Filed 11/30/20 P. v. Macias 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.

FLAVIO MACIAS, JR.,

Defendant and Appellant.

 B306022

 (Los Angeles County

 Super. Ct. No. KA110524)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Bruce F. Marrs, Judge. Affirmed with direction.

Kathy R. Moreno, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Kathy S. Pomerantz, Deputy 

Attorneys General, for Plaintiff and Respondent.

——————————
2

A jury found Flavio Macias, Jr., guilty of first degree 

murder. He appealed the judgment of conviction, and we 

remanded for resentencing under Senate Bill No. 1393. On 

remand, the trial court declined to strike a five-year prior. 

Macias appeals again, this time contending that the trial court 

abused its discretion by refusing to strike the five-year prior. We 

disagree.

BACKGROUND1

In 2015, Maria Camargo and her husband Luis Segura

lived next door to Flavio Macias and his brother. Late on the 

night of August 23, 2015, Camargo heard the Macias family dog 

barking. She then heard a wail and a brick falling. The dog 

stopped barking. Not long thereafter, Macias knocked on 

Camargo and Segura’s door. When they answered, Macias said 

he did not want anything and left. The next day, Macias, with 

his brother acting as a lookout, beat Segura with a cement paver 

and hammer, killing Segura. Law enforcement found the dog’s 

body in a spa. The dog had been stabbed and had suffered blunt 

force trauma. 

A jury found Macias guilty of first degree murder (Pen. 

Code,2 § 187, subd. (a)) and found true the allegation he used a 

deadly and dangerous weapon (§ 12022, subd. (b)(1)). The jury 

acquitted Macias of cruelty to an animal. On July 5, 2018, the 

1 The background is from People v. Macias (Sept. 23, 2019, 

B291144) [nonpub. opn.]. We take judicial notice of that opinion. 

(Evid. Code, § 451, subd. (a).)

2 All further undesignated statutory references are to the 

Penal Code.
3

trial court sentenced Macias to 25 years to life, doubled under the 

“Three Strikes” law to 50 years to life. The trial court also 

imposed a five-year term (§ 667, subd. (a)(1)), a one-year term (§ 

12022, subd. (b)(1)), and 2 one-year priors (§ 667.5, subd. (b)). 

Thereafter, Senate Bill No. 1393 went into effect on 

January 1, 2019. (Sen. Bill No. 1393 (2017–2018 Reg. Sess.).) 

That bill amended sections 667, subdivision (a), and 1385, 

subdivision (b), to allow a court to exercise its discretion to strike 

or to dismiss a serious-felony prior for sentencing purposes. 

(Stats. 2018, ch. 1013, §§ 1–2.)

Macias appealed. Based on Senate Bill No. 1393, we 

remanded the matter for resentencing but otherwise affirmed the 

judgment of conviction. (People v. Macias, supra, B291144.) 

At the resentencing hearing on March 11, 2020, Macias’s 

counsel asked the trial court to strike the five-year prior because

there was evidence Macias’s drug use played a role in the crime. 

The trial court noted that the murder involved “an extremely 

brutal situation” in which Segura had been killed with a hammer 

and concrete blocks, notwithstanding that Segura and Macias 

had a neighborly relationship. Further, a dog had been killed. 

The trial court said, “I won’t say there’s no way I would have 

stricken the 5-year prior, but it’s extremely remote that I would 

have at the time. The prior was a crime of violence. So I’m going 

to decline to exercise discretion under the circumstances of this 

particular case.”3 When Macias’s counsel pointed out that his 

client had been acquitted of animal cruelty, the trial court said, 

“But the animal was there, was dead, was beaten up with the 

3 Macias’s prior strike was for corporal injury to a spouse 

with infliction of great bodily injury (§§ 273.5, subd. (a), 12022.7). 
4

same type of situation that the victim was, which suggested 

circumstantial [sic]. It’s a factor I can take into consideration for 

sentencing purposes.” Although the trial court declined to strike 

the five-year prior, it struck the one-year prison priors because 

those could no longer be imposed under Senate Bill No. 136.

4 

Macias’s sentence therefore was 50 years to life plus a 

determinate term of six years.5

DISCUSSION

We review the trial court’s decision not to strike the fiveyear prior for an abuse of discretion. (See People v. Carmony 

(2004) 33 Cal.4th 367, 371, 375.) Here, Macias contends that the 

trial court abused its discretion for two reasons. First, the trial 

court merely rubberstamped its earlier sentence. Second, the 

trial court considered an impermissible factor.

