People v. Burgos CA2/4

Opinion

Filed 8/26/26 P. v. Burgos CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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(a). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115(a).

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

THE PEOPLE, B344638

Plaintiff and Respondent, Los Angeles County Super. Ct. No. PA074799 v.

ORLANDO STEVEN BURGOS,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Lisa Chung and Kathleen Blanchard, Judges. Affirmed. Esther R. Sorkin, under 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 General, Steven D. Matthews and Scott A. Taryle, Deputy Attorneys General, for Plaintiff and Respondent. At a resentencing hearing for appellant Orlando Steven Burgos under Penal Code section 1172.75,1 the trial court reimposed an upper term firearm enhancement and two prior serious felony enhancements. On appeal, Burgos challenges the court’s reimposition of these enhancements as unlawful. Burgos raises two arguments. He first contends the trial court violated his Sixth Amendment right to a jury trial by reimposing an upper term firearm enhancement based on factors that were neither admitted by him nor found true by a jury beyond a reasonable doubt. Burgos also argues that the court abused its discretion by reimposing the enhancements without considering statutorily mandated mitigating circumstances. We affirm. FACTUAL BACKGROUND In 2012, Burgos was among a group of people who committed multiple crimes against Martin Moya Lopez. Several members of the group abducted Lopez at gunpoint and brought him to a garage where Burgos and roughly nine other people were waiting. In the garage, Burgos told Lopez to sit down, then started hitting him in the head and back. Burgos then pulled out a gun and threatened to kill Lopez. Lopez was afraid, and when he tried to grab Burgos’s gun, several of the other individuals pulled out their guns and told Lopez not to do anything. Codefendant Edward Miguel Zuniga told Lopez that Lopez owed him money and he had 24 hours to pay him. PROCEDURAL BACKGROUND In 2014, a jury convicted Burgos of making criminal threats (§ 422) and assault with a firearm (§ 245, subd. (a)(2)). The jury found gang allegations true on both counts (§ 186.22, 1 Undesignated statutory references are to the Penal Code.

2 subds. (b)(1)(C), (b)(4)) and found Burgos personally used a firearm (§ 12022.5, subd. (a)) in the commission of the criminal threats count. The court found Burgos sustained two prior strike convictions (§ 1170.12, subds. (a)–(d)), two prior serious felony convictions (§ 667, subd. (a)), and four prior prison term convictions (§ 667.5, subd. (b)). The court sentenced Burgos to 58 years to life in state prison, consisting of 25 years to life pursuant to the Three Strikes law for making criminal threats, a 10-year upper term on the firearm enhancement, two five-year prior serious felony enhancements, a 10-year gang enhancement, and three one-year prior prison term enhancements. The court stayed sentencing on the remaining counts and allegations. On direct appeal, a different panel of this court remanded Burgos’s case for resentencing, concluding section 1170.1, subdivision (f) prohibited the trial court from imposing both the firearm enhancement (§ 12022.5, subd. (a)) and the gang enhancement (§ 186.22, subd. (b)(1)(C)). (People v. Zuniga et al., (July 28, 2015; B254935) [nonpub. opn.].) Although the remittitur issued in November 2015, Burgos’s resentencing hearing did not occur until March 4, 2025. By then, the Legislature had enacted section 1172.75 through Senate Bill No. 483 (Stats. 2021, ch. 728), rendering Burgos’s one-year prior prison term enhancements invalid.2 2 Section 1172.75, subdivision (a) provides: “Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.”

3 At the resentencing hearing, the court struck Burgos’s one-year prior prison term enhancements and a gang enhancement, reducing his sentence to 45 years to life. The court otherwise reimposed Burgos’s original sentence, which included an upper term firearm enhancement and two prior serious felony enhancements. Burgos timely appealed. DISCUSSION I. The trial court did not violate Burgus’s Sixth Amendment rights by imposing an upper term At resentencing, the trial court explained that it was authorized to reimpose the upper term firearm enhancement under the plain language of section 1172.75:

I will note that although the court is aware of new law that requires a factor in aggravation be proven or admitted before the court can impose the high term, there’s an exception in [section] 1172.75 [ ] where if the high term was previously imposed, the court can impose it again, and the court does feel that that is appropriate.

