PEOPLE v. HARVEY (1980)

Defendant appeals from the judgment entered after he pleaded guilty to seven counts of robbery (Pen. Code, s 211), one count of kidnaping (Pen. Code, s 207), one count of being a convicted felon in possession of a concealable firearm (Pen. Code, s 12021), and admitted the use of a firearm in the commission of each of the robberies and the kidnaping (Pen. Code, s 12022.5). Prison terms were imposed on all counts, the seven robbery terms to be served consecutively to the principal term for kidnapping.

Defendant's crimes were committed in the period November 8 to December 13, 1977. Defendant was apprehended December 22, 1977.

Evidence essential to proof of one of the robbery counts was seized in a vehicle search on November 11, 1977. Defendant's motion to suppress was denied.

On November 11, 1977, a stolen Oldsmobile driven by defendant in the course of the kidnapping offense struck a vehicle driven by Sergio Argau. Argau followed the Oldsmobile after the kidnap victim escaped. Two shots were fired from the Oldsmobile before it violated a traffic signal and collided with a pickup truck in an intersection.

Sheriff's Deputy Rye went to the accident scene in response to a broadcast report of an accident and shots being fired. The Oldsmobile had extensive damage and was unable to move under its own power. It had been abandoned by defendant who had fled the scene. Rye and his partner, Officer Horn, checked inside the vehicle and found three cases in the passenger compartment, one of which contained three handguns. The keys were in the ignition and were used to open the trunk; inside, the officers found three handguns wrapped in plastic and a sawed-off shotgun. A green ski mask, a length of white cord, and a blue-green plaid grip bag were also found in the car.

Officers Rye and Horn had probable cause to conduct a search of the Oldsmobile for weapons. They were informed that the Oldsmobile had been involved in a shooting and after the intersection accident its occupant had fled the scene. This information, combined with their own observations, was sufficient to lead a man of ordinary caution and prudence to believe, and conscientiously to entertain, a strong suspicion that a firearm was in the vehicle.

The presence of inherently dangerous objects such as firearms in an automobile can justify an immediate search. (People v. Vodak (1980) 105 Cal.App.3d 1014, 1018, 164 Cal.Rptr. 785; see also People v. Hill (1974) 12 Cal.3d 731, 747-748, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872.) Moreover, abandonment of the Oldsmobile and its contents after the accident permitted the officers to search the vehicle without infringing any constitutional rights. (Cady v. Dombrowski (1973) 413 U.S. 433, 446, 93 S.Ct. 2523, 2530, 37 L.Ed.2d 706, 717-718; People v. Smith (1966) 63 Cal.2d 779, 800-801, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Superior Court (1972) 23 Cal.App.3d 1004, 1010, 100 Cal.Rptr. 604; see People v. Drake (1966) 243 Cal.App.2d 560, 564, 52 Cal.Rptr. 589, cited with approval in People v. Gale (1973) 9 Cal.3d 788, 796-797, 108 Cal.Rptr. 852, 511 P.2d 1204.)

Defendant's reliance upon People v. Minjares (1979) 24 Cal.3d 410, 153 Cal.Rptr. 224, 591 P.2d 514 is misplaced. There a driver, who had been arrested in his car, was in custody and the automobile in exclusive police control when the search of the vehicle and its contents were undertaken. Unlike the instant case where a stolen vehicle and its contents were abandoned after an intersection collision, the search in Minjares invaded an area in which the driver's continued expectation of privacy was manifest and conditions excusing the necessity for a warrant did not obtain.

The People concede that the court erred in utilizing the enhancements for use of a firearm in imposing consecutive sentences for the seven robbery convictions. (People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396; there is no apparent relationship between defendant herein and the defendant in the Harvey case.) Harvey held that Penal Code section 1170.1, subdivision (a), permits enhancement for firearm use of a consecutive term only when the term is imposed for one of the specific offenses listed in subdivision (c) of Penal Code section 667.5. (All further statutory references are to sections of the Penal Code.) Robbery is not included among those specifically enumerated felonies; neither is robbery with firearm use “listed” for purposes of enhancing a consecutive term imposed for that crime despite the reference in paragraph (8) of subdivision (c) of section 667.5 to “(A)ny other felony in which the defendant uses a firearm which use had been charged and proved as provided in s 12022.5.” (Id., at pp. 759-761, 159 Cal.Rptr. 696, 602 P.2d 396.) Accordingly, the firearm use enhancements of the consecutive robbery terms must be disregarded in computing the consecutive terms.

