CA Unpub Decisions

A jury convicted appellant Chris Allan Claunch of possession of methamphetamine and resisting arrest. He contends his convictions should be reversed because the trial court (1) denied his request for DNA testing of the syringe containing methamphetamine, which he claims deprived him of due process and the right to present a defense, and (2) erred prejudicially when it responded to a question from the jury regarding the defense of momentary possession and used language other than that used in the pattern instruction, CALCRIM No. 2305. We reject his contention on the request for DNA testing, but agree that the trial court erred prejudicially when it sought to modify CALCRIM No. 2305. Consequently, we will reverse the conviction for possession of methamphetamine.

On February 7, 2013, J.E. was found in possession of a locking blade knife on her high school campus when a security guard tackled her to the ground to separate her from another student during a fight. J.E. was cited and released to her mother.
On March 12, 2013, the People filed a juvenile wardship petition under Welfare and Institutions Code section 602, subdivision (a), alleging J.E. committed a felony by possessing a locking blade knife on school grounds. (Pen. Code, § 626.10, subd. (a)(1))
On April 23, 2013, the juvenile court reduced the charge to a misdemeanor pursuant to Penal Code section 17, subdivision (b). J.E. admitted the allegation and was placed on juvenile probation. This appeal followed.

On April 16, 1996, defendant Jimmie Lee Ingram was convicted of one count of robbery (Pen.Code, § 211). In addition, two prior strike allegations were found true (§ 667, subds. (b)-(i).) As a result, on May 14, 1996, defendant was sentenced under the three strikes law to an indeterminate term of 25 years to life.
On November 6, 2012, the electorate passed Proposition 36. This ballot measure enacted section 1170.126, which permits persons currently serving an indeterminate life term under the three strikes law to file a petition in the sentencing court, seeking to be resentenced to a determinate term as a second-striker. (§ 1170.126, subd. (f).) If the trial court determines that the defendant meets the criteria of section 1170.126, subdivision (e), the court may resentence the defendant. (§ 1170.126, subd. (f).) Section 1170.126, subdivision (e)(1) provides, as pertinent here, that a defendant is eligible for resentencing if he or she is “serving an indeterminate term of life imprisonment imposed pursuant to paragraph (2) of subdivision (e) of Section 667 or subdivision (c) of Section 1170.12 for a conviction of a felony or felonies that are not defined as serious and/or violent felonies by subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7.”
On November 21, 2012, defendant filed a propria persona petition for resentencing under section 1170.126. The court denied the petition on January 25, 2013, finding that defendant’s current commitment offense for robbery is a serious felony under section 1192.7, which made him ineligible for resentencing under section 1170.126.

Defendant and appellant Brandon Scott O’Hara pled guilty to various counts and had others dismissed pursuant to plea agreements in four cases. In accordance with the agreements, he was sentenced to a total of seven years and ordered to pay $1,000 in restitution in addition to specified fines, assessments, and fees. We affirm the judgments.

Father appeals an order denying his petition brought under Welfare and Institutions Code section 388[1] and from a judgment terminating parental rights. Father contends the trial court erred in denying his section 388 petition because his circumstances had changed and his bond with his son, J.P., was strong. Father also argues the juvenile court erred in rejecting the beneficial parent-child relationship exception to terminating parental rights under section 366.26, subdivision (c)(1)(B)(i).
We conclude the juvenile court did not err in denying father’s section 388 petition because there were not sufficient changed circumstances and granting the petition was not in J.P.’s best interests. We also conclude the juvenile court did not err in rejecting the parent-child relationship exception.

After defendant Terry Darnell Arnold tried to shoplift a television from Walmart, he pleaded no contest to one count of felony theft with three priors.[2] (§§ 484, subd. (a), 666, subd. (a).) The court sentenced defendant to four years in prison and imposed various fines and fees, including two restitution and parole revocation fines in the amount of $240. (§§ 1202.4, subd. (b), and 1202.45.) On appeal, defendant contends the imposition of the $240 fines constituted an ex post facto application of the law. We disagree and we affirm the judgment.

Michael C. appeals an order declaring his minor daughter A.C. a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (c), and removing her from his custody.[1] Michael contends that there was insufficient evidence to support the court's order because there were disposition alternatives available that were less drastic than removal. Michael also argues that there was insufficient evidence to support the court's finding that active efforts were made to prevent the removal of A.C. from Michael's custody, as required by the Indian Child Welfare Act, 25 U.S.C. section 1901 et seq. (ICWA). We affirm the judgment.

Brendon A. appeals the juvenile court's dispositional order continuing him as a ward of the court and placing him on formal probation. Brendon contends the evidence was insufficient to support the court's findings that he committed one count of misdemeanor battery and two counts of misdemeanor aggravated assault. Brendon also argues the probation condition forbidding him to possess any weapons is invalid because it does not contain an express knowledge requirement. We modify the probation condition to include a knowledge requirement and affirm the dispositional order as modified.

