People v. Machuca CA2/5 ( 2022 )

Filed 3/7/22 P. v. Machuca CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for pur-
poses of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B305830
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA048904)
v.
ROBBIN MACHUCA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Juan Carlos Dominguez, Judge. Reversed and
remanded.
Tracy A. Rogers, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Susan Sullivan
Pithey, Senior Assistant Attorney General, Idan Ivri and Daniel
C. Chang, Deputy Attorneys General, for Plaintiff and
Respondent.
In 1992, a trial jury convicted defendant and appellant
Robbin Machuca (defendant), and three accomplices, of three
counts of first degree murder and numerous other offenses,
including one count of conspiracy to commit murder. It is
undisputed that defendant was not the actual killer of the three
victims, and that the trial jury was instructed on principles of
felony murder and murder liability under the natural and
probable consequences doctrine. Years later, in 2019, defendant
petitioned for resentencing under Penal Code section 1170.95.1
After first appointing counsel for defendant, the trial court denied
section 1170.95 relief without issuing an order to show cause,
concluding defendant was ineligible for relief as a matter of law
because if she “were to be tried today, it is this court’s opinion
that she would be found guilty of [m]urder on both [f]elony
[m]urder and [c]onspiracy theories.” We consider whether the
trial court erred, and the answer to that question really comes
down to whether the court appropriately denied relief at the
prima facie stage of section 1170.95 consideration.2
I
A
Defendant’s accomplices in the three murders, which were
committed as part of a broader robbery and kidnapping crime
spree, were John Lewis, Vincent Hubbard, and Eileen Huber; all
were tried together. John Lewis confessed to being the actual
1
Undesignated statutory references that follow are to the
Penal Code.
2
Defendant’s April 2021 request to augment the record and
the Attorney General’s request for judicial notice are granted.
2
killer of the three murder victims—Willie Sams, Elizabeth
Nisbet, and Shirley Denogean (there was also evidence Hubbard
fired shots at one of the victims too). We shall summarize the
facts of the crimes by drawing substantially on our Supreme
Court’s published opinion resolving codefendant John Lewis’s
appeal. (People v. Lewis (2008) 43 Cal.4th 415.)
“In July and August 1991, [John Lewis] was living in
apartment E of the Woodside Village Apartments in West Covina
with codefendants Huber ([John Lewis’s] girlfriend), [defendant]
([John Lewis’s] half sister), and Hubbard ([defendant’s]
boyfriend).” (People v. Lewis, supra, 43 Cal.4th at 432.) At
“[a]bout 9:30 p.m. on August 18, 1991, Willie Sams drove his car
to . . . Security Pacific Bank . . . . From a gas station across the
street, [John Lewis] saw Sams drive up to the drive-through
ATM. [John Lewis] and codefendant Hubbard approached
Sams’s car and got in. Pointing [a] Ruger handgun at Sams,
[John Lewis] forced him to withdraw $200 from that ATM and
then to drive to another Security Pacific Bank and withdraw
another $600.
“[John Lewis] drove Sams to Edgewood Middle
School . . . . [John Lewis] and Hubbard forced Sams to get into
the dumpster near the baseball field. [John Lewis] and Hubbard
each fired several shots at Sams, killing him. [John Lewis] later
removed the radio from Sams’s car, attempted to wipe his
fingerprints off the car, and abandoned the car in a shopping
center parking lot.
“Shortly after 11:00 p.m., West Covina police officers found
Sams’s body. Several copper-jacketed bullets or bullet fragments
were recovered from the dumpster.
3
“A couple of hours later, at 1:07 a.m., $60 was withdrawn
from Sams’s bank account using an ATM.
“On August 19, 1991, . . . Hubbard and [defendant]
attempted to use Sams’s credit card to purchase about $700
worth of clothing from a store in El Monte. When the attempted
purchase was denied, Hubbard and [defendant] hurriedly left the
store.
“Sams’s car, minus its radio, was recovered two days later
in the shopping center parking lot. Fingerprints on the car and
on papers found in the car matched [John Lewis’s] prints.
[Defendant’s] prints were [also] found on papers in the car.
[¶] . . . [¶]
“Around 11:30 a.m. on August 24, 1991, Neil Nisbet and his
wife Elizabeth drove their car to the Puente Hills Mall. Elizabeth
was wearing or carrying several items of jewelry, including a gold
ring with 17 diamonds, a gold bangle bracelet, and a gold rope
chain bracelet. Elizabeth waited in the car while Neil entered
the mall to run an errand. When Neil returned about 10 minutes
later, the car and Elizabeth were gone. Neil searched for
Elizabeth for several hours and then called the police.
