P. v. >Harvey>



















Filed 5/13/13 P. v. Harvey CA3









NOT TO
BE PUBLISHED









California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----




>

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALLAN HARVEY, Defendant and Appellant.

C066662 (Super. Ct. No. 10F3246)

Defendant Michael Allan Harvey
appeals the trial court’s denial of his motion
to suppress evidence found by police after conducting a traffic stop. On appeal, defendant argues the search of the
car he was driving violated his Fourth Amendment rights because the officer
lacked probable cause to conduct the search.
We will affirm the trial court’s ruling.

Defendant also appeals the
imposition of a $40 court security fee, a $140 county penalty assessment, and a
$60 DNA penalty assessment, and the inclusion of a narcotics registration
requirement on the abstract of judgment, and claims he is entitled to additional
presentence custody credit. But for the
$140 penalty assessment and the custody credit entitlement, the People concede
all of these claims. We will modify the
judgment to reduce the court security fee to $30, reduce the DNA penalty
assessment to $20, and strike the narcotics registration requirement.

We will affirm the judgment as
modified.

Facts
and Proceedings

The following facts were adduced at
the suppression hearing:

On April
13, 2010,
while on routine patrol, City of Redding Police Officer
Todd Cogle recognized a passing car from an ongoing
investigation with the local task force.
Officer Cogle pulled into traffic behind the car, a Chevrolet Camaro,
and noticed it had a cracked windshield, an object dangling from the rearview
mirror and bald tires. The car, driven
by defendant, turned into a residential neighborhood, where Officer Cogle
conducted a traffic stop. As defendant
pulled over, Officer Cogle observed him making “furtive movements” between the
driver’s door and the center console of the car.

Officer Cogle recognized defendant
from a prior contact. Defendant provided
his driver’s license as requested, but could not find the registration or proof
of insurance, explaining to Officer Cogle that he was aware of the problems
with the car and was in the process of trying to get them fixed because he
intended to purchase the car. Officer
Cogle asked defendant to get out of the car.
Defendant complied, informing Officer Cogle he had been on parole for href="http://www.fearnotlaw.com/">assault with a deadly weapon conviction,
and telling him, “You can pat me down for weapons but you cannot search my
person.” Officer Cogle patted defendant
down and felt a large, hard object--a fixed, straight-blade knife--concealed
under defendant’s shirt. Defendant said,
“Shit. I forgot about that knife.” Officer Cogle placed defendant under arrest,
handcuffed him and placed him in the back of the patrol car.

Having recently recovered a stolen
vehicle less than 100 yards away, Officer Cogle was concerned the Camaro might
be subject to vandalism or theft and decided to have it towed and
impounded. Officer Cogle searched the
Camaro before it was towed. He first searched
the area in which defendant had been furtively moving and found a plastic case
containing ammunition. He then searched
under the driver’s seat and found a box containing a .45-caliber revolver and
more ammunition.

Defendant was charged with
possession of a firearm by a felon (former Pen. Code, § 12021, subd.
(a)(1)--count 1), carrying a concealed firearm in a vehicle with a prior (>id., § 12025, subd. (a)--count 2),
carrying a dirk or dagger (id., §
12020, subd. (a)(4)--count 3), and possession of ammunition by a felon (>id., § 12316, subd. (b)(1)--count
4). The complaint also alleged defendant
had a prior strike conviction (Pen. Code, § 1170.12) and served two prior
prison terms (Pen. Code, § 667.5, subd. (b)).


Pursuant to Penal Code section
1538.5, defendant filed a motion to suppress, among other things, all evidence
obtained as a result of the search of the Camaro. The People opposed the motion on various
grounds, including that Officer Cogle had probable cause to search the vehicle
and that the inventory search was proper according to standardized departmental
procedure following a routine automobile impound. Following a hearing which consisted of
testimony from Officer Cogle and argument from counsel for both parties, the
court denied defendant’s motion.

