People v. Delery CA2/8

Filed 1/11/21 P. v. Delery CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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.)