P. v. Weatherwax
A jury convicted defendant Michael Dwain Weatherwax of arson (Pen. Code, 451, subd. (d); count 1) and attempted arson ( 455; count 2). The trial court found that defendant had a prior serious felony conviction within the meaning of section 667, subdivisions (a) and (d), and that he had served two prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced defendant to a total prison term of 10 years.
On appeal, defendant contends: (1) the trial court erred by failing to instruct sua sponte on attempted arson as a lesser included offense of arson; (2) the trial court erred in failing to instruct sua sponte regarding unanimity; (3) the trial court erred in giving a special instruction, based on a note to CALCRIM No. 1515, which told the jury that burning trash that does not belong to the defendant is arson, and that there is no requirement for arson that the property belong to anyone; (4) the trial court erred in staying rather than striking one of the prior prison term enhancements; and (5) the abstract of judgment contains clerical errors which must be corrected. Court agree with defendants last two contentions, and order the abstract of judgment to be amended accordingly. In all other respects, the judgment is affirmed.
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