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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

ALLAN E. SERPA, 

Defendant and Appellant. 

 B314661

 (Los Angeles County

 Super. Ct. No. A093412)

THE COURT:

Allan E. Serpa (defendant) appeals the trial court’s denial 

of his motion for relief under Penal Code section 1170.95.1 

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. 
2

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 
4

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.