People v. Vallier CA2/8 ( 2020 )

Filed 8/20/20 P. v. Vallier CA2/8
(opinion following vacated opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B299428
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA453297)
v.
EARL VALLIER,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David V. Herriford, Judge. Affirmed in part
and remanded with directions.
Richard L. Fitzer, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr. and Stephanie A.
Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
Earl Vallier and the People agreed to a plea deal with
particular components. The court approved the negotiated plea
but sentenced Vallier differently. We remand for resentencing
consistent with the plea and otherwise affirm.
All statutory citations are to the Penal Code.
The facts are recited in the probation report. On June 22,
2014, Vallier pointed a gun at a gas station store clerk and took
money from the store’s cash register. He ordered the clerk to a
back room. He took a customer’s wallet at gunpoint and ordered
the customer to the back room, too. On August 28, 2014, Vallier
punched a man’s face at a bus stop and searched the man’s
pockets.
On February 1, 2017, prosecutors filed a felony complaint
charging appellant with two counts of second degree robbery
(§ 211); kidnapping to commit robbery (§ 209, subd. (b)(1)); and
attempted second degree robbery (§§ 664, 211). As to the two
second degree robbery counts and the kidnapping to commit
robbery count, prosecutors alleged Vallier personally used a
firearm. (§§ 12022.53, subd. (b), 12022.5, subd. (a).) The
information alleged Vallier had two prior convictions that
qualified as serious felony priors and as strikes. (§§ 667, subds.
(a)(1), (b)–(i), 1170.12, subds. (a)–(d).) The information also
alleged he had served six prior prison terms. (§ 667.5, subd. (b).)
On April 16, 2018, Vallier waived his constitutional rights
and entered a no contest plea. According to the reporter’s
transcript of the plea, Vallier and the prosecution agreed to the
mid-term, a base term of three years, for the robbery count. The
three years would be doubled to six years due to a prior strike,
plus 10 years for a firearm enhancement, and plus five years for a
prior serious felony enhancement. The total sentence would be
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21 years in state prison. The prosecution agreed to dismiss other
counts and allegations.
The prosecution took Vallier’s plea pursuant to the deal.
Vallier pleaded no contest to the robbery count (§ 211), admitted
he used a firearm during the robbery “within the meaning of
Penal Code section 12022.53(a),” and admitted a 1994 conviction
that qualified as a strike “within the meaning of Penal Code
section 1170.12(a) through (d) and subsection 667(b) through (i)”
and as prior serious felony “within the meaning of Penal Code
section 667(a).” The court said it “accepts the plea and the
admission of enhancement and finds him guilty thereon.”
On May 23, 2018, the court sentenced Vallier. The court
stated: “as to count 1, a violation of Penal Code section 211,
probation is denied and Mr. Vallier is sentenced to the high term
of five years in the state prison. [¶] The court selects the high
term pursuant to the plea agreement. That is doubled under the
provisions of Penal Code section 667(b) through (i) and 1170.12(a)
through (e) for a total of 10 years. [¶] In addition, the court
imposes 10 years pursuant to Penal Code section 12022.5 and an
additional one year for the 2005 strike prior.” The abstract of
judgment reflects the one-year enhancement as a one-year prior
prison term enhancement under section 667.5. The court did not
sentence Vallier to a section 667, subdivision (a)(1) enhancement.
The court sentenced Vallier to the same total term of 21 years.
The court did not acknowledge or explain its alteration of
the sentence components. There were no objections. Vallier
received 1,981 days of presentence custody credit. The court
imposed various fines and fees. The court dismissed the
remaining charges and allegations.
On June 11, 2019, Vallier filed a timely notice of appeal.
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We appointed counsel to represent Vallier on appeal. After
examining the record, counsel filed an opening brief raising no
issues and asking this court to review the record independently
under People v. Wende (1979) 25 Cal.3d 436. In the brief, counsel
informed the court he had filed a motion asking the trial court to
strike Vallier’s one-year section 667.5 prior prison term
enhancement due to Senate Bill No. 136 (2019–2020 Reg. Sess.).
Counsel did not set forth any argument on this issue for our
court.
On June 25, 2020, we issued an opinion affirming the
judgment.
Vallier filed a late pro. per. supplemental brief in two
letters we received on July 6, 2020. He explained Coronavirus
restrictions in the prison affected his ability to file a timely brief
and he requested we file his late brief. We granted the request
and vacated our June 25, 2020 opinion. In his supplemental
brief, Vallier raised two issues. First, he argued the court
sentenced him to terms to which he and the prosecution had not
agreed. We address the second issue, which was without merit,
at the end of this opinion.
On July 13, 2020, we asked the parties to file supplemental
letter briefs addressing whether we should remand for
resentencing consistent with the plea agreement.
In his letter brief, Vallier’s counsel stated “appellant seeks
to have his sentence[] calculated as explained to him on April 16,
2018.” The People agree we should remand for resentencing
consistent with the plea agreement. We agree with the parties
and remand for resentencing. The court had approved the
negotiated plea and could “not proceed as to the plea other than
as specified in the plea.” (§ 1192.5.) Because the court did not
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impose the sentence the parties had agreed upon, the court must
resentence Vallier consistent with the agreement.
In the pro. per. brief Vallier filed after his counsel initially
filed a Wende brief, Vallier raised a second issue. He challenged
the trial court’s denial of his motion to suppress evidence.
Vallier’s counsel had described the motion and ruling in his
Wende brief but raised no issues. We did not request additional
briefing about it.
There is no arguable issue about the motion to suppress.
The basis of the motion was the Harvey/Madden rule, which is
named for People v. Harvey (1958) 156 Cal.App.2d 516 and People
v. Madden (1970) 2 Cal.3d 1017. The rule applies when an officer
arrests or detains someone based on information from official
channels. (Madden, supra, at p. 1021.) If, for example, an
arresting officer relies on information from another officer, the
prosecution must show the officer who originally furnished the
information had probable cause for arrest. (Ibid.) Vallier had
asked the trial court to apply the rule to suppress results of
investigations stemming from a detective’s connection of Vallier
to a car from the bus stop incident.
The trial court properly denied Vallier’s motion because the
Harvey/Madden rule did not apply. Police did not arrest Vallier
based on information from official channels. Rather, as the trial
court explained, police arrested Vallier after the two victims in
the gas station incident identified his photo. We review facts
related to rulings on motions to suppress for substantial
evidence. (People v. Carter (2005) 36 Cal.4th 1114, 1140.)
Evidence showed the arrests were based on the photo
identifications and based on surveillance video from the gas
station. Thus Vallier was not arrested based on undisclosed
information from official channels. The trial court properly
denied the motion.
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DISPOSITION
The case is remanded with directions to the superior court
to resentence Vallier consistent with his plea and amend the
abstract of judgment accordingly. At this remand hearing,
Vallier has the right to be present and the right to assistance of
counsel. In all other respects, the judgment is affirmed.
WILEY, J.
We concur:
BIGELOW, P. J.
GRIMES, J.
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