CA Unpub Decisions

Following a jury trial, defendants and appellants Erik Ibarra (Defendant Ibarra) and Gabriel Adam Sanchez (Defendant Sanchez) were convicted of first degree murder (Pen. Code,[1] § 187, subd. (a)) of Michael Edayan (the Victim); robbery (§ 211) of the Victim and four others; and attempted premeditated murder (§§ 187, subd. (a), 664) of the four others. The jury also found that with respect to the murder and robbery of the Victim, Defendant Ibarra personally and intentionally discharged a firearm that killed him (§ 12022.53, subd. (d)), and that Defendant Ibarra personally used, and personally and intentionally discharged, a firearm in the commission of all the crimes. (§ 12022.53, subds. (b), (c).) Finally, the jury found that Defendant Sanchez knew his codefendant was armed during the commission of all of the charged crimes. (Former § 12022, subd. (a)(1).)
On October 7, 2011, Defendant Ibarra was sentenced to state prison for an indeterminate term of 75 years to life, plus a consecutive term of 106 years 8 months. Defendant Sanchez was sentenced to state prison for an indeterminate term of 50 years to life plus an additional consecutive term of one year. Both appeal. Defendant Ibarra contends the trial court committed reversible error by allowing an expert to testify about his purported gang motive or gang intent, and the abstract of judgment incorrectly describes one sentence enhancement. Defendant Sanchez contends he received ineffective assistance of counsel when his attorney failed to ask the trial court to dismiss his prior conviction alleged under the “Three Strikes” law, and section 654 precludes imposition of concurrent terms on the five robbery convictions. Defendant Sanchez further joins in any argument made by Defendant Ibarra.

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.

Following a jury trial, defendants and appellants Erik Ibarra (Defendant Ibarra) and Gabriel Adam Sanchez (Defendant Sanchez) were convicted of first degree murder (Pen. Code,[1] § 187, subd. (a)) of Michael Edayan (the Victim); robbery (§ 211) of the Victim and four others; and attempted premeditated murder (§§ 187, subd. (a), 664) of the four others. The jury also found that with respect to the murder and robbery of the Victim, Defendant Ibarra personally and intentionally discharged a firearm that killed him (§ 12022.53, subd. (d)), and that Defendant Ibarra personally used, and personally and intentionally discharged, a firearm in the commission of all the crimes. (§ 12022.53, subds. (b), (c).) Finally, the jury found that Defendant Sanchez knew his codefendant was armed during the commission of all of the charged crimes. (Former § 12022, subd. (a)(1).)
On October 7, 2011, Defendant Ibarra was sentenced to state prison for an indeterminate term of 75 years to life, plus a consecutive term of 106 years 8 months. Defendant Sanchez was sentenced to state prison for an indeterminate term of 50 years to life plus an additional consecutive term of one year. Both appeal. Defendant Ibarra contends the trial court committed reversible error by allowing an expert to testify about his purported gang motive or gang intent, and the abstract of judgment incorrectly describes one sentence enhancement. Defendant Sanchez contends he received ineffective assistance of counsel when his attorney failed to ask the trial court to dismiss his prior conviction alleged under the “Three Strikes” law, and section 654 precludes imposition of concurrent terms on the five robbery convictions. Defendant Sanchez further joins in any argument made by Defendant Ibarra.

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.

A modification decision.

Counsel for defendant Todd Martin Wilkinson has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant filed a supplemental brief raising the following issues: (1) the record is not clear as to whether the trial court suspended imposition of sentence so as to retain sentencing discretion upon violation of probation; (2) the People and the trial court breached the plea agreement; and (3) he is entitled to additional conduct credits. We address these issues, in addition to undertaking a review of the record as required by Wende, and affirm.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

On September 8, 2010, defendant Cody Edward Pohl was charged with first degree burglary (two counts); second degree burglary; receiving stolen property (five counts); petty theft with priors (two counts); possession of methamphetamine; and misdemeanor possession of paraphernalia for injecting and ingesting a controlled substance. As to the felonies charged, it was alleged that defendant had a prior strike. As to the first degree burglary counts, it was alleged that defendant had a prior serious felony conviction.
Defendant waived jury trial and the matter was then tried to the trial court.

Twenty-six-year-old Ronald Nivison’s sole defense at his trial for possession of six and one-half pounds of marijuana for sale was that he grew and packaged it for medicinal purposes for himself and his father, both of whom had medical marijuana identification cards, and he had no intent to sell it. On appeal, he contends the trial court, as well as his own lawyer, wrongly concluded that the Medical Marijuana Program (Health & Saf. Code, § 11362.7 et seq.) did not provide a defense to possession for sale. Thus, he contends the jury was not properly instructed, he was denied his constitutional right to competent counsel, and he is entitled to a reversal. We disagree and affirm the judgment.

Members of the Lassen County Narcotics Task Force executed a search warrant on the home in which defendant Erika Louise Schmid lived with her boyfriend and found methamphetamine, drug paraphernalia, and over $1,500 in cash. Following a jury trial, defendant was convicted of possession of methamphetamine for sale and misdemeanor obstruction of a peace officer. Defendant admitted three prior prison terms and two strikes. The trial court struck one of the strikes and one of the prior prison terms, and sentenced defendant to six years in state prison.
On appeal, defendant contends there is insufficient evidence to support her conviction for possession of methamphetamine for sale, the prosecutor committed misconduct during closing argument, and there is insufficient evidence to support the obstructing a peace officer conviction. We affirm.

This appeal concerns the trial court’s denial of class certification in a wage and hour action. Plaintiff Kenneth Bluford sought to certify a class of plaintiffs in his action against his employer, defendant Safeway, Inc. He claims Safeway violated statutory and regulatory laws requiring it to provide its employees with paid rest periods, earned meal periods, and sufficiently itemized wage statements.
The trial court denied plaintiff’s motion to certify a class. It ruled individual issues predominated over common issues on the rest period and meal period claims, and that plaintiff failed to allege a common injury resulting from the inadequate wage statements.
We reverse. Insufficient evidence supports the trial court’s ruling, as common issues predominate over individual issues, and plaintiff in fact alleged a common injury resulting from the wage statements. We order the trial court to grant plaintiff’s motion.