People v. Lona CA2/2

Filed 2/7/24 P. v. Lona CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B331258

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA357891) v.

HENRY LONA,

Defendant and Defendant.

THE COURT: Defendant and appellant Henry Lona appeals from the denial of his petition for vacatur of his conviction of attempted murder and for resentencing under Penal Code section 1172.6.1 Appointed counsel found no arguable issues and filed a brief requesting we exercise our discretion to conduct an independent review of the record or in the alternative, a review as set forth in People v. Delgadillo (2022) 14

1 Defendant’s petition was filed as a petition under section 1170.95 but heard and decided after the effective date of the statute’s renumbering as section 1172.6. (See Stats. 2022, ch. 58, § 10.) All further unattributed code sections are to the Penal Code unless otherwise stated.

Cal.5th 216 (Delgadillo). Following the standard articulated in Delgadillo, we consider defendant’s supplemental brief and conduct a limited review of the record. (See id., at pp. 230–232.) Finding no merit to defendant’s appeal, we affirm the judgment.

BACKGROUND In 2013, defendant was convicted of both willful, deliberate and premeditated attempted murder, and shooting at an occupied motor vehicle. The jury found true personal firearm use and criminal street gang allegations. The trial court sentenced defendant to a term of 40 years to life in prison. The judgment was affirmed on direct appeal. (People v. Lona (Oct. 6, 2014, B246123) [nonpub. opn.].) After defendant’s conviction, the Legislature passed Senate Bill No. 1437 (2017–2018 Reg. Sess.), which amended sections 188 and 189, the laws pertaining to felony murder and murder under the natural and probable consequences doctrine, “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).) The Legislature passed former section 1170.95, now section 1172.6, which provides a procedure to petition for retroactive relief for those who could not now be convicted under sections 188 and 189 as amended effective January 1, 2019. (See People v. Lewis (2021) 11 Cal.5th 952, 957.) That procedure has been extended to those convicted of attempted murder under the natural and probable consequences doctrine. (§ 1172.6, subd. (a); see Stats. 2021, ch. 551, § 2.) In 2022, defendant filed his petition for vacatur of his attempted murder conviction and for resentencing. As relevant here, the petition alleged defendant had been convicted of attempted murder under the natural and probable consequences doctrine, and that he could not presently be convicted of attempted murder due to changes made to