Jump To

Top Caption Combined Opinion

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 13, 2026 Get Citation Alerts Download PDF Add Note

People v. Avalos CA2/8

California Court of Appeal

• Citations: None known
• Docket Number: B342870

• Precedential Status: Non-Precedential

• Opinion

• Authorities (2)

• Cited By (0)

• Summaries (0)

• Similar Cases (11.3K)

• PDF

Combined Opinion

Filed 3/13/26 P. v. Avalos CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE, B342870

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. VA160504)
v.

JORGE AVALOS,

Defendant and Appellant.

APPEAL from judgment of the Superior Court of Los
Angeles County, Lisa S. Coen, Judge. Affirmed.
Steven A. Torres, 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, Stephanie C. Brenan and Nancy Lii Ladner,
Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Jorge Avalos challenges his upper-term sentence
for making a criminal threat (Pen. Code, § 422, subd. (a)).
(Further unspecified statutory references are to the Penal Code.)
Even if trauma Avalos suffered contributed to his commission of
that offense and gave rise to a presumptive low-term sentence
(see § 1170, subd. (b)(6)(A)), the superior court was within its
discretion, given unchallenged aggravating circumstances, to
nonetheless impose the upper term. We therefore affirm.
BACKGROUND
In 2021, Avalos, violating a protective order, threatened to
kill his father, Armando, while holding a glass “decoration.” This
led to Armando obtaining, in 2022, a second protective order
against his son.
In 2023, Avalos was at his father’s home with his father’s
parents when Armando returned home from work. Armando
perceived his son was under the influence of drugs and alcohol
and, based on past experiences, believed his son posed a danger.
Armando told his son to leave, but Avalos responded rudely with
a raised voice. Avalos threatened to “hit” and “sock” his father.
When Avalos, who was also speaking to someone on a cell phone,
retreated to his father’s storage shed, Armando, worried about
his safety, locked Avalos inside. Avalos then explicitly
threatened to kill his father, kill everyone in the house, and twice
threatened to burn the house down. There was gasoline in the
shed. Afraid for himself and his parents, Armando called 911.
He told the dispatcher he had put away his knives because of
“last time.”
Police arrived at Armando’s home, but when they
approached the shed, Avalos exited through a window and
escaped. Later, Avalos returned to his father’s home and

2
approached the front door. Armando asked his son to leave.
Instead, Avalos, carrying a metal tube from a floor jack, again
threatened to kill his father, causing his father, once more, to be
afraid. Armando called 911 again. The police returned quickly
and apprehended Avalos, which required subduing him on the
ground.
A jury convicted Avalos of making a criminal threat (§ 422,
subd. (a)) and contempt of court for violating a protective order
(§ 166, subd. (c)(1)). Avalos admitted he had two prior
convictions that qualified as strikes under the “Three Strikes”
law. And Avalos admitted two aggravating circumstances: (1)
that his prior convictions as an adult are numerous or of
increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); and
(2) that he served a prior term in prison or county jail under
section 1170, subdivision (h) (Cal. Rules of Court, rule
4.421(b)(3)). At sentencing, the superior court dismissed one of
the two strikes under People v. Superior Court (Romero) (1996) 13
Cal.4th 497. It then imposed a total term of seven years. It
selected the upper, three-year term for the criminal threat
conviction, doubled to six years due to the remaining strike. It
selected a consecutive one-year term for the contempt of court
conviction.
Regarding the term for the criminal threat conviction, the
superior court had indicated an initial inclination towards the
upper term. Avalos then argued the court should instead impose
the middle term, citing the mitigating factor that he suffered
from a mental condition that reduced his culpability. But Avalos
acceded that the court’s indicated total sentence of seven years
would be understandable given Avalos’s prior involvement with
the court system. The People defended the upper term, noting

3
Avalos was not “slowing down” but was getting more dangerous
and becoming more “fixated on his father.” Thus, even though
Avalos probably had mental health difficulties, he was not
getting help and was instead an increasing danger to his family.
This proceeding was only the latest in a string that impacted the
family.
The superior court expressed concern about Avalos’s
mental health history following a traumatic brain injury he
suffered from an accident as a young adult. Earlier court
proceedings revealed Avalos, after that accident, had undergone a
personality change. He “wanted to fight” with people, was
“aggressive,” and had “weird reactions.” A neurophysiological
exam revealed Avalos had bipolar disorder with hypomanic and
psychotic features. The court, however, was also concerned about
the countervailing factors favoring a lengthy sentence. The court
balanced these concerns as follows:
“I’m choosing the high term based on the fact that there
were multiple criminal protective orders in effect, based on the
fact that there have been multiple violations of those protective
orders, based on [Avalos’s] prior history of domestic violence, and
based on his criminal history. [¶] I have mitigated that [and] I’m
going to exercise my discretion under Romero to strike one of his
strike priors because of the head trauma he has suffered, because
of the relationship that he has with the grandparents, with the
father, and all of these intricacies. And I’m going to exercise my
discretion in that respect.”
Avalos timely appealed.
DISCUSSION
Avalos argues that, given his traumatic brain injury, the
superior court should have, in imposing sentence on the criminal

