People v. Vallier CA2/8

Filed 8/21/23 P. v. Vallier CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B318167
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. Reversed and
remanded for resentencing.
Christopher Love, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Stephanie A. Miyoshi, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Earl Vallier and the prosecution correctly agree we must
remand for resentencing due to new legislation.
Undesignated statutory citations are to the Penal Code.
Vallier entered a negotiated plea. The trial court approved
the plea but sentenced him differently. In an earlier opinion, we
remanded for resentencing consistent with the plea. (People v.
Vallier (Aug. 20, 2020, B299428) [nonpub. opn.].) We grant
Vallier’s request for judicial notice of this opinion. (Evid. Code,
§§ 459, 452.)
The trial court resentenced Vallier consistent with his plea
on January 27, 2022. This 21-year sentence included six years
for robbery (§ 211), 10 years for a firearm enhancement
(§ 12022.5, subd. (a)), and five years for a prior serious felony
enhancement (§ 667, subd. (a)). Vallier asked the court to
exercise its discretion to strike the five-year enhancement. The
court declined to do so because it was a negotiated sentence.
Effective January 1, 2022, Senate Bill No. 81 (2021–2022
Reg. Sess.) added subdivision (c) to section 1385. (Stats. 2021, ch.
721, § 1.) This amendment generally favors dismissing
sentencing enhancements and lists relevant mitigating
circumstances. Two mitigating circumstances are if the case has
multiple enhancement allegations and if applying an
enhancement could result in a sentence of over 20 years. (§ 1385,
subd. (c)(2)(B) & (C).) The amendment applies to all sentencings
after January 1, 2022. (Id., subd. (c)(7).)
We must remand for the court to apply this amended
law. Both parties correctly agree about this. The negotiated plea
did not insulate the parties from changes in the law. (See People
v. Stamps (2020) 9 Cal.5th 685, 695–696, 709 (Stamps).) At least
two of the section 1385 mitigating circumstances are relevant
because Vallier had multiple enhancements and the
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enhancements resulted in a sentence of more than 20 years. (See
§ 1385, subd. (c)(2)(B) & (C).)
On remand, Vallier may ask the trial court to apply section
1385. (See Stamps, supra, 9 Cal.5th at pp. 707–708.) The
prosecution may consent to modifying the plea agreement or may
withdraw its assent to the plea agreement. (Id. at p.
708.) Again, both parties correctly agree about this.
The parties disagree on one issue—how to interpret the
trial court’s discretion under section 1385—but we do not address
this on the merits because the issue is not ripe. (See Pacific
Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d
158, 169–174.) The sentencing court has not yet applied section
1385 in the first instance. There is no definite or concrete
controversy for us to decide.
DISPOSITION
The judgment is reversed and remanded for resentencing
consistent with this opinion.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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