Filed 2/21/23 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B310169 consolidated with
B319180
Plaintiff and Respondent,
(Los Angeles County
v. Super. Ct. No. BA176519)
GILBERT ISRAEL SERRANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Catherine White, 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 R. Johnsen and Theresa A. Patterson,
Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
In 1999, a jury convicted appellant Gilbert Serrano of
battery, false imprisonment, and unlicensed practice of dentistry.
He was sentenced to 60 years to life in prison. We affirmed his
conviction on appeal.
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 former Penal Code
section 1170, subdivision (d)(1).1 The court declined to recall the
sentence and summarily denied appellant’s motion for
reconsideration.
Appellant appealed in December 2020. While the appeal
was pending, Assembly Bill No. 1540 (2021-2022 Reg. Sess.)
(Assembly Bill No. 1540) was signed into law in October 2021 and
became effective on January 1, 2022. (Stats. 2021, ch. 719.) The
bill moved the recall and resentencing provisions of section 1170,
subdivision (d)(1) to a new section, 1170.03, and revised its
terms.2
We granted appellant’s unopposed request to stay the
appeal and remand the matter to the superior court for
reconsideration of the People’s petition for resentencing in light of
former section 1170.03. On remand, the superior court recalled
appellant’s sentence and resentenced him to 25 years to life.
Appellant filed a new appeal in March 2022 from the
resentencing. We vacated the stay in the 2020 appeal and
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2 Effective June 30, 2022, section 1170.03 was renumbered
section 1172.1, with no change in text. (Stats. 2022, ch. 58, § 10.)
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consolidated the 2020 and 2022 appeals for purposes of oral
argument and decision. In the 2022 appeal, appellant’s 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). Appellant filed a supplemental
brief.
We find that the 2020 appeal is moot, as the superior court
granted appellant’s request to recall his sentence and resentence
him pursuant to the changes in the sentencing laws. With
respect to the 2022 appeal, we find that appellant has not
demonstrated reversible error. We therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Conviction
The underlying facts are discussed in detail in our prior
nonpublished opinion, People v. Serrano (June 28, 2000,
B132400). We briefly summarize them here. Victim M.C. visited
appellant’s dentistry practice for treatment in September 1997.
Although he was not a licensed dentist, appellant gave M.C.
anesthesia and performed dental work on her. He also led her to
a back office and kissed her several times against her will and
while she was under the effects of the medication. M.C. suffered
serious injuries to her teeth and jaw as a result of appellant’s
dental work.
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
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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
court stayed the three-year sentence for the section 12022.7
enhancement on count one.
Appellant appealed. We affirmed his convictions in our
prior opinion.
II. Request for Resentencing and Second Appeal
In August 2020, the People filed a petition recommending
that the superior court recall the case and resentence appellant
pursuant to former section 1170, subdivision (d)(1). The petition
summarized the facts of the case, noted that appellant had not
had any “significant violations of prison rules or misconduct”
while in prison, and cited to a 2019 letter from the victim stating
her belief that appellant’s sentence was excessive.3 Accordingly,
the People requested that appellant’s sentence “be recomputed
and a strike struck, qualifying him for a time served sentence” of
14 years and 10 months.
On August 27, 2020, the court issued a written order
denying the petition to recall the case and resentence appellant.
The court found that it lacked the authority under former section
1170, subdivision (d) to modify the judgment by dismissing a
prior conviction. In addition, the court found that the People’s
3 In later proceedings, the People suggested that this letter
appeared to have been forged.
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petition did not demonstrate that resentencing would be in the
interests of justice.
In October 2020, appellant filed a motion for
reconsideration. He requested the ability to present additional
evidence in support of resentencing. The court summarily denied
the motion for reconsideration without a hearing.
Appellant appealed the denial of the petition for
resentencing in December 2020. On appeal, he argued that the
superior court abused its discretion in finding it did not have the
authority to recall the case and resentence appellant as
recommended by the People. He also contended that the court
denied him due process in denying both the petition and the
motion for reconsideration without a hearing or the opportunity
to submit additional evidence.
While appellant’s 2020 appeal was pending, the Governor
signed into law Assembly Bill No. 1540, which relocated the
recall and resentencing provisions of section 1170, subdivision
(d)(1) to a new section, 1170.03, and revised its terms. Section
1172.1 (formerly section 1170.03) required trial courts to apply
ameliorative changes in the law when considering recalling and
resentencing (§1172.1, subd. (a)(2)); required notice to the
defendant and appointment of defense counsel (§ 1172.1, subd.