Macias’s first argument is based on the trial court’s 

statement it would not have struck the five-year prior at the 

4 That bill amended section 667.5, subdivision (b) to apply 

where the prior prison term was served for a sexually violent 

offense as defined in Welfare and Institutions Code section 6600, 

subdivision (b).

5 The minute order from the sentencing hearing mistakenly 

states that the trial court struck 3 one-year priors; however, the 

jury only found true two. The minute order also mistakenly 

states that the total sentence was 55 years to life, when it should 

be 50 years to life plus six years. The abstract of judgment also 

does not reflect the one year imposed for the weapon 

enhancement, incorrectly states that the total term is 55 years to 

life, and incorrectly states that the resentencing happened on 

July 5, 2018 rather than March 11, 2020. Accordingly, we order 

the minute order and abstract of judgment to be corrected. 
5

original sentencing hearing if it had the discretion to do so then. 

From this, Macias speculates that the trial court did not consider 

his postsentencing conduct. Even if the trial court may consider 

such conduct (see People v. Warren (1986) 179 Cal.App.3d 676, 

689–690), the trial court’s lone statement fails to establish that it 

did not do so. Rather, the trial court was merely commenting 

that given the brutality of the murder, it would not have struck 

the five-year prior even if it could have. This was entirely proper. 

A resentencing court may consider the same factors it considered 

when issuing the original sentence. (People v. Pearson (2019) 38 

Cal.App.5th 112, 117.) Those factors include that the crime 

involved great violence or other acts disclosing a high degree of 

cruelty, viciousness, or callousness. (Cal. Rules of Court, rule 

4.421(a)(1); Pearson, at p. 117.) In any event, Macias does not 

specify what postsentencing conduct the trial court failed to 

consider. 

Second, Macias contends that the trial court abused its 

discretion by considering the dog’s killing. In exercising its 

sentencing discretion, a trial court may consider counts on which 

a defendant has been acquitted so long as it finds that the 

evidence established such conduct by a preponderance of the 

evidence. (In re Coley (2012) 55 Cal.4th 524, 557.) Macias, 

however, points out that People v. Towne (2008) 44 Cal.4th 63, 88 

states that a trial court may consider only counts on which a 

defendant is acquitted that are “part of a single series of events 

and involved a single victim.” Towne made that statement in the 

context of distinguishing another case, People v. Richards (1976) 

17 Cal.3d 614. The defendant in Richards was acquitted of one 

count of grand theft but convicted on a second. The count on 

which he was acquitted was a separate transaction involving a 
6

different victim. Richards, at pages 620 to 622, held that it was 

improper to order restitution to the victim of the acquitted count 

as a condition of probation because the order was not designed to 

achieve the proper goal of making the actual victim whole. 

Towne, at page 88, thus distinguished Richards because Towne 

involved a single series of events involving a single victim. 

Towne, however, did not state that this distinction constituted a 

wholesale limitation on the underlying principle that counts on 

which a defendant has been acquitted may be considered for 

sentencing purposes. 

In any event, we will set aside a sentence only if it is 

reasonably probable that the trial court would have chosen a 

lesser sentence had it known some of its reasons for imposing the 

sentence were improper. (People v. Price (1991) 1 Cal.4th 324, 

492.) As we have said, the trial court cited a compelling reason 

for refusing to strike the five-year prior: the extreme brutality of 

the murder of a person with whom Macias had a neighborly 

relationship. Moreover, substantial evidence supports the trial 

court’s finding that there was a connection between the dog’s 

murder and Segura’s murder. (See generally People v. Buford

(2016) 4 Cal.App.5th 886, 901 [substantial evidence must support 

preponderance of evidence finding].) The night before Macias 

killed Segura, Camargo heard a dog barking, a wail, and then a 

brick falling. The dog stopped barking. Just minutes later, 

Macias knocked on Segura’s door. The next day, Macias used a 

brick or heavy planter to kill Segura. The dog had similarly

suffered blunt force trauma. The dog and Segura therefore 

suffered similar injuries, inflicted, the evidence shows, with a

similar instrument. 
7

DISPOSITION

The judgment is affirmed with the direction to the trial 

court to amend the March 11, 2020 minute order and abstract of 

judgment to reflect the total term of 50 years to life plus six years 

and to further amend the abstract of judgment to reflect the one 

year imposed for the weapon enhancement and the resentencing 

hearing was on March 11, 2020. The trial court shall forward the

amended abstract of judgment to the Department of Corrections 

and Rehabilitation. 

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

LAVIN, Acting P. J.

EGERTON, J.