Defendant entered a plea of no
contest to count 3 and admitted the prior strike and one prison prior in
exchange for dismissal of all remaining charges and a stipulated state prison
sentence of 44 months. Consistent with
the negotiated plea agreement, the court sentenced defendant to three years
eight months in state prison, awarded him 76 days of presentence custody
credit, and imposed specified fees and fines, including a $40 court security
fee (Pen. Code, § 1465.8, subd. (a)(1)), a $30 criminal conviction assessment
(Gov. Code, § 70373), a $140 county penalty assessment (Gov. Code, §
76000, subd. (a)(1)), and a $60 DNA penalty assessment (Gov. Code, §
76104.7).

Defendant filed a timely notice of
appeal.

Discussion

I

>Denial of Motion to Suppress

Defendant
contends the trial court wrongfully denied his motion to suppress because the
prosecution failed to prove there was probable cause for a warrantless search
of the Camaro, and also failed to prove the search was a proper inventory
search.

In reviewing a ruling on a motion to
suppress evidence, we view the record in the light most favorable to the trial
court’s ruling. (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) We defer to the trial court’s factual
findings, whether express or implied, when supported by substantial evidence
and we independently determine whether the facts of the challenged search
and/or seizure violated defendant’s Fourth Amendment

rights. (People v. Lomax (2010) 49 Cal.4th 530, 563; >People v. Ferguson (2003)
109 Cal.App.4th 367, 371.)

Viewing the record in the light most
favorable to the trial court’s ruling, we conclude that Officer Cogle had
probable cause to search the Camaro.

A. Probable Cause

Under the automobile exception to
the Fourth Amendment’s warrant requirement, “[i]f a car is readily mobile and
probable cause exists to believe it contains contraband, the Fourth Amendment
thus permits the police to search the vehicle without more. [Citation.]”
(Pennsylvania v. Labron (1996)
518 U.S. 938, 940 [135 L.Ed.2d 1031, 1036]; see United States v. Ross (1982) 456 U.S. 798, 808 [72 L.Ed.2d 572,
583].) “Probable cause for a search
exists where an officer is aware of facts that would lead a [person] of
ordinary caution or prudence to believe, and conscientiously to entertain, a
strong suspicion that the object of the search is in the particular place to be
searched. [Citations.]” (People
v. Dumas (1973) 9 Cal.3d 871, 885.)
“In determining probable cause we must make a ‘practical, common-sense
decision whether, given all the circumstances . . . there is a fair probability
that contraband or evidence of a crime will be found in a particular
place.’ ” (People v. Allen (2000) 78 Cal.App.4th 445, 450, quoting >Illinois v. Gates (1983) 462 U.S. 213,
238 [76 L.Ed.2d 527, 548].) “A
‘practical, nontechnical’ probability that incriminating evidence is involved
is all that is required.
[Citation.]” (>Texas v. Brown (1983) 460 U.S. 730, 742
[75 L.Ed.2d 502, 514].)

Here, Officer Cogle had sufficient
facts to lead an ordinary person to entertain a strong suspicion that weapons
would be found in the car. Defendant was
carrying a straight, fixed-blade knife on his belt. The knife was concealed by his shirt. When Officer Cogle patted defendant down and
found the concealed knife, defendant said, “Shit. I forgot about that knife,” suggesting there
might be other knives in the vehicle.

Defendant also told Officer Cogle he
had been on parole for assault with a deadly weapon. That information, together with the swastika
on the dashboard and the tattoos on defendant’s body, led Officer Cogle to
believe that defendant might be part of a prison gang with white supremacy or
skinhead affiliations. In Officer
Cogle’s experience, individuals who were part of those gangs were more likely
to possess weapons. Under these
circumstances, there was a fair probability that weapons would be found in
defendant’s car, and likely in the area in which he was furtively moving
about--the driver’s seat and the surrounding area.

Defendant argues his furtive
movements were insufficient to constitute probable cause. He likens his actions to the defendant’s in >People v. Superior Court (>Kiefer) (1970) 3 Cal.3d 807 (Kiefer). There, the defendant was a passenger in a car
that was pulled over for speeding. (>Id. at p. 811.) The arresting officer testified that, as the
car pulled over, he saw the defendant, a passenger in the car, raise her head
up from the front passenger seat, turn and put her arm over the back seat, face
forward again, bend down toward the floor, and then reassume a normal sitting
position. (Ibid.) After talking with
the driver who had gotten out of the car and walked toward him, the officer
approached the passenger side of the car, where the defendant sat with the
window rolled up. Making no attempt to
communicate with the defendant, the officer “immediately opened the car door
next to her and looked inside,” ultimately finding evidence leading to the
discovery of the marijuana that was the subject of the suppression motion. (Ibid.) The trial court granted defendant’s motion to
suppress and the court of appeal affirmed.
(Id. at p. 812.)

