CA Unpub Decisions

This is an appeal from a judgment for defendants and respondents, Kelly Mikolich and David Perine, entered after a jury returned a unanimous verdict in their favor in a personal injury action. Plaintiff and appellant, Edward Petrossi, contends the trial court erred in admitting and excluding certain evidence and that the trial judge failed to disclose that he was incapacitated by illness during the trial. There is no merit to plaintiff’s contentions. We affirm the judgment.

On January 24, 2012, a subsequent petition was filed by the Los Angeles County District Attorney alleging that minor and appellant L.H. committed an assault upon a peace officer under Penal Code[1] section 245, subdivision (c), (count 1), and second degree commercial burglary under section 459 (count 2).[2] On February 15, 2012, the district attorney amended the petition to additionally allege that minor had committed an assault with a deadly weapon under section 245, subdivision (a)(1), (count 3). An adjudication hearing was held on the same day. Thereafter, the district attorney moved to dismiss count 2, and the juvenile court made true findings as to counts 1 and 3. On February 15, 2012, the case was transferred from Los Angeles County to Riverside County.
On March 9, 2012, at the dispositional hearing, the juvenile court (1) continued minor as a ward; (2) granted minor probation; (3) committed minor to juvenile hall for not less than 55 days and not more than 110 days; and (4) ordered minor to attend anger management courses, to enroll in substance abuse counseling, and to pay restitution.
On May 7, 2012, minor filed a notice of appeal. On appeal, minor contends that the true finding as to count 3, assault with a deadly weapon, must be vacated because it is a lesser included offense of count 1, assault with a deadly weapon on a peace officer. The People concede. For the reasons set forth post, we agree with both minor and the People and shall reverse the true finding as to count 3.

Defendant and appellant Manuel Chaira, Jr., appeals from his conviction of attempted deliberate and premeditated murder (Pen. Code,[1] §§ 664, 187; counts 1 & 2); assault with a firearm (§ 245, subd. (a)(2)); counts 3 & 4) and gang participation (§ 186.22, subd. (a); count 5), along with true findings on enhancement allegations (§§ 12022.53, subd. (c), 186.22, subd. (b), 12022.53, subd. (d), and 12022.7, subd. (a)). He contends his convictions for attempted murder must be reversed, because the evidence was insufficient to establish an intent to kill, and his sentence of 20 years plus 69 years to life constituted cruel and unusual punishment. On our own motion, we requested the parties to provide additional briefing on the following issues: (1) did the trial court err in imposing 15-year terms for the gang use allegations as to counts 1 and 2 instead of a 15-year minimum parole eligibility for those counts; (2) was the evidence sufficient to establish that the attempted murders were deliberate and premeditated; and (3) did the trial court err in failing to instruct the jury sua sponte on provocation?
We conclude the trial court erred in imposing separate 15-year terms for each of counts 1 and 2 under section 186.22, subdivision (b)(5), because the statute instead provides for a minimum parole eligibility term. We find no further prejudicial errors, and we affirm.

In October 2010, Jose Luis Negron entered a negotiated guilty plea to selling a controlled substance (Health & Saf. Code, § 11352, subd. (a)). On March 18, 2011, Negron told the probation officer that in 2002, he had received a diagnosis of manic depression and schizophrenia. On March 28, 2011, the court placed Negron on three years' probation. On April 15, Negron went to a restaurant where he yelled obscenities, exposed his penis, spilled the contents of his colostomy bag and struck a restaurant employee. On April 25, the court summarily revoked probation. At the request of the probation department, a psychological evaluation was scheduled for June 1.

Defendant Dana Troy Lolmaugh pled guilty to driving with a blood-alcohol level of 0.08 percent or higher and admitted he had five prior convictions for driving under the "Veh. Code, §§ 23152, subd. (b), 23550.5" Veh. Code, §§ 23152, subd. (b), 23550.5.) [1] He also admitted he had served a prior prison term ( "Pen. Code, § 667.5, subd. (b)" Pen. Code, § 667.5, subd. (b)). Pursuant to the stipulated disposition, he was sentenced to a term of three years in state prison.

A jury found defendant Rodney Serna guilty of violating Penal Code[1] section 288, subdivision (c)(1) (section 288(c)(1)) for committing lewd acts on a 15-year-old girl.[2] Based on five charges under section 288(c)(1), along with two additional charges not at issue here, the trial court sentenced defendant to five years in prison.
On appeal, defendant contends the judgment must be reversed because “[t]he trial court erred prejudicially by failing to give a mistake of fact instruction as to [the] age of the victim.” We conclude that mistake of fact as to the age of the victim is not a defense to a section 288(c)(1) charge and, accordingly, the trial court’s refusal to give such an instruction was not error. Therefore, we affirm.

This appeal arises from the dissolution of marriage of Victor Stupansky (Victor) and Sandra Monette (Sandra). Both parties challenge the trial court’s judgment regarding the division of property.
In part I, we discuss Victor’s appellate contentions. He argues the trial court erred in finding that his Petaluma residence was transmuted from separate property to community property, and in determining that Sandra was only required to reimburse the community $51,612.50 for the funds Sandra applied to her separate property duplex in Santa Rosa.
In part II, we discuss Sandra’s contentions in her cross-appeal. She asserts the trial court erred in failing to order Victor to return all the money he withdrew from a community certificate of deposit and deposited into his separate account, and in excluding evidence concerning Victor’s misappropriation of community funds.
As we will explain, given the limited appellate record in this judgment roll appeal, the parties did not meet their appellate burden to demonstrate reversible trial court error. Accordingly, we will affirm the judgment.

