People v. Serrano CA2/4 ( 2023 )

Filed 7/3/23 P. v. Serrano CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B323371
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA176519)
v.
MODIFICATION ORDER
[No Change in Judgment]
GILBERT ISRAEL SERRANO,
Defendant and Appellant.
THE COURT:
It is ordered that the opinion filed herein on June 29, 2023, be
modified as follows:
On page 1, replace Sean D. Coen, Judge with Ronald S. Coen, Judge.
_______________________________________________________________
CURREY, ACTING P.J. COLLINS, J. MORI, J.
Filed 6/29/23 P. v. Serrano CA2/4 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR
THE PEOPLE, B323371
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA176519)
v.
GILBERT ISRAEL SERRANO,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Sean D. Coen, Judge. Affirmed.
Jeannie Grimmond Strong, under appointment by the
Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Appellant Gilbert Serrano appeals from the superior court’s
order denying his motion to stay a victim restitution award
pursuant to Penal Code section 1202.4.1 His appointed counsel
filed a brief raising no issues and requesting that this court
follow the notice procedures set forth in People v. Delgadillo
(2022) 14 Cal.5th 216 (Delgadillo). Appellant filed a
supplemental brief. We have considered appellant’s brief and
find he has not established error. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND2
We discuss here only the facts relevant to the instant
appeal. In 1997, appellant performed unlicensed dental work on
the victim and kissed her against her will. A jury convicted
appellant of battery causing serious bodily injury (§ 243, subd.
(d); count one); false imprisonment (§ 236; count two); and
misdemeanor unlicensed practice of dentistry (Bus. & Prof. Code,
§ 1701, subd. (f); count three). As to count one, the jury found
true the allegation that appellant personally inflicted great bodily
injury (§ 12022.7). Appellant admitted that he had been
convicted of two prior strike felonies (§§ 667, subds. (a)-(i),
1170.12, subds. (a)-(d)).
The superior court sentenced appellant to a total of 60
years to life in prison, as follows: 25 years to life on count one; a
consecutive term of 25 years to life on count two, plus ten years
for the two prior strike convictions (§ 667, subd. (a)(1)); and a
concurrent term of six months in county jail on count three. The
1 All further statutory references are to the Penal Code unless
otherwise indicated.
2 On our own motion, we take judicial notice of our prior
opinion in this matter, People v. Serrano (June 28, 2000,
B132400) [nonpub. opn.]. The procedural and factual background
set forth here is largely drawn from this opinion.
2
court stayed a three-year sentence for the section 12022.7
enhancement on count one. The court also imposed a restitution
fine of $10,000 pursuant to section 1202.4, subdivision (a)(3) and
ordered appellant to pay restitution to the victim in the amount
of $10,000 pursuant to section 1202.4, subdivision (f). Appellant
appealed, and a different panel of this court affirmed his
convictions in People v. Serrano (June 28, 2000, B132400)
[nonpub. opn.].
In 2020, the District Attorney of Los Angeles County (the
People) recommended that the superior court recall appellant’s
sentence and resentence him pursuant to section 1172.1 (former
section 1170, subdivision (d)(1)).3 The superior court recalled
appellant’s sentence and resentenced him pursuant to section
1172.1 to 25 years to life. The court also reduced the restitution
fine ordered pursuant to section 1202.4, subdivision (a) from
$10,000 to $200; the $10,000 victim restitution order under
section 1202.4, subdivision (f) remained unchanged.
Appellant appealed from the resentencing in 2022. His
counsel filed an opening brief that raised no issues and requested
independent review of the record pursuant to People v. Wende
(1979) 25 Cal.3d 436 (Wende). A different panel of this court
again affirmed the judgment in People v. Serrano (Feb. 21, 2023,
B310169) [nonpub. opn.]. We noted that appellant was not
entitled to a Wende review and declined to exercise our discretion
to independently review the record. We further found that
3 Assembly Bill No. 1540 (2021-2022 Reg. Sess.) (Stats.
2021, ch. 719, §§ 1-7) moved the recall and resentencing
provisions from section 1170, subdivision (d)(1) to former section
1170.03, which has since been renumbered without substantive
change as section 1172.1. (See Stats. 2022, ch. 58, § 9.) We
hereafter refer to the statute as section 1172.1.
3
appellant had not raised any arguments regarding resentencing
in his supplemental brief and that his challenges to his conviction
were not properly before the court.
In 2022, appellant filed a motion to “stay fines in excess of
$200,” arguing that the $10,000 victim restitution fine must be
stayed unless the prosecution could demonstrate his ability to
pay. The superior court denied his motion, finding that,
pursuant to section 1202.4, subdivision (g), a defendant’s ability
to pay “shall not be a consideration” in determining the amount
of victim restitution under section 1202.4.4
Appellant timely appealed. On appeal, appellant’s
appointed counsel filed a brief raising no issues and requesting
that this court follow the procedures set forth in Delgadillo,
supra, 14 Cal.5th 216. In Delgadillo, our Supreme Court held
that when appointed counsel finds no arguable issues in an
appeal from the denial of a petition for resentencing under
section 1172.6, “(1) counsel should file a brief informing the court
of that determination, including a concise recitation of the facts
bearing on the denial of the petition; and (2) the court should
send, with a copy of counsel’s brief, notice to the defendant,
informing the defendant of the right to file a supplemental letter
or brief and that if no letter or brief is filed within 30 days, the
court may dismiss the matter.” (Id. at pp. 231-232.)
Although this is not an appeal involving section 1172.6, we
followed the procedures described in Delgadillo and directed
counsel to send the record and a copy of the brief to appellant.
We also notified appellant of his right to respond within 30 days
4Section 1202.4, subdivision (g) provides that “[a]
defendant’s inability to pay shall not be a consideration in
determining the amount of a restitution order.”
4
and that his appeal could be dismissed if he failed to respond.
Appellant filed a supplemental letter brief.
DISCUSSION
Appellant’s supplemental brief raises no issues related to
the denial of his motion to stay restitution. He is not entitled to a
Wende review of the record and has not established any error in
the superior court’s denial of his motion to stay restitution. We
therefore affirm the court’s order.
DISPOSITION
The order denying appellant’s motion is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, ACTING, P.J.
MORI, J.
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