People v. Serrano CA4/3

Filed 08/18/23 P. v. Serrano CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061781
v. (Super. Ct. No. RIF106251)
ZEUS MURILLO SERRANO, OPINION
Defendant and Appellant.
Appeal from a postjudgment of the Superior Court of Riverside County,
Charles J. Koosed, Judge. Affirmed.
Jennifer A. Gambale, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
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In 2018, the California Legislature undertook a major change to
California’s laws pertaining to murder. Effective January 1, 2019, it eviscerated the
“felony murder” and “natural and probable consequences” theories of culpability in an
attempt to ensure that punishment for murder was aligned with culpability.
First, the Legislature eliminated the natural and probable consequences
theory for that crime by providing that “[m]alice shall not be imputed to a person based
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solely on his or her participation in a crime.” (Pen. Code , § 188, subd. (a)(3).) Second,
it reined in the felony murder rule so that it can only be applied to nonkillers if they aided
and abetted the killer in committing first degree murder, or they were a major participant
in the underlying felony and acted recklessly indifferent to human life. (§ 189, subd. (e).)
To obtain relief under the new section, the defendant must show 1) he was
prosecuted for murder under the felony murder rule or the natural and probable
consequences doctrine, 2) he was ultimately convicted of first or second degree murder,
and 3) and he would not be liable for murder today because of how the Legislature has
redefined that offense.
That statute, originally numbered section 1170.95 was subsequently
renumbered as section 1172.6. It sets out the new rules for proving murder, establishes
the retroactivity of the new statute, and provides a procedural vehicle for those convicted
under the discredited theories to challenge their convictions.
We deal here with another of the burgeoning number of cases filed by
inmates seeking to take advantage of the changes in the law. Those changes are, not
surprisingly, confusing to people who have not received a legal education. And the
attorneys appointed to represent these people are often finding themselves forced to admit
to the court that their client’s misunderstanding of the law means there is no argument
that can be made on appeal with a reasonable chance of success. This is such a case.
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All further statutory references are to the Penal Code.
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This is appellant’s third time in this court, his second attempt to take
advantage of the provisions of section 1172.6. Here is what we said the last time, in
February, 2022:
“The record of conviction shows appellant drove his pickup truck alongside
a Chevy Camaro containing three rival gang members in order to enable one of his
passengers to fire several shots into the Camaro. One of [the] shots struck and killed 13-
year old Markess Lancaster, who was in the backseat of the Camaro. The incident
transpired after the two groups exchanged gang signs following a chance encounter at a
liquor store in Riverside County.
“In addition to convicting appellant of first degree premeditated murder, the
jury found appellant guilty of conspiracy to commit murder, two counts of attempted
premeditated murder, and multiple counts of unlawfully possessing and discharging a
firearm. The jury also found true various allegations, including the special circumstances
allegations that the murder was carried out to further the activities of appellant’s gang and
that it was achieved by means of discharging a firearm from a motor vehicle. [Citations.]
“At trial, the jury was instructed that both of those special circumstances
allegations required proof beyond a reasonable doubt that appellant harbored the intent to
kill. And, in finding those allegations true, the jury expressly determined that, in
positioning his truck alongside the victims’ vehicle, appellant acted with such intent. As
the trial court correctly found – after appointing appellant an attorney and conducting an
undisputed hearing on the issue – this determination proves appellant harbored actual
malice so as to render him ineligible for resentencing under . . . section 1170.95
[Citations.]”
All that has changed since then is that the section has been renumbered as
section 1172.6. In 2022, appellant filed this action, seeking relief pursuant to section
1172.6. The trial court appointed counsel for appellant, heard appellant’s motion under
this section and denied it. He appealed and we appointed counsel to represent him on
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appeal. Counsel reviewed the record in the case and concluded there was no issue he
could argue that had a reasonable chance of success. She did not argue against her client
but requested – as the law provides – that we review the case, acknowledging the
applicability of People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Appellant was
notified he had the opportunity to write to us and tell us what issues he thought might be
found in the record but did not respond.
Delgadillo relieves us of the responsibility of reviewing this record. It is no
longer required. But our court, as a general rule, follows People v. Flores (2020) 54
Cal.App.5th 266 and People v. Griffin (2022) 85 Cal.App.5th 329. We have decided,
because of the high stakes involved, to exercise the discretion Delgadillo gives us (14
Cal.5th at p. 232) in favor of Wende review (People v. Wende (1979) 25 Cal.3d 436;
Anders v. California (1967) 386 U.S. 738).
It should be emphasized that a Wende review is not limited to arguments
that would necessarily be successful, but merely arguments that could be made,
arguments whose proposal would not violate ethical prohibitions about frivolous appeals.
Our review of this case was aimed at merely finding something an attorney could
ethically argue in favor of reversal. We have made such a review and found nothing.
We have found nothing because appellant does not fall within the terms of
the statute he is seeking to apply to his case. There was no application of the felony
murder rule or the natural and probable consequences doctrine in his case. The jury was
not instructed on those doctrines, and they were not argued by counsel. This motion is
substantively identical to his earlier unsuccessful attempt to invoke the new rules.
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Appellant’s counsel was right. There is no arguable issue here. The
judgment is affirmed.
BEDSWORTH, ACTING P. J.
WE CONCUR:
MOORE, J.
GOETHALS, J.
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