Filed 1/11/21 P. v. Delery CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B305434
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA043949)
v.
ERIC DELERY,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County. Lisa M. Chung, Judge. Affirmed.
Jonathan E. Demson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney
General, Steve Oetting and Heather B. Arambarri, Deputy
Attorneys General, for Plaintiff and Respondent.
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In December 2009, defendant and appellant Eric Delery
was convicted by jury of premeditated attempted murder, assault
with a firearm and dissuasion of a witness and sentenced to
10 years plus 14 years to life in prison. The charges arose from a
premeditated attack defendant and his codefendant (a cousin)
committed against another cousin in the midst of a violent family
feud. We affirmed defendant’s conviction. (People v. Delery
(Apr. 18, 2011, B221665) [nonpub. opn.])
After the passage of Senate Bill No. 1437 (2017–2018 Reg.
Sess.) in 2018, defendant filed a petition for resentencing
pursuant to Penal Code section 1170.95. Section 1170.95 was
enacted as part of the legislative changes effected by Senate Bill
No. 1437 and became effective January 1, 2019. (Stats. 2018,
ch. 1015, § 4.) At a hearing in February 2020, the trial court
denied defendant’s petition, concluding he had not stated a prima
facie case for relief under the new statute because “his underlying
charges include attempted murder” and the “non-murder”
offenses of assault and dissuasion of a witness.
Defendant appealed. He contends the trial court’s
summary denial of his resentencing petition was in error and
violated his rights to equal protection under both the state and
federal Constitutions. We disagree.
“Senate Bill 1437 was enacted to ‘amend the felony murder
rule and the natural and probable consequences doctrine, as it
relates to murder, to ensure that murder liability is not imposed
on a person who is not the actual killer, did not act with the
intent to kill, or was not a major participant in the underlying
felony who acted with reckless indifference to human life.’
(Stats. 2018, ch. 1015, § 1, subd. (f).)” (People v. Martinez (2019)
31 Cal.App.5th 719, 723.)
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Penal Code section 1170.95, subdivision (a) provides, in
plain language, that only persons “convicted of felony murder or
murder under a natural and probable consequences theory” may
file a petition seeking resentencing. “When we interpret statutes,
giving effect to legislative purpose is the touchstone of our
mission.” (People v. Valencia (2017) 3 Cal.5th 347, 409.) “The
text of the statute is integral to our understanding of the
statute’s purpose.” (Ibid.) “We must take ‘the language . . . as it
was passed into law, and [we] must, if possible without doing
violence to the language and spirit of the law, interpret it so as to
harmonize and give effect to all its provisions.’ ” (Id. at pp. 409–
410.)
The Courts of Appeal are divided on the question of
whether individuals who have been convicted of attempted
murder may seek relief under Penal Code section 1170.95. Our
Supreme Court has granted review and is currently considering
the issue. (See, e.g., People v. Lopez (2019) 38 Cal.App.5th 1087,
review granted Nov. 13, 2019, S258175 [attempted murder not
within scope of statute]; People v. Muñoz (2019) 39 Cal.App.5th
738, review granted Nov. 26, 2019, S258234 [same]; People v.
Dennis (2020) 47 Cal.App.5th 838, review granted July 29, 2020,
S262184 [same]; & People v. Love (2020) 55 Cal.App.5th 273,
review granted Dec. 16, 2020, S265445 [same]; compare with
People v. Larios (2019) 42 Cal.App.5th 956, review granted
Feb. 26, 2020, S259983; People v. Medrano (2019) 42 Cal.App.5th
1001, review granted Mar. 11, 2020, S259948; & People v.
Sanchez (2020) 46 Cal.App.5th 637, review granted June 10,
2020, S261768.)
Pending guidance from the Supreme Court, we believe
Lopez, Muñoz, Dennis and Love are the better reasoned and
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adopt their analyses. The trial court did not err in concluding
defendant was not eligible for sentencing relief as to his
conviction for premeditated attempted murder and the court’s
denial of his petition did not violate defendant’s equal protection
rights.
DISPOSITION
The order denying defendant’s resentencing petition is
affirmed.
GRIMES, J.
WE CONCUR:
BIGELOW, P. J.
WILEY, J.
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