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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent,

v.

EARL VALLIER,

Defendant and Appellant.

 B299428

 (Los Angeles County

 Super. Ct. No. BA453297)

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. 

____________________
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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.