P. v. Harvey CA3

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for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, C066662

Plaintiff and Respondent, (Super. Ct. No. 10F3246)

v.

MICHAEL ALLAN HARVEY,

Defendant and Appellant.

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

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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 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

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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.

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 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

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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

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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

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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.

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 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.

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 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

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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

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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

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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.

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