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FINCEN
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Joined: 08 Mar 2006
Posts: 1351

PostPosted: Thu Nov 04, 2010 10:25 pm    Post subject: The Macon/Davis Family Reply with quote

Quote:
Jul 27, 1966
Incidents Mar Calm in San Bernardino Strife

Two police cars were stoned during the night and Molotov cocktails were hurled at two buildings without serious damage, but otherwise calm returned Tuesday to the westside Negro district. among those arrested and charged pleas of innocent were entered by Harold "Gene" Macon, 18, ...Mayor Al Ballard ordered the police to take "precautionary action." He was quoted as saying, "I told the police: Anybody you see throwing rocks, bottles or Molotov cocktails, shoot 'em."


Quote:
August 10, 1977
Teenagers plead innocent to slaying

Four teen-agers charged in the excecution style slaying of a young couple and the rape of a young girl pleaded innocent to the charges Wednesday. Alton Macon, Errol Williams and Raymond Christopher, all 19, and a 16 year old not identified because of his age, were ordered to stand trial Oct. 3.



Quote:


August 8, 2004

SAN BERNARDINO Man shot and killed in parking lot

A 30-year-old man was shot and killed Sunday morning as he left a liquor store in the 1200 block of East Lynwood Drive.

Jamal Macon was killed at 12:04 a.m. Sunday in the store's parking lot. No other information was available.[/size]


Quote:

COURT OF APPEAL, FOURTH APPELLATE DISTRICT


DIVISION ONE


STATE OF CALIFORNIA



THE PEOPLE,


Plaintiff and Respondent,


v.


JAMES EDWARD NEWMAN,


Defendant and Appellant.



D050386


(Super. Ct. No. FSB048940)



APPEAL from a judgment of the Superior Court of San Bernardino County, Brian S. McCarville, Judge. Affirmed.


A jury convicted James Edward Newman of second degree murder (Pen. Code, 187, subd. (a))[1] and found that he personally discharged a firearm in committing the crime ( 12022.53, subd. (d)). The trial court sentenced Newman to 40 years to life in prison.


On appeal, Newman asserts numerous claims of instructional error. First, he claims the trial court erred in instructing the jury on willfully false or deliberately misleading statements (CALJIC No. 2.03), efforts to suppress evidence (CALJIC No. 2.06) and flight (CALJIC No. 2.52) because the inferences supported by these instructions (i.e., a consciousness of guilt) were irrelevant to the case. Second, Newman contends the trial court erred by giving an extemporaneous instruction of the different mental states required for murder and voluntary manslaughter. As discussed below, we conclude that the trial court's consciousness of guilt instructions were proper under controlling California Supreme Court case law. With respect to the trial's court extemporaneous instruction regarding the intent requirement for voluntary manslaughter, we conclude that the statement was legally incorrect, but not sufficiently prejudicial to warrant reversal in light of subsequent instructions that cured the court's misstatement. Consequently, we affirm the judgment.


FACTS


On August 7, 2004, Newman and Steve Martinez walked to Terry's Liquor in San Bernardino. As they approached the liquor store, they passed Jamaal Macon, who was with two other males. Newman and Macon briefly exchanged words as Martinez continued walking. Newman caught up to Martinez, and they continued to the liquor store.




After purchasing items at the liquor store, Newman and Martinez started walking back to apartments east of the liquor store location. As they were crossing a field, they heard gunfire and ran. Martinez ran directly to the apartments, but did not see where Newman ran.


When Newman arrived back at the apartments, he and Martinez agreed to return to the liquor store. Martinez went inside an apartment for a few minutes, but Newman was gone when he returned. Martinez saw Newman on the street heading toward the liquor store, and hurried to catch up.


As Martinez caught up to Newman, he saw Newman standing close to Macon, reach out with his left hand and grab Macon by the left shoulder. Macon glanced up but made no other movement. Newman pulled a handgun from his clothing and shot Macon in the shoulder. Martinez turned and ran and, as he did so, heard two more shots. When he looked back, Martinez saw Newman running away and Macon run a short distance before collapsing.


After arriving back at the apartments, Martinez received a call from Newman. Newman told Martinez not to say anything about what happened. Martinez told Newman he saw him shoot Macon and that he would testify if need be. Newman threatened to kill Martinez if he testified against him.




