People v. Avila CA2/5
B340656
Cal. Ct. App.Jan 9, 2026Check TreatmentFiled 1/9/26 P. v. Avila 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, B340656
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA074535)
v.
JORGE AVILA,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Michael Terrell, Judge. Affirmed.
Susan Maxwell, under the appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney, Noah P. Hill, Supervising Deputy Attorney
General and Deepti Vaadyala, Deputy Attorney General, for
Plaintiff and Respondent.
Defendant and appellant Jorge Avila appeals the trial
court’s order reimposing an upper term prison sentence at a
resentencing hearing conducted pursuant to Penal Code section
1172.75. He argues, by reimposing the original upper term
sentence on one count of carjacking (Pen. Code, § 215, subd. (a)),1
the trial court violated his Sixth Amendment right to a jury trial
because aggravating factors were not stipulated to by the defense
nor did a trier of fact find they existed beyond a reasonable doubt.
We hold the plain language of the statute does not require such a
finding and affirm the judgment.
BACKGROUND2
Following a 2013 jury trial, defendant was convicted of two
counts of carjacking (§ 215, subd. (a); counts 1 and 2). The trial
court subsequently found defendant had a prior conviction that
qualified as both a “strike,” (§§ 667, subds. (b)–(i), 1170.12,
subds. (a)–(d)) and a serious felony (§ 667, subd. (a)), and he
served eight prior prison terms (§ 667.5, subd. (b)).
On June 19, 2013, defendant was sentenced to 27 years and
four months in state prison. The term was comprised of: the
upper term of nine years on count 1, doubled pursuant to the
Three Strikes law; a consecutive one-third of the middle term,
1 Further statutory references are to the Penal Code.
2 Because our holding turns on the inapplicability of a
statutory provision, the details of the underlying charges are
omitted. In short, defendant confronted three individuals in a 7-
Eleven parking lot. His requests for money from the three
patrons were refused. Defendant then struck two of the victims
numerous times with his fist and stole the vehicle they had
parked at the convenience store.
2
also doubled due to the prior strike (for a total of 40 months) on
count 2; five years for the prior serious felony conviction; and one
year for one of the eight prior prison term enhancements.3 The
remaining prison term enhancements were dismissed pursuant
to section 1385.
Based on the amendment to section 667.5, subdivision (b),
defendant filed a July 24, 2024 motion for resentencing pursuant
to section 1172.75. In his written motion, defendant requested
the trial court dismiss all enhancements. At the hearing, he
supplemented his request by asking the court to reconsider the
upper term sentence. The trial court struck one year of time that
was imposed for serving a prior prison term and five years for the
serious felony enhancement. In all other respects the sentence
remained the same, including imposition of the high term on
count 1.
DISCUSSION
The Trial Court’s Application of the Statutory Scheme
Effective January 1, 2022, the Legislature added section
1172.75 (Stats. 2021, ch. 728, § 3), which renders “legally invalid”
any prior prison term enhancement imposed under subdivision
3 “Prior to January 1, 2020, section 667.5, subdivision
(b) required trial courts to impose a one-year sentence
enhancement for each true finding on an allegation the defendant
had served a separate prior prison term and had not remained
free of custody for at least five years. (Former § 667.5, subd.
(b).) Effective January 1, 2020, [the Legislature] amended section
667.5 by limiting the prior prison term enhancement to only prior
terms for sexually violent offenses. [Citations.]” (People v.
Burgess (2022) 86 Cal.App.5th 375, 379–380) The information
did not allege any of defendant’s prior convictions were for
sexually violent offenses.
3
(b) of section 667.5 before January 1, 2020, except for those
involving a sexually violent offense. (§ 1172.75, subd. (a).) If a
judgment includes such an enhancement, the court shall recall
the sentence and resentence the defendant. (§ 1172.75, subd. (c).)
At the resentencing, the trial court “shall . . . apply any other
changes in the law that reduce sentences or provide for judicial
discretion so as to eliminate disparity of sentences and to
promote uniformity of sentencing.” (§ 1172.75, subd. (d)(2).)
When defendant was sentenced in 2013, the trial court was
given the discretion to select a low, middle, or high term
prescribed by statute based on its balancing of aggravating
and/or mitigating factors. (§ 1170, former subd. (b); Stats. 1977,
ch. 165, § 15, p. 647) Effective January 1, 2022, the Legislature
amended section 1170, subdivision (b), to make the middle term
presumptive and to allow the imposition of the upper term only
“when there are circumstances in aggravation of the crime,” and
the facts underlying those circumstances “have been found true
beyond a reasonable doubt at trial by the jury or by the judge in a
court trial.” (§ 1170, subd. (b)(2); Stats. 2021, ch. 731, § 1.3.)
That same year, the Legislature implemented a similar rule with
respect to resentencing:
Unless the court originally imposed the upper term,
the court may not impose a sentence exceeding the
middle term unless there are circumstances in
aggravation that justify the imposition of a term of
imprisonment exceeding the middle term, and those
facts have been stipulated to by the defendant, or
have been found true beyond a reasonable doubt at
trial by the jury or by the judge in a court trial.
