P. v. Serrato

Filed 1/5/21 P. v. Serrato CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE,
Plaintiff and Respondent,
v.
MARIA ELENA SERRATO,
Defendant and Appellant.
B305470
(Los Angeles County
Super. Ct. No. GA008060)
APPEAL from an order of the Superior Court of
Los Angeles County, Stanley Blumenfeld, Judge. Affirmed.
John Staley, under appointment by the Court of Appeal, for
Defendant and Appellant.
No appearance for Plaintiff and Respondent.
__________________

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INTRODUCTION
Maria Elena Serrato appeals from an order summarily
denying her petition under Penal Code section 1170.95.1
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1989 Serrato had an affair with a female coworker. The
woman’s husband found out about the affair and confronted
Serrato. Serrato subsequently drove to the husband’s house with
two men who shot and killed the husband.
A jury convicted Serrato of first degree murder (§ 187,
subd. (a)) and found true the allegation a principal was armed
with a firearm (§ 12022, subd. (a)(1)). The jury also found true
the special circumstance allegation the murder was committed by
means of lying in wait (§ 190.2, subd. (a)(15)). The trial court
sentenced Serrato to a prison term of life without the possibility
of parole. In 1994 we affirmed. (People v. Serrato (Oct. 25, 1994,
B075855) [nonpub. opn.].)
On December 5, 2019 Serrato, representing herself, filed a
petition for resentencing under section 1170.95 and asked the court
to appoint counsel to represent her. In her petition, Serrato
alleged she “could not now be convicted of 1st or 2nd degree
murder because of changes made to Penal Code §§ 188 and 189,
effective January 1, 2019”; she “was not the actual killer”; she
“did not, with the intent to kill, aid, abet, counsel, command,
induce, solicit, request, or assist the actual killer in the
commission of murder in the first degree”; and she “was not a
1 Statutory references are to the Penal Code.

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major participant in the felony or [she] did not act with reckless
indifference to human life during the course of the crime or
felony.”
On January 13, 2020 the superior court summarily denied
Serrato’s petition, ruling Serrato was ineligible for relief under
section 1170.95. The court stated: “In this case, the jury
concluded that [Serrato] aided and abetted in the murder ‘with
the intent to kill,’ as reflected in the special-circumstance finding
(and related instruction). . . . [¶] The petition in this case fails at
the threshold. . . . To reach this conclusion, the court need look
no further than the jury verdict and relevant instructions.
Moreover, the decision on direct appeal—finding that the
evidence supported the conclusion that [Serrato] hired the killer
with the intent to kill—confirms that [Serrato] is ineligible for
the relief she requests.”
DISCUSSION
A. Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018,
ch. 1015, § 4), effective January 1, 2019, significantly modified
the law relating to accomplice liability for murder. (People v.
Gentile (Dec. 17, 2020, S256698) ___ Cal.5th ___, ___ [2020
WL 7393491, p. 1] (Gentile).) In its uncodified findings and
declarations, the Legislature stated, “It is necessary to amend the
felony murder rule and the natural and probable consequences
doctrine, as it relates to murder, 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

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life.” (Stats. 2018, ch. 1015, § 1, subd. (f).) The Legislature also
declared, “Except as stated in subdivision (e) of Section 189 of the
Penal Code [relating to first degree felony murder], a conviction
for murder requires that a person act with malice aforethought.
A person’s culpability for murder must be premised upon that
person’s own actions and subjective mens rea.” (Stats. 2018,
ch. 1015, § 1, subd. (g).)
The Legislature accomplished its goals by adding
subdivision (a)(3) to section 188, and subdivision (e) to section
189. (Gentile, supra, ___ Cal.5th at pp. ___ [pp. 3-4].) New
section 188, subdivision (a)(3), effectively eliminates the natural
and probable consequences doctrine as a basis for finding a
defendant guilty of murder. (See Gentile, at p. ___ [p. 4].) New
section 189, subdivision (e), limits the felony murder exception to
the malice requirement, permitting a murder conviction for a
death that occurred during the commission of certain serious
felonies only when the prosecution proves other specified
circumstances relating to the defendant’s individual culpability.2
2 Section 189, subdivision (e), provides with respect to a
participant in the perpetration or attempted perpetration of a
felony listed in section 189, subdivision (a), in which a death
occurs—that is, as to those crimes that provide the basis for the
charge of first degree felony murder—that an individual is liable
for murder “only if one of the following is proven: [¶] (1) The
person was the actual killer. [¶] (2) The person was not the
actual killer, but, with the intent to kill, aided, abetted,
counseled, commanded, induced, solicited, requested, or assisted
the actual killer in the commission of murder in the first degree.
[¶] (3) The person was a major participant in the underlying
felony and acted with reckless indifference to human life, as
described in subdivision (d) of Section 190.2.”