“Meanwhile, [John Lewis], . . . [defendant], and possibly
one or more other codefendants arrived at the Puente Hills Mall
in codefendant Huber’s car, parked, and saw Elizabeth Nisbet in
her car. [John Lewis] forced his way into the car and pointed his
gun at Nisbet. One or more of the codefendants bound Nisbet’s
hands and feet with duct tape. [John Lewis] drove the Nisbets’
car to the Covina branch of First Interstate Bank, where he
and . . . [defendant] used Nisbet’s ATM card to withdraw $400.
[John Lewis] then drove to a convenience store in Covina, where
an additional $100 was withdrawn from Nisbet’s account through
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an ATM. [John Lewis] then drove north on the 605 freeway,
followed by codefendant Huber’s car. After stopping along the
side of the freeway, [John Lewis] shot and killed Nisbet. [John
Lewis] or one of his codefendants removed Nisbet’s jewelry, and
they departed in Huber’s car.
“About 3:10 p.m. that same day, California Highway Patrol
officers found the Nisbets’ car on the northbound 605 freeway.
Elizabeth Nisbet’s body was under a blanket on the rear
floorboards. The body was not yet cold.
“Elizabeth Nisbet had a gunshot wound to her left temple,
which caused her death, and there were several gunshot wounds
to her left arm and hand. She had a large blunt force trauma
injury between her eyes, lacerations on her cheeks and lips,
blackened eyes, and bruises on her wrists and hands. Holes in
the blanket covering her indicated shots were fired through the
blanket. Fragments of duct tape were attached to her socks and
to her right forearm, and a twisted ring of duct tape was found
underneath her body at approximately waist level. Three bullets
were recovered from various locations inside the car.
“Several fingerprints lifted from the Nisbets’ car and from
an ATM receipt found in the car matched [John Lewis’s]
fingerprints. A forensic scientist from the Los Angeles County
Sheriff’s Department determined that the duct tape used to bind
Elizabeth Nisbet’s feet came from a roll of tape that was [later]
recovered [by police] from a nightstand in the bedroom of
apartment E in West Covina . . . .
[¶] . . . [¶]
“Between 12:15 p.m. and 1:00 p.m. on August 27, 1991,
Shirley Denogean drove her Mercedes Benz car to the Puente
Hills Mall. Meanwhile, [John Lewis], codefendant Huber, and at
5
least one other codefendant drove to the mall. . . . [John Lewis]
saw Denogean arrive, enter the mall, and return about 20
minutes later. As she was getting into her car, [John Lewis]
forced his way at gunpoint into the car. One or more of the
codefendants tied Denogean’s hands in front of her
with . . . plastic ties. [John Lewis] drove Denogean to the First
Interstate Bank’s City of Industry branch, where $400 was
withdrawn from Denogean’s account. [John Lewis] then drove
Denogean to another branch of the same bank, where Huber
withdrew another $100 from Denogean’s account. Several
unsuccessful attempts to withdraw more money from Denogean’s
account were made at various ATM’s.
“[John Lewis] drove Denogean’s car west on the Pomona
Freeway, stopping between the Rosemead and San Gabriel
Boulevard exits. Codefendant Huber followed in her car. [John
Lewis] forced Denogean at gunpoint to walk down an
embankment, to an area surrounded by bushes. Once there,
[John Lewis] fired three shots at Denogean, killing her. [John
Lewis] and his codefendants then drove away.
“About 12:04 a.m. the next day, $220 was withdrawn from
Denogean’s bank account through an ATM at a convenience
store. Denogean’s car was found in El Monte that same day.
Fingerprints on the car and on papers found in the car matched
[John Lewis’s] and . . . [defendant’s] prints.
[¶] . . . [¶]
“Codefendant Huber was arrested about 2:30 a.m. on
August 30, 1991. At 3:15 a.m., [John Lewis] and . . . [defendant]
and Hubbard were arrested at apartment E in West Covina.
[¶] . . . [¶] Several plastic ties of the kind used to bind murder
victim Shirley Denogean’s wrists were found in the dishwasher
6
and in the hall closet. The roll of duct tape that had been used to
bind murder victim Elizabeth Nisbet was found inside the
nightstand in the bedroom [¶] . . . [¶] The search also revealed
several items of the victims’ property, including Denogean’s white
purse, credit card, camera, and diamond engagement and
wedding ring set, and the radio from murder victim Willie Sams’s
car. At the time of her arrest, [defendant] was wearing several
pieces of murder victim Elizabeth Nisbet’s jewelry. [¶] After his
arrest, [John Lewis] made four statements to law enforcement
officers in which he admitted killing . . . Sams, Nisbet, and
Denogean.” (People v. Lewis, supra, 43 Cal.4th at 436-439.)
The trial jury convicted defendant of conspiracy to commit
murder (and other crimes); the murders of Sams, Nisbet, and
Denogean; and numerous other kidnapping and robbery charges.
