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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

ZEUS MURILLO SERRANO,

 Defendant and Appellant.

 G061781

 (Super. Ct. No. RIF106251)

 O P I N I O N

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 

solely on his or her participation in a crime.” (Pen. Code1, § 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.

1

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.