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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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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].)
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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.
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