Filed 7/16/26 P. v. Moreno CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C102723
Plaintiff and Respondent,
(Super. Ct. No. 97F05215)
v.
LOUIE MORENO, JR.,
Defendant and Appellant.
In 1997, defendant Louie Moreno, Jr., sexually assaulted an 11-year old girl and
was ultimately sentenced to 40 years in prison, which included three one-year prior
prison term enhancements under former Penal Code section 667.5, subdivision (b)
(statutory section citations that follow are to the Penal Code) and a five year prior serious
felony enhancement. In 2024, the trial court resentenced defendant pursuant to section
1172.75, striking the now-invalid prior prison term enhancements but otherwise leaving
the sentence unchanged. On appeal, defendant contends the trial court erred in failing to
dismiss the five-year prior serious felony conviction enhancement. We affirm the
judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
In 1997, defendant was babysitting his girlfriend’s 11-year-old younger sister.
While the girl was watching television, defendant walked over and laid on top of her.
After he got off, the girl moved to a different chair to get away but he came over and
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knelt over her and began rubbing his fist on her vagina over her clothing. The girl
repeatedly tried to push defendant off and her nephews began hitting him to get him off,
but he continued. He eventually got off and the girl moved to the floor. Defendant came
over and started touching her breast over her clothing. Defendant got on top of the girl
again and she tried to push him off and told him to stop, but he refused. Defendant
moved against her in a “vibrating motion” as he held her down.
Defendant briefly stopped and got off the young girl, and she moved to a chair
across the room. Yet again, defendant followed her. The victim tried to avoid defendant,
but he pulled her down across his lap and slid his hand under her clothing and penetrated
her vagina with his fingers. In pain, the girl called for help and asked defendant to stop,
but he continued to digitally penetrate her until she was finally able to free herself and
run to a nearby bedroom. Defendant asked the victim to come to his room later that
evening and told her not to tell her sister.
Thereafter in 1997 defendant was charged with multiple sexual offenses. After he
was convicted by a jury and sentenced, he successfully petitioned the federal court for
habeas corpus relief in 2008. An amended information filed in 2010 charged defendant
with committing a lewd or lascivious act on a child under the age of 14 years (§ 288,
subd. (a); count 1) and committing multiple lewd or lascivious acts by force or fear on a
child under the age of 14 years (§ 288, subd. (b)(1); counts 2-5). The amended
information also alleged enhancements based on five prior convictions resulting in prison
sentences (former § 667.5, subd. (b)) and a prior serious felony conviction (§ 667.5, subd.
(a)) which also qualified as a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)).
In 2010, defendant pleaded guilty to all five counts. Defendant admitted
enhancements for use of force or violence (§ 1203.066, subd. (a)(l)); substantial sexual
conduct (§ 1203.066, subd. (a)(8)); and the prior prison term enhancements, the prior
serious felony, and the prior strike conviction. In accordance with the plea agreement
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stipulating a prison sentence of 38 to 45 years, the trial court sentenced defendant to an
aggregate term of 40 years in prison, including the upper term of eight years on count 1,
doubled pursuant to the prior strike; the upper term of eight years on count 2, doubled
pursuant to the prior strike, running consecutively; five years on the prior serious felony
enhancement; and one year each on three of the prior prison term enhancements, after
staying one prior prison term enhancement and striking another. The court imposed the
upper term of eight years, doubled to 16 years on counts 3, 4, and 5, to run concurrently
with the other terms.
In 2023, the trial court recalled defendant’s sentence under section 1172.75, based
on the three prior prison term enhancements. (Former § 667.5, subd. (b).)
The People asked the trial court to strike the now-invalid prior prison term
enhancements but otherwise leave the sentence unchanged. They argued that dismissing
the prior serious felony enhancement would endanger public safety and was contrary to
the interests of justice. They pointed to defendant’s conduct in this case, his numerous
prior convictions of increasing severity, and his numerous rules violations while
incarcerated, including multiple incidents of fighting and verbal abuse of prison staff.
The People also noted a 2024 psychological report recounting defendant’s claim
that the 11-year-old victim had sexually provoked him, and he should have responded by
verbally reprimanding and slapping her. The psychologist concluded that defendant had
a high risk for violence “primarily based on his current instability and symptoms of
mental illness, inadequate awareness into his illness and the need for ongoing treatment,
inadequate awareness into contributors to his offense history, recent engagement in rule-
violating behaviors (including alleged violence and threats), ongoing traits of a
personality disorder, history of significant supervision violations, and the likelihood of
future violations of the terms of community supervision.”
Defendant requested that the court consider his rehabilitative efforts, argued
further incarceration was unnecessary, and requested that the court dismiss the now-
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invalid prior prison term enhancements, the prior serious felony enhancement, and the
prior strike. In support, defendant produced records showing his rehabilitative
programming, including for substance abuse, sexual addiction, domestic violence, victim
impact, vocational skills, release planning, and relapse prevention. He also produced
documentation regarding potential post-incarceration housing and employment.
Defendant also argued that several mitigating factors applied, including that multiple
enhancements had been applied to his sentence and the prior serious felony enhancement
was based on a conviction more than five years old. (§ 1385, subd. (c).) According to
defendant, a lower sentence would not endanger public safety and was not contrary to the
interests of justice. Defendant also personally addressed the court, expressing regret for
his crime and the harm to the victim. He claimed he was a changed man that would
never harm anyone again.
