People v. Avila CA2/5

Filed 1/9/26 P. v. Avila CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,