The aggregate term imposed by the court for the seven consecutive robbery offenses totals eleven and two-thirds years (one-third of the three-year middle term equals one year times seven equals seven years; one-third of the two-year enhancement for firearm use equals eight months times seven equals four and two-thirds years; seven plus four and two-thirds equals eleven and two-thirds years). Striking the firearm use enhancements will reduce the total of the subordinate terms to seven years.

Relying on the Supreme Court's interpretation of section 1170.1, subdivision (a), in People v. Harvey, supra, defendant maintains there must be a further reduction in the total of subordinate terms to five years.

Sentencing on multiple counts is governed by section 1170.1, subdivision (a), which at the time defendant was sentenced, provided in pertinent part: “ the aggregate terms of imprisonment for all such convictions shall be the sum of the principal term, (and) the subordinate term 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 Sections 12022, 12022.3, 12022.5, 12022.6, or 12022.7, 12022.8. 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.” (Emphasis added.)

As has been seen, People v. Harvey, supra, held that for purposes of enhancing a consecutive term for firearm use, robbery with firearm use is “not listed” in section 667.5. The question we must determine is whether robbery with firearm use is similarly “not listed” in section 667.5 for purposes of limiting to no more than five years the total of consecutive terms imposed. First impressions to the contrary, the Harvey decision does not supply a ready answer.

Section 667.5 has to do with enhancements for service of prior prison terms. Defendants with prior terms for so-called “violent felonies” are more severely dealt with. For such purposes, “violent felonies” are those described in subdivision (c) of section 667.5. The only specific felonies listed therein appear in paragraphs one through six and include murder and voluntary manslaughter, mayhem, forcible rape, forcible sodomy, forcible oral copulation and violation of section 288; paragraph (8) lists “Any other felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5.” Thus the more severe enhancement called for by service of certain prior prison terms applies, inter alia, where the prior term was for any of the specifically identified felonies irrespective of firearm use, as well as for any other felony with firearm use. Robbery with firearm use is presumably included in the latter category.

The definition of violent felonies in subdivision (c) of section 667.5 is expressly assimilated into subdivision (a) of section 1170.1 governing imposition of sentence for multiple felony convictions. Literal adherence to the definition in the latter context can lead to what the Harvey court found to be “troublesome anomoly” (People v. Harvey, supra, 25 Cal.3d at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396). Subdivision (a) of section 1170.1 mandates enhancement of a consecutive term for firearm use but only if the crime for which the term is imposed is a violent felony as defined in subdivision (c) of section 667.5. Applying that definition literally, every felony in which firearm use has been charged and proved is a violent felony. Such strict application is inconsistent however with the proscription of subdivision (a) of section 1170.1 against firearm use enhancement of a consecutive term imposed for an offense “not listed” in subdivision (c) of section 667.5 and renders superfluous the references in the latter section to certain specific felonies. Acknowledging that the question is “close and subtle” (p. 761, 159 Cal.Rptr. 696, 602 P.2d 396) the Harvey court found “the evident legislative intent underlying section 1170.1, subdivision (a), was to allow enhancement of the consecutive offense only in certain limited situations, namely, where the conduct for which such enhancement is sought (e. g., firearm use) occurred in the course of commission of a violent felony (such as murder, mayhem, rape, etc.). We think it unlikely that the Legislature intended to impose an enhancement for firearm use in every case involving such (factor), given the statutory reference in section 1170.1, subdivision (a), to section 667.5.” (Original emphasis; People v. Harvey, supra, 25 Cal.3d at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396.)

It is not necessary in the instant circumstances to limit the literal scope of the statutory definition of a violent felony in order to avoid the anomaly that troubled the Harvey court. That anomaly arose from legislative admixture of two provisions inherently inconsistent in their treatment of firearm use. Section 667.5, subdivision (c), literally provides that all felonies in which a firearm is used are violent. Although section 1170.1, subdivision (a), mandates enhancement for firearm use of consecutive sentences for violent felonies in which a firearm is used, it also expressly contemplates that not all felonies in which a firearm is used are to be so enhanced, i. e., it clearly implies that not all such felonies are violent.

In contrast, the statutory definition of violent felonies, literally construed, is in no way inconsistent or incompatible with the five-year limitation of section 1170.1, subdivision (a), upon the total of subordinate terms imposed for nonviolent felonies. Since the related provisions are harmonious, there is no reason not to abide by the clear letter of the statute and implement the legislative intent manifest therein, i. e., that the more violent crimes, including those in which a firearm is used, be the more severely punished. A defendant whose consecutive offenses come within any of the categories described in subdivision (c) of section 667.5 is therefore not entitled to the benefit of the five-year limitation on the total of consecutive terms. More specifically, this defendant, whose consecutive terms are for robbery with firearm use and are thus violent felonies within paragraph eight of subdivision (c) of section 667.5, is not entitled to the benefit of the five-year limitation in section 1170.1, subdivision (a), on the total of subordinate terms.

