People v. Macon CA5

Filed 10/27/26 P. v. Macon CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT THE PEOPLE, F090321 Plaintiff and Respondent, (Super. Ct. No. DF018974B) v. DAVID CHARLES MACON, OPINION Defendant and Appellant. THE COURT* APPEAL from a judgment of the Superior Court of Kern County. David E. Wolf, Judge. Deanna L. Lopas, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent. -ooOoo- * Before Franson, Acting P. J., Snauffer, J. and Guerra, J.  INTRODUCTION Appellant and defendant David Charles Macon (defendant), a state prison inmate serving a life term, was convicted after a jury trial of assault with a deadly weapon with force likely to produce great bodily injury on another inmate. He was sentenced to the third strike term of 27 years to life, to be served consecutively to the sentences he was already serving. On appeal, appellate counsel filed a brief that summarized the facts with citations to the record, raised no issues, and asked this court to independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Defendant has not filed a supplemental brief. We order correction of the abstract of judgment and affirm. FACTS On April 7, 2024, Correctional Officers Casey Sims and Daniel Guzman Figueroa were stationed on the patio of “Facility A” at Kern Valley State Prison while the prison’s medical staff dispensed medication to inmates.1 Defendant and codefendant Michael Gaddy were serving life sentences at the prison. Jamal Hanson, another inmate, was authorized to use a wooden medical cane. Sims testified Hanson tried to walk behind him to get to the medical staff. Sims was about to direct Hanson to walk in front of him when he realized Gaddy was suddenly standing in his face. Sims believed Gaddy was about to attack him, and used both hands to press Gaddy away from him. Sims testified Hanson stayed behind him. Defendant appeared on Sims’ left side and rushed towards Hanson. Sims “stiff armed” defendant with his left arm and pulled out his pepper spray with his right hand. At the same time, Gaddy tried to rush around 1 At trial, Officer Daniel Guzman Figueroa testified he preferred to be called Guzman. 2. Sims’ right side. Sims testified defendant and Gaddy were trying to rush around him so they could get to Hanson, who was using his cane to defend himself. Sims discharged pepper spray at defendant. Defendant was wearing sunglasses that appeared to deflect the pepper spray. Both defendants kept rushing toward Hanson. When they were close to Hanson, defendant and Gaddy made stabbing-like motions toward Hanson, and each defendant appeared to be holding something in their hand. Sims testified the videos from his body-worn camera and the prison’s surveillance cameras, which were introduced into evidence and narrated by Sims, showed that defendant made stabbing motions at Hanson, and defendant was holding an object in his right hand that had a sharpened tip. Guzman testified he saw defendant and Giddy rush onto the patio, and they started to batter Hanson with their fists. Guzman discharged pepper spray at Gaddy but it did not have any effect. Guzman testified the video from his body-worn camera showed defendant and Giddy making stabbing motions on Hanson, and Hanson using his cane to protect himself. Gaddy was holding an inmate-manufactured weapon in his right hand, and the item in Gaddy’s hand appeared to be a piece of metal sharpened to a point. Guzman testified that when Gaddy did not respond to the pepper spray, Guzman deployed a blast grenade, which was a canister that exploded with a larger amount of pepper spray. The guards in the towers fired “less-than-lethal” rounds at the defendants on the patio and the incident ended. Defendant, Gaddy, and Hanson were placed in restraints and ordered to sit on the patio. Hanson was bleeding from his back. Hanson’s white undershirt and blue prison shirt had puncture wounds and blood stains that corresponded to the areas where he was bleeding. While defendant, Gaddy, and Hanson were still sitting on the patio, Sergeant Raul Hernandez searched the area and found an item on the ground near Hanson’s location. It 3. was a flat piece of metal that was bent and sharpened, and it had a handle fashioned from string and a piece of cloth. The prison’s licensed vocational nurse responded to the patio and treated Hanson. He had a puncture wound behind his arm, one to his neck, another to his forehead, and three puncture wounds to his back; he also had a laceration to his neck. The nurse asked Hanson how he was injured and he responded, “no comment.” Hanson was transported to an outside hospital for additional treatment. Sims and Guzman were familiar with Hanson, Gaddy, and defendant, and knew the three inmates were housed in the same yard. The officers did not talk to the inmates and did not know why the assault happened. Hernandez testified he knew Hanson, Gaddy, and defendant. Hernandez separately interviewed each inmate to determine if anyone had animosity toward the others and did not want to remain in the same yard. Hanson would not reveal why the assault happened but said he did not have any safety concerns about continuing to be housed in the same yard with defendants. Hernandez received the same responses from defendant and Gaddy—they did not have any concerns about continuing to be housed with Hanson. Hernandez testified that based on his experience as a guard, it was common in the prison system for inmates to assault other inmates and refuse to involve or cooperate with law enforcement. PROCEDURAL BACKGROUND On May 20, 2025, an information was filed in the Superior Court of Kern County charging defendant Macon and Gaddy with count 1, assault with a deadly weapon and/or by force likely to produce great bodily injury on Hanson, while defendant and Gaddy were confined to Kern Valley State Prison and serving life sentences. (Pen. Code,2 § 4500.) 2 All further statutory citations are to the Penal Code. 4.  