People v. Vizcarra CA4/3

Filed 6/24/15 P. v. Vizcarra CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G050258

v. (Super. Ct. No. 11CF3108)

ANDREZ BARRAZA VIZCARRA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge. Affirmed. Eric Cioffi, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Sean M. Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

Andrez Barraza Vizcarra appeals from a judgment after a jury convicted him of attempted first degree residential burglary of an inhabited dwelling, possession of a firearm in violation of a protective order, possession of a firearm by a felon, evading a police officer while driving recklessly, and misdemeanor violation of a protective order, and found he used a firearm. Vizcarra argues the trial court erred in denying his motion of acquittal of attempted residential burglary. We disagree and affirm the judgment. FACTS Vizcarra and Marisol Cervantes were in a relationship for over 10 years, but it was volatile. In September 2009, Vizcarra and Cervantes were at a party when one of Cervantes’s male colleagues kissed her on the cheek. Vizcarra threw his car keys at Cervantes and called her names, including a “hoe.” After Vizcarra and Cervantes left and got into the car, Vizcarra continued calling Cervantes names and accused her of infidelity. He hit her in the face with a closed fist. As they left the parking lot, one of Cervantes’s female colleagues asked why she was leaving. Vizcarra hit Cervantes again, giving her a bloody nose. Cervantes reported the incident to the Tustin Police Department. They had two children at the time. In December 2009, Vizcarra pleaded guilty to domestic violence (Pen. Code, § 273.5, subd. (a), all further statutory references are to the Pen. Code, unless otherwise indicated), and the trial court placed him on probation for three years. The probation terms prohibited Vizcarra from owning, using, or possessing a deadly or dangerous weapon or owning ammunition. Additionally, he could not have any communication with Cervantes, or come within 100 yards of her. Nevertheless, Vizcarra and Cervantes continued to have an on-again, off-again relationship and Cervantes found out she was pregnant with their third child. In November 2011, Cervantes and her two youngest daughters lived at Cervantes’s parents’ house in Santa Ana after Vizcarra accused Cervantes of infidelity. Cervantes’s grandfather also lived there. Early one morning, Vizcarra repeatedly called