Our state’s Supreme Court also
affirmed. Stating the well settled law
that, “as an incident to a lawful arrest, a warrantless search . . . may be
made (1) for instrumentalities used to commit the crime, the fruits of that
crime, and other evidence thereof which will aid in the apprehension or
conviction of the criminal; (2) for articles the possession of which is itself
unlawful, such as contraband or goods known to be stolen; and (3) for weapons
which can be used to assault the arresting officer or to effect an escape,” the
court excluded each category. As to the
first category, the court found that, where the offense of arrest was speeding,
“the ‘instrumentality’ used to commit the offense . . . is, if anything, the
automobile itself, [and] a search of any portion of its interior cannot be justified on this ground.” As to the third category, the court found
that, because “there are no ‘fruits’ of such an offense, . . . the ‘evidence’
thereof is not subject to search and seizure as it consists essentially of the
arresting officer’s own observations and records.” (Kiefer,
supra, 3 Cal.3d at pp. 812-813.)
Finally, with respect to the second category, the court found that the
circumstances justifying the arrest--a typical traffic violation--“do >not also furnish probable cause to
search the interior of the car” because an arresting officer in such a case
“cannot reasonably expect to discover either instrumentalities or fruits or
seizable evidence of the offense; still less does the arrest give him
reasonable grounds to believe, without more, that the vehicle contains
contraband.” (Id. at p. 814.)

In discussing whether furtive
gestures constitute probable cause to search, the Supreme Court stated that
while furtive gestures alone are not sufficient, “coupled with specific knowledge on the part of the officer relating the
suspect to the evidence of crime, they are proper factors to be
considered.” (Kiefer, supra, 3 Cal.3d at p. 818.)
The court concluded that the defendant’s furtive movements alone were
insufficient to constitute probable cause to search the car for
contraband. (Id. at p. 828.) As for
weapons, the court held that “a warrantless search for weapons, like a search
for contraband, must be predicated in traffic violation cases on specific facts
or circumstances giving the officer reasonable grounds to believe that such
weapons are present in the vehicle he has stopped.” (Id.
at p. 829.) On that basis, the
court concluded that the act by defendant of bending down, coupled with the
driver’s walking toward the officer’s car, did not give the arresting officer
reasonable grounds to believe that defendant was in possession of weapons. (Ibid.)

Kiefer is distinguishable. Here, unlike the events following the routine
traffic stop in Kiefer, Officer Cogle
pulled defendant over for various Vehicle Code violations but, after a pat-down
search, arrested him for carrying a concealed weapon. The circumstances that justified defendant’s
arrest furnished Officer Cogle with probable cause to search the interior of
the Camaro because, based on the concealed weapon in defendant’s possession and
the additional information known to Officer Cogle--that defendant admitted
having been on parole for an assault with a deadly weapon conviction and that
he had likely been affiliated with a white supremacist prison gang--he could
reasonably expect to find weapons in the vehicle. (Kiefer,
supra, 3 Cal.3d at p. 814.)

We find the search of the Camaro was
supported by probable cause.

B. Inventory Search

Defendant contends the inventory
search was unlawful because the prosecution failed to prove the impound and
search were conducted according to standardized procedures. Having found there was probable cause to
search the Camaro, we need not reach this issue.

II

>Court Security Fee

>(Pen. Code, § 1465.8, subd. (a)(1))

At the time of defendant’s
conviction on October 14, 2010, Penal Code section 1465.8, subdivision (a)(1)
provided for a mandatory court security fee in the amount of $30 for every
criminal conviction. The statute was
amended, effective October 19, 2010, to increase the fee from $30 to $40 per
conviction. (Stats. 2010, ch. 720, §
33.)

