IN RE: Raymond RODRIGUEZ (1981)

Petitioner Raymond Rodriguez seeks a writ of habeas corpus, contending that the trial court erred in computing his sentence.

On May 8, 1978, petitioner was convicted by a jury of five counts of robbery (Pen.Code, § 211) and four counts of possession of a firearm by an ex–felon (Pen.Code, § 12021).   Firearm use allegations in connection with four of the robberies were found to be true (Pen.Code, § 12022.5).

Petitioner was sentenced on June 6, 1978, to serve a total of 14 years, 8 months in state prison.   He appealed to this court and, in 1 Criminal 18402, filed June 19, 1979, we affirmed his conviction in all respects.

There then intervened our high court's decision in People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, and, having reference to the precepts of that decision, petitioner sought a writ of habeas corpus in the San Francisco Superior Court.   Such relief was denied on May 19, 1980;  the present petition was thereupon filed in this court and we issued an order to show cause on July 10, 1980, to which a return and a traverse were duly filed.

The facts material to the petition are not in dispute, and involve only the propriety of the calculation of petitioner's prison sentence in light of People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396.   That term was calculated as follows:

(1) Count One, robbery :  four years upper base term and an additional two–year use enhancement (principal term);

(2) Count Two, robbery :  three–year term with 24 months stayed:

(3) Count Five, robbery :  three–year term and an additional two–year use enhancement with 40 months stayed;

(4) Count Six, robbery :  four–year term and an additional two year use enhancement with 52 months stayed;

(5) Count Eight, robbery :  three–year term and an additional two–year use enhancement with 40 months stayed;  and

(6) Counts Ten, Eleven, Twelve and Fourteen, possession of a firearm :  two–year term with 16 months stayed for each count.

The subordinate terms were ordered to run consecutively to the principal term, and petitioner's first contention is that the subordinate use enhancements on counts five, six and eight are violative of Penal Code section 1170.1, subdivision (a).

That section (which, be it said, is no model of clarity) provides in relevant part that:

“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.”   (Emphasis added.)

The offenses listed in section 667.5, subdivision (c), for which enhancement is proper, include the “violent felonies” of murder, voluntary manslaughter, mayhem, rape, sodomy, oral copulation, lewd acts, felonies punishable by death or life imprisonment and, “(8) Any other felony in which the defendant inflicts great bodily injury on any person other than an accomplice ․ or any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5.”

Although not specifically listed, robbery with the use of a firearm could very well be deemed a violent felony under the broad language of paragraph (8).   If so, consecutive use enhancements would be proper.   This argument, however, was rejected by our Supreme Court in People v. Harvey, supra, 25 Cal.3d 754, 759–761, 159 Cal.Rptr. 696, 602 P.2d 396.

While the question was considered “close and subtle,” the court feared that “As so interpreted, section 1170.1 would permit enhancement for firearm use in any case involving firearm use, thereby seeming to render wholly unnecessary the section's specific statutory reference to the various violent felonies described in section 667.5, subdivision (c).”  (People v. Harvey, supra, 25 Cal.3d 754, 761, 159 Cal.Rptr. 696, 602 P.2d 396.)   Instead the court found that:  “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 is unlikely that the Legislature intended to impose an enhancement for firearm use or great bodily injury in every case involving such factors, given the statutory reference in section 1170.1, subdivision (a), to section 667.5.”   (People v. Harvey, supra, at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396.)

The court then held that, “․ properly construed, section 1170.1, subdivision (a), permits enhancement only for those specific offenses listed in section 667.5, subdivision (c).   Because the offense of robbery with firearm use is not specifically listed in that latter section, we conclude that the trial court erred in imposing an additional eight–month enhancement for that offense in the present case.  (Accord, People v. Williamson (1979) 90 Cal.App.3d 164, 171, 153 Cal.Rptr. 48.)”  (People v. Harvey, supra, at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396.)

 Under the compulsion of the rule of Harvey, therefore, we agree that additional and consecutive use enhancements are improper for robbery with the use of a firearm.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

Respondent concedes that this conclusion would be mandated if Harvey were still valid, but claims that recent legislation has invalidated the Harvey decision.