In an interview with Detective Gary Schuelke following his arrest, Newman repeatedly claimed he knew nothing about the shooting. He said he left California after he met with his parole officer on the first Tuesday of August, and was in New Mexico at the time the shooting occurred.


Later in the interview, Newman admitted shooting Macon. Newman said when he and Martinez were walking to the liquor store he was verbally accosted by Macon. Newman said he ignored the challenge. On the return trip, Newman claimed he was shot at, which made him angry, and although he did not see who did the shooting, he assumed it was Macon. Newman said he then retrieved a handgun he had hidden in the area and returned to confront Macon. Newman said that when he asked Macon why he shot at him earlier, Macon jumped back and looked like he was "about to grab something," so Newman got scared, pulled out his gun and fired.


Quote:


Quote:

PATRICK SHAUN MACON

PEOPLE v. MACON

THE PEOPLE, Plaintiff and Respondent,
v.
PATRICK SHAUN MACON, Defendant and Appellant.

No. D055316.

Court of Appeals of California, Fourth District, Division One.

Filed March 26, 2010.


McCONNELL, P. J.

INTRODUCTION

A jury found Patrick Shaun Macon guilty of voluntary manslaughter (Pen. Code,[ 1 ] 192, subd. (a)), as a lesser included offense of murder, and attempted voluntary manslaughter ( 192, subd. (a), 664), as a lesser included offense of attempted murder. As to both counts, the jury also found true allegations Macon personally used a firearm ( 12022.5, subd. (a)), but the jury found not true allegations Macon committed the offenses for the benefit of, at the direction of, or in association with a criminal street gang ( 186.22, subd. (b)(1)(B)).

The trial court sentenced Macon to an aggregate term of 23 years and four months in prison. The sentence consists of the upper term of 11 years for the voluntary manslaughter offense, a consecutive upper term of 10 years for the companion firearm enhancement, a consecutive term of one year (one-third the midterm) for the attempted voluntary manslaughter offense, and a consecutive term of one year and four months (one-third the midterm) for the companion firearm enhancement. At the sentencing hearing, the trial court did not orally pronounce any restitution or parole revocation fines. Nonetheless, the minutes from the sentencing hearing show the court imposed a restitution fine of $4,400 and a parole revocation fine of $4,400. These fines also appear in the abstract of judgment.

Macon appeals, arguing the trial court abused its discretion by imposing upper term sentences for the voluntary manslaughter offense and companion firearm enhancement. In addition, he argues the trial court's imposition of an upper term sentence for the voluntary manslaughter offense violated his federal constitutional right to a jury trial. Solely for purposes of later federal court review, he also argues the trial court violated his rights under the due process and ex post facto clauses of the federal constitution by retroactively applying an amended sentencing scheme. He further argues the trial court's minutes and the abstract of judgment must be corrected to exclude the restitution and parole revocation fines because the trial court did not orally pronounce these fines at the sentencing hearing.

We remand the matter to the trial court with directions to strike the references to the restitution and parole revocation fines from the minutes for the sentencing hearing and the abstract of judgment. In all other respects, we affirm the judgment.

BACKGROUND

Prosecution's Case

Around 9:00 p.m., Marsean Macon (Marsean) drove a car on a public road in a mixed business and residential area of San Bernardino. Macon sat in the front passenger seat of the car and Norris Crawford sat in the rear seat. While stopped at an intersection, the three men encountered a car driven by Edward Griffin. Macon and Crawford fired at least 17 gunshots at Griffin's vehicle, including six through its rear. Some of the gunshots struck Griffin's passenger, Leonard Berry, injuring his left shoulder and left arm. Four of the gunshots struck Griffin, including one in his head, which killed him.

Another car, occupied by a mother and child, was stopped at the intersection when the shooting occurred. The mother heard the bullets flying past her car. She and her child crouched down to avoid injury. They remained crouched down for two minutes until the shooting stopped.

After the shooting, Griffin's vehicle traveled slowly through the intersection and collided with a parked car. One of the police officers who responded to the incident noticed smoke coming from the vehicle's engine area. In addition, he noticed the vehicle's airbags had deployed and the driver's side windows had been shot out. He saw Griffin in the driver's seat slumped over the steering wheel toward the center console with blood streaming from his head.

