CA Unpub Decisions

Following pleas of no contest, defendant Paul Steve Casarez was sentenced at the same time in multiple cases. On appeal, defendant challenges the upper term imposed on his conviction of possession of a controlled substance following revocation of deferred entry of judgment (DEJ) in Case No. CR-11-01168. He also disputes the court's calculation of presentence credit in Case Nos. CR-11-01168 and CR-12-00027.[1]
We conclude that the trial court did not err in imposing the upper term in Case No. CR-11-01168. We agree, however, that defendant is entitled to additional presentence credit. Accordingly, we modify the judgment and affirm the judgment as modified.

As of October 1, 2011, the rate at which a criminal defendant may accrue presentence custody credit changed. A defendant who committed a crime on or after October 1, 2011, may accrue two good conduct credit days for every two actual custody days. A defendant who committed a crime before October 1, 2011, accrues good conduct credit at the former rate of two days for every four days of actual custody.
Defendant Stephen Allen Edwards committed burglary and other crimes in August 2011. He pleaded guilty and was placed on probation. In March 2012, after admitting to a violation of his probation, defendant’s probation was reinstated, and he was awarded presentence custody credit at the rate in effect before the October 1, 2011 statutory amendment. Defendant challenges the trial court’s refusal to calculate his good conduct custody credit at the higher accrual rate. We affirm.
The statutory language clearly states that the higher accrual rate applies prospectively only. We reject defendant’s contention that the language of the statute is ambiguous. Further, we reject defendant’s claim that a prospective-only application of the higher accrual rate violates equal protection. Although criminal defendants who committed the same crime before and after October 1, 2011, are similarly situated, a rational basis exists for treating them differently in terms of the accrual of their good conduct credit.

Aslam Shaw appeals from postjudgment orders issued in this marital dissolution case. Shaw argues the trial court erred by (1) denying his motion to set aside the judgment on the ground of economic distress; (2) imposing only $500 in sanctions against Shaw’s former wife Mahmunir Shah, despite her prolonged failure and refusal to comply with orders to satisfy tax liens filed against a property belonging to him; and (3) refusing to set aside a prior order imposing $6,000 in sanctions against him. We affirm the orders.

A jury convicted defendant Nereo Del Valle of kidnapping for the purpose of child molestation (Pen. Code, § 207, subd. (b)),[1] and two counts of committing lewd acts with a child under the age of 14 (§ 288, subd. (a)). It found true allegations the acts of child molestation occurred during a kidnapping pursuant to section 667.61, subds. (b), (c)(4), and (e)(1), commonly referred to as the “One Strike” law. The court sentenced Del Valle to concurrent indeterminate terms of 15 years to life for each section 288 conviction as required under the One Strike law, and imposed an 11-year determinate term for kidnapping (§ 208, subd. (b)), which the court then stayed under section 654.
Del Valle contends the trial court erred by failing to instruct the jury he could not be found guilty of kidnapping for child molestation if the victim’s movement was merely incidental to carrying out the child molestation. We affirm.

illip J. (father) appeals from an order of the juvenile court terminating his parental rights to his children, Chloe and Phillip, Jr. Father contends that the juvenile court erred in terminating his parental rights because he maintained regular visitation with his children and they would benefit from continuing their relationship with him. We affirm.

Miguel C. (father) appeals orders of the juvenile court removing his daughters Brittany, age 15, and Isabelle, age 7, (together the children) from father’s care following true findings made on a supplemental petition under Welfare and Institutions Code section 387.[1] Father challenges the sufficiency of the evidence to support the juvenile court’s finding that the previous placement with father was ineffective in protecting the children and removal from father’s custody was necessary to prevent substantial danger to them. We affirm the orders.

On November 1, 2011, in Fresno County Superior Court case No. F11600749 (case No. F11600749), a jury convicted appellant, George Prendiz Gonzales, of two felony counts of possession of heroin (Health & Saf. Code, § 11350, subd. (a)) and two counts of unauthorized possession of a hypodermic needle or syringe (Bus. & Prof. Code, § 4140), a misdemeanor. That same day, in a separate proceeding, appellant admitted allegations that he had suffered a “strike”[1] and that he had served two separate prison terms for prior felony convictions (Pen. Code, § 667.5, subd. (b)).
Also on November 1, 2011, in Fresno County Superior Court case No. F10601961 (case No. F10601961), appellant, pursuant to a plea agreement, pled guilty to second degree burglary (Pen. Code, §§ 459, 460, subd. (b)) and, as in case No. F11600749, admitted one strike allegation and two prior prison term enhancement allegations. One of the terms of the plea agreement was that appellant would receive a sentence covering both cases of five years four months.
On December 5, 2011, the court struck appellant’s strike pursuant to Penal Code section 1385 and imposed the agreed-upon prison term of five years four months, consisting of the two-year midterm on the substantive offense in case No. F10601961, eight months on each of the two felonies in case No. F11600749, and one year on each of the two prior prison term enhancements. On each of the two misdemeanors, the court credited appellant with time served.
In case No. F10601961, appellant did not request, and the court did not issue, a certificate of probable cause (Pen. Code, § 1237.5).
Appellant’s appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant has not responded to this court’s invitation to submit additional briefing. We affirm.

