Filed 11/24/15 P. v. Rivera 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               NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR



THE PEOPLE,                                                          B258307

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA410949)
         v.

GABRIEL MARTINEZ RIVERA,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Henry J. Hall, Judge. Affirmed.
         Edward H. Schulman, under appointment by the Court of Appeal, for
Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr. and David A. Voet, Deputy Attorneys General, for Plaintiff and
Respondent.
      Appellant Gabriel Rivera challenges the sentence imposed on his
convictions for a lewd act upon a child, continuous sexual abuse, and aggravated
sexual assault of a child. He contends the trial court, in imposing the upper term
with respect to the principal determinate term and ordering consecutive
sentencing, contravened his right to a jury trial under the Sixth and Fourteenth
Amendments of the United States Constitution. We reject his contention and
affirm.


                   RELEVANT PROCEDURAL HISTORY

      On July 15, 2013, an information was filed charging appellant with multiple
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offenses under the Penal Code against two female children, E.M. and M.M.
Regarding E.M., the information alleged in counts 1, 2, and 7 that between
February 6, 2012, and February 6, 2013, and on April 6, 2013, appellant engaged
in a lewd act upon a child (§ 288, subd. (c)(1)). Regarding M.M., the information
alleged in counts 3, 5, and 6 that between November 17, 2007, and November 16,
2008, appellant engaged in a forcible lewd act upon a child (§ 288, subd. (b)(1);
count 3), continuous sexual abuse (§ 288.5, subd. (a); count 5), and aggravated
sexual assault upon a child (§ 269, subd. (a)(1); count 6). Accompanying the
charge of a forcible lewd act upon a child (count 3) were special allegations that
appellant used force, violence, duress, menace, and fear of bodily injury, and that
the victim was less than 14 years old. In addition, accompanying all the counts --
except the charge of aggravated sexual assault upon a child (count 6) -- were
special allegations that appellant committed the offense against more than one


1
      All statutory citations are to the Penal Code.

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victim. Appellant pleaded not guilty to all the counts and denied the special
allegations.
       A jury found appellant guilty of a lewd act upon a child and a forcible lewd
act upon a child, as charged in counts 1 and 3, and found true the accompanying
special allegations. The jury also found appellant guilty of continuous sexual
abuse and aggravated sexual assault upon a child, as charged in counts 5 and 6,
but found the accompanying allegations not true. The jury otherwise found
appellant not guilty of the offense charged in count 7, and was unable to reach a
verdict regarding the offense charged in count 2. After declaring a mistrial with
respect to count 2, the court dismissed that count at the request of the prosecution.
The trial court sentenced appellant to an aggregate term of 31 years and 8 months
to life.


                             FACTUAL BACKGROUND
       A. Prosecution Evidence
                1. Offenses against M.M. (Counts 3, 5, and 6)
       M.M. was born in El Salvador in 1994. In 1998 or 1999, her mother
emigrated to the United States. In 2006, M.M. also arrived in the United States
and began living with her mother in an apartment in Los Angeles. Also residing in
the apartment was appellant, who was her step-father, as well as four half-sisters.
M.M. had never met appellant before travelling to the United States.
           Because M.M.’s mother worked a night shift, appellant was generally the
sole adult in the apartment at night. M.M. shared a bed with her four half-sisters.
Appellant began entering M.M.’s room while she slept and touched her thighs and
breasts. On one occasion, she awoke and discovered that her pajamas and




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underwear had been removed. According to M.M., appellant touched her every
night, except when her mother was present.
         When M.M. and her family moved into new apartment, appellant initially
touched her less often. She was then “13 going on 14,” and had her own bedroom.
Appellant nonetheless repeatedly directed her to sleep with her sisters. He began
entering their bedroom, lying down on the bed, positioning himself behind her,
and hugging her. According to M.M., appellant engaged in this conduct “a lot of
times.” Some of her half-sisters saw the misconduct.
         On one occasion, after an argument with appellant, M.M. attempted to sleep
in a bedroom with her two youngest half-sisters. Appellant entered the room,
started to take off her clothes, separated her legs while she lay on her stomach, and
positioned himself on top of her. When she fought back, he removed her
underwear, held her forcibly, and inserted his penis in her vagina. He then left the
bedroom.
         Because M.M. was not close to her mother, M.M. did not disclose the
incident to her. After two or three weeks, she told her mother only that appellant
“was doing things” to her, and asked for a pregnancy test. M.M.’s mother
obtained a pregnancy test, which was negative. When M.M.’s mother confronted
appellant, he denied any misconduct. Appellant and M.M. never discussed the
incident, and for a period, he only occasionally tried to touch M.M. while she
slept.
         Approximately two months later, M.M.’s younger sister E.M. and her
younger brother arrived from El Salvador. After the family moved into a new
residence, appellant entered her room repeatedly at night and hugged her. When
M.M. was 16, he had penetrative sex with her twice a week. That conduct
continued until she turned 18, when she moved away from her family residence.


