People v. Serna CA2/5

Filed 7/11/25 P. v. Serna CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B337235

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA358871) v.

GABRIEL SERNA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Alison S. Matsumoto, Judge. Affirmed and remanded with directions. Jonathan E. Demson, 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, Senior Assistant Attorney General, Kenneth C. Byrne and Allison H. Chung, Deputy Attorneys General for Plaintiff and Respondent. __________________________

In 2011, Gabriel Serna pleaded no contest to attempted murder. (Pen. Code,1 §§ 187, subd. (a) & 664.) Serna admitted that he personally used a handgun in commission of the offense. (§ 12022.5, subd. (a).) The trial court sentenced Serna to 23 years four months in prison. In 2022, Serna filed a petition for resentencing pursuant to section 1170.95 (now § 1172.6). The trial court found that Serna failed to demonstrate he was prima facie eligible for relief because he was the shooter and acted with express malice. On appeal, Serna contends that the trial court erred, in violation of his constitutional rights, by denying his petition based on uncontroverted evidence presented at the preliminary hearing showing he was the actual perpetrator of the attempted murder. We affirm the trial court’s order, but remand the matter to the trial court with directions to consider an amended petition should Serna seek to file one within 30 days of the issuance of the remittitur.