Defendant contends, and the People
concede, that the $40 court security fee imposed by the trial court pursuant to
Penal Code section 1465.8 was in excess of the $30 amount authorized by the
statute at the time of defendant’s conviction.
(Cf. People v. Davis (2010)
185 Cal.App.4th 998, 1001.) We agree and
shall modify the judgment accordingly.

III

County
Penalty Assessment

(Gov.
Code, § 76000, subd. (a)(1))

The trial court imposed a $200 fine
plus “various penalty assessments, surcharges, and fees [which] bring that to
$760.” According to the court’s written
minute order, the “various penalty assessments, surcharges, and fees” include a
$200 state penalty assessment (Pen. Code, § 1464, subd. (a)), a $20 DNA penalty
assessment (Gov. Code, § 76104.6), a $60 DNA penalty assessment (Gov.
Code, § 76104.7), a $100 state court facilities construction fee (Gov. Code, §
70372), a $140 county penalty assessment (Gov. Code, § 76000, subd. (a)(1)),
and a $40 state criminal fine surcharge (Pen. Code, § 1465.7, subd.
(a)).

Defendant claims the $140 county
penalty assessment imposed pursuant to Government Code section 76000,
subdivision (a)(1), is excessive and should be reduced to $70.

Defendant failed to object to
imposition of the penalty assessment at sentencing. Only those claims properly raised and
preserved by the parties are reviewable on appeal. (People v. Allen (2001) 88 Cal.App.4th 986, 998, fn. 27; >People v. Scott (1994) 9 Cal.4th 331,
354.) Defendant argues his claim is not
forfeited because the “trial court exceeded its jurisdiction in imposing [the
penalty assessment],” and because the issue of the amount of the penalty
assessment is a pure question of law. As
we shall explain, defendant forfeited his claim on appeal.

Government Code section 76000
provides, as follows: “Except as
otherwise provided elsewhere in this section, in each county there shall be
levied an additional penalty in the amount of seven dollars ($7) for every ten
dollars ($10), or part of ten dollars ($10), upon every fine, penalty, or
forfeiture imposed and collected by the courts for all criminal offenses,
including all offenses involving a violation of the Vehicle Code or any local
ordinance adopted pursuant to the Vehicle Code.” (Gov. Code, § 76000, subd. (a)(1).) Subdivision (e) of that section provides as
follows: “The seven-dollar ($7) additional
penalty authorized by subdivision (a) shall be reduced in each county by the
additional penalty amount assessed by the county for the local courthouse
construction fund established by Section 76100 as of January 1, 1998, when the
money in that fund is transferred to the state under Section 70402.”

Defendant does not object to the
imposition of a penalty assessment, only that the amount should have been
reduced pursuant to the language of subdivision (e). Defendant urges that “[t]he amount listed for
Shasta County is $3.50,” and thus the $7 assessed for every $10 of every fine,
penalty or forfeiture imposed should have been reduced to $3.50, resulting in a
penalty assessment of $70 rather than the $140 imposed by the court. However, we are unable to determine from
defendant’s briefs or from the record whether Shasta County has established a
local courthouse construction fund under Government Code section 76100, or
whether Shasta County is participating in the Transitional State Court
Facilities Construction Fund under former Government Code section 70401, and if
so, whether the money in that fund has been transferred to the state under
Government Code section 70402. In any
event, the trial court properly imposed a penalty assessment pursuant to Government
Code section 76000, subdivision (a)(1).
The fact that the amount imposed may or may not have been subject to
reduction pursuant to subdivision (e) does not render the assessment
unauthorized. As such, defendant’s
failure to raise the issue at trial forfeits his claim on appeal.

IV

DNA
Penalty Assessment

(Gov. Code, § 76104.7)

Defendant also contends, and the
People concede, that the $60 DNA penalty assessment imposed pursuant to
Government Code section 76104.7 violates the prohibition against ex post facto
application of laws and must be reduced to $20.
We agree.