The jury found true robbery-murder (§ 190.2, subd. (a)(17)(A)),
kidnapping-murder (§ 190.2, subd. (a)(17)(B)), and lying in wait
(§ 190.2, subd. (a)(15)) special circumstance allegations attached
to each of the murder counts. The jury also found true a multiple
murder (§ 190.2, subd. (a)(3)) special circumstance allegation.
The trial court sentenced defendant to life in prison without the
possibility of parole.
B
Defendant sought section 1170.95 relief, via a form
petition, claiming she was convicted of first or second degree
murder pursuant to the felony murder rule or the natural and
probable consequences doctrine and could not be convicted of
murder because of changes made to California murder law that
took effect in 2019. The People opposed defendant’s petition and,
after hearing argument from counsel at two hearings, the trial
7
court denied the petition. A three-page order memorializing the
court’s ruling states defendant was not the victims’ actual killer
and was convicted of “three counts of First Degree Murder under
a Felony Murder Rule theory” (plus conspiracy to commit
murder). The order recites the facts of the murders, tracking the
discussion in an unpublished opinion issued by another panel of
this court, and states notwithstanding that opinion’s “findings,”
the trial court “further evaluated this matter in light of the
[People v. Banks (2015) 61 Cal.4th 788 (Banks)] decision.” The
order explains why defendant’s conduct “satisfies” several of the
considerations outlined in Banks, finds defendant was a major
participant who acted with reckless disregard for human life
(with no further elucidation of that reckless disregard), and
concludes defendant “has failed to make a Prima Facie Case that
she is entitled to the relief requested.”3 (Original italics.)
3
During the second of the two hearings held by the trial
court, there was an exchange between the court and the
attorneys with respect to how the section 1170.95 procedure
should operate. The court asked the prosecution whether the
court had “to determine whether [defendant’s] made a prima facie
case, and if [it] determine[s] that there was enough evidence to
convict her of something else, [it] just simply den[ies] her case.”
The prosecution responded, “Correct.” The court later sought to
confirm whether that should be the result at the “prima facie
evidence stage,” and the prosecution responded, “Absolutely,
yes . . . .” The court then asked, “If I find a prima faci[e] case,
then we need an evidentiary hearing and the standard of proof
would be beyond a reasonable doubt?” The prosecution
responded, “Exactly.” The court asked defense counsel if he
concurred and counsel said he did.
8
II. DISCUSSION
As recently explained by our Supreme Court in People v.
Lewis (2021) 11 Cal.5th 952 (Lewis), the prima facie inquiry
under section 1170.95 is analogous to the inquiry undertaken in
habeas corpus proceedings: A “‘“court takes [a] petitioner’s
factual allegations as true and makes a preliminary assessment
regarding whether the petitioner would be entitled to relief if his
or her factual allegations were proved. If so, the court must issue
an order to show cause.”’” (Lewis, supra, 11 Cal.5th at 971; see
also id. at 972 [“the ‘prima facie bar was intentionally and
correctly set very low’”].) Thus, it is only where the record of
conviction (see generally id. at 970-972) indicates a petitioner is
ineligible for relief as a matter of law does a court correctly deny
a section 1170.95 petition at the prima facie stage without
issuance of an order to show cause. (Id. at 966.) Applying these
principles in this case, each of the three theories the Attorney
General offers for affirmance are unavailing.4
The Attorney General first argues defendant is ineligible
for section 1170.95 relief as a matter of law in light of the jury’s
true findings on the lying in wait murder special circumstance
allegations attached to each murder count in question.
Specifically, the Attorney General believes these true findings, in
conjunction with the jury instructions given, establishes the jury
found defendant intended to kill the three victims and the
4
We agree with the Attorney General that we are not
limited to considering the trial court’s rationale and we instead
judge the correctness of the bottom-line denial of section 1170.95
relief.
9
Attorney General contends the existence of this asserted intent
means defendant is ineligible for section 1170.95 relief.
Defendant’s jury was instructed that the lying in wait
special circumstance could be found true only if “[a] defendant”
intentionally killed the victim and the murder was committed
while lying in wait.5 The actual killer in this case was John
Lewis, and the lying in wait special circumstance findings as to
him were later reversed by our Supreme Court in People v. Lewis,
supra, 43 Cal.4th at pages 511-515.6 In light of the absence of a
requirement that the jury find defendant intended to kill and our
Supreme Court’s reversal of the true findings on the lying in wait
special circumstance allegations for insufficient evidence in the
actual killer’s direct appeal, we believe the special circumstance
findings cannot reliably establish defendant’s ineligibility for
relief at the prima facie stage of the section 1170.95 procedure.
5
The jury was also instructed that the special circumstance
could not be found true as to a defendant who was not the actual
killer unless the jury found that defendant aided and abetted the
crime with the intent to kill or aided and abetted the crime as a
major participant with reckless indifference to human life. The
phrasing of this instruction in the disjunctive demonstrates it did
not necessarily require the jury to find defendant had the intent
to kill.
