People v. Rivera CA2/4

Filed 11/24/15 P. v. Rivera CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 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 1 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