People v. Serpa CA2/2 ( 2022 )


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  • Filed 2/24/22 P. v. Serpa 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    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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    has not been certified for publication or ordered published for purposes of rule 8.1115.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,                                                           B314661
    Plaintiff and Respondent,                                    (Los Angeles County
    Super. Ct. No. A093412)
    v.
    ALLAN E. SERPA,
    Defendant and Appellant.
    THE COURT:
    Allan E. Serpa (defendant) appeals the trial court’s denial
    1
    of his motion for relief under Penal Code section 1170.95.
    Defendant’s attorney filed a brief raising no issues and asked this
    1     All further statutory references are to the Penal Code
    unless otherwise indicated.
    court to independently review the record. Defendant submitted a
    supplemental brief on his own behalf. Having considered
    defendant’s contentions of error and having conducted our own
    examination of the record, we are satisfied that no arguable issue
    exists which would call into question defendant’s ineligibility for
    resentencing relief under section 1170.95. We accordingly affirm
    the trial court’s order.
    FACTUAL AND PROCEDURAL BACKGROUND
    I.     Facts
    A.    The underlying crime
    One morning in the summer of 1985, a concerned neighbor
    checked on Jean Wildish at her apartment in Santa Monica and
    found Wildish’s body in the apartment’s bedroom. Wildish was
    naked from the waist down and was positioned with her knees on
    the floor and her head on the bed. There was blood all over the
    floor. An autopsy confirmed that Wildish had died as a result of
    blunt force trauma to the head.
    Defendant and a friend had planned to rob Wildish’s
    apartment, but when she awoke, either defendant or his friend
    hit Wildish over the head with a hammer.
    B.    Conviction and appeal
    In April 1987, a jury found defendant guilty of first degree
    murder based on a felony-murder theory, and found true the
    special circumstance that Wildish was murdered during the
    commission of a robbery and burglary. The jury had been
    instructed on the then governing law—specifically, that the
    felony-murder special circumstance required the jury to find that
    defendant “intended to kill a human being or intended to aid
    another in the killing of a human being.” He was sentenced to
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    life without the possibility of parole, and his conviction was
    affirmed on appeal.
    II.    Procedural Background
    On December 9, 2020, defendant filed a petition seeking
    resentencing under section 1170.95. The court appointed counsel
    for defendant, and the People filed a response to the petition.
    The trial court summarily denied defendant’s petition on
    July 23, 2021. The court reasoned that defendant had previously
    filed two petitions for writ of habeas corpus arguing that there
    was insufficient evidence adduced at the trial to show that he
    was a major participant who acted with indifference to human
    life as articulated in People v. Banks (2015) 
    61 Cal.4th 788
    (Banks) and People v. Clark (2016) 
    63 Cal.4th 522
     (Clark), and
    that the court “concurs with the reasoning” in the orders denying
    those habeas petitions—namely, that there was sufficient
    evidence for the jury to have found that defendant “was a major
    participant in the underlying felony and acted with reckless
    indifference to human life if not the actual killer.”
    After the court issued its order, defendant filed a reply brief
    in support of his petition for resentencing. Shortly thereafter, he
    appealed the order. The trial court then issued a further ruling
    on September 9, 2021, reaffirming its earlier order.
    DISCUSSION
    Defendant’s appointed counsel filed an opening brief
    pursuant to People v. Wende (1979) 
    25 Cal.3d 436
    , indicating that
    his review of the record revealed no arguable issues to raise on
    appeal. Defendant thereafter availed himself of his right to file a
    supplemental brief. (People v. Cole (2020) 
    52 Cal.App.5th 1023
    ,
    1040, review granted Oct. 14, 2020, S264278.) Having considered
    defendant’s contentions of error and conducted our own
    3
    examination of the record, we are satisfied that he is not entitled
    to relief under section 1170.95.
    To qualify for resentencing under that statute, the
    petitioner must show that he could not be convicted of first or
    second degree murder under sections 188 or 189 as those statutes
    were amended by Senate Bill No. 1437 (Senate Bill 1437).
    (§ 1170.95, subd. (a).) Contrary to what defendant argues in his
    supplemental brief, he cannot show that the changes wrought by
    Senate Bill 1437 would have any effect on his conviction. That is
    because, though defendant was convicted under a theory of felony
    murder, the commission of the crime and his trial occurred
    during the so-called “Carlos window” when California law
    premised felony-murder liability on a jury’s finding of an intent
    to kill. (Carlos v. Superior Court (1983) 
    35 Cal.3d 131
    , 153-154,
    overruled by People v. Anderson (1987) 
    43 Cal.3d 1104
    , 1138-
    1139; see also People v. Johnson (1993) 
    6 Cal.4th 1
    , 44 [“As to
    offenses committed after Carlos but before Anderson . . . due
    process and ex post facto principles demand that the intent-to-kill
    requirement apply to any felony-murder special circumstance
    charged in connection with such offenses.”].) Because the jury
    was instructed on the then prevailing law, its true finding on the
    felony-murder special circumstance included the finding that
    defendant intended to kill the victim and aided and abetted the
    killing. Accordingly, defendant could still be convicted of murder
    today, despite the changes to sections 188 and 189.
    Defendant raises two further arguments.
    He argues that in denying his resentencing petition, the
    trial court made an “invalid fact-finding inquiry” before first
    issuing an order to show cause and holding an evidentiary
    hearing as required by People v. Lewis (2021) 
    11 Cal.5th 952
    .
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    Whether the trial court’s record-based analysis to reach a ruling
    based on Banks and Clark was wrong does not matter because we
    review the trial court’s ruling, not its rationale. (People v. Chism
    (2014) 
    58 Cal.4th 1266
    , 1295, fn. 12.) The trial court’s ultimate
    ruling denying relief is still correct because, as explained above,
    defendant still could be convicted of felony murder after the
    changes implemented by Senate Bill 1437 because the jury’s
    special circumstance finding conclusively establishes that he
    personally harbored an intent to kill and aided and abetted the
    victim’s killing.
    Defendant lastly argues that there were a variety of defects
    in the jury instructions regardless of the state of the law during
    the “Carlos window.” These contentions go to the validity of his
    conviction, which was affirmed in his direct appeal, and they
    accordingly provide no grounds for disturbing the trial court’s
    denial of section 1170.95 relief.
    DISPOSITION
    The order is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    ——————————————————————————————
    LUI, P.J., CHAVEZ, J., HOFFSTADT, J.
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Document Info

Docket Number: B314661

Filed Date: 2/24/2022

Precedential Status: Non-Precedential

Modified Date: 2/24/2022