years to life for the offense pursuant to
the One Strike law, tripled pursuant to the Three Strikes law), (2) as to count
2, a consecutive term of 75 years to life (consisting of 25 years to life for
the offense pursuant to the One Strike law, tripled pursuant to the Three
Strikes law) plus an upper term of 10 years for a section 12022.3, subdivision
(a) enhancement, (3) as to each of counts 3 and 4, a consecutive term of
25 years to life for the offense pursuant to the Three Strikes law, plus an
upper term of 10 years for a section 12022.3, subdivision (a) enhancement, plus
(4) two five-year section 667, subdivision (a) enhancements.
In
court erred by concluding Machado II itself,
and section 1170.12, subdivision (a)(6) [of the Three Strikes law], each
that were consecutive to each other and to count 2, and erred by failing to decide whether, in the exercise of
the court’s discretion, to impose such sentences pursuant to former section
667.6, subdivision (c) or former section 1170.1, subdivision (a) (assuming
former section 667.6, subdivision (d) did not mandate consecutive sentences).†(Machado
III, supra, at pp. 10-11, italics
added.) We stated, “We will remand
the matter for resentencing, in part so the trial court can determine whether
former section 667.6, subdivision (d), applies to this case and, if not,
whether former section 667.6, subdivision (c), or former section 1170.1,
subdivision (a), is applicable.†(
appellant’s resentence and remanded for resentencing consistent with that
opinion. (Id. at p. 13.)
Following
remand, the trial court, on October 19, 2012, resentenced appellant. The total prison term, as well as the
component prison terms, were the same as those previously vacated in
the trial court (1) as to count 3, imposed a sentence that was consecutive to
the sentence on count 2, not because a consecutive sentence was mandatory, but
in the exercise of the court’s discretion under former section 667.6,
subdivision (c)
title="">[7]
and (2) as to count 4, imposed a sentence that was consecutive to the
sentence on count 3 because, according to the trial court, that sentence was
mandated by former section 667.6, subdivision (d) and, even if it were not, the
court was imposing that consecutive sentence as an exercise of the court’s
discretion under former section 667.6, subdivision (c). The court articulated numerous aggravating
factors upon which it relied in the exercise of its discretion to impose
consecutive sentences as to counts 3 and 4.
On
October 19, 2012, after the court resentenced appellant, appellant personally
addressed the court and indicated as follows.
The trial court denied appellant an attorney who was familiar with
appellant’s sentence. Nardoni was not
familiar with appellant’s sentence and was providing ineffective assistance.
The court later stated,
“. . . you impugn Mr. Nardoni which is laughable. This is a very
experienced attorney who has handled many matters before this court and
countless other courts who is intimately aware with the sentencing scheme that
is involved here and has represented you. [¶] You have no idea of
the work that has been done on your behalf, or probably you do, but that is a
nice tactic for you to employ at this instance. It is inappropriate and
completely unwarranted.â€
b. Analysis.
Appellant
claims the trial court deprived him of
his right to counsel at the October 19, 2012 resentencing hearing.
opportunity for appellant’s attorney to prepare relative to the issues actually
at hand—absent counsel’s ability to review the actual transcripts of the 1999
trial, appellant’s ability to simply speak with counsel before resentencing was
inadequate opportunity for counsel to be able to argue the acts charged in
counts 3 and 4 were committed without the opportunity to reflect that would
justify the greater sentence.†(
“Not every restriction on counsel’s time or
opportunity . . . to prepare for trial violates a defendant’s Sixth Amendment
right to counsel.†(Morris v. Slappy (1983) 461 U.S. 1, 11 [75 L.Ed.2d 610].) “
‘[B]road discretion must be granted trial courts on matters of continuances;
only an unreasoning and arbitrary “insistence upon expeditiousness in the face
of a justifiable request for delay†violates the right to the assistance of
counsel.’ †(People v. Alexander (2010) 49 Cal.4th 846, 934.) Appellant bears the burden of
establishing that denial of a continuance request was an abuse of
discretion. (People v. Beeler (1995)
9 Cal.4th 953, 1003.) Only a showing of
an abuse of discretion and prejudice to the defense suffices to reverse a
judgment on the basis of a denial of a motion for a continuance. (People v. Samayoa (1997) 15 Cal.4th
795, 840.) We reject appellant’s claim
for the reasons discussed below.
First, notwithstanding
appellant’s argument to the contrary, the pertinent trial for purposes of this
appeal is not appellant’s 1999 trial but his 2008 retrial. (See fn. 1, ante.) Second, the burden is on
appellant to demonstrate error; it will not be presumed. (In re Kathy P.
(1979) 25 Cal.3d 91, 102; People v.
Garcia (1987) 195 Cal.App.3d 191, 198.) Appellant has failed to demonstrate Nardoni
did not have an opportunity to review, and did not review, the transcripts of
the 2008 retrial.
Third, the
People’s sentencing memorandum, filed with the trial court on October 10, 2012,
contained 30 pages of the transcript of Alma’s 2008 retrial testimony as to the
facts pertaining to counts 2 through 4.
