Young and incarcerated: Part 1

Girl convicted of murder at age 17 because of a bungled defense, lawyer says

By: - November 10, 2021 6:00 am

A guard tower looms over the state women’s prison in Grants. A woman serving a life sentence there for a crime committed as a teenager has run out of legal options to regain her freedom. (Jeff Proctor / Santa Fe Reporter)

One moment in a woman’s life when she was still a teenager might determine the rest of her future.

Santana Serrano is serving a life sentence in the women’s prison in Grants for a murder committed by her then-boyfriend, DeAndre Gonzales.

No one has disputed the fact that it was Gonzales and not Serrano who killed Daniel Garcia in 2014, her attorney says. Since then she has maintained throughout her trial and appeals that Gonzales grabbed the gun out of her hands before he fired the fatal shot.

Although Serrano was 17 when the killing happened, she was charged with first-degree murder and tried as an adult under the theory that she was legally responsible as an accessory to the murder. She will be nearly 50 years old when she first becomes eligible for parole. Even then, her freedom is not guaranteed. Legal experts say Serrano’s case is a tragic misapplication of the law around juvenile punishment.

Young and incarcerated: Part 2

The incident

Serrano and Gonzales went to a business called The Shop on May 29, 2014, in Hobbs, New Mexico where people were recording a music video. They joined as many as 50 other young people that night, including 16-year-old Daniel Garcia, according to the trial record.

Inside The Shop, Gonzales handed his shirt, his hat and his gun to Serrano before getting into a fight with Garcia over an earlier dispute between their family members, not anything personal between them, according to court records. The DJ stopped the music and told them not to fight. They went outside to fight and everyone followed them outside, witnesses told police.

Garcia won the fight against Gonzales, who then went to Serrano to get his gun, turned around and shot Garcia, killing him, court records and video evidence show.

Serrano and Gonzales were tried separately. Her case was moved to district court for trial as a “serious youthful offender.” At the two-day trial, prosecutors and Serrano’s defense disputed whether Gonzales grabbed the gun from her, or she offered it to him, court records show.

That December, after deliberating for three hours, a jury convicted Serrano of first-degree murder.

Five years later, attorney Jason Wheeless argued that her imprisonment was unlawful. In his petition, he argued that the trial attorney failed to investigate and file motions before the trial that could have limited Serrano’s exposure to legal responsibility, failed to challenge the state during the trial, and failed to establish her status as a juvenile at her sentencing hearing after the trial.

“I feel like she’s been poorly served by the criminal justice system,” he said in an interview with Source New Mexico. “To be quite honest with you, from what I’ve seen in the case, she never had a shot. From the very beginning of that case, that was a very defensible case.”

Evidence not presented

Wheeless wrote in the petition that the instructions about the accessory to murder statute given to the jury in Serrano’s case were confusing. The state had to prove that when Serrano handed the gun to Gonzales, he said, she intended for him to kill Garcia. The only thing that was really at issue in the trial was Serrano’s mental state in that moment, he said, and whether she wanted her boyfriend to commit first-degree murder.

“There was a lot of evidence out there that could have been presented to a jury that would have bolstered her claim that she did not want him to be killed,” Wheeless said. “And her attorney did no investigation whatsoever.”

Wheeless said he was able to find Ray Ortega, the witness who was standing next to the couple when she handed over the gun. 

Her lawyer at the time hadn’t found Ortega, Wheeless said, though Serrano had told him who the witness was.

“If he had sent an investigator out, that person could have spoken to the investigator and told him, ‘This is what we were talking about during the fight. This is what, you know, we were talking about just before she handed in the gun back.’ ”

Ortega would have testified as to what Serrano’s mental state was at that moment.

Wheeless said the defense attorney advised Serrano not to testify. She would have testified that she believed that whatever problem that was between the two boys had died out weeks before at a carnival when they supposedly worked it out, he said.

“And so the defense put no evidence on,” he said. That happens often in criminal trials, and there are a million reasons not to put a defendant on the stand in a criminal trial, he acknowledged.

Serrano’s defense lawyer later testified about his plans in the trial. “His strategy made no sense to me,” Wheeless said. “And when you looked at the transcript of the trial, when you looked at his questions — to the extent that you could even discern that strategy out of his questioning and everything — he made a complete mess of it. It’s incoherent. There is no central strategy to the defense.”

Her boyfriend, for instance, could have testified at her trial, Wheeless said, that there was no plot to kill Garcia and that Serrano didn’t know what he was going to do.

“None of that stuff was looked into, and all that stuff went directly to what was that issue at trial, which was her mental state,” Wheeless said. The defense developed no evidence on Serrano’s mental state, while allowing prosecutors to submit questionable evidence that misstated the law, he said.

“If you read through that trial transcript, what becomes patently obvious is that this attorney was winging it,” he said. “He was going on prior experience. And he told me flat out that he was overconfident, and he testified to that.”

Ineffective counsel

In 2011, the U.S. Supreme Court in Miller v. Alabama held that courts must look at the role of the young person in the offense and consider the overwhelming scientific evidence that young people are vulnerable to peer influences and lack understanding of consequences of their actions. A later Supreme Court decision in Montgomery v. Louisiana made that same principle apply retroactively to cases that happened before Miller was decided.

To Wheeless, if a child is charged as an adult with the most serious crime in the state — and the defense lawyer does no investigation, no trial preparation, puts on no evidence — and then the sentencing hearing lasts only minutes, and that doesn’t amount to ineffective assistance of counsel, “then ineffective assistance of counsel is dead in New Mexico.”

“She couldn’t get a hearing out of her defense attorney, and she couldn’t get a hearing out of the courts of New Mexico,” he said. “If this is OK, then we might as well just do away with the bar exam and just let anybody who wants to practice law.”

What bothers Wheeless the most, he said, is that other than talking to her mother, he never gets the feeling throughout the entire process that Serrano’s life means anything to anyone.

“That doesn’t take away from the loss of Daniel Garcia,” Wheeless said. “I’m sure his family, what they’ve gone through has been a nightmare. But Santana deserved better, and if this is the best our society can do, then we’re a sick and ailing society.”

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Austin Fisher
Austin Fisher

Austin Fisher is a journalist based in Santa Fe. He has worked for newspapers in New Mexico and his home state of Kansas, including the Topeka Capital-Journal, the Garden City Telegram, the Rio Grande SUN and the Santa Fe Reporter. Since starting a full-time career in reporting in 2015, he’s aimed to use journalism to lift up voices that typically go unheard in public debates around economic inequality, policing and environmental racism.