Under ex post facto principles, the
amount of a fine is determined as of the date the offense was committed. (People
v. Saelee (1995) 35 Cal.App.4th 27, 30.)
At the time defendant committed the crime on April 13, 2010, Government
Code section 76104.7 provided for a penalty assessment of “one dollar ($1) for
every ten dollars ($10) or part of ten dollars ($10), . . . upon every fine,
penalty, or forfeiture imposed and collected by the courts for criminal
offenses . . . .”
(Stats. 2007, ch 302, § 8, p. 3063, eff. Jan. 1, 2008.) The trial court imposed a DNA penalty
assessment of $60 on a $200 fine. That
penalty assessment must be reduced to $20 in accordance with the provisions of
Government Code section 76104.7 as it existed when defendant committed the
offense.

V

Narcotics
Registration Requirement

(Health & Saf. Code, § 11590)

Defendant contends, and the People
concede, that the narcotics registration requirement (Health & Saf. Code, §
11590) reflected on the abstract of judgment must be stricken, as it was not
included in the trial court’s oral pronouncement of judgment, nor is a
violation of former Penal Code section 12020 enumerated in the list of offenses
contemplated by the registration statute.
We agree.

While the narcotics registration
requirement appears on the abstract, the trial court never orally ordered
defendant to register. The oral
pronouncement of judgment by the court is the judgment. (People v. Mesa (1975) 14 Cal.3d
466, 471.) The abstract of judgment
summarizes and must accurately reflect the oral pronouncement of judgment. (People
v. Mitchell (2001) 26 Cal.4th 181, 185; Mesa, supra, 14 Cal.3d
at p. 471; People v. Zackery (2007) 147 Cal.App.4th 380, 389.)
The clerk of the court may not add to the judgment pronounced. (Zackery,
at p. 389.) Where a discrepancy
exists between the oral pronouncement of judgment and an abstract of judgment,
the oral pronouncement controls. (Zackery, at p. 385.) Given that a violation of former Penal Code
section 12020 was not among the list of offenses mandating registration under
Health and Safety Code section 11590, the narcotics registration requirement
must be stricken.

VI

Conduct
Credit

(Pen. Code, § 4019)

Defendant contends the trial court
violated his right to equal protection
by denying him day-for-day conduct credit because the amendments to Penal Code
section 4019 which bestow such credit on prisoners whose crimes were committed
on or after October 1, 2011 (Pen. Code, § 4019, subds. (b), (c), &
(i)) must be read retroactively. This
claim was rejected by the California Supreme Court in a case decided after the
conclusion of briefing. (People v.
Lara (2012) 54 Cal.4th 896, 906, fn. 9 (Lara).)

In Lara, the Supreme Court
explained its rejection of the defendant’s equal protection argument as
follows: “As we there [People v.
Brown (2012) 54 Cal.4th 314, 328-330 (Brown)] explained,
‘ “[t]he obvious purpose” ’ of a law increasing conduct credits
‘ “is to affect the behavior of inmates by providing them with incentives
to engage in productive work and maintain good conduct while they are in
prison.” [Citation.] “[T]his incentive purpose has no meaning if
an inmate is unaware of it. The very concept demands prospective
application.” ’ (Brown, at
p. 329, quoting In re Strick (1983) 148 Cal.App.3d 906, 913.) Accordingly, prisoners who serve their
pretrial detention before such a law’s effective date, and those who serve
their detention thereafter, are not similarly situated with respect to the
law’s purpose. (Brown, at pp.
328-329.)” (Lara, supra,
54 Cal.4th at p. 906, fn. 9.)
Defendant is not entitled to additional presentence conduct credit.

Disposition

The court’s denial of defendant’s
motion to suppress is affirmed. The
court security fee imposed pursuant to Penal Code section 1465.8 is reduced to
$30. The DNA penalty assessment imposed
pursuant to Government Code section 76104.7 is reduced to $20. The Health and Safety Code section 11590
narcotics registration requirement is stricken.
The matter is remanded to the trial court with directions to prepare an
amended abstract of judgment reflecting these changes and to forward a certified
copy thereof to the Department of
Corrections and Rehabilitation. In
all other respects, the judgment is affirmed.





HULL ,
Acting P. J.







We concur:







BUTZ , J.







MURRAY , J.