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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,

Plaintiff and Respondent,

v.

GILBERT ISRAEL SERRANO,

Defendant and Appellant.

 B310169 consolidated with 

B319180

 (Los Angeles County

 Super. Ct. No. BA176519)

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.
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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.)
3

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.