(b)(1)); and set forth a presumption favoring recall absent a
showing that the defendant was an unreasonable risk of danger
to public safety (§ 1172.1, subd. (b)(2)).
In its brief on appeal, respondent agreed that remand for
reconsideration of the petition was appropriate due to the change
in law. Appellant subsequently filed a motion seeking a
temporary stay of the appeal and a limited remand for the
purpose of reconsideration of the petition for recall and
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resentencing pursuant to former section 1170.03. We granted
that motion in December 2021, and remanded the case.
III. Resentencing and Third Appeal
On remand, the superior court appointed counsel for
appellant and set a status conference to determine whether to
recall appellant’s sentence. The court further allowed the parties
to file “any documentation, briefs, etc. that reflect on a decision to
recall and resentence” appellant. At a February 7, 2022 status
conference, on the motion of the People, the court dismissed the
section 12022.7 great bodily injury enhancement. The court
recalled appellant’s sentence and set the matter for hearing.
The court held a resentencing hearing on February 22,
2022, at which appellant and his counsel appeared. The court
indicated it had read and considered the papers submitted,
including the People’s original petition, the People’s
supplemental brief in support of resentencing, appellant’s motion
joining the People’s petition, appellant’s supporting documents,
and his supplemental motion. The prosecutor noted that the
2019 letter from the victim “appears to have been forged, and it’s
my belief, based on the information available to me, that Mr.
Serrano was complicit in the preparation and in filing the forged
document.” He also stated that appellant’s prison record was
“excellent,” including “personal development and positive
programming that reflects well on him.” As a result, the People
presented three options to the court for resentencing—the
original recommendation of 14 years and 10 months, a middle
option of 19 years and 10 months, and a high option of 25 years to
life. Appellant’s counsel did not contend that the victim’s letter
was valid, but argued that the People continued to recommend
resentencing even though the letter was “highly suspect.”
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The court granted the petition and resentenced appellant to
25 years to life. Specifically, the court imposed a term of 25 years
to life on count one, a concurrent upper term of three years on
count two, doubled to six years for the prior strike (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)), and a concurrent term of six
months in county jail on count three. The court found good cause
based on appellant’s positive prison record to strike the prior
serious felony enhancements under section 667, subdivision
(a)(1). Appellant timely appealed from the resentencing.
On appeal, appellant’s appointed counsel filed a brief
requesting that we independently review the record for error.
(Wende, supra, 25 Cal.3d at p. 441.) We directed counsel to send
the record and a copy of the brief to appellant, and notified
appellant of his right to respond within 30 days. Appellant filed
a supplemental letter brief with exhibits on October 7, 2022.
DISCUSSION
Appellant’s appointed counsel requested that we
independently review the record for error pursuant to Wende,
supra, 25 Cal.3d 436. As this is an appeal from a motion for
postjudgment relief, not a first appeal as a matter of right,
appellant is not entitled to Wende review. (People v. Delgadillo
(2022) 14 Cal.5th 216, 226; see also People v. Cole (2020) 52
Cal.App.5th 1023, 1028, review granted Oct. 14, 2020, S264278
(Cole) [“Wende’s constitutional underpinnings do not apply to
appeals from the denial of postconviction relief”].) If the
appellant timely files a supplemental brief, however, we are
obliged to evaluate any arguments presented in that brief. (Cole,
supra, 52 Cal.App.5th at p. 1028.)
Accordingly, we decline to conduct an independent review
of the record and turn to the arguments raised by appellant in his
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supplemental brief. Here, appellant has not set forth any
arguments pertaining to his resentencing. Instead, he contends
that he was wrongfully convicted and thus that the court erred in
resentencing him to 25 years to life for crimes he did not commit.
Appellant’s challenge to his conviction is unrelated to the
resentencing order from which he appeals and, therefore, is not
properly before us.
We find that appellant’s 2020 appeal is moot, as the
superior court granted the relief requested in recalling
appellant’s sentence and resentencing him. With respect to
appellant’s 2022 appeal, he has failed to establish any basis for
error in the court’s resentencing order.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P.J.
CURREY, J.
STONE, J.
Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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