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Court of Appeal, Fourth District, Division 1, California.

The PEOPLE, Plaintiff and Respondent, v. Ernesto HERNANDEZ, Defendant and Appellant.

Cr. 11844.

Decided: June 16, 1981

Katya Giritsky for defendant and appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Michael D. Wellington, and A. Wells Petersen, Deputy Attys. Gen., for plaintiff and respondent.

Ernesto Hernandez was sentenced to prison for a total unstayed term of 20 years after a jury convicted him of one count of robbery (Pen.Code, s 211),1 four counts of robbery while using a firearm (s 12022.5), two counts of robbery with use allegations plus inflicting great bodily injury (s 12022.7), one count of assault with a deadly weapon (s 245, subd. (a)), one count of assault with a deadly weapon with use allegations, one count of assault with intent to commit murder (s 217) with use and great bodily injury allegations, and one count of mayhem (s 203) with a use allegation.2

The specific question before us is whether the robberies and assaults enhanced with firearm use and/or great bodily injury fell under section 667.5, subdivision (c). If they do, the total of subordinate terms for consecutive offenses may exceed five years.3 If they do not, the maximum subordinate terms for such offenses may not exceed five years. In order to answer what appears to be an easy question, some historical perspective is helpful.

Section 667.5, subdivision (c), when first enacted was thought to include what the jargon would soon call the “dirty nine” violent felonies consisting of seven specific felonies plus any felony in which the defendant inflicted great bodily injury or used a firearm. The legislative intent under section 1170.1, subdivision (a), appeared to be that section 12022, 12022.5, 12022.6 or 12022.7 enhancements could be included in determining the subordinate term and the five year maximum for all consecutive sentences would not apply. This naive assumption was laid to rest in November of 1979 when in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, our Supreme Court held that “properly construed, section 1170.1, subdivision (a), permits enhancement only for those specific offenses listed in Section 667.5, subdivision (c).” (Id., at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396.) Harvey thus erased section 667.5, subdivision (c)(8) from the statute and the “dirty nine” became the “dirty seven.”

The Legislature, motivated by what they considered a misinterpretation of their intent, quickly responded by enacting Assembly Bill No. 2123 on May 29, 1980 to clearly articulate their purpose for enacting section 1170.1. This bill amended section 1170.1 to apply to every violent felony falling within the ambit of 667.5, not simply those specifically listed.4 The act was “intended to clarify and reemphasize what has been the legislative intent since July 1, 1977 (the date on which 1170.1 and 667.5 became effective).” (Stats., 1980, ch. 132, s 1(c), p. 463.)

In this setting, it is certainly understandable how appellate courts presented with the same issue as the one before us have managed to disagree. People v. Childs (1980) 112 Cal.App.3d 374, 159 Cal.Rptr. 183, hearing denied February 11, 1981, followed the rationale of Harvey also concluding the new legislation was not retroactive. The court said,

“Although People v. Harvey, supra, dealt specifically with the validity of enhancements for firearm use in consecutive sentences, we see no reason to confine its reasoning to issues of enhancement. Even though the final sentence of subdivision (a) of section 1170.1 deals with subordinate terms for consecutive offenses and not merely enhancement of those terms, it refers to section 667.5, a statute exclusively concerned with enhancements. If subordinate terms for consecutive robberies cannot be enhanced, they cannot be considered exceptions to the five-year limitation for consecutive sentences.” (Id., at pp. 388-389, 169 Cal.Rptr. 183.)


“Although section 1, subdivision (c) of Assembly Bill 2123 states that the act is ‘intended to clarify and reemphasize what has been the legislative intent since July 1, 1977,’ section 4 merely states that the bill is to take ‘immediate effect.’ If the Legislature intended the amendment to have a retroactive effect, it should have expressly so declared. Accordingly, we find that the Harvey decision must apply to offenses committed prior to May 29, 1980. (Accord, People v. Matthews (1980) 108 Cal.App.3d 793, 796 (167 Cal.Rptr. 8).)” (Id., at p. 390, 169 Cal.Rptr. 183.)

Thus, Mr. Childs received the benefit of the five-year limitation of section 1170.1, subdivision (a), because his robberies with firearm use were not listed in section 667.5, subdivision (c).

Two other appellate courts in different districts declined to follow Childs concluding robberies with firearm use fell within section 667.5, subdivision (c). In denying hearings in those cases, our Supreme Court directed the reporter of decisions not to publish the opinions in the official reports pursuant to California Constitution, Article 6, section 14, and rule 976 of California Rules of Court. (See In re Rodriguez (Crim.No. 21437, 1st Dist., Div. 1, Jan. 2, 1981, mod. Jan. 30, 1981, hg. den. Feb. 25, 1981) and People v. Harvey (Crim.No. 9889, 3rd Dist., Dec. 31, 1980, mod. Jan. 5, 1981, hg. den. Mar. 31, 1981.)5 Thus, defendants Harvey and Rodriguez are imprisoned without the benefit of the five-year lid.

