Savala

Defendant appeals from a judgment sentencing him to state prison for a total unstayed term of twelve and one-third years after a jury found him guilty of four counts of robbery; that in each robbery defendant personally used a firearm (Pen. Code, §§ 211, 12022.5.) and guilty of assault upon a police officer engaged in the performance of his duties. (Pen. Code, § 245, subd. (b).) The trial court found him guilty of being a convicted felon in the possession of a firearm after he waived a jury trial on that charge. Prior to trial defendant admitted one prior felony conviction.

Defendant makes numerous contentions: (1) the in-court identification by eyewitnesses should have been suppressed because of an unduly suggestive confrontation at the scene of his arrest; (2) that the charges of robbery should have been severed for separate trials; (3) the trial court erred in refusing to grant a mistrial when a codefendant changed his plea to guilty pursuant to a plea bargain after jury selection but before evidence was taken; (4) the trial court coerced an original co-defendant into invoking his privilege against self-incrimination; (5) the prosecutor suppressed evidence; and (6)…

I concur in the affirmance of the conviction; however, I dissent from that portion of the majority opinion requiring the trial court to resentence the defendant in accord with People v. Harvey (1979) 25 Cal.3d 754 [ 159 Cal.Rptr. 696 , 602 P.2d 396 ].

In Harvey , the Supreme Court ruled that Penal Code section 1170.1 1 permits enhancement of consecutive sentences only for the specific offenses listed in section 667.5 and not for “any felony in which the defendant uses a firearm.” {Id., at p. 760.) The court evidently misconstrued the original underlying legislative intent, as the Legislature immediately reacted by enacting Assembly Bill No. 2123 (Stats. 1980, ch. 132). Section 1 of that act provides: “The Legislature hereby finds and declares as follows:

Section 2 of the act amends Penal Code section 1170.1 to provide that when a defendant receives a consecutive sentence for a violent felony as defined in Penal Code section 667.5, subdivision (c), . .including those offenses described in paragraph (8) of subdivision (c) of *63 Section 667.5,” his consecutive sentence is one-third the middle term for the offense, plus one-third of any enhancements imposed pursuant to sections…

Defendant appeals from a judgment sentencing him to state prison for a total unstayed term of twelve and one-third years after a jury found him guilty of four counts of robbery; that in each robbery defendant personally used a firearm (Pen. Code, §§ 211, 12022.5.) and guilty of assault upon a police officer engaged in the performance of his duties. (Pen. Code, § 245, subd. (b).) The trial court found him guilty of being a convicted felon in the possession of a firearm after he waived a jury trial on that charge. Prior to trial defendant admitted one prior felony conviction.

Defendant makes numerous contentions: (1) the in-court identification by eyewitnesses should have been suppressed because of an unduly suggestive confrontation at the scene of his arrest; (2) that the charges of robbery should have been severed for separate trials; (3) the trial court erred in refusing to grant a mistrial when a codefendant changed his plea to guilty pursuant to a plea bargain after jury selection but before evidence was taken; (4) the trial court coerced an original codefendant into invoking his privilege against self-incrimination; (5) the prosecutor suppressed evidence;…