People v. Villery CA2/8

Filed 3/8/24 P. v. Villery CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B323185

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA060012) v.

HENRY LOYD VILLERY,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Teresa P. Magno, Judge. Reversed.

Rachel Lederman, 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, Assistant Attorney General, Michael C. Keller and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

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Pursuant to People v. Delgadillo (2022) 14 Cal.5th 216, we review this appeal from an order denying a petition for resentencing under former Penal Code section 1170, recently recodified as Penal Code section 1172.1.1 We reverse. BACKGROUND On August 16, 2001, the People charged appellant by amended information with two counts of attempted willful, deliberate and premeditated murder in violation of sections 664 and 187, subdivision (a); one count of shooting at an occupied motor vehicle in violation of section 246; two counts of discharging a firearm with gross negligence in violation of section 246.3; and one count of first degree burglary in violation of section 459. The amended information also alleged, as to several of the counts, that appellant personally used a firearm, personally discharged a firearm, and inflicted great bodily injury within the meaning of sections 12022.53, subdivisions (b), (c), and (d); section 12022, subdivision (a)(1); and 12022.7, subdivision (a). On August 27, 2001, Villery entered a plea of no contest to one count of attempted murder and to the allegation that he personally discharged a firearm in connection with the attempted murder. He also pled no contest to first degree burglary and to the allegation that he personally used a firearm in connection with the first degree burglary. Based on the plea, the trial court found appellant guilty of the substantive counts and found the enhancement allegations true. The trial court sentenced Villery to 31 years four months in prison: the upper term of nine years for the attempted murder plus 20 years for the section 12022.53,