The trial court sentenced Sanchez to life without the possibility of parole on count 1, plus an additional 25 years to life for personally discharging a firearm and causing death in the commission of the murder, which the court ordered “merged into the life without parole.” The court imposed and stayed sentences of 25 years to life on the additional firearm enhancement and a term of life with a minimum parole eligibility of 15 years on the gang enhancement ancillary to count 1. As to count 2, the court imposed and stayed a sentence of 7 years (the upper term), plus two terms of 25 years to life for the firearm enhancements, and 10 years for the gang enhancement. As to count 4, the trial court imposed and stayed a sentence of 3 years (the upper term).

Plaintiff George Espinosa, in propria persona, appeals from a judgment of the trial court denying his petition for writ of administrative mandate. Plaintiff contends defendant Department of Child Support Services (DCSS) erred in denying him relief from efforts by the Family Support Division of the Placer County District Attorney’s Office, as the Local Child Support Agency (LCSA), to collect child support arrears from his social security disability benefits. We disagree and affirm the judgment.
Facts and Proceedings
On October 23, 1984, JoAnn Espinosa (JoAnn) filed a petition in the Placer County Superior Court to dissolve her marriage with plaintiff. On December 20, 1984, that court entered default judgment of dissolution, awarding physical custody of the couple’s five minor children to JoAnn and ordering plaintiff to pay child support of $100 per month per child until each child reaches the age of majority. The judgment also required plaintiff to pay spousal support of $150 per month for seven years or until JoAnn remarries, whichever occurs first.
In January 1988, the LCSA obtained a writ of execution against plaintiff in the Placer County Superior Court in the amount of $19,500, based on assignment of JoAnn’s right to collect child support to Placer County pursuant to Welfare and Institutions Code section 11477.
In 1991, the LCSA stopped charging plaintiff for ongoing child support obligations, because supplemental social security benefits being received by JoAnn on behalf of the children due to plaintiff’s disability (derivative SSA payments) exceeded plaintiff’s support obligation to those children.

A jury found appellant William Carter guilty of second degree robbery (Pen. Code, § 211),[1] and that his crime was gang related (§ 186.22, subd. (b)(1)(C)). The trial court found that appellant had admitted to suffering a prior strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and serving four prior prison terms (§ 667.5, subd. (b)). Appellant was sentenced to 24 years in state prison, which consisted of the upper term of five years for the robbery conviction doubled to 10 years for the prior strike conviction, plus 10 years for the gang enhancement, plus four years for the prior prison term enhancements (one year for each prior prison term). Appellant appealed the judgment, and this court determined there was insufficient evidence to support the trial court’s finding that appellant had admitted the priors alleged against him. We vacated appellant’s sentence and remanded the case for a new trial on sentencing. (People v. Pious (June 23, 2011, B223750) [nonpub. opn.].)
On remand, the trial court held a bench trial and determined the evidence was sufficient to support the findings that appellant had suffered one prior felony strike conviction (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and four prior prison terms (§ 667.5, subd. (b)). The trial court sentenced appellant to the same 24-year sentence, and this current appeal followed.

Joseph M. Peterson pled no contest to possession of a controlled substance and appeals from the denial of his motion to suppress. Our independent review of the record reveals no arguable issue that would aid Peterson. We affirm the judgment of conviction.

An information filed November 23, 2011, charged Ervin with one count of vehicle taking (Veh. Code, § 10851, subd. (a)) and one count of evading an officer (Veh. Code,
§ 2800.2, subd. (a)) and with allegations of five strike priors. (Pen. Code, §§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) Ervin waived his right to counsel and represented himself. On November 29, 2011, he pleaded not guilty to both counts and denied the allegations.
Ervin then filed two written motions to suppress evidence on the ground that the search and his arrest were effected without a warrant. Evidence was taken; the motions were argued; and the trial court denied the motions, concluding that there was probable cause for Ervin’s detention and arrest.
The parties stipulated to amend the information to add count 3, charging Ervin with violation of Penal Code section 496d, receiving a stolen vehicle. Pursuant to a plea agreement, the prosecution dismissed all but one of the alleged strike priors; Ervin pleaded nolo contendere to count 3, and was sentenced on June 7, 2012, to an agreed mid-term of two years, doubled to four years for one strike prior, with a waiver of presentence custody credits. Notice of appeal was filed June 7, 2012.

S.V. (mother) appeals a dispositional order removing three-year-old M.M. from her care. Mother contends the order must be reversed because there was no evidence the child was at risk of harm in mother’s care and there were less restrictive alternatives to removal. (Welf. & Inst. Code, § 361.5.)[1] We reject mother’s arguments and affirm the order under review.

Appellant Bernard Jackson (Jackson) appeals from his conviction following a plea of no contest on two counts of resisting an executive officer in violation of Penal Code section 69.[1] His appointed counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) and advised us that he could not identify any appellate issues. Subsequently, on August 20, 2012, we notified Jackson that he had 30 days within which to identify any issues he wishes us to consider. He filed a supplemental brief on September 19, 2012. Soon after, his attorney filed a motion to augment the record on appeal to include the reporter’s transcript from the hearings on September 29, 2011, October 21, 2011, and October 31, 2011. We granted that motion. Jackson filed a second supplemental brief on January 14, 2013.