People v. Earl CA2/1

Filed 7/28/16 P. v. Earl CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B267761

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA136338) v.

SEAN ALEXANDER EARL,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Laura R. Walton, Judge. Affirmed as modified.

William L. Heyman, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance by Plaintiff and Respondent.

_______________________

An information, filed on April 30, 2015, charged appellant Sean Alexander Earl and two codefendants with three counts of attempted murder. The information further alleged that the attempted murders were committed willfully, deliberately, and with premeditation within the meaning of Penal Code1 section 664, subdivision (a); that a principal personally and intentionally used and discharged a firearm, a handgun, within the meaning of section 12022.53, subdivisions (b), (c) and (e)(1); and that pursuant to section 186.22, subdivision (b)(1)(C), the offenses were committed for the benefit of, at the direction of, and in association with a criminal street gang. According to the preliminary hearing transcript, the charges were based on an incident in which the three victims were fired upon as they walked on a street in Compton. At a field show-up shortly after the shooting, one of the victims identified appellant as one of the men who fired a gun at them. Appellant pleaded not guilty. On the first day of trial, the People struck “willful, deliberate, and premeditated” from count 1, and with the court’s permission, amended the information to add a section 12022.53, subdivision (b) firearm allegation to count 1. Appellant withdrew his plea of not guilty as to count 1 and pleaded no contest to one count of attempted murder and admitted the firearm allegation. (Capitalization omitted.) The court found appellant guilty, found a factual basis for the plea, and dismissed the other counts and the allegations. Under the plea agreement, the court sentenced appellant to a total of 15 years in state prison, consisting of the lower term of five years as to count 1 plus a consecutive term of 10 years for the section 12022.53, subdivision (b) enhancement. The court also imposed a restitution fine of $300 (§§ 1202.4, subd. (b), 1202.45), required fees and assessments (§ 1465.8; Gov. Code, § 70373;) and awarded appellant presentence custody and conduct credits. On October 4, 2015, appellant filed a notice of appeal and requested a certificate of probable cause asserting that he should not have been charged with attempted murder or the firearm enhancement because the evidence showed he was not a “shooter in the