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After learning that appellant was sexually abusing E.M., M.M. reported
appellant’s misconduct to the police. In May 2013, appellant was arrested.


             2. Offense Against E.M. (Count 1)
      E.M. was born in El Salvador in 1998. In 2008, she arrived in the United
States with her brother and began living with her mother and appellant. A year
later, she saw appellant enter M.M.’s bedroom at night and touch M.M. while she
slept. After that incident, when E.M. was 13, appellant began to touch her at night
while she was in bed. According to E.M., that conduct occurred 10 to 15 times.
      When E.M. was 14 or 15, appellant again touched her at night while she
slept, and also “hugged” her from behind while she was in the kitchen. He also
entered her bedroom and tried to grab her hands in order to touch her, but she
resisted, and he left the room. Later, on another occasion, he entered her room,
grabbed her, and kissed her while trying to lie on top of her. When E.M. directed
him to leave her room, he complied. A few days later, she related the incident to a
teacher at her school.


      B. Defense Evidence
      Los Angeles County Sheriff’s Department Deputy Sheriff Susan Gilpin
testified that in March 2014, after appellant’s arrest, M.M. and E.M. told her that
they did not want the action against appellant to continue. They said that the
action was causing financial burdens for their household. Later, M.M. also told
Gilpin that the action was disrupting her efforts to obtain an immigration visa and
interfering with her classes.




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                                      DISCUSSION
      Appellant challenges his sentence on the ground that it contravened his
Sixth Amendment and Fourteenth Amendment rights to a jury trial. The trial court
imposed a term of 15 years to life for count 6 (aggravated sexual assault upon a
child). The court further identified count 5 (continuous sexual abuse) as the
principal determinate term, imposed the upper term of 16 years for that offense,
and directed that the upper term be served consecutive to the sentence for count 6,
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together with a consecutive term of 8 months for count 1 (lewd act upon a child).
In selecting the upper term for count 5 and ordering consecutive sentences, the
court found as aggravating factors, inter alia, that the victims were “particularly
vulnerable” (Cal. Rules of Court, rule 4.421(a)(3)), and that appellant had taken
advantage of a position of trust to commit the offenses (id., rule 4.421(a)(11)).
Appellant argues that because those findings were not reflected in the jury’s
verdicts and special findings, the court’s decisions to impose the upper term and
consecutive sentences contravene Apprendi v. New Jersey (2000) 530 U. S. 466
(Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and
Cunningham v. California (2007) 549 U.S. 270 (Cunningham).
      Appellant’s contentions fail in light of decisions by the California Supreme
Court and the United States Supreme Court after Apprendi, Blakely, and
Cunningham. In Cunningham, the United States Supreme Court held that under
the then-effective version of California’s determinate sentencing law (DSL), a
defendant was entitled to a jury trial on the facts supporting the selection of the
upper term, with the exception of those facts regarding the defendant’s recidivism
that the trial court may determine under Apprendi. (Cunningham, supra, 549 U.S.


2
      The court also imposed and stayed a 6-year term for count 3 (§ 654).

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at pp. 281-282.) Following Cunningham, the Legislature reformed the DSL.
(People v. Towne (2008) 44 Cal.4th 63, 75, fn. 2.) In People v. Sandoval (2007)
41 Cal.4th 825, 850 (Sandoval), our Supreme Court concluded that those
amendments cured any constitutional deficiency in the DSL regarding the
selection of the upper term founded on Apprendi, Blakely, and Cunningham. (See
also People v. Black (2007) 41 Cal.4th 799, 815-816 (Black).) As appellant was
sentenced pursuant to the reformed DSL, we reject his contention regarding the
court’s imposition of the upper term on count 5.
      Appellant’s contention with respect to consecutive sentencing is similarly
defective. In Oregon v. Ice (2009) 555 U.S. 160, 167-170 (Ice), the United States
Supreme Court held that state trial courts may determine facts supporting the
imposition of consecutive sentences without contravening Apprendi, Blakely, or
Cunningham. Our Supreme Court has also so concluded. (Black, supra, 41
Cal.4th at pp. 821-823; People v. Capistrano (2014) 59 Cal.4th 830, 884.)
      Appellant maintains that Sandoval and Ice are wrongly decided, and invites
us to disagree with them. As we are bound by the determinations of the United
States Supreme Court and the California Supreme Court regarding these matters,
we decline to do so. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d
450, 455.) In sum, the trial court did not violate appellant’s right to a jury trial
under the Sixth and Fourteenth Amendments.
      .




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                                 DISPOSITION
     The judgment is affirmed.

     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          MANELLA, J.


We concur:




WILLHITE, Acting P. J.




COLLINS, J.




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