People v. Vallier CA2/8

Filed 8/20/20 P. v. Vallier CA2/8 (opinion following vacated opinion) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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