We now reach the case before us. It would be simple enough for us to adopt the reasoning of Childs and give Hernandez the benefit of that holding. Frankly, we do not do so because we do not think the logic of Childs is persuasive. We could also repeat, either in published or unpublished fashion, the analysis set out in the two cases which have since been ordered nonpublished in a public display of our intellectual independence while concurrently making sure Hernandez receives the full measure of his punishment which his conduct clearly warrants. We are reluctant to take this course, for if Childs is good precedent, having been impliedly approved by our Supreme Court through the denial of a hearing in that case on February 11, 1981, and the depublishing of Rodriguez and Harvey, we are bound to follow it. We are also at somewhat of a loss as to what is to be gained by repeating the same arguments previously made and apparently rejected when the Harvey and Rodriguez cases were nonpublished.

In this setting, we admit to being in an intellectual quandary which we have decided to resolve by looking to the ultimate facts following our historical narration. Simply stated, one defendant (Childs) is outside the scope of section 667.5, subdivision (c), and two other defendants (Rodriguez and Harvey) are within its scope. This result is surely inconsistent with our maxim that all persons should be treated equally under the law. As a result of different holdings, each of which is the law of the case involved, the determinate five-year limitation has become uncertain and 1170.1, subdivision (a), remains ambiguous. Because of this uncertainty and ambiguity considered in light of the requirement that a defendant is entitled to every reasonable doubt, including the interpretation of a statute, we must interpret the section in Hernandez' favor. (See People v. Davis (1980) 103 Cal.App.3d 270, 279, 163 Cal.Rptr. 22.) Thus, we reach the same result as Childs, but for different reasons. We might add we reach this conclusion most reluctantly and urge the Supreme Court to vacate this opinion not by directing its nonpublication, but by granting a hearing to clarify this troublesome issue.


The superior court is directed to modify the abstract of judgment to reduce defendant's subordinate term of 10 years to 7 years reducing the total unstayed term of 20 years to 17 years. Except as so modified, the judgment is affirmed.


1.  All statutory references are to the Penal Code unless otherwise specified.

2.  The sentence was computed as follows:Principal term Upper term of five years for robbery plus two years (s 12022.5) plus three years (s 12022.7). (10 years.)Subordinate term (each to be served consecutively) two years for mayhem with firearm use; one year for each of four counts of robbery with a use allegation (4 years); one year for robbery; one year for assault with a deadly weapon; one year for assault with a deadly with a use allegation; and one year for a robbery with use and great bodily injury allegations. (10 years.) Total 20 years.A few additional words are appropriate to express our appreciation for the highly skilled trial judge who was of invaluable assistance in making this very complete record. We marvel at the manner in which the trial bench has assimilated the complexities of the new math of sentencing and the patience with which it deals with appellate decisions which probably obfuscate rather than illuminate. The trial judge here, the author of “Simple Analysis of Procedures for Determinate Sentencing” CJER, 1981 Appellate Courts Institute, part of the source material used by us in this case and which we will undoubtedly use in other cases, anticipated the problem raised in this appeal by writing to counsel asking them to argue the effect of Harvey. At the sentencing hearing the judge said that Harvey did not apply, but if he were incorrect the additional years of the sentence could be eliminated on appeal. Our analysis of the issue raised is made easier by the diligence of the trial judge and the assistance given him by the thorough points and authorities submitted by respective counsel.

3.  Subdivision (a) of section 1170.1, in effect at the time of the offenses committed here, provided: “(a) Except as provided in subdivision (b) and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all such convictions shall be the sum of the principal term, the subordinate term and any additional term imposed pursuant to Section 667.5. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any enhancements imposed pursuant to Section(s) 12022, 12022.5, 12022.6, (and) 12022.7. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall exclude any enhancements when the consecutive offense is not listed in subdivision (c) of Section 667.5, but shall include one-third of any enhancement imposed pursuant to Section 12022, 12022.5 or 12022.7 when the consecutive offense is listed in subdivision (c) of Section 667.5. In no case shall the total of subordinate terms for consecutive offenses not listed in subdivision (c) of Section 667.5 exceed five years.”

4.  This subsumes into section 1170.1's definition of violent felony, the “catchall” paragraph of section 667.5:“(8) Any other felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5.”

5.  We interpret California Rules of Court, rule 977, prohibiting the citation of an unpublished opinion as not precluding us from referring to Supreme Court action where essential to a complete statement of the history of facts which we believe to be important to our disposition.

WIENER, Associate Justice.

COLOGNE, Acting P. J., and WORK, J., concur.