The memorandum stated, “The People have attached portions of the trial
transcript relevant to the operation of PC sections 667.6(c) and (d) hereto as
Exhibit A.†On October 10, 2012, the
prosecutor indicated she had provided to the court and Nardoni a supplemental
sentencing memorandum. Appellant does
not claim Nardoni was not served with a copy of the memorandum containing said
transcripts. On October 12, 2012, the
trial court, before resentencing appellant, stated it had been provided “a copy
of the relevant portions of the transcript in this matter as would concern
sentencing.†Appellant never suggested
the transcripts in exhibit A were not relevant portions of the transcript, or
that a review of the transcripts in exhibit A would not give Nardoni a meaningful opportunity to present sentencing
argument pertaining to counts 3 and 4.
Appellant has failed to demonstrate Nardoni did not have an opportunity
to review the pertinent trial transcripts.
Fourth, appellant is arguing that, because
Nardoni had no opportunity to review the pertinent trial transcripts, Nardoni
had no meaningful opportunity to prepare to argue at the October 19, 2012
resentencing hearing that “the acts charged in counts 3 and 4 were committed
without the opportunity to reflect
that would justify the greater sentence.â€
(Italics added.) That is,
appellant is arguing Nardoni had no opportunity to prepare to argue that the
mandatory consecutive sentencing provisions of former section 667.6,
subdivision (d) did not apply to those counts.
That subdivision applied only if crimes were committed on “separate occasions,â€
and former subdivision (d) required a trial court, when determining whether
crimes were so committed, to consider whether the defendant had a “reasonable
opportunity to reflect upon his . . .
actions and nevertheless resumed sexually assaultive behavior.†(Former § 667.6, subd. (d), italics added.)
However, as
previously indicated, the trial court on October 12, 2012, did not rely on
former section 667.6, subdivision (d) to impose a sentence on count 3 that was
consecutive to count 2. Moreover, although
the trial court did rely on former subdivision (d) to impose a sentence on
count 4 that was consecutive to count 3, the court alternatively relied on
former section 667.6, subdivision (c) to impose that consecutive sentence. There is no dispute as to the validity of the
trial court’s imposition of consecutive sentences on counts 3 and 4 pursuant to
former subdivision (c).
Fifth, neither
appellant nor Nardoni suggested on October 12, 2012, that a continuance was
needed so Nardoni could review trial transcripts or prepare to argue “the acts charged in counts 3 and 4 were
committed without the opportunity to reflect.â€
Sixth, although Nardoni made a defense motion to continue for other
reasons not at issue here, he made it clear he was merely conveying appellant’s
position and “[p]ersonally I don’t see where that goes.†Nardoni denied there was any reason judgment
should not be pronounced.
Finally, the trial court concluded
appellant’s arguments were dilatory tactics and Nardoni was a very experienced
attorney who was intimately aware of the sentencing scheme at issue. The trial court’s comments indicated there
had been ongoing discussions with counsel concerning appellant’s sentence. Appellant cites nothing from the record that
demonstrates providing Nardoni additional time to prepare, or granting a
continuance motion, would have had any effect on appellant’s October 12, 2012
prison sentence. The trial court did not
abuse its discretion by denying any continuance motion, and no violation of
appellant’s right to counsel or right to effective assistance of counsel
occurred.
2. The
Penal Code Section 1202.4, Subdivision (b) Restitution Fine Must Be Reduced.
Following
appellant’s first trial in 1999, the trial court, on March 11, 1999, originally
imposed a $200 section 1202.4, subdivision (b) restitution fine. We subsequently decided Machado III in 2012 and
remanded for resentencing. Following
remand, the trial court, on October 12, 2012, imposed a $10,000 section 1202.4,
subdivision (b) fine. The trial court
indicated that, according to the documentation the trial court possessed,
$10,000 was the fine originally imposed.
(As mentioned, the court earlier stated it did not have the legal file.) Respondent concedes the fine should be
$200. We accept the concession (cf.
People
v. Thompson (1998) 61
Cal.App.4th 1269, 1276) and we will modify the judgment
accordingly.
The judgment is modified by reducing the Penal Code
section 1202.4, subdivision (b) restitution fine imposed by the trial court on
October 12, 2012, from $10,000 to $200, and, as modified the judgment is
affirmed. The trial court is directed to
forward to the Department of Corrections
an amended abstract of judgment reflecting the above modification.
NOT TO BE PUBLISHED
IN THE OFFICIAL REPORTS
KITCHING,
J.
We concur:
KLEIN, P. J. CROSKEY,
J.
name="_ftn1" title="">[1] This
is appellant’s fourth
appeal. In his first, we affirmed the
judgment (People v. Machado (May 23,
2000, B130741) [nonpub. opn.] (Machado I))
resulting from his 1999 trial, but a federal court later granted appellant
habeas corpus relief and remanded the matter for retrial. Following his convictions at his 2008
retrial, appellant appealed and we affirmed the judgment, vacated his December
18, 2008 sentence of 310 years to life, and remanded for resentencing (People
v. Machado (Aug. 11, 2010, B213262) [nonpub. opn.] (Machado II)).
Following resentencing on January 27, 2011, appellant appealed and we
affirmed the judgment, vacated his resentence of 210 years to life, and
remanded for resentencing. (People
v. Machado (Aug. 22, 2012, B231653) [nonpub.
opn.] (Machado II
name="_ftn2" title="">[2] Statutory
references are to the Penal Code.