A police detective found a Larsen .380 caliber semiautomatic handgun on the front passenger floorboard of Griffin's vehicle. The handgun was fully loaded with a live round in its chamber. The detective did not find any expended cartridges from the handgun. The only expended cartridges found at the crime scene were from .45 caliber ammunition.

A police officer responding to a radio dispatch about the shooting saw Marsean's car leaving the area at "a high rate of speed." The officer followed the car as it drove onto the freeway. The occupants noticed the officer and the car's speed slowed to below the speed limit. The car exited the freeway as a police helicopter arrived to assist the officer. The car abruptly stopped in the middle of an intersection then continued on for 25 to 30 yards and pulled over to the curb in front of some houses.

Macon and Crawford got out of the car. Macon tripped and dropped a semiautomatic handgun. He picked up the handgun and ran into the yard of a nearby residence.

A police detective tracked Macon from the helicopter after Macon got out of the car. He saw Macon jump over fences and run behind houses and garages trying to evade the helicopter. He then saw Macon run between houses and take off a white vest and other clothing. A motorcycle officer followed the helicopter's searchlight, intercepted Macon, and took Macon into custody.

An assisting officer located a bulletproof vest and black-hooded jacket in the side yard and a .45 caliber Firestorm semiautomatic handgun on the rooftop of a house Macon had passed. The handgun did not have a magazine with it when the officer found it; however, a police detective located a black-colored magazine and a cell phone nearby.

The gunshot that killed Griffin and at least one of the expended cartridges found at the crime scene came from the Firestorm handgun. Six of the other expended cartridges found at the crime scene came from another .45 caliber handgun. The remaining expended cartridges found at the crime scene could not be definitively matched, but probably came from the Firestorm handgun.

Macon, Marsean, Crawford, Griffin, and Berry all had gunshot residue on their hands. The presence of the residue indicates each of them likely fired a firearm, handled a firearm, were in close proximity to someone discharging a firearm, or contacted a surface containing gunshot residue.

Macon and Griffin were members of rival, feuding criminal street gangs. At the time of his death, Griffin was a suspect in multiple shootings and was the subject of a police investigation. Macon was also suspected to be the shooter in two other killings and his reputation in the community was similar to Griffin's reputation.

Defense Evidence

Macon testified on his own behalf. He has no prior felony convictions and denies ever being a gang member. He said that several times prior to the shooting, Griffin had contacted him and threatened to kill him the next time he saw him. Griffin told Macon that he had been involved in other shootings, that Macon would end up the same way, and that Macon better have his gun the next time Griffin saw him. Macon knew of Griffin's reputation for violence and he was concerned as someone had shot at his parents' house when he was away.

Macon told Reverend Reginald Beamon, a community leader who knew both Macon and Griffin well, that Griffin had sent him threatening messages and asked Beamon to speak with Griffin. Griffin admitted to Beamon that he had sent the messages, but said he was just "playing" with Macon. Beamon knew Griffin had a reputation for violence in the community and Beamon did not think Griffin was joking when he sent the messages. Conversely, Beamon did not believe Macon was a gang member and believed Macon's reputation in the community was for his abilities as a boxer, rather than for violence.

Macon also spoke with Griffin's father, who said his son was "out of control" and had killed some individuals. He said Macon would end up just like him and he told Macon to do what he "gotta do." Griffin's father denied ever speaking with Macon about his son or knowing anything about his son's reputation.

Macon's mother testified she had spoken with Griffin's father on three different occasions about Griffin's threats to Macon. After the shooting, Griffin's father called her to tell her he had "no hard feelings" about what occurred. He said he knew something was going to happen to one of the boys and that Griffin had "gone wild" and he had no control over it.

Based on Griffin's threats, Macon obtained a handgun and the bulletproof vest for protection. On the night of the shooting, Marsean, Macon, and Crawford were on their way to visit Macon's cousin. Although Macon did not wear the bulletproof vest all the time, he wore it that night because he was going out and felt he needed it. The three men were stopped at a red light when Griffin's car pulled up on the right and Griffin pointed a firearm at Macon. Frightened, Macon grabbed his gun from his lap and started firing into Griffin's vehicle. Griffin never returned fire. Macon knew Crawford was armed and heard other shots, but he did not see whether Crawford also fired at Griffin.