In this domestic violence and rape case, a jury found Asa Anthony Alphonso guilty of nine felony offenses against Michelle C.[1] during two incidents as follows: two counts of inflicting corporal injury on a cohabitant (counts 1 & 6: Pen. Code,[2] § 273.5, subd. (a)); two counts of false imprisonment by violence (counts 2 & 7: §§ 236 & 237, subd. (a)); one count of assault with a deadly weapon (a knife) and force likely to cause great bodily injury (count 3: § 245, subd. (a)(l)); one count of assault by means of force likely to cause great bodily injury (i.e., suffocation) (count 4: § 245, subd. (a)(l)); one count of attempting to dissuade a witness from reporting a crime (count 5: § 136.1, subd. (b)(l)); one count of forcible rape (count 8: § 261, subd. (a)(2)); and one count of making a criminal threat (count 9: § 422).
In addition, the jury found true allegations that in committing the count 6 offense of inflicting corporal injury on a cohabitant Alphonso personally used a deadly or dangerous weapon (a lit cigarette) within the meaning of sections 12022, subdivision (b)(1) and 1192.7, subdivision (c)(23). Alphonso admitted he had sustained three prior prison term convictions (§ 667.5, subd. (b)) and two prior strike[3] convictions (§ 667, subds. (b)-(i)).

A jury convicted defendant and appellant Michael Guy of numerous counts of robbery arising out of three commercial armed robberies that took place in May 2009. (Pen. Code,[1] §211; counts 1-4, 9-11.) The jury also convicted Guy of related counts of false imprisonment of employees at the stores. (§§ 236 & 237, subd. (a); counts 6-8, 13-15.) As to each conviction, it was found true that Guy personally used a firearm within the meaning of sections 12022.5, subdivision (a) and 12022.53, subdivision (b). However, Guy was acquitted of two counts of kidnapping employees for robbery. (§ 209, subd. (b)(1); counts 5, 12.)
After a court trial, all the prior conviction allegations against Guy were found true. (§§ 667.5, subd. (b) & 668, prison priors; §§ 667, subd. (a)(1), 668 & 1192.7, subd. (c), serious felony priors & strike priors, §§ 667, subds. (b)-(i), 668 & 1170.12.) The court sentenced Guy to a prison term of 105 years to life, and he appeals.
At trial, the jury heard evidence on the charged robbery offenses, and also a fourth, uncharged robbery. Guy presented a defense of duress by a fellow participant in three of the four robberies. On appeal, he contends the trial court prejudicially erred by admitting evidence of the uncharged robbery for purposes of proving his intent to rob and the existence of a common plan, as well as motive and identity. Guy contends that the claimed similarities between the uncharged robbery and the charged offenses were not sufficiently distinctive to be admissible to prove identity, intent, or a common plan. He further seems to argue the evidence of the three sets of charged offenses should not have been allowed cross-admissibility.
Guy's claims are not supported by the record and we affirm the judgment of conviction.

C.W., mother of the minors, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)[1] Appellant contends the record fails to show that appellant was informed and aware of her rights at the section 366.26 hearing and her submission on the issues was not, therefore, voluntary. Appellant further argues, and respondent concedes that a limited reversal for compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) notice provisions is required. While finding no merit in appellant’s first contention, we accept respondent’s concession as to the second contention and reverse and remand the orders for compliance with the notice provisions of ICWA.
FACTS
In March 2008, the Shasta County Health and Human Services Agency (Agency) filed a petition to remove A.W., age seven; D.S., age three; and I.S., age 13 months from parental custody due to appellant’s drug issues. Mother successfully reunified and the first dependency was terminated in October 2009.

Defendant Jahmal Eric Madison tangled with Carlitha Gordon outside a motel. Other people attempted to intervene. An information charged defendant with one count of assault by means of force likely to produce great bodily injury and three counts of misdemeanor battery. (Pen. Code, §§ 245, subd. (a)(1), 242.)[1] A jury found defendant guilty on all counts. Sentenced to 11 years in state prison, defendant appeals, contending the court erred in instructing the jury, sentencing error, and ineffective assistance of counsel. We shall stay defendant’s sentence on count 3; in all other respects we shall affirm the judgment.

Defendant Gregory Jamar Atkins molested the daughter and son of friends with whom he lived on and off. An information charged defendant with four counts of oral copulation on a child 10 years of age or younger, attempted sexual intercourse with a child 10 years of age or younger, and three counts of forcible lewd and lascivious acts on a child under the age of 14. (Pen. Code, §§ 288.7, subd. (b), 664/288.7, subd. (a), 288, subd. (b)(1).)[1] A jury found defendant guilty on all counts. Sentenced to 45 years to life plus a consecutive term of 19 years in state prison, defendant appeals, requesting this court review the school records of one of his victims to determine the scope of discovery, contending the prosecution committed misconduct, and alleging sentencing error. We shall remand for a reconsideration of consecutive sentences on counts six and seven. In all other respects, the judgment is affirmed.

Defendant Albert William Pinho III entered Mary Johnson’s mobile home late at night with the intent to steal $20,000 he believed her son had given her for safe keeping. When Johnson awoke and confronted the intruder, defendant assaulted her, tied her up, and threatened her life. He then ran into the kitchen, emptied the garbage can onto the floor, returned to the bedroom with the empty can, and said: “I’m the Mexican Mafia and your son owes us twenty thousand dollars and I want it.” Johnson denied having the money. Defendant filled the garbage can with a number of items that could potentially contain money, loaded the garbage can into Johnson’s car, and left in the vehicle.