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The People v. Michael Allan Harvey

May 13, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MICHAEL ALLAN HARVEY, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F3246)

The opinion of the court was delivered by: Hull , Acting P. J.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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 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 ...


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