Defendant correctly asserts, and respondent concedes, that his prior convictions for robbery in Santa Barbara County on September 20, 1973, and for kidnapping in San Luis Obispo County on December 17, 1969, were served as parts of a continuous term of imprisonment. Under these circumstances, the court erred in imposing an additional one-year term for each of the foregoing priors; rather it should have imposed but a single additional year. (s 667.5, subds. (e), (g); see People v. Williamson (1979) 90 Cal.App.3d 164, 171-172, 153 Cal.Rptr. 48.)

The judgment is modified by striking one year from the enhancement imposed for prior prison terms served and by excluding the firearm use enhancements in the calculation of each individual consecutive term but not insofar as said enhancements serve to define as violent felonies the offenses for which consecutive terms are imposed for the purpose of rendering inapplicable the five-year limitation of section 1170.1, subdivision (a). The trial court is ordered to amend the abstract of judgment in the manner herein indicated and to send a certified copy thereof to the Director of the Department of Corrections.

As modified, the judgment is affirmed.

I dissent from the majority's reasoning and conclusions regarding (1) the search, and (2) the sentence.

I

The majority rules that the search, otherwise unconstitutional, comes within the “exigent circumstances” exception inasmuch as the items seized are inherently dangerous. Alternatively, the search was proper, says the majority, because the property searched (an automobile) had been abandoned and was not constitutionally protected. My analysis of the facts of this case and decisional law leads me to a contrary conclusion.

The Exigent Circumstances (inherently dangerous object) Exception

The majority concludes that the facts of this case were sufficient to lead a person of ordinary caution and prudence to entertain a strong suspicion that firearms were in a closed container in the automobile and in the trunk of the vehicle. Firearms, the majority tells us, are inherently dangerous objects. I agree neither with the “strong suspicion” analysis, nor with the notion that firearms, without more, come within the “inherently dangerous” exception.

That gunshots had been fired by those who fled the automobile forms no basis, in reason, for the notion that weapons would be found in a closed container in the passenger part of the automobile, or in the trunk. The fired weapon was being held by the gunman. Is it reasonable that the gunman (1) would take the time to place the weapon in a closed container; or (2) had placed another weapon in the trunk? In the hurried circumstances of the gunman's flight such a supposition stretches credulity.

And is a gun, in and of itself, the type of instrument which is so “inherently dangerous” as to be an exception to the constitutional mandate that officials must seek a search warrant? Common sense would indicate that an unloaded gun in a closed container poses no immediate threat. Does the decisional law cited by the majority, tell us otherwise? In People v. Vodak (1980) 105 Cal.App.3d 1014, 1018, 164 Cal.Rptr. 785, the court held that when “the items believed to be present were loaded weapons ” the officers could justify an immediate search of an automobile trunk. The police there had a report that the vehicle had been driven by persons involved in a burglary of shotguns and handguns; and, several fresh-smelling shotgun shells were observed in the automobile. The Vodak court held that, under the above circumstances, the belief that loaded weapons were in the trunk was reasonable and the objects were then and there inherently dangerous. The majority extends the concept to include unloaded weapons found in containers. We must approach extending exceptions to the constitutional protections conservatively. Only truly “exigent circumstances” should permit noncompliance with constitutional mandates. I do not find such an exigency in the facts of this case. The officials should have sought a search warrant as the Constitution commands.

The Abandonment

The constitutional protection from unlawful governmental searches applies, quite logically, only to an item in which the person concerned has some interest, whether it be a home, a box or a car. If the governmental authorities properly perceive that there is no interest, that any interest has been abandoned, they can properly search without infringing upon a person's rights. This makes sense. To abandon means: “to cease to assert or exercise an interest, right, or title to esp. (sic) with the intent of never again resuming or reasserting it : ” (Emphasis added; Webster's Third New International Dictionary (1971) p. 2.) We do not deal with an exception which permits the otherwise unlawful search; rather, we deal with the inapplicability of the constitutional protection against searches.

As I read the record, the facts tell us that the defendant suffered a collision as he was attempting to escape from the scene of the crime. The Oldsmobile, in which he had been driving was inoperable after the accident. Accordingly, the defendant fled on foot. That the vehicle had been stolen was not known to the police at that time. On these facts, the majority describes the automobile as having been “abandoned” thus permitting the search of containers in the passenger portion and of the trunk. This does not make sense to me. Certainly, the temporary leaving of a car to escape arrest does not come within the accepted meaning of abandonment. We appear to be faced with a typical case wherein the police should have sought a search warrant.¹ The issue is important, however; if we find abandonment on these facts, the exception would apply irrespective of whether it was later discovered that the vehicle was stolen.

