Filed 8/4/26 P. v. Serrato 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G065491
v. (Super. Ct. No. 23CF2725)
GERARDO SERRATO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Kevin Haskins, Judge. Affirmed.
Melanie L. Skehar, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
Gerardo Serrato appeals from his convictions for assault likely to
cause great bodily injury and petty theft, though his appointed counsel raised
no issues. We have independently reviewed the record, find no arguable
issues, and affirm.
FACTS
The Orange County District Attorney charged Serrato with the
following offenses in two cases: carjacking, criminal threats, and petty theft
in one case; robbery and assault likely to cause great bodily injury in the
other. As to all counts, the information alleged several factors in aggravation,
including that Serrato engaged in violent conduct indicating a serious danger
to society and that he was on probation and parole when he committed the
crimes.
Before trial, the prosecution moved to consolidate the cases.
Serrato opposed consolidation, contending that (1) joinder would be unduly
prejudicial because evidence from the carjacking case would inflame the jury
on the robbery and assault charges, and (2) the prosecution was attempting
to bolster a weak carjacking case with stronger evidence from the second
case. The trial court granted consolidation, reasoning that neither case was
more inflammatory than the other and the strength of the evidence in each
was comparable. The prosecution later successfully moved to dismiss the
robbery charge.
According to the evidence at trial, after a minor traffic collision,
the owner of a Toyota Camry exited her car, leaving the engine running, to
exchange information with the other driver. Suddenly, another man entered
the driver’s seat of the Camry and locked the doors. When the other driver
ordered the man out and tried to open the door, the man threatened to shoot
him. The other driver backed away but took a picture of the man on his
2
phone. The man ultimately drove away in the Camry, with the owner’s purse
in the car.
Two weeks later, Serrato was driving the stolen Camry with his
girlfriend in pursuit of a man they knew. At some point, Serrato exited the
vehicle, caught up with the man, and repeatedly punched him, even after the
man fell to the ground and curled into a defensive position. The assault ended
when police intervened. Serrato admitted the assault to police, claiming he
and the victim engaged in mutual combat.
Eyewitnesses to the car-theft made no positive identification of
Serrato. The prosecution presented the photo the other driver had taken of
the suspect. Cell-site analysis showed that at the time of the incident,
Serrato’s phone connected to a cell-tower consistent with the incident’s
location and then travelled in a direction that matched the stolen Camry’s
direction.
Serrato told police he had been living in the car for a few days.
He also claimed he had been at his father’s house, located near the scene of
the theft, around the time of the incident. But when confronted with the
incident’s adjacent location, he claimed he had left the area earlier that day.
Regarding the assault, the defense elicited testimony suggesting
the altercation arose because the victim had previously taken the girlfriend’s
property. On redirect, over defense hearsay objections, the prosecution
elicited testimony that the girlfriend had told police she pulled the victim’s
necklace from his neck during the incident and acknowledged it belonged to
him. The trial court admitted the testimony under the rule of completeness.
Following trial, the jury deadlocked on the carjacking charge,
leading to a mistrial on it, and acquitted Serrato of criminal threats. But it
found him guilty of petty theft and assault likely to cause great bodily injury.
3
The prosecution later dismissed the carjacking count and added a charge of
driving without the owner’s consent, to which Serrato pleaded guilty.
In a bifurcated proceeding, the trial court found all the alleged
aggravating factors true beyond a reasonable doubt.1 The trial court imposed
a total of 10 years in prison on Serrato, which included an upper term
sentence for the assault. In so doing, the court acknowledged Serrato’s
mitigating circumstances, which included his traumatic upbringing, early
drug use, and relative youth. But it concluded that aggravating factors
outweighed those circumstances, particularly the violent nature of the
assault and Serrato’s quick recidivism after his release from custody for a
prior strike offense.
DISCUSSION
After examining the record, Serrato’s appointed appellate counsel
filed a brief raising no issues and asking this court to independently review
the record. (See People v. Wende (1979) 25 Cal.3d 436 (Wende); Anders v.
California (1967) 386 U.S. 738.) We gave Serrato 30 days to submit a
supplemental brief raising any argument he wished us to consider. We
received no response.
To assist this court with its independent review, counsel
identified the following issues that might arguably support an appeal: (1) Did
the trial court err in denying a mistrial based on the admission of the
girlfriend’s statements about taking the victim’s necklace, which suggested
Serrato’s involvement in the dismissed robbery charge? (2) Did the trial court
abuse its discretion by failing to meaningfully consider relevant mitigating
factors and instead placing undue weight on aggravating factors?
1 Serrato had waived his right to a jury trial on the aggravating
factors.
4
We see no arguable issue. First, the girlfriend’s statements about
taking the victim’s necklace were admissible and thus could not warrant a
mistrial. The statements were relevant to establish Serrato’s motive for the
assault, i.e., allowing his girlfriend to take the victim’s necklace. And the
hearsay rule did not bar them because defense counsel had already elicited
testimony during cross-examination about the girlfriend’s statements to
police, with the implication that the victim had taken her property. Under the
rule of completeness, the prosecution was entitled to elicit additional
testimony about her statements to police. (See Evid. Code, § 356.)
Second, nothing suggests the trial court abused its discretion at
sentencing. The court expressly considered the relevant mitigating
circumstances, including Serrato’s traumatic childhood, substance abuse
issues, and relative youth. But it reasonably concluded these factors were
outweighed by his aggravating circumstances, including his quick recidivism
and the violent nature of the assault.2
We have also independently examined the record. In our review,
we considered whether the trial court’s consolidation of the two cases against
Serrato raises an arguable issue.
We conclude it did not. Both cases involved violent offenses of the
same class—carjacking and criminal threats vs. robbery and assault. (Pen.
Code, § 954 [consolidation available where offenses are of same class].) And
neither was used to bolster the other. Evidence on the assault charge was
indeed quite strong but the car-theft charges were not weak (notwithstanding
the jury’s ultimate verdicts). (People v. Myles (2012) 53 Cal.4th 1181, 1202 [no
risk of unjustifiable conviction from joinder where neither case was weak].)
2 In so doing, the court complied with its obligations under Penal
Code section 1170, subdivision (b)(6).
5
Strong evidence tied Serrato to the car-theft: his driving of the stolen car
shortly after, the cell-site analysis, and his shifting story about his
whereabouts at the time. And there was evidence that he threatened the
other driver. The consolidation was therefore eminently reasonable. We have
found no other arguable issues. (Wende, supra, 25 Cal.3d 436.)
DISPOSITION
The judgment is affirmed.
SCOTT, J.
WE CONCUR:
GOODING, ACTING P. J.
SCHWARM, J.*
*Judge of the Orange County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
6