After the shooting, Marsean, Macon, and Crawford were all in shock. Marsean kept driving and got on the freeway. While they were on the freeway, Macon noticed a police car following them and told the others. They got off the freeway and Marsean stopped the car. Macon got out of the car and ran through some yards, jumped over some fences, took off his jacket and bulletproof vest, and threw his handgun gun on a roof.

DISCUSSION

I

In determining the sentence for Macon's voluntary manslaughter conviction, the trial court found in aggravation that the crime involved great violence, Macon committed the crime in a way that involved a degree of planning and sophistication as evidenced by Macon wearing a bulletproof vest and having a loaded firearm at the ready, and Macon's conduct indicated he is a serious danger to society. (Cal. Rules of Court, rule 4.421(a)(1), (Cool, & (b).)[ 2 ] The trial court found in mitigation that Macon had an insignificant criminal record and satisfactory performance on probation. (Rule 4.423(b)(1), (6).) Nonetheless, the trial court noted there were similarities between the circumstances of Macon's prior offenses and the circumstances of this case.[ 3 ] The court also noted the mitigating circumstances of imperfect self-defense were already reflected in the jury's verdict. After considering the aggravating and mitigating factors, the trial court decided to impose the upper term for the voluntary manslaughter conviction.

A

Macon contends the trial court abused its discretion in imposing an upper term sentence for the voluntary manslaughter offense because the trial record does not support any of the trial court's aggravated circumstances findings. We conclude the trial court's findings are amply supported.

As Macon recognizes, the hallmark of an aggravating circumstance is that it "makes the offense `distinctively worse than the ordinary.'" (People v. Black (2007) 41 Cal.4th 799, 817.) To commit his voluntary manslaughter offense, Macon fired multiple gunshots from one vehicle at another vehicle on a public road in a partially residential area. His actions endangered the uninvolved occupants of both vehicles, the uninvolved occupants of another nearby vehicle, and an untold number of innocent bystanders and residents. These facts show Macon's offense was "distinctively worse" than an ordinary voluntary manslaughter by shooting offense, and demonstrate both great violence and a high degree of callousness on his part. (Rule 4.421(a)(1); see also, e.g., People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735-1736 [shooting at an occupied car reflects an indifference to human life].) These facts also demonstrate Macon "engaged in violent conduct" indicating he is "a serious danger to society." (Rule 4.421(b)(1).)

In addition, when Macon committed his voluntary manslaughter offense, he was wearing a bulletproof vest and carrying a loaded handgun on his lap. He acquired the vest and handgun anticipating a violent encounter with Griffin. Despite his contrary assertions, these facts show he carried out his offense with a level of planning and sophistication that, when compared to other ways in which the offense could have been committed, make his offense "distinctively worse" than ordinary. (Rule 4.421(a)(Cool; People v. Charron (1987) 193 Cal.App.3d 981, 994-995.)

B

Macon also contends the trial court abused its discretion in imposing an upper term sentence for the voluntary manslaughter offense because the trial court failed to consider Griffin's provocation and the other self-defense aspects of the offense in mitigation. We disagree.

"[T]he court is presumed to have considered all relevant criteria enumerated in the rules unless the record affirmative demonstrates otherwise." (People v. Superior Court (Du) (1992) 5 Cal.App.4th 822, 836, fn.; rule 4.409.) The record does not affirmatively demonstrate otherwise in this case as these factors were reflected in Macon's statement in mitigation, which the court received and reviewed, and in his counsel's arguments for a midterm sentence.

Moreover, the trial court did not err in declining to find these factors more mitigating than reflected in the jury's verdict. As the People point out, the trial court's task at the sentencing hearing was not to consider whether Macon's offense was less egregious than murder as the jury had already made this determination when it acquitted Macon of murder. Rather, the trial court's task at the sentencing hearing was to consider whether Macon's voluntary manslaughter by shooting offense was more or less egregious than other voluntary manslaughter by shooting offenses. Consequently, the facts prompting Macon's use of imperfect self-defense would only be mitigating for sentencing purposes to the extent they exceed that necessary to support the jury's voluntary manslaughter verdict.