The majority cites several authorities in support of the abandonment theory. None applies. Thus, Cady v. Dombrowski (1973) 413 U.S. 433, 446, 93 S.Ct. 2523, 2530, 37 L.Ed.2d 706, 717-718, deals with a search for a weapon in a disabled Thunderbird which had not been abandoned. People v. Smith, (1966) 63 Cal.2d 779, 800-801, 48 Cal.Rptr. 382, 409 P.2d 222, also deals with a vehicle, but there our Supreme Court dealt with an Avis Rent-A-Car which had been rented to use in a robbery, the license plates had been changed, and the vehicle abandoned two weeks prior to its impounding. It was abandoned immediately after the robbery and impounded approximately two weeks later as an abandoned vehicle on a public street. Finally, People v. Superior Court (1972) 23 Cal.App.3d 1004, 100 Cal.Rptr. 604, deals with an item abandoned by its deposit in an outside trash can. Relinquishment of all interest, found in the Avis Rent-A-Car or the trash-can incidents, simply does not apply to the case at bench.

II

People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, and its teaching, in my view, does supply the answer to the sentencing (consecutive terms) issue, though it deals with enhancements. The holding in Harvey interprets the relation of the two statutes in question as follows: “(S)ection 1170.1, subdivision (a), permits enhancement only for those specific offenses (original italics) listed in section 667.5, subdivision (c) (T)he offense of robbery with firearm use is not specifically listed in that latter section ” (Id., at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396.) Thus, for purposes of section 1170.1, subdivision (a), which deals with determining aggregate and additional terms and enhancement, we may not look to section 667.5. We are left with the language of section 1170.1, subdivision (a), which describes a “subordinate term” as consisting of “one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed ” The final sentence of section 1170.1, subdivision (a), reads: “In no case shall the total of subordinate terms for consecutive offenses not listed in subdivision (c) of Section 667.5 exceed five years.”

We cannot read section 1170.1, subdivision (a), aside from Harvey. The majority notes that the statutory definition of violent felonies (as found in section 667.5, subd. (c)), literally construed, is in no way inconsistent with the five-year limitation imposed for nonviolent felonies. Absent Harvey, the observation makes sense. However, as I note above, Harvey teaches that only the specific offenses listed in subdivision (c)(1) through (c)(7) (“(1) Murder or voluntary manslaughter. (2) Mayhem. (3) Rape (4) Sodomy by force (5) Oral copulation by force (6) Lewd acts on a child under 14 (7) Any felony punishable by death or imprisonment in the state prison for life.”) are to be considered; subdivision (c)(8), the “catchall paragraph” is not to be used to adversely affect the rights of defendants inasmuch as there are other more specific sections. The majority would hold that the same statutory language of section 1170.1, subdivision (a), read by Harvey as permitting the use only of the specific crimes can nonetheless be read to permit the use of the nonspecific list (i. e., “violent felonies” listed in subd. (c)(8)), for purposes of extending the subordinate terms for consecutive offenses beyond five years.

The reasoning by the majority is too convoluted to make sense. First, I note that the exact statutory words, already defined by the Supreme Court in Harvey, are given a different meaning by the majority (Harvey, I have noted, dealt with enhancements and we deal with consecutive terms). Those of us who have spent countless hours trying to figure out what these statutes mean, and all who have a role in enforcing these statutes (as well as the defendants) are ill served by this further factor of incomprehensibility. Second, the majority in reality accepts the rationale of the dissent in Harvey. The Harvey dissent holds to the views that section 667.5, subdivision (c), expressly includes a felony “in which the defendant uses a firearm” and accordingly rejects the notion that only the specific crimes should be used for enhancements. That is, the “catchall paragraph” should be included. The majority simply picks up on the reasoning of the dissent (already rejected by a 5 to 2 vote of the Supreme Court) and applies it to consecutive terms. The majority thus rules, contrary to the teachings (though not the specifics) of the Harvey majority and follows the teachings (though not the specifics) of the Harvey dissent. I cannot agree.

I would hold that the five-year maximum applies to subordinate terms for consecutive offenses.

FOOTNOTES

1.  Had the police known the vehicle was stolen, they could have lawfully searched the automobile itself though not the enclosed containers. (People v. Dalton (1979) 24 Cal.3d 850, 858, 157 Cal.Rptr. 497, 598 P.2d 467.)

PUGLIA, Presiding Justice.

REGAN, J., concurs.