People v. Borunda

Opinion

GARDNER, P. J. Defendant was charged with 46 counts of robbery. (Pen. Code, § 211.) Each count contained a firearm use allegation. (Pen. Code, § 12022.5.) He pled guilty to 32 counts and admitted the use allegation in each instance. He was sentenced to seventeen years in prison—a four-year upper term on one count of robbery, plus a two-year enhancement for the armed allegation, and one-third of the midterm as to each of eleven consecutive sentences. The remaining counts were ordered stayed pending appeal and completion of the sentence.

[357]The issue on appeal is one which ranks among the worst headaches for appellate courts in California. Defendant contends that under the rationale of People v. Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396], there is a five-year “lid” on his consecutive sentences under Penal Code section 1170.1, subdivision (a). This would reduce his sentence from 1:7 to 11 years. However, Harvey did not discuss the consecutive sentence lid issue, and we decline to extend its reasoning here. In short, we reject defendant’s claim that Harvey means all armed robberies after the first six are on the house.

Some historical overview is in order. In 1977, the Legislature amended Penal Code section 1170.1, subdivision (a) to provide in part: “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.”

That section referred to Penal Code section 667.5, subdivision (c)’s definition of “violent felonies,” which stated, “For the purpose of this section, ‘violent felony’ shall mean any of the following: [1Í] (1) Murder or voluntary manslaughter. [If] (2) Mayhem. [II] (3) Rape as defined in subdivisions (2) and (3) of Section 261. [IT] (4) Sodomy by force, violence, duress, menace, or threat of great bodily harm. [II] (5) Oral copulation by force, violence, duress, menace, or threat of great bodily harm. [1Í] (6) Lewd acts on a child under 14 as defined in Section 288. [U] (7) Any felony punishable by death or imprisonment in the state prison for life. [IT] (8) Any other*felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved ... or any felony in which the defendant uses a firearm which use has been charged and proved .... ”