(§ 1172.75, subd. (d)(4).)
4
In assessing the high term on count 1, the trial court
initially acknowledged that “because the original term . . .
was the upper term, [the] restriction on aggravating factors
either being agreed to by the defense or found by the jury
doesn’t apply under [section] 1172.75 . . ..” But in its
ultimate ruling, the trial court seemed to take a different
approach to the upper term: “[T]he court’s analysis of this
overall record leads the court to conclude . . . that the
aggravating factors are sufficient to leave the high term in
place. [¶] As I read from the statute, the fact that the law
has changed now, it needed a jury finding or a stipulation
as to aggravating factors, that does not mean that the high
term is off the table. The high term can still remain if the
circumstances were there, and I’m finding they were there.”
We review the trial court’s ruling, not its rationale. (People
v. Zapien (1993) 4 Cal.4th 929, 976; Belair v. Riverside County Flood Control Dist. (1988)47 Cal.3d 550, 558
.)
Statutory Analysis
Issues of statutory interpretation are reviewed de novo
(People v. Partee (2020) 8 Cal.5th 860, 867) and begin with an examination of the text (People v. Superior Court (Guevara) (2025)18 Cal.5th 838
, 856). “If the language of the statute is not ambiguous, the plain meaning controls and resort to extrinsic sources to determine the Legislature’s intent is unnecessary.” (Kavanaugh v. West Sonoma County Union High School Dist. (2003)29 Cal.4th 911, 919
; see also People v. Walker (2002)29 Cal.4th 577, 581
.) “Although courts may disregard literal
interpretation of a statute . . . [citation], they should do so rarely,
and only in ‘extreme cases’—those in which, as a matter of law,
the Legislature did not intend the statute to have its literal effect
5
. . . .” (Gorham Co., Inc. v. First Financial Ins. Co. (2006) 139
Cal.App.4th 1532, 1543–1544.)
“[A] proviso or clause beginning with the word ‘unless’
means an exception or condition subsequent rather than a
condition precedent.” (Baggett v. Housing Authority (1987) 195
Cal.App.3d 383, 389.) Thus, because section 1172.75, subdivision (d)(4) begins with the word “unless,” the provision can easily be broken down into two components, a requirement and an exception. To impose a sentence exceeding the midterm, it is required that there was a stipulation to aggravating circumstances, or a factfinder must have found aggravating circumstances true beyond a reasonable doubt. This requirement, however, is not applicable where, as here, the court originally imposed the upper term. There is no ambiguity. (People v. Brannon-Thompson (2024)104 Cal.App.5th 455
, 466– 467 (Brannon-Thompson) [plain meaning of § 1172.75, subd. (b) is that its requirements apply only if a trial court is imposing an upper term for the first time]; accord, People v. Dozier (2025)116 Cal.App.5th 700
, 712–713.)
Defendant contends the plain meaning of the statute
should not be followed because to do so would violate defendant’s
Sixth Amendment right to a jury trial. He suggests we disregard
Brannon-Thompson and apply People v. Gonzalez (2024) 107
Cal.App.5th 312 (Gonzalez)—a case that disagreed with Brannon-
Thompson on the ground that the Sixth Amendment demands
the burden of proof requirements apply even if the upper term
was imposed on the original sentence. (Id. at pp. 328–332.)4 In
our view, Brannon-Thompson offers the better approach.
4 In its effort to save section 1172.75, subdivision (d)(4) from
what it perceived to be constitutional infirmity, Gonzalez
6
Aside from the importance of adhering to the plain
meaning of the statute, Gonzalez did not address the principle
that the Sixth Amendment requires “any fact that exposes a
defendant to a greater potential sentence must be found by a jury,
not a judge, and established beyond a reasonable doubt.”
(Cunningham v. California (2007) 549 U.S. 270, 281, italics
added.) Section 1172.75 is an ameliorative statute that precludes
the imposition of any greater sentence and only permits
resentencing courts to reduce the original sentence or leave it
intact. (§ 1172.75, subd. (d)(1).) In other words, the provision
does not contemplate improper factfinding to impose a sentence
that is greater than the original sentence.5
interpreted the first sentence of the provision as “restrict[ing] the
scope of defendants eligible to receive the upper term at
resentencing . . . .” (Id. at pp. 329–330.)
5 The issue of whether section 1172.75, subdivision (d)(4)
allows the trial court to reimpose an upper term sentence when
circumstances in aggravation were neither stipulated to nor
found true beyond a reasonable doubt is pending before the
Supreme Court in People v. Eaton (Mar. 14, 2025, C096853)
[nonpub. opn.], review granted May 14, 2025, S289903.
7
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
KUMAR, J.*
We Concur:
HOFFSTADT, P. J.
KIM (D.), J.
Retired Judge of the Superior Court of Los Angeles
County, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.
8