People v. Rivera CA4/3

Filed 9/26/16 P. v. Rivera 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, G051164

v. (Super. Ct. No. 14CF0855)

LUIS ENRIQUE RIVERA, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed. Reed Webb, 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, Senior Assistant Attorney General, Charles C. Ragland and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.

Luis Enrique Rivera appeals from a judgment after a jury convicted him of first degree burglary, domestic battery with a prior domestic violence conviction, two counts of making criminal threats, two counts of violating a protective order with a prior conviction for domestic violence, misdemeanor domestic violence and misdemeanor vandalism. On appeal, Rivera contends the trial court erred in selecting the upper term for burglary based on the victim being particularly vulnerable, and that the court erred in imposing multiple punishments for domestic battery and one of the criminal threat counts. None of his contentions have merit, and we affirm the judgment. FACTS Rivera married the victim, Jane Doe, in 2003. Throughout their marriage, Rivera engaged in acts of domestic violence. At times the couple separated and then later reconciled, making an effort to work things out. In May 2001, Doe obtained a three-year restraining order against Rivera. This case involves two incidents of domestic violence occurring in June 2013 and March 2014. Rivera has a lengthy criminal history. In July 2004, Rivera pleaded guilty 1 to spousal battery. (Pen. Code, § 273.5, subd. (a).) In October 2006, he pleaded guilty to spousal battery (§ 273.5, subd. (a)), and in August 2008, he pleaded guilty to violating a protective order (§ 166, subd. (c)). And in May 2011, he pleaded guilty to assault by means of great bodily injury (§ 245, subd. (a)(1)), spousal battery (§ 273.5, subd. (a)), criminal threats (§ 422), and false imprisonment (§ 236). One night in June 2013, Rivera and Doe attended a party. Rivera became intoxicated, and there was an altercation. During the quarrel, Rivera hit Doe and kicked her with his shoe or boot while she was on the ground. The impact caused Doe to sustain two open wounds on her forehead, leaving a scar and bruising around her eyes. During the clash, Rivera threatened to kill Doe. When Rivera finally left, a terrified Doe fled