Metropolitan News-Enterprise


Tuesday, November 1, 2022


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Judge Has Discretion to Deny Resentencing Despite Prosecution’s Non-Opposition—C.A.

Shubin Properly Found Gascón’s Directive Did Not Bind Her


By a MetNews Staff Writer


Div. One of the Court of Appeal for this district yesterday affirmed the decision by Los Angeles Superior Court Judge Dorothy L. Shubin denying a petition by a murderer for a resentencing despite a concession by the prosecutor, acting pursuant to a special directive issued by District Attorney George Gascón, that relief was appropriate.

Retired Fourth District Court of Appeal Justice Patricia Benke, sitting on assignment, declared that a provision of Penal Code §1172.6—the statute authorizing a resentencing of persons convicted of murder under theories that are now legislatively repudiated—cannot be read to remove discretion of the judge in determining if the defendant meets the criteria of the statute.

At issue was the effect of this wording, in subd. (d)(2):

“The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have the murder...conviction vacated and to be resentenced.”

The parties so stipulated, inmate Ernest Machado pointed out, arguing that under subd. (d)(2) Shubin was obliged to resentence him.

Gascón’s Directive

No opposition to the petition was presented by the prosecutor. He acted in accordance with an edict by Gascón in one of several special directives he issued on Dec. 7, 2020, his first day in office.

It says that where a defendant, charged under a felony-murder theory, was not the actual killer and where a special-circumstance allegation (in Machado’s case, a firearm allegation) was dropped as part of a plea bargain, “this Office will not attempt to prove the individual is ineligible for resentencing,” and beyond that, will “stipulate to eligibility.”

At a hearing on Jan. 19, 2021, Shubin denied relief, declaring that Machado was statutorily ineligible for resentencing “because he could be found guilty beyond a reasonable doubt of first degree murder” under the amended Penal Code §189 “as a major participant who acted with reckless indifference to human life in the commission of the felony murder.”

Benke’s Decision

Quoting from the 1901 California Supreme Court opinion in Bradley v. Clarke, Benke said:

“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.’ ”

She continued:

“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.”

Benke reasoned:

“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.”

Limited Sense

She spelled out:

“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.”

Machado argued that Shubin erred in relying on the facts as set forth in the dripped 1983 Court of Appeal opinion upholding his conviction. Benke responded in an unpublished portion of the opinion that even if that was error, “Machado has failed to show that he suffered any prejudice” as a result.

The case is People v. Machado, B311023.


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