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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. DAVID CHARLES MACON, Defendant and Appellant.


Decided: November 22, 2010

Tracy Gatlin, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.


David Charles Macon was charged by amended information with second degree robbery (Pen.Code, § 211),1 with special allegations a principal was armed with a firearm (§ 12022, subd. (a)(1)) and the robbery was committed for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)).  The information further alleged Macon had previously suffered a serious or violent felony conviction, making him subject to sentencing under the “Three Strikes” law (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) and section 667, subd. (a)(1);  and he had served two separate prison terms for felonies (§ 667.5, subd. (b)).

On the day his jury trial was set to begin, Macon and the prosecutor entered into a plea agreement that provided Macon would plead no contest to robbery and admit the prior strike conviction in return for a state prison sentence of six years.   Macon was assisted at the plea hearing by counsel.

At the time Macon entered his plea, he was advised of his constitutional rights and the nature and consequences of his plea.   Macon stated he understood and accepted the terms of the plea agreement.

Thereafter, Macon pleaded no contest to robbery and admitted the prior strike allegation.   Defense counsel joined in the waivers of Macon's constitutional rights and concurred in the plea and admission.   The trial court expressly found Macon's waivers, plea and admission were voluntary, knowing and intelligent.   The court found, and defense counsel stipulated to, a factual basis for Macon's plea and admission based on the arrest report and preliminary hearing transcript.

In accordance with the plea agreement, the trial court sentenced Macon to an aggregate state prison term of six years, consisting of double the middle three-year term for robbery pursuant to the Three Strikes law.   Macon received presentence custody credits of 1,189 days (1,034 actual days and 155 days of conduct credits).   The court ordered Macon to pay a $30 security assessment, a $30 court assessment fee and a $600 restitution fine.   A parole revocation fine was imposed and suspended pursuant to section 1202.45.   The remaining special allegations were dismissed on the prosecutor's motion.2

Macon filed a timely notice of appeal in which he checked the preprinted box indicating, “This appeal is based on the sentence or other matters occurring after the plea.”   Macon did not obtain a certificate of probable cause.   We appointed counsel to represent him on appeal.

After examination of the record counsel filed an opening brief in which no issues were raised.   On August 19, 2010, we advised Macon he had 30 days within which to personally submit any contentions or issues he wished us to consider.   We have received no response to date.

Section 1237.5, subdivision (a), provides a defendant may not appeal a judgment of conviction entered on a plea of guilty or no contest unless he or she has filed a statement with the trial court “showing reasonable constitutional, jurisdictional, or other grounds going to the legality of the proceedings,” and has obtained a certificate of probable cause for the appeal.  (See People v. Mendez (1999) 19 Cal.4th 1084, 1096.)   If, however, the appeal is based solely upon grounds occurring after entry of the plea that do not challenge its validity, such as sentencing issues, a certificate of probable cause is not required.  (Cal. Rules of Court, rule 8.304(b)(4)(B);  People v. Cuevas (2008) 44 Cal.4th 374, 379.)

With respect to the one issue specifically identified in the notice of appeal-his sentence-because the imposition of the six-year term was an integral part of his plea agreement, Macon cannot challenge his sentence without also attacking the validity of his plea.  (People v. Cuevas, supra, 44 Cal.4th at pp. 381-382;  People v. Panizzon (1996) 13 Cal.4th 68, 78.)   Thus, to the extent Macon's appeal purports to contest his six-year sentence, the notice of appeal is inoperative.   With respect to other potential sentencing or post-plea issues that do not in substance challenge the validity of the plea itself, we have examined the record and are satisfied Macon's attorney has fully complied with the responsibilities of counsel and no arguable issue exists.  (Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756];  People v. Kelly (2006) 40 Cal.4th 106;  People v. Wende (1979) 25 Cal.3d 436, 441.)


The judgment is affirmed.

We concur:  


FN1. Statutory references are to the Penal Code..  FN1. Statutory references are to the Penal Code.

FN2. The plea agreement included a consecutive one-year term (one-third the middle term) for custodial possession of a weapon (§ 4502, subd. (a)) in Los Angeles Superior Court case No. BA360997..  FN2. The plea agreement included a consecutive one-year term (one-third the middle term) for custodial possession of a weapon (§ 4502, subd. (a)) in Los Angeles Superior Court case No. BA360997.