The trial court stated that it had considered the parties’ arguments and defendant’s
statement. The court found that defendant appeared sincere about not wanting to re-
offend if released back into society. Although defendant had put significant time and
effort into rehabilitation, the court remained concerned about defendant’s molestation of
a young girl using manipulation from a position of trust. The court further found
defendant’s record was “replete with criminal activity from early on as a juvenile” with a
“RAP sheet that goes on and on and on.” The court also noted defendant’s prior,
lengthier sentences in this case and concluded that, notwithstanding defendant’s
“heartfelt statements,” it did not believe defendant was “completely rehabilitated at this
time given the nature of these charges and some of the comments made while
incarcerated and some of his disciplinary actions.” The court struck the three prior prison
term enhancements but otherwise reimposed defendant’s prior sentence, for an aggregate
sentence of 37 years.
Defendant timely appealed.
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DISCUSSION
Defendant argues that the trial court misunderstood and failed to exercise its
discretion to dismiss his prior serious felony enhancement under section 1385,
subdivision (c), because there was no rational basis to conclude that dismissal of the
enhancement would endanger public safety or was contrary to the interests of justice.
We review a trial court’s decision whether to strike an enhancement under section
1385 for an abuse of discretion. (People v. Mendoza (2023) 88 Cal.App.5th 287, 298.)
“ ‘ “[T]he burden is on the party attacking the sentence to clearly show that the
sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
set aside on review.” ’ ” (People v. Carmony (2004) 33 Cal.4th 367, 376-377.) “The
court is presumed to have considered all of the relevant factors in the absence of an
affirmative record to the contrary.” (People v. Myers (1999) 69 Cal.App.4th 305, 310.)
But “ ‘an abuse of discretion arises if the trial court based its decision on impermissible
factors . . . or on an incorrect legal standard.’ ” (People v. Gonzalez (2024)
103 Cal.App.5th 215, 225.)
Section 1385, subdivision (c)(2), provides that a sentencing court “[i]n exercising
its discretion” to dismiss a sentencing enhancement such as a prior serious felony
enhancement “shall consider and afford great weight to evidence offered by the defendant
to prove” certain enumerated mitigating circumstances, including that multiple
enhancements were applied, and an enhancement is based on a conviction more than five
years old. (§ 1385, subd. (c)(2)(B), (H).) “Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the enhancement, unless the court
finds that dismissal of the enhancement would endanger public safety.” (§ 1385, subd.
(c)(2).) In this context, “endanger public safety” means “there is a likelihood that the
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dismissal of the enhancement would result in physical injury or other serious danger to
others.” (§ 1385, subd. (c)(2).)
In People v. Walker (2024) 16 Cal.5th 1024, 1029, our Supreme Court rejected the
argument that section 1385, subdivision (c)(2) creates a rebuttable presumption in favor
of dismissal of an enhancement unless a sentencing court finds that dismissal would
endanger public safety. Instead, “absent a finding that dismissal would endanger public
safety, a court retains the discretion to impose or dismiss enhancements provided that it
assigns significant value to the enumerated mitigating circumstances when they are
present.” (Walker, at p. 1029.) “In other words, if the court does not find that dismissal
would endanger public safety, the presence of an enumerated mitigating circumstance
will generally result in the dismissal of an enhancement unless the sentencing court finds
substantial, credible evidence of countervailing factors that ‘may nonetheless neutralize
even the great weight of the mitigating circumstance, such that dismissal of the
enhancement is not in furtherance of justice.’ ” (Ibid.)
Here, the trial court did not expressly find that dismissal of the serious felony
enhancement would endanger public safety or was not in the interests of justice.
However, it stated that it considered the parties’ briefing and arguments, which included
the People’s arguments that dismissal would endanger public safety and was contrary to
the interests of justice, especially given the psychologist’s opinion that defendant posed a
high risk of future violence. The court also considered defendant’s arguments regarding
his rehabilitation and mitigating factors such as the age of the prior serious felony and the
fact that multiple enhancements were applied.
The trial court also stated that it would impose the same sentence, aside from the
now-invalid prior prison term enhancements. In doing so, the court specifically noted
defendant’s sincerity and efforts at rehabilitation. However, these were outweighed by
his serious conduct in this case, his extensive criminal history, his blaming of the victim
for his conduct, and his numerous rules violations.
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In light of these findings, and because we presume the trial court acted to achieve
legitimate sentencing objectives and considered all of the relevant sentencing factors,
defendant has failed to show that the trial court’s denial of his request to dismiss the prior
serious felony enhancement was irrational or arbitrary. (See People v. Carmony, supra,
33 Cal. 4th at pp. 376-377; People v. Myers, supra, 69 Cal.App.4th at p. 310.)
Accordingly, we reject defendant’s argument that the trial court abused its discretion
afforded by section 1385, subsection (c).
DISPOSITION
The judgment is affirmed.
/s/
HULL, Acting P. J.
We concur:
/s/
ROBIE, J.
/s/
BOULWARE EURIE, J.
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