As amended, effective May 29, 1980, section 1170.1, subdivision (a) reads:

“The subordinate term for each consecutive offense which is a ‘violent felony’ as defined in subdivision (c) of section 667.5, including those described in paragraph (8) of subdivision (c) of section 667.5 shall consist of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one–third of any enhancement imposed pursuant to sections 12022, 12022.5, and 12022.7.”  (Emphasis added.)

The Legislative Counsel's Digest states that:  “․ existing statutory law has been interpreted by judicial decision to exclude specific violent felonies from calculation of a subordinate state prison term.”  [¶ ]  “This bill would provide and express the legislative intent that such violent felonies be included in such calculation.”

To further stress its view that the tack taken by the Harvey court was erroneous, the Legislature added that:  “This act is intended to clarify and reemphasize what has been the legislative intent since July 1, 1977.”   (Emphasis added.)  (Assem. Bill No. 2123, § 1(c).)

Respondent argues that Harvey was aberrational;  that its application to this case would allow the “judicial branch to ride roughshod over the legislative branch;”  that Assembly Bill No. 2123 is merely a reaffirmation of the law as it existed when petitioner committed the crimes for which he was convicted;  and that application of Assembly Bill No. 2123 will therefore not have an ex post facto effect on petitioner as its implementation does not alter his position.   We reject this argument, for the following reasons.

Although the “power to define crimes and fix penalties [may be] vested exclusively in the legislative branch,” (Keeler v. Superior Court (1970) 2 Cal.3d 619, 631, 87 Cal.Rptr. 481, 470 P.2d 617) the ultimate interpretation of a statute is an exercise of the judicial power.”  (Brodinson Mfg. Co. v. California E. Com. (1941) 17 Cal.2d 321, 326, 109 P.2d 935;  State Compensation Ins. Fund v. Workers' Comp. Appeals Board (1979) 88 Cal.App.3d 43, 54, 152 Cal.Rptr. 153.)   And, as stated in a recent opinion of this court responding to the same apparent quandary with which we are now confronted, it is a long–existent rule that “[a] subsequent legislation interpreting the statute construed, does not change the meaning;  it merely supplies an indication of the legislative intent which may be considered together with other factors in arriving at the true intent at the time the legislation was enacted.”  (Stockton Sav. & Loan Bank v. Massanet (1941) 18 Cal.2d 200, 204, 100 P.2d 592;  cf. Eu v. Chacon (1976) 16 Cal.3d 465, 470, 128 Cal.Rptr. 1, 546 P.2d 289;  West Pico Furniture Co. v. Pacific Finance Loans (1970) 2 Cal.3d 594, 610, 86 Cal.Rptr. 793, 469 P.2d 665;  People v. Shelby Kirk Harvey (1980), 112 Cal.App.3d 132, 169 Cal.Rptr. 153 (pp. ––– – –––, 169 Cal.Rptr. pp. 155–56.)   As Justice Elkington concluded:  “․ if the holding of Harvey is to be changed, it must under the law be done by the court which authored it.”  (Id., at p. –––, 169 Cal.Rptr. at p. 156.)

A second issue raised in the petition is that imposition of separate prison sentences for use of a firearm (§ 12022.5) and for possession of a firearm by an ex–felon (§ 12021) violates the prohibition against multiple punishment set forth in Penal Code section 654.

On appeal, petitioner raised the issue somewhat differently, claiming that sentencing him for both possession of a firearm by an ex–felon and for purposes of armed robbery, violated section 654.

In rejecting petitioner's argument we repeat as apposite to the present issue what we said in our disposition of his appeal.

 The evidence at trial showed possession of weapons at times distinctly unrelated to any specific robbery, showing indeed that appellant was in continuous possession of a pistol over a period of time.   Moreover, a revolver and extra ammunition were found in appellant's hotel room (cf. People v. Garcia (1978) 86 Cal.App.3d 314, 317, 150 Cal.Rptr. 93;  People v. Killman (1975) 51 Cal.App.3d 951, 959, 124 Cal.Rptr. 673;  and People v. Venegas (1970) 10 Cal.App.3d 814, 821, 89 Cal.Rptr. 103), while photographs found in his room show appellant with a weapon in his waistband.   We consequently conclude that the record contains substantial evidence supporting the court's finding that the subject offenses were to some extent divisible and reflective of multiple criminal objectives, and that separate punishment for possession of a concealable weapon by a felon and armed robbery was justified.  (In re Hayes (1969) 70 Cal.2d 604, 611, 75 Cal.Rptr. 790, 451 P.2d 430;  People v. Panky (1978) 82 Cal.App.3d 772, 783–784, 147 Cal.Rptr. 341;  People v. Coleman (1973) 32 Cal.App.3d 853, 858–859, 108 Cal.Rptr. 573.)