P.B. (mother) appeals from an order of the juvenile court terminating her parental rights to W.B. (born in August 2011) and D.R. (born in December 2009).[1] Mother contends the court erred when it failed to apply the sibling relationship exception to preserve D.R.’s relationships with his siblings. We find no error, and we affirm.

Defendant Michael Lamont Kent seeks remand to allow the trial court to hold a Marsden[1] hearing. The People agree that the matter should be remanded.

Esther K. Hong, under appointment by the Court of Appeal, for Appellant.
Following denial of her motion to suppress evidence (Pen. Code, § 1538.5)[1] in case No. SCD232737, in April 2012, Ann Marie Burchard entered a negotiated guilty plea to using personal identifying information of another (§ 530.5, subd. (a)) and burglary (§ 459). In June, in case No. SCD241185, Burchard entered a negotiated guilty plea to using personal identifying information of another (§ 530.5, subd. (a)) while released from custody on bail (§ 12022.1, subd. (b)). In July, the court imposed a stipulated four-year sentence: in case No. SCD241185, the two-year middle term on the substantive offense and two years for the enhancement, and in case No. SCD232737, a concurrent two-year middle term for each offense. The court ordered the entire sentence to be served in the custody of the sheriff. Burchard appeals. We affirm.
BACKGROUND
In case No. SCD232737, Burchard willfully and unlawfully used personal identifying information of another to commit theft and entered a building with the intent to commit theft. In case No. SCD241185, while released from custody on bail, Burchard willfully and unlawfully obtained personal identifying information of another person and used that information for an unlawful purpose.
DISCUSSION
I
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436 (Wende). Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders) counsel mentions as possible, but not arguable, issues: (1) whether the court committed reversible error by denying the suppression motion; (2) whether Burchard's three attorneys provided effective assistance of counsel; (3) whether Burchard's due process rights were denied when she pleaded guilty and agreed to a prison sentence, but was then sentenced to county jail due to a change in the law; and (4) whether ex post facto principles require that Burchard serve her sentence in prison.

Defendant Erick Jerome Wenthe appeals his conviction for possession of methamphetamine for the purpose of sales (Health & Saf. Code, § 11378), arguing that the trial court abused its discretion by admitting evidence of his prior conviction for the same offense. He also points out that the sentencing minute orders must be corrected to show that a six-month enhancement imposed for one of his misdemeanor counts was to run concurrently, not consecutively. We will affirm the conviction and order the record corrected.

A jury found defendant and appellant Jacques Aultman, Jr., guilty of (1) rape accomplished by means of force, violence, duress, menace, or fear (Pen. Code, § 261, subd. (a)(2));[1] (2) rape where the victim is prevented from resisting due to an intoxicating substance (§ 261, subd. (a)(3)); (3) oral copulation with a person under the age of 18 years old (§ 288a, subd. (b)(1)); (4) oral copulation where the victim is prevented from resisting due to an intoxicating substance (§ 288a, subd. (i)); and (5) sexual intercourse with a minor “who is not more than three years older or three years younger” than defendant (§ 261.5, subd. (b)). The trial court sentenced defendant to prison for a term of 10 years.
Defendant raises two issues on appeal. First, defendant contends substantial evidence does not support the conviction for forcible rape. Second, defendant asserts the trial court abused its discretion when imposing the upper prison term for the forcible rape conviction. We affirm the judgment.

A jury found defendant Troy Dante Fava guilty of the murder of Adam Atencio (Pen. Code, § 187, subd. (a)),[1] grand theft (§ 487, subd. (a)), and burglary (§ 459). The jury also found that defendant was armed with a firearm in each count. (§ 12022, subd. (a)(1).) In a bifurcated trial, the court found that defendant had two prison priors. (§ 667.5, subd. (b).) Defendant was sentenced to 35 years to life, and appeals.
At trial, the evidence showed that Adam Atencio was shot and killed on March 7, 2008, at the apartment of Lucas Buckingham in Hesperia, after defendant and several of his cohorts burglarized the apartment and beat up Buckingham. Buckingham’s Glock handgun was stolen from the apartment. It was unclear whether defendant or one of his cohorts shot and killed Atencio with a second handgun, a Sig Sauer.[2]
Shortly after the shooting, San Bernardino County Sheriff’s Deputy Frank Hardin and other deputies entered defendant’s home with guns drawn. After searching defendant for weapons, Deputy Hardin told defendant he was a suspect in a shooting that had just occurred nearby, and asked defendant to step outside so that a witness could identify him or rule him out as being involved in the shooting. In response, defendant said he had not left his house all day and could not have been present at the shooting. Defendant was not read his Miranda[3] rights before he made the statement.

Defendant Tomas Arciga is serving 100 years to life after a jury convicted him of four counts of sodomizing his young nephew. In this appeal, defendant argues the trial court erred when it failed to instruct the jury, sua sponte, that it must unanimously agree on which four incidents formed the basis for the four charges. As discussed below, we conclude that the prosecutor unambiguously elected to use the four discrete events that defendant described during an interview with a sheriff’s deputy, and so no unanimity instruction was necessary.