Filed 10/2/13 P. v. Machado CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CARDEN AS MACHADO,
Defendant and Appellant. B244708
(Los Angeles County Super. Ct. No. BA123888)

APPEAL from a judgment of the Su perior Court of Los Angeles 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, Da ne R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Atto rney General, Zee Rodriguez and Connie H. Kan, Deputy Attorneys General, for Plaintiff and Respondent.

_____________ ____________2 Delfino Cardenas Machado appeals 1 from the judgment en tered following his convictions by jury on count 1 – forcible rape (Pen. Code, § 261, subd. (a)(2)) 2 with a finding he committed the offens e against multiple victims (fo rmer § 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 th e three counts appellant committed kidnapping (former § 667.61, subd. (e)(1)), personally us ed a deadly weapon (former §§ 667.61, subd. (e)(4), 12022.3, subd. (a)), and committ ed the offense against multiple victims (former § 667.61, subd. (e)(5)), and with cour t findings appellant suffered two prior felony convictions (§ 667, subd. (d)) and tw o prior serious felony convictions (§ 667, subd. (a)). The court resentence d 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

. 3 Suffice it to say that, viewed in accordance with the us ual rules on appeal ( People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence presented at appellant’s July 2008 retrial established that on October 12, 1995, 20-y ear-old Maria M. (Maria) was at the Union Station in Los Angeles. Appellant, with a child, approach ed and offered to help Maria find a bus.

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 appe llant habeas corpus relief and remanded the matter for retrial. Following hi s convictions at his 2008 retr ial, 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 Janu ary 27, 2011, appellant appealed and we affirmed the judgment, vacated his re sentence of 210 years to life, and remanded for resentencing. ( People v. Machado (Aug. 22, 2012, B 231653) [nonpub. opn.] ( Machado III )). Appellant’s fourth appeal follows his October 12, 2012 resentence.

2 Statutory references are to the Penal Code.

3 On February 13, 2013, at appellant’s reque st, we took judicial notice of the record on appeal in appellate case No . B130741. On May 9, 2013, at appellant’s request, we took judicial notice of the records on appe al in appellate case Nos. B213262 and B231653, and of the opinions in the above three cases.3 Maria walked with appellant to his apartmen t, 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, a nd 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 sc hool. 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 be en waiting for her, and still had the child. Appellant asked Alma for help and they walk ed to an apartment building. The three entered and went to an apartment. Appellant, using a key, opened the apartm ent’s door and pushed Alma inside. He threatened Alma with a knife and pushed he r to the floor. Appellant subsequently
removed Alma’s shorts and underwear from one of her legs, cove red 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. Appe llant put on a condom while Al ma was trying to persuade him to stop his attack. He unsuccessfully at tempted to penetrate Alma’s vagina with his penis (count 4). 4
ISSUES Appellant claims (1) the trial court depr ived him of his right to counsel at the October 12, 2012 resentencing hearing an d (2) the section 1202.4, subdivision (b)
restitution fine must be reduced.

4 Appellant represented himsel f at his 2008 retrial. During jury argument at that retrial, the prosecutor argued count 2 was ba sed on appellant’s oral copulation of Alma, count 3 was “[appellant] spread her vaginal ar ea with his finger. He grabbed between her legs, touching,” and count 4 wa s appellant’s attempted penile penetration of Alma.4 DISCUSSION
1. The Trial Court Did No t 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 cas e for further proceedings. Appellant, who was in the lockup, was represented by court-ap pointed counsel, i.e., Daniel A. Nardoni.
After the court and counsel conferred in ch ambers, the court continued the matter to October 10, 2012. On October 10, 2012, the court called th e case. The minute order for that date reflects appellant was in the lock up. The reporter’s transcript of that date reflects the court indicated neither appellant nor Nardon i was present but Nardoni had been present earlier and was aware of the proc eedings. Another attorney wa s standing in for Nardoni. The parties jointly requested the matter trail to Octobe r 12, 2012. The prosecutor indicated Nardoni was making the request to accommodate his calendar. The prosecutor also indicated she had provided to the c ourt and Nardoni a supplemental sentencing
memorandum. On October 10, 2012, the prosecutor f iled 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 Pe ople have attached portions of the trial transcript relevant to the operation of PC se ctions 667.6(c) and (d) hereto as Exhibit A.”
Attached to the memorandum was exhib it A, consisting of 30 pages of the transcript of Alma S.’s 2008 retrial test imony as to the facts pertaining to counts 2 through 4. In the memorandum, the Peop le argued the trial court should impose the sentence on count 3 consecutively to the sent ence on count 2, and impose the sentence on count 4 consecutively to the se ntence 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 no5 sentencing memorandum. On October 12, 2012, the court called the case. Appellant, in the lockup, was represented by Nardon i. 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 “def ense motion to continue” and the
court asked for the basis for the motion. Na rdoni replied, “[Appellant] wants to have
more time to address or more time to provide info rmation to the court that the sentence that is about to be imposed or will be impos ed is likely an illegal sentence based on the definite sentence aspect. [¶] Specifically, Mr. Machado indi cated to me that he believes initially the information containe d 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.” ( Sic .) Nardoni added, “Personally I don’t see where that goes, but I will submit it.”
The court ruled the basis for the cont inuance 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. 5 Nardoni stated he realized the sent ence the court was about to impose was very complex. The court later commented, “giv en our discussions abou t this case to date off the record,” the court did no t know if either party wished to be heard. The prosecutor
submitted the matter based on her sentenci ng memorandum, and Nardoni submitted the matter and purported to reserve all ri ghts 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 unfo rtunately isn’t very helpful to me. [¶] However, I do remember this case distinctly a nd we have been discussing it and I do have my own file as to this matter. I have revi ewed that file which would include my notes taken from or during the testimony of witnesse s on the case and I have been afforded or

