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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

HENRY LONA,

Defendant and Defendant.

 B331258

 (Los Angeles County

 Super. Ct. No. BA357891)

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.
2

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 
3

sections 188 and 189, effective January 1, 2019. He also requested the 

appointment of counsel.

The trial court appointed counsel, ordered briefing, and 

scheduled a hearing to determine whether defendant had made a prima 

facie case for relief under section 1172.6. The prosecutor opposed the 

petition on the ground that defendant was ineligible for relief as a 

matter of law because no jury instructions regarding the natural and 

probable consequences doctrine, aiding and abetting, or the imputation 

of malice were given at defendant’s trial. Attached to the written 

opposition was a copy of all jury instructions given at trial.

Defense counsel did not deny, in either his written reply or at 

oral argument, that no instructions regarding the natural and probable 

consequences doctrine, aiding and abetting, or the imputation of malice

were given at trial. Instead, counsel argued the trial court should find 

defendant had met this burden of showing a prima facia case of 

eligibility based upon the allegations of the petition, as the bar for a 

prima facie showing is “ ‘intentionally and correctly set very low.’ ”

Counsel also argued there was a question of the unanimity of the jury

because one of the jurors later submitted a declaration stating she was 

pressured into changing her vote for not guilty to guilty. A copy of the 

juror’s declaration was attached as an exhibit to the reply.

On May 25, 2023, the trial court heard argument of counsel, 

denied the petition and issued a memorandum of decision denying 

defendant relief.

Defendant filed a timely notice of appeal from the court’s order.

DISCUSSION

Where, as here, appointed defense counsel finds no arguable 

issues in an appeal that is not from the first appeal after conviction, we 

are not required to conduct an independent review of the record. (See 

Delgadillo, supra, 14 Cal.5th at p. 226.) However, even if we do not 

independently review the record to identify unraised issues in such a 
4

case, we give the defendant the opportunity to file his or her own

supplemental brief or letter and we then evaluate any specific

arguments raised. (See id., at p. 232.) Here, counsel provided 

defendant with a copy of the record on appeal and informed him of his 

right to file his own supplemental brief. We notified defendant of 

counsel’s brief, gave him 30 days to file his own letter or brief stating 

any grounds for an appeal, contentions, or arguments that he wished to 

be considered, and advised him that if no supplemental brief or letter is 

timely filed the court may dismiss the appeal as abandoned. Defendant 

here has filed a supplemental brief within the time allowed. We hereby 

consider his contentions and arguments.

Defendant has renewed his counsel’s claim below that the juror’s 

declaration requires a finding that defendant met his burden of making

a prima facie showing of eligibility. Defendant argues his trial attorney 

was ineffective by failing to bring a motion for new trial based upon 

juror misconduct and that insufficient evidence supported his 

conviction. He also argues his former appellate counsel failed to raise 

the issue of juror misconduct during the original appeal from the 2013 

judgment. These contentions are not grounds for relief under section 

1172.6 as the statute does not give a petitioner the opportunity to 

resurrect alleged trial errors or have a second appeal. (People v. Flores

(2023) 96 Cal.App.5th 1164, 1173–1174, citing People v. Burns (2023) 

95 Cal.App.5th 862, 865; People v. Farfan (2021) 71 Cal.App.5th 942, 

947; People v. DeHuff (2021) 63 Cal.App.5th 428, 438.)

“Section [1172.6] applies by its terms only to attempted murders 

based on the natural and probable consequences doctrine. (§ [1172.6], 

subd. (a) [‘A person convicted of . . . attempted murder under the 

natural and probable consequences doctrine . . . may file a petition’].)” 

(People v. Coley (2022) 77 Cal.App.5th 539, 548.) We have reviewed the 

jury instructions given in defendant’s 2013 trial and have found the 

record establishes that no instructions were given regarding the 

natural and probable consequences doctrine or imputed malice; nor was 
5

there an instruction regarding aiding and abetting. Defendant is thus 

ineligible for relief as a matter of law. (People v. Harden (2022) 81 

Cal.App.5th 45, 52–53, 55–56.) The record of conviction contains facts 

refuting the allegations of the petition as a matter of law such that no 

prima facie showing can be made. The petition was properly denied.

(People v. Lewis, supra, 11 Cal.5th at p. 971.)

DISPOSITION

The order denying the section 1172.6 petition is affirmed.

NOT TO BE PUBLISHED.

__________________________________________________________________

ASHMANN-GERST, Acting P. J. CHAVEZ, J. HOFFSTADT, J.