People v. Macias CA2/3

Filed 11/30/20 P. v. Macias CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B306022

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA110524) v.

FLAVIO MACIAS, JR.,

Defendant and Appellant.

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. ——————————

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