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Senate Bill No. 1437 also authorized, through new section
1170.95, an individual convicted of murder under a felony murder
or natural and probable consequences theory to petition the
sentencing court to vacate the conviction and resentence the
petitioner on any remaining counts if he or she could not have
been convicted of murder because of Senate Bill No. 1437’s
changes to the definition of the crime. (See Gentile, supra,
___ Cal.5th at p. ___ [p. 7].) The petition must include a
declaration by the petitioner that he or she is eligible for relief
under section 1170.95, the superior court case number and year
of the petitioner’s conviction, and a statement whether the
petitioner requests the appointment of counsel. (§ 1170.95,
subd. (b)(1); see People v. Verdugo (2020) 44 Cal.App.5th 320,
326-327 (Verdugo), review granted Mar. 18, 2020, S260493.)
If the petition contains all the required information, section
1170.95, subdivision (c), prescribes a two-step process for the
court to determine whether the court should issue an order to
show cause: “The court shall review the petition and determine if
the petitioner has made a prima facie showing that the petitioner
falls within the provisions of this section. If the petitioner has
requested counsel, the court shall appoint counsel to represent
the petitioner. The prosecutor shall file and serve a response . . .
and the petitioner may file and serve a reply. . . . If the petitioner
makes a prima facie showing that he or she is entitled to relief,
the court shall issue an order to show cause.” (See Verdugo,
supra, 44 Cal.App.5th at p. 327.)
Once the court issues an order to show cause, the court
must hold a hearing to determine whether to vacate the murder
conviction and to recall the sentence and resentence the
petitioner on any remaining counts. (§ 1170.95, subd. (d)(1); see

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Verdugo, supra, 44 Cal.App.5th at p. 327.) At the hearing the
prosecution has the burden of proving beyond a reasonable doubt
the petitioner is ineligible for resentencing. (§ 1170.95,
subd. (d)(3); People v. Rodriguez (2020) 58 Cal.App.5th 227, 237.)
The prosecutor and petitioner may rely on the record of
conviction or offer new or additional evidence to meet their
respective burdens. (See People v. Tarkington (2020)
49 Cal.App.5th 892, 898-899, review granted Aug. 12, 2020,
S263219; People v. Drayton (2020) 47 Cal.App.5th 965, 974;
People v. Lewis (2020) 43 Cal.App.5th 1128, 1136, review granted
Mar. 18, 2020, S260598.)
B. The Superior Court Properly Ruled Serrato Did Not
Make a Prima Facie Showing of Entitlement to Relief
We appointed counsel to represent Serrato on appeal. After
reviewing the record, counsel filed an opening brief raising no
issues. Counsel also sent Serrato a copy of the opening brief and
the record. On October 22, 2020 we notified Serrato she had
30 days to submit a brief or letter raising any grounds of appeal,
contentions or arguments she wanted the court to consider. On
December 4, 2020 we received a 12-page supplemental brief from
Serrato in which she argues the superior court should have
appointed counsel to represent her and should have allowed her
to submit new evidence in support of her petition.
The superior court did not err in ruling Serrato was
ineligible for relief under section 1170.95 as a matter of law and
summarily denying the petition. In finding true the special
circumstance allegation for lying in wait, the jury necessarily
found Serrato had the intent to kill. (See People v. Fayed (2020)
9 Cal.5th 147, 203 [“To determine whether an aider and abettor

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who is not the actual killer can be subject to the lying-in-wait
special circumstance, ‘the questions are whether defendant, with
the intent to kill, aided and abetted the victim’s killing, and
whether the actual killer intentionally killed the victim by means
of lying in wait.’”]; People v. Robbins (2018) 19 Cal.App.5th 660,
670 [“Our Supreme Court has explained, in a lying-in-wait
special circumstance case, ‘“Lying in wait is the functional
equivalent of proof of premeditation, deliberation, and intent to
kill.”’”].)
The trial court in Serrato’s trial instructed the jury: “If you
find that a defendant was not the actual killer of a human being,
you cannot find the special circumstance to be true unless you are
satisfied beyond a reasonable doubt that such defendant with the
intent to kill aided, abetted, counseled, commanded, induced,
solicited, requested or assisted any actor in the commission of the
murder in the first degree.” In affirming Serrato’s conviction, we
stated she “hired someone else to kill the victim. Such an action
does not indicate appellant’s reasoning had been obscured by
provocation. Rather, the action only supports the conclusion
appellant had premeditated and deliberated the killing.” (People
v. Serrato, supra, B075855.)
Neither Serrato nor her appellate counsel has raised a
cognizable legal issue. Therefore, the order denying Serrato’s
petition under section 1170.95 is affirmed. (See People v. Cole
(2020) 52 Cal.App.5th 1023, 1040, review granted Oct. 14, 2020,
S264278; see also People v. Serrano (2012) 211 Cal.App.4th 496,
503; see generally People v. Kelly (2006) 40 Cal.4th 106, 118-119;
People v. Wende (1979) 25 Cal.3d 436, 441-442.)

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DISPOSITION
The order denying Serrato’s petition is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.

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