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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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,

Plaintiff and Respondent,

v.

GABRIEL MARTINEZ RIVERA,

Defendant and Appellant.

 B258307

 (Los Angeles County

 Super. Ct. No. BA410949)

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.
2

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 

offenses under the Penal Code against two female children, E.M. and M.M.

1

 

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.
3

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 
4

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. 
5

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. 
6

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, 

together with a consecutive term of 8 months for count 1 (lewd act upon a child).

2

 

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).
7

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.

.
8

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

COLLINS, J.