6
Our Supreme Court specifically held the true findings on
the lying in wait special circumstance must fall because there
was inadequate evidence that the murder victims were killed
“while” John Lewis was lying in wait, i.e., “there was a cognizable
interruption between the period of watchful waiting and the time
the victims were killed.” (People v. Lewis, supra, 43 Cal.4th at
511; see also id. at 515.)
10
The Attorney General next contends defendant’s conviction
for conspiracy to commit murder establishes she is ineligible for
relief as a matter of law because it shows the jury found she
harbored the intent to kill such that she could still be convicted of
murder under current law. That is the holding of the majority in
a recent Court of Appeal case, People v. Medrano (2021) 68
Cal.App.5th 177 (Medrano). (Id. at 186 [“Appellant’s conviction
of conspiracy to commit first degree murder rendered him
ineligible as a matter of law”]; see also id. at 182-183 [“Here, the
target offense was first degree murder. We know this because
appellant was convicted of conspiracy to commit first degree
murder”].) Unlike Medrano, however, the instructions the jury
here was given on the elements of conspiracy to commit murder
did not require the jury to find she intended to commit first
degree murder or harbored express malice, i.e., an intent to kill.
(Compare Medrano, supra, 68 Cal.App.5th at 185, fn. 4.) The
instructions in this case did not inform the jury it could not rely
on an implied malice theory. While implied malice still remains a
valid theory of murder, implied malice is not enough under
current law to convict a defendant who is not the actual killer for
felony murder (§ 189, subd. (e))7—and the jury in defendant’s
7
The statute provides: “A participant in the perpetration or
attempted perpetration of a felony listed in subdivision (a) in
which a death occurs is liable for murder only if one of the
following is proven: [¶] (1) The person was the actual
killer. [¶] (2) The person was not the actual killer, but, with the
intent to kill, aided, abetted, counseled, commanded, induced,
solicited, requested, or assisted the actual killer in the
commission of murder in the first degree. [¶] (3) The person was
a major participant in the underlying felony and acted with
11
trial was permitted to convict on a conceptually straightforward
felony murder theory (whereas the jury in Medrano was not
instructed on felony murder (Medrano, supra, at 182)).
Third and finally, the Attorney General argues, as the trial
court found in denying section 1170.95 relief, that defendant is
ineligible for such relief because she was a major participant in
the murders who acted with reckless indifference to human life,
and as such, she could be convicted of felony murder even under
current law. There does indeed appear to be considerable
evidence that would support a conclusion that defendant is a
major participant who acted with the requisite reckless
disregard—including defendant’s knowledge of the violent
tendencies of her co-defendants (at a minimum, as to two of the
murders); defendant’s presence at the scene of the crimes; and
defendant’s sharing in the spoils obtained from the murdered
victims. (This list is not exhaustive.) The problem, however, is
the trial court made its decision (a) before issuing an order to
show cause (which entitles a defendant to a hearing at which new
evidence can be presented (§ 1170.95, subd. (d)(3); see also, e.g.,
People v. Smith (2020) 49 Cal.App.5th 85, 95-96, review granted
July 22, 2020, S262835); (b) while expressly considering only the
major participant teachings of Banks, supra, 61 Cal.4th 788 and
not the reckless indifference guidance of People v. Clark (2016) 63
Cal.4th 522; and (c) without observing the evidentiary and
burden of proof standards that apply under section 1170.95 as
just recently amended. (§ 1170.95, subd. (d)(3); Stats. 2021, ch.
551, § 2 [Senate Bill No. 775 (2020-2021 Reg. Sess.)].) These
reckless indifference to human life, as described in subdivision (d)
of Section 190.2.”
12
omissions require reversal. Nothing in this opinion, however,
should be understood to prohibit the court on remand from
finding, beyond a reasonable doubt, that defendant was a major
participant in the murders who acted with reckless indifference
to human life—particularly if the record looks much the same at
a section 1170.95, subdivision (d)(3) hearing as it does now on
appeal.8
8
We believe the trial court is entitled to request an advance
proffer from defense counsel of any new evidence counsel intends
to rely on during a section 1170.95, subdivision (d)(3) hearing. If
no such proffer is forthcoming, the trial court may decide the
matter on the current record, subject to any evidentiary
limitations specified in section 1170.95, subdivision (d)(3), after
giving counsel the opportunity to argue the matter, if counsel so
chooses.
13
DISPOSITION
The order denying defendant’s section 1170.95 petition is
reversed and the cause is remanded with directions to issue an
order to show cause under section 1170.95, subdivision (c) and to
thereafter proceed as required by section 1170.95, subdivision (d).
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
KIM, J.
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