It was further alleged both defendant and Gaddy had multiple prior strike convictions and there were aggravating circumstances. (Cal. Rules of Court,3 rule 4.421(a), (b).) On July 7, 2025, the joint jury trial began for defendant and Gaddy with motions and jury selection. Verdicts On July 9, 2025, the jury found both defendants guilty of count 1.4 In a bifurcated trial, the jury found defendant had three prior strike convictions and codefendant Gaddy had five prior strike convictions. The jury also found true three aggravating circumstances for both defendants: the crime involved great violence (rule 4.421(a)(1)), the victim was particularly vulnerable (rule 4.421(a)(3)); and defendants engaged in violent conduct that indicated a serious danger to society (rule 4.421(b)(1)). Sentencing On August 1, 2025, the trial court conducted the sentencing hearing and denied defendant’s motion to dismiss the prior strike convictions. Defendant was sentenced to the third strike term of 27 years to life in prison with the possibility of parole. The trial court calculated the minimum eligible parole date based on the upper term of nine years for count 1 multiplied by three for 27 years, as the 3 All further citations to rules are to the California Rules of Court. 4 Both defendants were also charged with count 2, aggravated assault with a deadly weapon against another inmate (§ 4501, subd. (a)), which was a lesser included offense of count 1. After the jury found both defendants guilty of count 1, the trial court granted the prosecution’s motion to dismiss count 2 since defendants could not be convicted of both a greater and lesser offense. The trial court also dismissed prior serious felony conviction enhancements alleged under section 667, subdivision (a) as to both defendants. 5. highest of the three options for his third strike sentence.5 The court ordered the sentence to be served fully consecutive to the sentences he was already serving in Kern County Superior Court case No. DF018803B and Los Angeles County Superior Court case No. BA419526-01.6 Codefendant Gaddy was also sentenced to the third strike term of 27 years to life, fully consecutive to the sentences he was already serving. On August 15, 2025, defendant filed a timely notice of appeal. DISCUSSION As noted above, defendant’s counsel filed a Wende brief with this court. The brief also included counsel’s declaration that he advised defendant he could file his own brief with this court. By letter on May 22, 2026, we invited defendant to submit additional briefing. To date, he has not done so. 5 Section 667, subdivision (e)(2)(A) states that in imposing a third strike sentence, “the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of: [¶] (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious or violent felony convictions. [¶] (ii) Imprisonment in the state prison for 25 years. [¶] (iii) The term determined by the court pursuant to [s]ection 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with [s]ection 1170) of Title 7 of Part 2, or any period prescribed by [s]ection 190 or 3046.” The trial court calculated defendant’s minimum term of his third-strike sentence based on option one. (See, e.g., People v. Williams (2004) 34 Cal.4th 397, 403; People v. Miranda (2011) 192 Cal.App.4th 398, 414–415.) 6 The allegations in the information and the prosecution’s sentencing statement show that in Los Angeles County Superior Court case No. BA419526-01, defendant was convicted of second degree robbery with firearm and prior convictions enhancements in 2014, and sentenced to 25 years to life plus 14 years in 2016. In Kern County Superior Court case No. DF018803B, defendant was convicted of aggravated assault with a deadly weapon against another inmate (§ 4501, subd. (a)) and sentenced to 25 years to life in 2024. 6. Correction of Abstract of Judgment As explained above, the reporter’s transcript of the sentencing hearing shows the trial court sentenced defendant to an indeterminate third strike term, and calculated the minimum eligible parole date based on the upper term of nine years for count 1, multiplied by three, for 27 years to life, pursuant to option one in section 667, subdivision (e)(2)(A)(i). This indeterminate sentence is reflected in the minute order and in defendant’s opening appellate brief. The abstract of judgment filed in this case was on form CR-290.1, “Felony Abstract of Judgment—Determinate [¶] Single, Concurrent, or Full-Term Consecutive Count Form,” (unnecessary capitalization omitted) but a determinate term was not imposed in this case. The trial court did not use form CR-292, “Abstract of Judgment— Prison Commitment—Indeterminate.” (See, e.g., People v. Magana (2021) 63 Cal.App.5th 1120, 1122.) In paragraphs one and nine of the abstract of judgment, it shows defendant was sentenced to 27 years in prison, consecutive to the other sentences that he was already serving. In paragraph four, it shows he was sentenced pursuant to section 667, subdivisions (b)–(i) or section 1170.12, “strike prior.” The abstract does not show that he was sentenced to a third strike indeterminate term of 27 years to life. “Courts may correct clerical errors at any time, and appellate courts … that have properly assumed jurisdiction of cases have ordered correction of abstracts of judgment that did not accurately reflect the oral judgments of sentencing courts.” (People v. Mitchell (2001) 26 Cal.4th 181, 185.) We thus direct the trial court to file a corrected abstract of judgment showing that defendant was sentenced to the indeterminate term of 27 years to life for count 1, and not a determinate term of 27 years. (See, e.g., People v. Mitchell, supra, 26 Cal.4th at p. 188; People v. Saavedra (2018) 24 Cal.App.5th 605, 616.) 7.  After independent review of the record, we find that no further reasonably arguable factual or legal issues exist. DISPOSITION The Kern County Superior Court is directed to prepare a corrected abstract of judgment on form CR-292, to show that defendant was sentenced to the third strike indeterminate term of 27 years to life for count 1, consecutive to the sentences he was already serving, consistent with the reporter’s transcript of the court’s other sentencing orders in this case. The clerk of the Kern County Superior Court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. As corrected, the judgment is affirmed in all other respects. 8.