# People v. Harvey

> California Supreme Court · November 27, 1979 · 25 Cal. 3d 754

URL: https://www.frixlaw.com/law-library/cases/9578871

## Case

- **Full name:** The PEOPLE, Plaintiff and Respondent, v. MICHAEL ALAN HARVEY, Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** November 27, 1979
- **Citations:** 25 Cal. 3d 754; 159 Cal. Rptr. 696; 602 P.2d 396; 1979 Cal. LEXIS 335
- **Precedential status:** Published
- **Opinion:** Concurring in part by Clark
- **Judges:** Richardson, Clark
- **Cited by:** 951 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Ferris v. State, 100 Nev. 162 (1984).
- Negative treatments: 2
- Distinguished by: 4
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9578871

## How later opinions describe it (automated extraction)

- noting that where count III was dismissed in consideration for the defendant's guilty plea to counts I and II, "it would be improper and unfair to permit the sentencing court to consider any of the facts underlying the dismissed count three for purposes of aggravating or enhan…

## Opinion text

CLARK, J., Concurring and Dissenting.
Section 1170.1, subdivision (a), of the Penal Code states that the subordinate term for a consecutive offense “shall include one-third of any enhancement imposed pursuant to Section 12022 [arming with a firearm or personal use of a deadly or dangerous weapon], 12022.5 [use of a firearm] or 12022.7 *762 [infliction of great bodily injury] when the consecutive offense is listed in subdivision (c) of Section 667.5.” The offenses listed in subdivision (c) of section 667.5 expressly include any felony “in which the defendant inflicts great bodily injury... or any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5.” Therefore, I must dissent from the majority opinion insofar as it concludes the Legislature did not intend “to impose an enhancement for firearm use or great bodily injury in every case involving such factors.” (Ante, p. 761.)
Defendant contends, and the majority agree, that interpreting section 1170.1, subdivision (a), as permitting the enhancement of defendant’s consecutive offense solely by reason of his commission of a felony involving use of a firearm “would result in a troublesome anomaly; 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).” {Ante, p. 761.) However, the reference in section 1170.1, subdivision (a), to the offenses listed in section 667.5, subdivision (c), is not entirely redundant. Section 1170.1, subdivision (a), is concerned with enhancements imposed pursuant to not only sections 12022.5 (use of a firearm) and 12022.7 (infliction of great bodily injury) but also 12022 (arming with a firearm or personal use of a deadly or dangerous weapon). The reference in section 1170.1, subdivision (a), to section 667.5, subdivision (c), is necessary, therefore, to fully express the Legislature’s intent regarding enhancements imposed pursuant to section 12022, namely, that the subordinate term for a consecutive offense is not to include one-third of an enhancement imposed pursuant to section 12022 unless the consecutive offense is one listed in subsections (l)-(7) of subdivision (c) of section 667.5.
Admittedly, the reference in section 1170.1, subdivision (a), to section 667.5, subdivision (c), is redundant with regard to enhancements imposed pursuant to sections 12022.5 and 12022.7. However, that the Legislature could have expressed itself with greater concision is no justification for refusing to give effect to what it did say.
Manuel, J., concurred.
Respondent’s petition for a rehearing was denied December 27, 1979. Manuel, J., was of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9578871. Public record. Not legal advice.