4
threat conviction, selected no more than the two-year, middle-
term, and not the three-year upper term.
A felony criminal threat conviction calls for a term of
imprisonment of either 16 months, two years, or three years.
(§ 422, subd. (a); § 1170, subd. (h).) When a criminal statute so
“specifies three possible terms, the court shall, in its sound
discretion, order imposition of a sentence not to exceed the
middle term, except . . . [¶] . . . when there are circumstances in
aggravation of the crime that justify” it. (§ 1170, subd. (b)(1)–(2).)
“[T]he court shall order imposition of the lower term if any of”
certain factors contributed to commission of the crime, including
that the defendant “experienced psychological, physical, or
childhood trauma.” (§ 1170, subd. (b)(6)(A).) The court shall not
impose the lower term, however, if it “finds that the aggravating
circumstances outweigh the mitigating circumstances [such] that
imposition of the lower term would be contrary to the interests of
justice.” (§ 1170, subd. (b)(6).)
Avalos notably does not challenge the superior court’s
finding of aggravating factors. Nor does Avalos argue for a low-
term sentence. Rather, Avalos argues the court should have
selected the middle term, not the upper term, given it found a
mitigating factor under section 1170, subdivision (b)(6). The
People do not contest that Avalos, given his traumatic brain
injury, falls under subdivision (b)(6); rather, they argue the court
was well within its discretion in selecting the upper term. Our
review is for abuse of discretion. (People v. Salazar (2023) 15
Cal.5th 416, 428, fn. 8 (Salazar).)
Section 1170, subdivision (b)(6), creates a low-term
presumption. But that presumption can be overcome, and the
superior court may select a higher term. (People v. Flores (2022)

5
73 Cal.App.5th 1032, 1039 [the statute “does not require
imposition of the lower term in every case in which the
defendant” can show one of the subdivision’s mitigating factors].)
The subdivision does not foreclose imposition of the upper term.
(§ 1170, subd. (b)(6); People v. Mathis (2025) 111 Cal.App.5th 359,
369–370, review granted on other grounds Aug. 13, 2025,
S291628 [affirming an upper-term sentence despite presence of a
mitigating factor under subdivision (b)(6)]; see Salazar, supra, 15
Cal.5th at p. 426 [subdivision (b)(6) “dramatically restrains that
discretion to impose the middle or upper term,” italics added];
People v. Codinha (2023) 92 Cal.App.5th 976, 995 [“the middle or
upper term may not be imposed ‘unless the court finds that the
aggravating circumstances outweigh the mitigating
circumstances,’ ” italics added]; People v. Bautista-Castanon
(2023) 89 Cal.App.5th 922, 928 [“If this ‘interests of justice’
exception to the lower term applies (and if the prerequisites for
imposing an upper term set forth in subd. (b)(1)–(3) have not been
met), the court may impose the middle term,” italics added].)
This is because the low-term presumption of subdivision (b)(6) is
an exception to a sentencing rubric in which not only the middle
term, but also the upper term, can be justified. (§ 1170, subd.
(b)(1)–(b)(2), (b)(6).) When the subdivision (b)(6) presumption
does not apply, all three terms – lower, middle, and upper – are
on the table. (§ 1170, subd. (b)(1)–(b)(2), (b)(7).)
Here, the superior court considered Avalos’s circumstances,
including the mitigating factor Avalos cites and the aggravating
factors Avalos does not challenge. The court chose to dismiss a
strike, resulting in a significantly reduced sentence. But it also
chose to impose the upper term after holistically evaluating
Avalos’s conduct. All of this was, under the circumstances,

6
within the court’s discretion. (People v. Mathis, supra, 111
Cal.App.5th at p. 370 [“The trial court carefully considered
[defendant’s] arguments, addressed the relevant factors, and
arrived at a conclusion that was neither arbitrary nor
irrational”].)
DISPOSITION
We affirm the judgment.

SCHERB, J.
We concur:

STRATTON, P. J.

VIRAMONTES, J.

7