We continue to view the two offenses as temporally independent from one another, and reject petitioner's argument that any violation of section 654 has occurred.

Petitioner next argues that, as interpreted by People v. Harvey, supra, 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396, section 1170.1 limits the maximum total of his subordinate term to five years.   In petitioner's case, the total subordinate term for consecutive offenses was eight years and eight months which, as will afterward appear, we consider ourselves bound to reduce to six years and eight months.

We, however, find good reason to confine Harvey, supra, to its facts, rather than extend it to an interpretation of section 667.5, subdivision (c) as that section relates to the maximum term limitation of section 1170.1, subdivision (a).

The issue is no less a “close and subtle” question than that considered in Harvey.   We believe, however, that we must give due consideration to subsequent legislative clarification and restatements of the subject legislative act.  (Estate of Lacy (1975) 54 Cal.App.3d 172, 189, 126 Cal.Rptr. 432.)   The Legislature in AB 2123, has restated its intent, and has made it clear that robbery with the use of a firearm is a “violent felony” within the meaning of section 667.5, subdivision (c)(8), and that it disfavors making the five–year limitation of section 1170.1, subdivision (a) applicable to this case.

 Finding no reason either in logic or law to extend the decision in Harvey beyond the precise issue there presented, we reject petitioner's argument that imposition of terms in excess of five years for consecutive armed robberies is proscribed by section 1170.1.

The petition is granted to the extent that the consecutive use enhancements imposed on counts five, six and eight are stricken, and the judgment and sentence below are in all other respects affirmed.^*

While I agree with the reasoned decision of the majority to 1) strike the consecutive use enhancements under the mandate of Harvey (People v. Harvey (1979) 25 Cal.3d 754, 159 Cal.Rptr. 696, 602 P.2d 396) and 2) reject petitioner's multiple punishment claim, the professed reason or logic restricting Harvey to its special facts is difficult to understand.   The fulcrum point of the Harvey rationale was the perceived necessity to avoid an anomalous statutory construction conducive to substantive inconsistencies among the respective enhancement provisions.  (People v. Harvey, supra, at pp. 760–761, 159 Cal.Rptr. 696, 602 P.2d 396.)   Accordingly, the Harvey majority concluded that consecutive use enhancement was permissible “only for those specific offenses listed in section 667.5, subdivision (c)” (id., at p. 761, 159 Cal.Rptr. 696, 602 P.2d 396;  emphasis in original);  since robbery with firearm use was not “specifically listed,” the enhancement was excluded.   Under such binding interpretation (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), a fortiori the consecutive offenses of robbery–a crime “not listed in subdivision (c) of Section 667.5”–could not justify cumulative subordinate terms in excess of five years.   Whether the 1980 urgency amendment of section 1170.1, subdivision (a) clarifying “ ‘violent felonies' as defined in subdivision (c) of Section 667.5 ․ [to include] those offenses described in paragraph (8) of [said] subdivision (c) ․” should now be applied retroactively modifying Harvey's ameliorative effect upon the level of maximum punishment presents serious constitutional issues relating to ex post facto laws.  (See In re Harper (1979) 96 Cal.App.3d 138, 141, 157 Cal.Rptr. 759 and cases cited;  see also People v. Fulton (1980) 109 Cal.App.3d 777, 783, 167 Cal.Rptr. 436;  cf. In re Dennis C. (1980) 104 Cal.App.3d 16, 20–21, 163 Cal.Rptr. 496.)   Since the majority fail to even discuss such issues of overriding significance (as a result of the lacuna created in the restrictive analysis of Harvey), I must respectfully dissent from the summary conclusion that the added component of punishment (20 months) is nonetheless valid under either the former or amended version of section 1170.1, subdivision (a).

FOOTNOTES

FOOTNOTE.   In so concluding, we note that no argument has been made that, as applied to the facts of this case, the decision in People v. Harvey, supra, is prospective only.

NEWSOM, Associate Justice.

ELKINGTON, J., concurs.