5 There is no dispute as to the validity of this ruling and no dispute the information did not have to allege the se ntencing provisions of former section 667.6, subdivision (c) or (d), or section 1170.1, subdivision (a).6 provided a copy of the relevant portions of th e transcript in this ma tter as would concern sentencing, so I am pr epared to proceed.” 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 tr ial court would have sentencing discretion following remand, appella nt 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 ta lk 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-mi nute continuance request, and it was clear appellant had employed, and would employ, a ny dilatory tactic to avoid imposition of sentence. The court stated, “You have spoke n to your attorney. You are familiar with
the issues here. There has be en 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 th e court’s standpoint to proceed on this matter, but also to afford you the additional opport unity to consider various issu es 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 wi thout further delay.” Nardoni as ked for leniency in the court’s exercise of its sentencing discretion. The court, on October 19, 2012, resentence d appellant to pris on 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 (c onsisting of 25 years to life for the offense pursuant to the One Strike law, tripled pursuant to the Thre e Strikes law) plus an upper term of 10 years for a section 12022.3, subdi vision (a) enhancement, (3) as to each of counts 3 and 4, a consecutive term of 25 year s to life for the offens e pursuant to the Three7 Strikes law, plus an upper term of 10 years for a sect ion 12022.3, subdivision (a) enhancement, plus (4) two five-year sect ion 667, subdivision (a) enhancements. 6

In Machado III , we concluded “the tria l court erred by concluding Machado II itself, and section 1170.12, subdivision (a)(6) [of the Three Strikes law], each mandated
sentences on counts 3 and 4 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 fo rmer 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.” ( Machado III , at p. 11.) We affirmed the judgment, but vacated appellant’s resentence and remanded for resentencing consistent with that opinion. ( Id. at p. 13.) Following remand, the trial court, on Oc tober 19, 2012, resentenced appellant. The total prison term, as well as the componen t prison terms, were the same as those previously vacated in Machado III . What differed was that , on October 19, 2012, the trial court (1) as to count 3, imposed a sent ence that was consecutiv e to the sentence on count 2, not because a consecu tive sentence was mandatory, bu t in the exercise of the
court’s discretion under former section 667.6, subdivision (c) 7 and (2) as to count 4, imposed a sentence that was consecutive to th e sentence on count 3 because, according to

6 The trial court imposed the two five-year section 667, subdivision (a) enhancements after appellant personally addressed the court as discussed infra

.

7 As to count 3, the trial court stated “the court is hesitant to use 667.6(d) as a basis upon which to impose a consecu tive sentence because I cannot say with certainty what occurred before the particular act in question. However, pursuant to 667.6(c), the court is authorized to impose a full sentence and consecutive sentence provided various circumstances in aggravation might very well ha ve been found to appl y to this matter.” The court then listed numerous aggravatin g factors and expressly indicated it was imposing sentence on that count pursuant to former section 667. 6, subdivision (c).8 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 relie d in the exercise of its discretion to impose consecutive sentences as to counts 3 and 4. 8 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. 9

8 Apart from appellant’s right to counsel cl aim, there is no dispute as to the validity of the above sentencing scheme or the resulting total prison sentence.