In this case, the trial court implicitly found the facts prompting Macon's use of imperfect self-defense did not exceed what was necessary to support the jury's verdict. The trial record supports this finding as Griffin's conduct was not exceptionally provoking relative to other voluntary manslaughter offenses and Macon's response greatly exceeded the provocation.

People v. Green (1982) 142 Cal.App.3d 207 (Green), upon which Macon relies, is inapplicable. In Green, the defendant pleaded guilty in separate cases to voluntary manslaughter and robbery, respectively. In exchange for his guilty pleas, he was to receive concurrent sentences. In addition, another robbery charge and two firearm allegations were dismissed. (Id. at p. 208) Although the probation officer recommended a midterm sentence for the voluntary manslaughter offense, the trial court imposed an upper term sentence based in substantial part on the fact the plea bargain reduced a murder to a manslaughter and precluded consecutive terms, resulting in a lower possible sentence than the trial court thought defendant's conduct deserved. (Id. at pp. 209, 213-214.) The appellate court reversed and remanded for resentencing, explaining that, if a trial court finds a plea bargain unacceptable, the trial court's remedy is to reject it. The trial court may not directly or indirectly violate it. Accordingly, the trial court may not use the fact of a plea bargain to aggravate a sentence. Instead, the court must base its sentencing decision on the circumstances of the offense and the defendant's role in the offense. (Id. at p. 216.)

Here, the trial court did not use the fact the jury convicted Macon of a lesser offense to aggravate Macon's sentence or otherwise circumvent the jury's verdict. Rather, the trial court considered the circumstances of Macon's offense and Macon's role and properly determined they were no more mitigating than reflected in the jury's verdict. Accordingly, Green does not necessitate a remand for resentencing in this case.

C

Macon further contends the trial court abused its discretion in imposing an upper term sentence for the voluntary manslaughter offense because the trial court improperly relied on Macon's personal use of a firearm to impose both this sentence and the companion firearm enhancement. Generally, a trial court may not impose an aggravated sentence based solely on a fact used to impose an enhancement. (People v. Scott (1994) 9 Cal.4th 331, 350; 1170, subd. (b); rule 4.420(c).) Consequently, a trial court may not aggravate a sentence if the only factual support for aggravating circumstances is firearm use and the trial court also imposes a firearm use enhancement. (People v. Coleman (1989) 48 Cal.3d 112, 164-165; People v. Alvarado (1982) 133 Cal.App.3d 1003, 1028.) Nevertheless, a trial court may impose an aggravated sentence based on a fact used to impose an enhancement considered in combination with other aggravating facts. (People v. Alvarado (2001) 87 Cal.App.4th 178, 195; see also, People v. Dancer (1996) 45 Cal.App.4th 1677, 1693-1694, disapproved on another ground in People v. Hammon (1997) 15 Cal.4th 1117, 1123; People v. Estrada (1986) 176 Cal.App.3d 410, 418-419.)

In this case, the trial court found Macon's voluntary manslaughter offense to be aggravated because it involved planning and sophistication. As factual support for this finding, the trial court noted Macon went out the night of the shooting wearing a bulletproof vest and carrying a loaded handgun. This finding does not offend the proscription against dual use of facts because it is based on Macon's preparation to use a firearm, and not his actual use of firearm.

The trial court also found Macon's offense to be aggravated because it involved great violence and Macon represents a serious danger to society. Although the trial court did not specify a factual basis for these findings, we cannot conclude from the record that the findings were based solely on Macon's firearm use. Rather, the record shows a particularly aggravating aspect of Macon's offense was that it occurred on a public road in a partially residential neighborhood placing innocent motorists, residents, and bystanders at substantial risk of harm. Reliance on Macon's firearm use in combination with these circumstances also does not offend the proscription against dual use of facts. (People v. Alvarado, supra, 87 Cal.App.4th at p. 195.)

