Filed 6/30/26 P. v. Munoz CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B338976
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. KA090526
v.
LOUIE MUNOZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jacqueline H. Lewis, Judge. Affirmed.
Sarah S. Sanger, 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, Assistant
Attorney General, Zee Rodriguez, Michael C. Keller and Lauren
Guber, Deputy Attorneys General, for Plaintiff and Respondent.
____________________
When a defendant seeks resentencing under Penal Code
section 1172.75 and a court reimposes an upper term sentence,
must it apply the heightened factfinding of recently amended
Penal Code section 1170? Our Supreme Court is considering this
issue. Appellate courts are mostly — but not entirely — united in
answering this question “no.” We gave this answer one month
ago in People v. Moss (2026) 120 Cal.App.5th 375, 377 (Moss). We
follow Moss and affirm. Statutory citations are to the Penal
Code.
We covered the facts in People v. Munoz (Feb. 22, 2012,
B227941) [nonpub. opn.]. There, we upheld Louie Munoz’s
convictions for burglary and receiving stolen property, and his
prison sentence of 21 years, four months. The sentence included
the upper term of six years on one burglary count, doubled due to
a strike (§ 1170.12; § 667, subd. (b)), and three prior prison term
enhancements (§ 667.5, subd.(b)). (Id.)
Nearly a decade later, the Legislature enacted two relevant
sentencing laws.
First, it changed the framework for when courts may
impose the upper term in a sentencing triad. (See People v.
Lynch (2024) 16 Cal.5th 730, 746–748 [outlining the old 2007
framework and the new 2022 framework].) The amended statute,
section 1170, generally requires a jury to find aggravating
circumstances used to impose an upper term, where the
circumstances are not based on prior convictions or the
defendant’s stipulation. (See § 1170, subds. (b)(2) & (b)(3).)
In the same session, the Legislature invalidated
enhancements for prior prison terms through what is now section
1172.75. (Moss, supra, 120 Cal.App.5th at p. 378.) This statute
not only enables a defendant to have those enhancements
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stricken, it provides for full resentencing under current law and
the Judicial Council rules. (§ 1172.75, subds. (a), (c) & (d).)
Subdivision (d)(4) addresses upper terms directly: “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).)
In 2023, Munoz petitioned the trial court for resentencing
under section 1172.75. The court held a hearing and struck the
three invalid enhancements. Then it reimposed the upper term
for the first burglary count, noting “the original trial court
imposed that” so “the court does not need to make any special
findings in regards to that.” The court left the remainder of the
sentence intact. Munoz’s sentence became 18 years, four months.
Munoz’s sole claim on appeal is the court violated amended
section 1170 and his jury trial rights by reimposing the upper
term without a stipulation or jury findings on aggravating
factors.
Moss addresses this very issue. There, we explained “the
Legislature intended subdivision (d)(4) to limit the otherwise
broad, ameliorative scope of a section 1172.75 resentencing, and
… the Legislature could so limit the scope of relief for defendants
with already-imposed, proper upper-term sentences without
generating new constitutional concerns under [Apprendi v. New
Jersey (2000) 530 U.S. 466].” (Moss, supra, 120 Cal.App.5th at p.
380; see also People v. Mathis (2025) 111 Cal.App.5th 359, 373–
374, review granted Aug. 13, 2025, S291628 (Mathis) [rejecting
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the contention that § 1172.75(d)(4) must be construed, as a
matter of constitutional avoidance, to require aggravating factors
be found by the factfinder or admitted by the defendant].)
Mathis, on which Moss relies, explains why there is no
Sixth Amendment problem where a court lawfully sentenced a
defendant to an upper term under the 2007 framework and then
retains the upper term in a section 1172.75 proceeding without
additional factfinding. (Mathis, supra, 111 Cal.App.5th at pp.
371–374, review granted Aug. 13, 2025, S291628.)
Munoz urges us to follow an older, outlier case, People v.
Gonzalez (2024) 107 Cal.App.5th 312. We decline, for the valid
reasons stated in Moss and Mathis.
Section 1172.75, subdivision (d)(4), is clear. It creates an
exception to section 1170’s new factfinding requirements for
previously imposed upper term sentences.
DISPOSITION
We affirm the judgment.
WILEY, Acting P. J.
We concur:
VIRAMONTES, J.
SCHERB, J.
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