9 Appellant indicated Nardoni was providi ng ineffective assistance for two reasons. First, according to appellant, th is court ordered the trial cour t to “vacate” counts 3 and 4 on ex post facto grounds. Appellant was in error. In Machado II , we stated, “ Appellant claims the trial court violated ex post facto principles by applying section 667.61, subdivision (i), as amended in 2006, when resentencing appella nt on the 1997 offenses at issue in counts 3 and 4. We conclude the trial court erroneous ly applied the amended subdivision retroactively .” ( Machado II
, supra , at p. 12, italics added.) Because of that conclusion as to counts 3 and 4, and no twithstanding appellant’s suggestion to the contrary on October 19, 20 12, we did not decide in Machado II whether the trial court violated ex post facto principles as to those counts, si nce ex post facto principles are inapplicable if a statute is not retroac tive. Moreover, notwithstanding appellant’s suggestion to the contrary on Oc tober 19, 2012, we concluded in Machado II that the trial court erred by resentencing appellant on counts 3 and 4. We did not conclude the trial court had to “vacate” those counts. Appellant does not claim on appeal that this court ordered the trial court to vacate those counts or that those counts must be vacated. Second, according to appellant, when the tria l court resentenced a ppellant on October 19, 2012, the trial court had erroneously stated th ere were no mitigating factors when in fact a mitigating factor existed, i.e., when appella nt was arrested, he wa s not on probation or parole. The court suggested it believed that wh en appellant was arrested he was in fact on parole or probation, but to the extent th at was not the case the court was striking that as an aggravating factor. In sum, neither of the above two reasons proffered to the trial court by appellant is at issue in this appeal.9 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 th at is a nice tactic for you to employ at this instance. It is inappropriate and completely unwarranted.”
b. Analysis

. Appellant claims the trial court depriv ed him of his right to counsel at the October 19, 2012 resentencing hearing. 10 He argues “there was no meaningful opportunity for appellant’s atto rney to prepare relative to th e 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 charge d in counts 3 and 4 were committed without the opportunity to reflect that would justify the greater sentence.” ( Sic .) “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]ro ad discretion must be granted trial courts on matters of continuances; only an unr easoning and arbitrar y “insistence upon expeditiousness in the face of a justifiable re quest for delay” violates the right to the assistance of counsel.’ ” ( People v. Alexander (2010) 49 Cal.4th 846, 934.) Appellant
bears the burden of establishi ng 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 suffice s 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 fo r the reasons discussed below.

10 We assume appellant’s right to counsel issue is preserved for appellate review notwithstanding the fact appe llant did not raise it below.10 First, notwithstanding appella nt’s argument to the contra ry, the pertinent trial for purposes of this appeal is not appellant’s 199 9 trial but his 2008 retrial. (See fn. 1, ante .) Second, the burden is on appellant to demo nstrate 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 Nard oni did not have an op portunity to review, and did not review, the transc ripts of the 2008 retrial. Third, the People’s senten cing 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 rele vant to the operation of PC sections 667.6(c) and (d) hereto as Exhibit A.” On Octobe r 10, 2012, the prosecutor indicated she had provided to the court and Nardoni a supplem ental 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 c ourt, before resentencing appellant, stated it had been provided “a copy of th e relevant portions of the transcript in this matter as would concern sentencing.” Appellant never su ggested the transcripts in exhibit A were not relevant portions of the transcript, or th at a review of the transcripts in exhibit A would not give Nardoni a meaningful oppo rtunity to present sentencing argument pertaining to counts 3 and 4. Appellant has failed to dem onstrate Nardoni did not have an opportunity to re view 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.” (Italics added.) That is, appella nt is arguing Nardoni ha d no opportunity to prepare to argue that the mandatory consecutiv e 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 occasi ons,” and former subdivision (d) required a11 trial court, when determining whether crimes were so committe d, to consider whether the
defendant had a “reasonable opportunity to reflect upon his . . . actions and nevertheless resumed sexually assaultive behavior.” (F ormer § 667.6, subd. (d), italics added.) However, as previously indicated, the tria l 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. Moreov er, 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 th e 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.” Sixth, although Nardoni made a defense motion to c ontinue for other reasons not at issue here, he made it clear he was merely conveying ap pellant’s position and “[p]ersonally I don’t see where that goes.” Nardoni denied ther e was any reason judgment should not be pronounced. Finally, the trial court conc luded 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 Nardon i 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 di d not abuse its disc retion by denying any continuance motion, and no violation of appella nt’s right to counsel or right to effective assistance of counsel
occurred.12 2. The Penal Code Section 1202.4, Subdivisi on (b) Restitution Fine Must Be Reduced. Following appellant’s first trial in 1 999, 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 fo r resentencing. Following remand, the trial court, on October 12, 2012, imposed a $10,000 section 1202.4, subdivision (b) fine. The trial court indica ted that, according to the documentation the trial court possessed, $10,000 was the fine orig inally imposed. (As mentioned, the court
earlier stated it did not have the legal file.) Respondent conced es the fine should be $200. We accept the concession (cf. People v. Hanson (2000) 23 Cal.4th 355, 357; People v. Thompson (1998) 61 Cal.App.4th 1269, 1276) and we will modify the judgment accordingly.
DISPOSITION The judgment is modified by reducing th e Penal Code section 1202.4, subdivision (b) restitution fine imposed by the trial c ourt on October 12, 2012 , from $10,000 to $200, and, as modified the judgment is affirmed. The trial court is direct ed to forward to the Department of Corrections an amended ab stract of judgment reflecting the above
modification.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J. CROSKEY, J.