Burgos contends the trial court’s reimposition of the upper term firearm enhancement based on aggravating factors not found true beyond a reasonable doubt or admitted by Burgos violated his Sixth Amendment right to a jury trial.3 This 3 We exercise our discretion to reach the merits of Burgos’s argument despite a lack of objection in the trial court. In doing so, we obviate the need to address whether trial counsel rendered ineffective assistance of counsel by not objecting. (See People v. Crittenden (1994) 9 Cal.4th 83, 146 [a reviewing court may exercise its discretion to 4 argument raises an issue currently pending in the California Supreme Court in People v. Eaton (Mar. 14, 2025, C096853) [nonpub. opn.], review granted May 14, 2025, S289903: “May a trial court reimpose a previously imposed upper term sentence under Penal Code section 1172.75, subdivision (d)(4) where the facts underlying one or more aggravating circumstances were neither stipulated to by the defendant nor found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial (cf. Pen. Code, § 1170, subd. (b)(2); id., § 1172.75, subd. (d)(2))?” The Courts of Appeal are currently split on this issue. Section 1172.75, subdivision (d)(4) provides: “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), italics added.) We agree with People v. Brannon-Thompson (2024) 104 Cal.App.5th 455, 458 (Brannon-Thompson) that subdivision (d)(4) of section 1172.75 “does not require aggravating factors to be found true beyond a reasonable doubt if the upper term was previously imposed.” As Brannon-Thompson explained, the statute plainly “carves out an exception to the general rule that all ameliorative changes to the law must be applied at a section 1172.75 resentencing and does not require aggravating factors to be found true beyond a reasonable doubt if the upper term was consider a forfeited claim to forestall an ineffective assistance of counsel claim].)

5 previously imposed.” (Brannon-Thompson, at p. 458; accord, People v. Moss (2026) 120 Cal.App.5th 375, 380, review granted July 22, 2026, S296595; People v. Dozier (2025) 116 Cal.App.5th 700, 715, review granted Feb 11, 2026, S294597; People v. Mathis (2025) 111 Cal.App.5th 359, 371–374 (Mathis), review granted Aug. 13, 2025, S291628.) We respectfully disagree with the contrary holding in People v. Gonzalez (2024) 107 Cal.App.5th 312. (See id. at pp. 329–330 [concluding that following Brannon- Thompson’s reading of the statute would violate the Sixth Amendment].) Contrary to Burgos’s assertion, the Sixth Amendment is not implicated here. (See Mathis, supra, 111 Cal.App.5th at p. 373.) Where “the trial court elects to retain an upper term sentence that complied with the Sixth Amendment when originally imposed, the court need not engage in any additional factfinding under section 1172.75, subdivision (d)(4).” (Mathis, at pp. 373−74.) Put differently, there is no Sixth Amendment problem with the reimposition of an upper term sentence that, like Burgos’s, complied with the Sixth Amendment at the time it was originally imposed. We reject Burgos’s argument that the trial court erred by reimposing an upper term firearm enhancement. II. Burgos has not satisfied his burden of demonstrating the trial court abused its discretion by reimposing enhancements Burgos asked the trial court to strike his two prior felony enhancements (§ 667, subd. (a)(1)) and firearm enhancement (§ 12022.5, subd. (a)) in furtherance of justice. The trial court 6 had the power to do so under section 1385. (People v. Romero (1996) 13 Cal.4th 497, 504.) Burgos contends the trial court erroneously denied his requests to strike his prior felony and firearm enhancements. We review the trial court’s decision to deny Burgos’s requests for abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.) Section 1385, subdivision (c)(1) provides, in relevant part: “Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so.” In exercising its discretion to dismiss enhancements, the court “shall consider and afford great weight” to certain “mitigating circumstances.” (Id., subd. (c)(2).) As relevant to this appeal, the statute lists the following mitigating circumstances: (1) “Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed [unless the court finds dismissal of the enhancement would endanger public safety]”; and (2) “The enhancement is based on a prior conviction that is over five years old.” (Id., subd. (c)(2)(B) & (H).)4 Subdivisions (c)(1) and (c)(2) of section 1385 were added to the statute by Senate Bill No. 81 (2021–2022 Reg. Sess.) and became effective in 2022, a little more than three years before Burgos’s resentencing hearing. (Stats. 2021, ch. 721.) Burgos argues the trial court abused its discretion by failing to “comply with its statutory mandate to consider mitigating factors” listed in section 1385, subdivision (c)(2).

4 Burgos’s amended information indicates that his prior serious felony convictions occurred over 25 years ago.

7 We presume, however, the court considered all relevant factors absent an affirmative record to the contrary. (People v. Myers (1999) 69 Cal.App.4th 305, 310.) Burgos has not made that showing. Moreover, Burgos’s assertion that the court misunderstood its discretion is belied by the record. Burgos’s trial counsel filed a resentencing brief that clearly alerted the trial court that it should apply section 1385, subdivision (c) when resentencing Burgos. At Burgos’s resentencing hearing, the trial court stated it had read and considered defense counsel’s resentencing brief. Then, before resentencing Burgos, the court stated it was “aware of all [ ] the changes in the law.” The trial court thus properly considered the relevant mitigating circumstances, then acted within its discretion to deny Burgos’s requests to dismiss his prior felony and firearm enhancements. DISPOSITION We affirm the March 4, 2025, order.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TAMZARIAN, J. We concur:

MORI, Acting P. J.

DAUM, J.