Moreover, even if the trial court improperly relied on Macon's firearm use to support its findings in aggravation, we conclude the surrounding circumstances are sufficiently aggravated that it is not reasonably probable the trial court would have imposed a more favorable sentence absent the error. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Alvarado, supra, 87 Cal.App.4th at pp. 195-196.) In view of our conclusion, we need not address the People's forfeiture contention or Macon's contention that his trial counsel provided ineffective assistance by failing to object to the trial court's consideration of Macon's firearm use to determine the sentence for Macon's voluntary manslaughter offense.

II

In addition to imposing an upper term sentence for Macon's voluntary manslaughter offense, the trial court imposed an upper term sentence for the companion firearm enhancement because Macon's testimony and other evidence showed Macon fired his handgun multiple times. Macon contends the trial court erred in imposing the upper term for the enhancement because the trial court based its decision on an aggravating fact not found to be true by the jury. In addition, he contends he was deprived of the trial court's informed exercise of its sentencing discretion because the trial court did not recognize the enhancement's sentencing scheme had a presumptive middle term, which required the trial court to weigh mitigating and aggravating circumstances before imposing an upper term. He also contends the trial court abused its discretion in imposing the upper term for the enhancement because his firearm use was not distinctively worse than ordinary.

At the time the trial court sentenced Macon, the sentencing scheme for the firearm enhancement provided in part that "[i]f an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation, and state the reasons for its sentence choice, other than the middle term, on the record at the time of sentencing." (Former 1170.1, subd. (d), amended by Stats. 2009, ch. 171, 5.) Under this sentencing scheme, a trial court could not constitutionally impose an upper term sentence based on a fact that the defendant had not admitted or the jury had not found to be true beyond a reasonable doubt. (Cunningham v. California (2007) 549 U.S. 270, 292-293 (Cunningham).) In this case, however, Macon effectively admitted firing multiple gunshots at Griffin's car when he testified he "started firing" at Griffin's car after Griffin pointed a firearm at him. Therefore, the trial court's use of this fact to impose the upper term for the firearm enhancement did not violate Cunningham.

As for Macon's contention that he was deprived of the trial court's informed exercise of sentencing discretion, it is not entirely clear from the record whether the trial court knew the sentencing scheme for the enhancement, unlike the sentencing scheme for the substantive offense, required it to weigh mitigating and aggravating circumstances before imposing an upper term sentence. (People v. Lincoln (2007) 157 Cal.App.4th 196, 205-206.) Even if the trial court did not know this, the record shows the trial court knew it had three sentencing choices, knew its choice depended on the gravity of Macon's conduct, and it determined the gravity of Macon's conduct warranted an aggravated sentence. This determination was not an abuse of discretion because, for the reasons previously discussed in part I, ante, the record shows Macon's use of a firearm was distinctively worse than ordinary. Accordingly, we conclude any misunderstanding of the sentencing scheme requirements on the trial court's part does not require resentencing as the record shows the trial court would have reached the same decision absent the misunderstanding. (People v. Fuhrman (1997) 16 Cal.4th 930, 944; People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) In view of our conclusion, we need not address the People's forfeiture contentions or Macon's contention that his trial counsel provided ineffective assistance by failing to object to the imposition of an upper term sentence for the enhancement.

III

When Macon committed the offenses in this case, the determinate sentencing law provided in part that "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order the imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime." (Former 1170, subd. (b), amended by Stats. 2007, ch. 3, 2.) Prior to Macon's sentencing, the state Legislature amended this code section in response to the United States Supreme Court's decision in Cunningham. The amended statute now provides that "the choice of the appropriate term shall rest within the sound discretion of court." ( 1170, subd. (b).) The amended statute permits a trial court to impose an upper term sentence for an offense without the constitutional constraints Cunningham found applicable to the former statute. The trial court applied the amended statute when it sentenced Macon.

Solely for purposes of later federal court review, Macon contends the retroactive application of the amended statute violates the due process and ex post facto clauses of the federal constitution. Macon acknowledges the California Supreme Court has rejected this contention. (People v. Sandoval (2007) 41 Cal.4th 825, 836.) He also acknowledges the California Supreme Court's decision is binding on this court. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we need not address this contention further. We also need not address Macon's contention that his sentence for the voluntary manslaughter offense violated Cunningham as this contention assumes the trial court could not retroactively apply the amended sentencing statute to him.

