California Legal Brief

The Rule of People v. Moss is that a trial court may reimpose an upper term sentence during Penal Code section 1172.75 resentencing without additional jury findings or defendant stipulation to aggravating factors, under circumstances where the defendant was originally sentenced to an upper term.

Appeal from judgment after resentencing in Superior Court, Los Angeles County.

Defendant Appellant was Lorenzo Moss — the defendant who stabbed his romantic partner 17 times while she was hospitalized and sought a reduced sentence during section 1172.75 resentencing.

Plaintiff Respondent was The People — the prosecution seeking to maintain the upper term sentence.

The suit sounded in criminal law involving domestic violence and resentencing. No cross-claims applicable.

The key substantive facts leading to the suit were Moss stabbed his romantic partner 17 times with a pocketknife and punched her in the face while she was hospitalized. In 2017, he pleaded guilty to traumatically and willfully injuring a romantic partner with a prior similar offense (§ 273.5). He was originally sentenced to 17 years total, including an upper term of 5 years (doubled to 10 for prior strike), plus enhancements. In 2021, section 1172.75 invalidated prior prison term enhancements and required full resentencing.

The procedural result leading to the Appeal: The trial court granted resentencing under section 1172.75, striking the invalid one-year prior prison term enhancement and weapon enhancement but reimposing the upper term, ruling that Moss's original upper term sentence could be maintained without additional jury findings because he had originally received an upper term and had admitted to prior convictions and weapon use.

The key question(s) on Appeal: Whether a trial court conducting section 1172.75 resentencing may reimpose an upper term without jury findings or defendant stipulation to aggravating factors when the defendant was originally sentenced to an upper term.

The Appellate Court held that section 1172.75, subdivision (d)(4) creates an exception allowing courts to reimpose upper terms during resentencing without additional factfinding requirements when the defendant was originally sentenced to an upper term, distinguishing this from cases where defendants originally received middle terms.

The case is inapplicable when the defendant was not originally sentenced to an upper term, or when the original upper term sentence did not comply with Apprendi requirements, or when conducting resentencing under statutes other than section 1172.75.

The case leaves open how this rule will apply to defendants whose original upper term sentences predate various amendments to comply with Apprendi, and the broader constitutional questions that the California Supreme Court will address in People v. Eaton (under review).