People v. Gaitan CA2/3

Filed 8/21/14 P. v. Gaitan CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THREE

THE PEOPLE, B252671

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA129827) v.

DARIO GARCIA GAITAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, John J. Lonergan, Jr., Judge. Affirmed.

Joseph S. Klapach, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

Defendant and appellant, Dario Garcia Gaitan, appeals from the judgment entered following his pleas of no contest to making criminal threats (Pen. Code, § 422, subd. (a))1 (count 1), inflicting corporal injury on a spouse or cohabitant (§ 273.5, subd. a)) (count 2), resisting a police officer (§ 148, subd. (a)(1)) (count 4), and his admission with regard to counts 1 and 2 he previously had been convicted of the serious or violent felony (§§ 667, subd. (d), 1170.12, subd. (b)) of shooting at an inhabited dwelling house (§ 246) within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)- (d)). The trial court sentenced Gaitan to seven years in prison. We affirm. FACTUAL AND PROCEDURAL BACKGROUND 1. Facts.2 Gaitan and the victim, Ruby P., had been dating for approximately seven years and had four children together. On August 30, 2013, Gaitan accused Ruby P. of seeing other men and the two began to argue. Gaitan “punched [Ruby P.] on her upper thighs” and hit her with his open hand on her face and body. When Ruby P. told Gaitan she was going to leave him, he threatened to burn down her mother’s house. Ruby P., who was afraid of Gaitan, then decided to stay. Throughout the day, Gaitan and Ruby P. had a number of arguments, during some of which he struck Ruby P. and during one of which he broke her cell phone. Gaitan then began to ransack the apartment. When Ruby P. finally told him she was going to her mother’s house, Gaitan threatened her. He told Ruby P., “ ‘You can leave, but I’m gonna hurt you and you know what I’m going to do.’ ” After Gaitan told her he was going to hurt her, Ruby P. was afraid to leave. One of Gaitan’s and Ruby P.’s daughters was at home while the two were arguing. She became so frightened she left the apartment and called the police. When officers arrived, they “announced themselves” and knocked on the door. When no one answered, the officers had the apartment manager unlock the apartment door. Inside, Gaitan was