IV

Macon contends the restitution and parole revocation fines must be stricken from the trial court's minutes and the abstract of judgment because the trial court never orally pronounced these fines. Macon further contends the People may not seek correction of the error because the imposition of the fines is a discretionary sentencing choice and the People forfeited review of the error by failing to raise it at the sentencing hearing. We agree.

"Under subdivision (b) of Penal Code section 1202.4, a trial court must impose `a separate and additional restitution fine' as part of the judgment of conviction entered against a criminal defendant, `unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.' If the `sentence includes a period of parole,' then the court must also impose a parole revocation fine `in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4.'" (People v. Smith (2001) 24 Cal.4th 849, 851 (Smith), fn. omitted.)

To impose these fines, the trial court must include them in its oral pronouncement of sentence. (People v. Zackery (2007) 147 Cal.App.4th 380, 386-387 (Zackery).) If the trial court does not include the fines in its oral pronouncement of sentence, the court clerk may not include the fines in the court's minutes or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; Zackery, supra, at pp. 387-388.) If the clerk does so, the fines must be stricken from the minutes and the abstract of judgment. (Zackery, supra, at pp. 387-389.)

Moreover, the imposition of the restitution fine is a discretionary sentencing choice subject to forfeiture principles. (Smith, supra, 24 Cal.4th at pp. 852-853.) Because the People did not object at the sentencing hearing to the trial court's omission of the restitution fine, the People have forfeited appellate review of the error. (Id. at p. 853.) The People have also effectively forfeited appellate review of the trial court's omission of the parole revocation fine as the law requires the parole revocation fine to match the restitution fine. (Ibid.) Consequently, we are barred from correcting the error. (Id. at pp. 852-853; People v. Tillman (2000) 22 Cal.4th 300, 303 (Tillman).)

Although the People acknowledge this bar, the People contend the Legislature's enactment of section 1202.46 overrides it. Section 1202.46 generally provides that, when the amount of a victim's economic losses cannot be determined, the trial court has continuing jurisdiction to impose or modify a victim's restitution order until the victim's economic losses can be determined. Section 1202.46 further provides that "Nothing in this section shall be construed as prohibiting a victim, the district attorney, or a court on its own motion from requesting correction, at any time, of a sentence when the sentence is invalid due to the omission of a restitution order or fine without a finding of compelling and extraordinary reasons pursuant to Section 1202.4." The People contend this latter provision eliminates the case authority obstacles to our ability to order the error corrected. We disagree.

The California Supreme Court decided both the Tillman and Smith cases after the effective date of section 1202.46. Therefore, contrary to the People's assertion, section 1202.46 has not legislatively overruled these cases and they are still good law. (People v. Turrin (2009) 176 Cal.App.4th 1200, 1208, fn. 3.)

Zackery is of no assistance to the People as Zackery does not discuss Tillman, Smith, the forfeiture issue, or the impact of section 1202.46 on Tillman, Smith, or the forfeiture issue. "It is axiomatic, of course, that a decision does not stand for a proposition not considered by the court." (People v. Harris (1989) 47 Cal.3d 1047, 1071.)

People v. Moreno (2003) 108 Cal.App.4th 1 (Moreno) is also of no assistance to the People as it dealt with the trial court's failure to award victim restitution. Unlike the imposition of a restitution fine, an award of victim restitution is not a discretionary sentencing choice. The trial court must award victim restitution or the sentence is unauthorized and invalid. (Id. at p. 9.) The forfeiture bar to appellate review discussed in Tillman and Smith does not apply to unauthorized and invalid sentences. (Smith, supra, 24 Cal.4th at pp. 852-853.)

Further, as the Moreno court explains, section 1202.46 "does not purport to define when a sentence is valid or invalid, it says only that a sentence that is invalid for lack of a restitution provision may be corrected at any time." (Moreno, supra, 108 Cal.App.4th at p. 10.) The trial court's omission of the restitution and parole revocation fines in this case did not render Macon's sentence invalid. (Smith, supra, 24 Cal.4th at pp. 852-853.) Accordingly, 1202.46 does not apply to authorize us to order the error corrected.

DISPOSITION

The trial court is ordered to correct its minutes from the sentencing hearing of December 4, 2008, and the abstract of judgment by striking the references to the imposition of restitution and parole revocation fines. The trial court is further ordered to forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

WE CONCUR.

HUFFMAN, J.

McDONALD, J.


Quote:
Hearing postponed for (Patrick) Macon in two SB homicides

By Mike Cruz
04/07/2010

A preliminary hearing for Patrick Shaun Macon, who faces charges in two San Bernardino homicides, was postponed to next month.

Macon, 30, was scheduled for the hearing today in San Bernardino Superior Court, when the defense requested a continuance, said court personnel. The defendant returns to court May 5 to confirm readiness for the preliminary hearing on May 7.

At a preliminary hearing, a judge listens to witness testimony to determine if sufficient evidence exists to hold over the defendant for trial on the charges.

Macon was returned to San Bernardino, from state prison, and has been charged by prosecutors with the deaths of 28-year-old Aaron Hines in May 2003 and 21-year-old Joshua Joell Stanton three years later, according to court records.

The two cases were linked to the defendant through investigation by the San Bernardino Police Department's two-man Cold Case Homicide Unit.

Stanton, of Rialto, was shot dead in the 1600 block of West 10th Street, in San Bernardino, on August 12, 2006. Residents in the area told police that an argument erupted at a gathering near West 10th and Tiajuana streets.

In the second case, Hines, of San Bernardino, was shot in the 1500 block of West Gilbert Street, in San Bernardino, on May 15, 2003. He was with several other men near a vehicle parked on the street, when someone pulled out a gun and shot Hines shortly before 10 p.m., according to police.

Macon faces two counts of murder, including special
allegations for the use of a handgun, in the two new cases, court records indicate.
In December, Macon was sentenced to 23 years and four months in state prison. A jury found the defendant guilty of voluntary manslaughter and attempted voluntary manslaughter in the shooting of Edward Griffin inside a car at Medical Center Drive and Ninth Street, in San Bernardino, on Feb. 9, 2007. Another man was in the car with Griffin.


Quote:
JUNE 19, 2010

Patrick Shaun Macon is scheduled to appear in San Bernardino Superior court on July 6, 2010 for a disposition hearing. The 08:30 proceeding will be heard by Judge Dest with deputy district attorney Lisa Rogan handling the affairs of the prosecution. Court room number S23.



Quote:
August 18, 2010

Superior Court Judge Harold Wilson ruled at a preliminary hearing that there is sufficient evidence against Patrick Macon, 30, to sustain the dual counts, which also include gang and firearm allegations. Macon remains jailed without bail.

New witness information allowed detectives to arrest Macon last year in the May 15, 2003 fatal shooting of Aaron Hines, 28, and the Aug. 12, 2006 slaying of Joshua Stanton, 21, both on San Bernardino's Westside. Both crimes are believed to be gang-related.

At the time of charges, Macon was serving a 23-year prison sentence for manslaughter in the February 2007 killing of Edward Griffin, another rival gang member. Police said that Macon, who has denied the crimes, was long one of the city's most feared gang members.


Quote:

NOVEMBER 3, 2010

Murder charges dropped against shooting suspect

Prosecutors dropped murder charges against Patrick Shaun Macon, who was charged with two separate San Bernardino homicides, after having problems getting cooperation from witnesses, according to the District Attorney's Office.

However, prosecutors can still charge the 30-year-old Macon again at a later date. In the meantime, Macon is serving a 23-year sentence in state prison after a jury found him guilty in December 2008 in the shooting of Edward Griffin.

Murder charges in the shooting deaths of 28-year-old Aaron Hines and 21-year-old Joshua Stanton were dismissed Oct. 25 in San Bernardino Superior Court, according to court records.

Hines, of San Bernardino, was shot shortly before 10 p.m. in

the 1500 block of West Gilbert Street, in San Bernardino, on May 15, 2003. He was inside a vehicle parked on the street with several other men nearby.

Stanton, of Rialto, was shot dead in the 1600 block of West 10th Street, in San Bernardino, on August 12, 2006.

An argument erupted at a gathering of about 200 people at a home near West 10th and Tiajuana streets when gunshots rang out, police said.

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