CA Unpub Decisions

Appellant, Amgen, Inc. (Amgen), hired respondent, attorney Darrell G. Dotson. The employment contract was accompanied by an arbitration agreement and an appendix containing arbitration procedures. One of the provisions states: "Each party shall have the right to take the deposition of one individual and any expert witness designated by another party . . . . Additional discovery may be had where the arbitrator selected pursuant to this agreement so orders, upon a showing of need."
Four years later, Amgen terminated Dotson's employment, and Dotson filed a complaint for wrongful termination. Amgen moved to compel arbitration and Dotson objected. The trial court found that the provision concerning witness depositions was flawed, declined to sever the provision, and denied the motion. Court conclude that the language permitting the arbitrator to expand discovery upon a showing of need removes any taint of "unconscionability" from the agreement. Accordingly, Court reverse.

Defendant Hector Gutierrez appeals from the judgment entered following his conviction by a jury of forcible rape, forcible oral copulation, assault with a deadly weapon, and first degree burglary. (Pen. Code, 261, subd. (a)(2), 288a, subd. (c)(2), 245, subd. (a)(1), 459.) He was found to have committed the sex offenses while in the course of a residential burglary and with the use of a knife. ( 667.61, subds. (a), (d), and (e)(4), 12022.3, subd. (a).) After denying defendants motion for new trial, the court sentenced him to the mandatory term of 25 years to life for the rape conviction and a consecutive determinate term of seven years, consisting of three years for the assault with a deadly weapon conviction and four years for the use of the knife. Sentence on the two remaining counts, forcible oral copulation and first degree burglary, was stayed pursuant to section 654.

Plaintiff, Jefferson Wells International, Inc., appeals from a summary judgment and attorney fee award in favor of defendant, American Reprographics Company. Plaintiff asserts the trial court erred in summarily adjudicating that its contract claim was time barred under a contractual provision requiring that any action arising out of the parties agreement be brought within one year after the cause of action has accrued. Plaintiff also challenges the attorney fee award claiming it was not authorized under Wisconsin law. Court affirm the judgment including the attorney fee award in all respects.

Appellant Danny Young challenges the constitutionality of CALJIC No. 2.20.1, which guides a jury in evaluating the testimony of a child witness. We conclude his challenge lacks merit. Court affirm his conviction on three counts of oral copulation, one count of sodomy, and two counts of lewd acts with a child.

In February 2007, appellant physically abused his girlfriend. He pled guilty to one count of felony corporal injury to a cohabitant in exchange for dismissal of one count of forcible sodomy. ( 286, subd. (c)(2).) He admitted allegations that he had suffered a prior conviction for corporal injury to a cohabitant within seven years ( 273.5, subd. (e)) and served a prior prison term within five years. ( 667.5, subd. (b).)
The trial judge sentenced appellant to three years in state prison, consisting of the low term of two years for violation of section 273.5 and one year for the prior prison term. The court denied appellant's motion to reduce the section 273.5 charge to a misdemeanor in the interest of justice, citing appellant's criminal history. ( 17, subd. (b).)

Appellant Rhonda A. (Mother), mother of 13-year old Ashley T., appeals the juvenile courts jurisdictional order. Mother contends that the factual allegation sustained by the court -- that an ongoing conflict between, [Ashleys] parents . . . caused Ashley . . . emotional suffering -- was insufficient to support assertion of dependency jurisdiction and that the finding itself was not supported by substantial evidence. Court agree and reverse.

Appellant Rhonda A. (Mother), mother of 13-year old Ashley T., appeals the juvenile courts jurisdictional order. Mother contends that the factual allegation sustained by the court -- that an ongoing conflict between, [Ashleys] parents . . . caused Ashley . . . emotional suffering -- was insufficient to support assertion of dependency jurisdiction and that the finding itself was not supported by substantial evidence. Court agree and reverse.

Vincent Salvatore Smith appeals from the judgment entered following the denial of his motion to suppress evidence pursuant to Penal Code section 1538.5 and his no contest plea to possession of a firearm by a felon. (Pen. Code, 12021, subd. (a)(1).) Pursuant to his negotiated plea, the charge of unlawful possession of ammunition (Pen. Code, 12316, subd. (b)(1)) was dismissed. Imposition of sentence was suspended and he was placed on formal probation for three years under certain terms and conditions, including that he serve 90 days in county jail

Father and Erika D. (mother) are the parents of Z.G. (born June 2007) and K.G. (born Aug. 2008). This appeal by father involves only K.G.
Mothers eldest child from another relationship, A.D. (born July 2005), is the half-sibling of Z.G. and K.G. Mother and father do not live together, and father has never had physical custody of the children.

Defendant and appellant Kephren Marcus Thomas entered a plea of no contest to a charge of grand theft (Pen. Code, 487, subd. (a)) and admitted suffering a prior conviction under the three strikes law (Pen. Code, 667, subds. (b)-(i), 1170.12, subds. (b)-(i)). The plea and admission were entered pursuant to a case settlement calling for a 32-month sentence, consisting of the low term for grand theft doubled based upon the prior three strikes conviction. The agreement called for the sentence to run concurrent with another of defendants cases. After the matter was called for sentencing, the prosecutor realized defendant could not receive a concurrent sentence as a result of the admission of the prior conviction under the three strikes law. At the prosecutors request, the prior conviction was stricken, and defendant was sentenced to the midterm of two years in state prison. Defendant consented to the imposition of the lesser sentence.

The Los Angeles County Metropolitan Transportation Authority (LACMTA) seeks a writ of mandate directing the trial court to vacate its order granting an application to file a late claim against a public entity. (Gov. Code, 946.6 et seq.) On October 7, 2009, we requested opposition with directions to the parties to further brief whether the circumstances offered by real party in interest amount to mistake, inadvertence, surprise or excusable neglect when measured against the objective reasonably prudent person standard, that is, a mistake that could not be avoided in the exercise of due diligence. Court received opposition and a reply brief.

A jury convicted defendant John Bruce Schwarz of possession of methamphetamine and unlawful possession of a firearm. (Health & Saf. Code, 11377, subd. (a); Pen. Code, 12021, subd. (c)(1).) The trial court suspended imposition of sentence and granted defendant probation. Defendant timely appealed.
In a supplemental brief, defendant contends his Sixth Amendment right to confront the evidence against him was violated because the analyst who tested the alleged drugs was not called as a witness; instead, her report was described by the testimony of her supervisor, himself an expert drug analyst. A recent United States Supreme Court decision, Melendez-Diaz v. Massachusetts (2009) 557 U.S. ___ [174 L.Ed.2d 314] (Melendez-Diaz), supports defendants contention of error. Because Court cannot say the error was harmless beyond a reasonable doubt, Court reverse the drug possession count.
However, this does not affect the gun possession count. As to that count, we reject defendants contentions that the prosecutor committed misconduct by diluting the reasonable doubt standard during closing argument, the trial court became an advocate for the People by asking too many questions, and the trial court misinstructed the jury on circumstantial evidence.
Court agree with defendants contentions that the probation order is mistaken or unclear in some respects. For this reason, and because of the reversal of the drug count, we remand for further proceedings.

Defendant Jacob Kesterson appeals his sentence rendered after we remanded this case. Defendant admitted to placing his six-month-old daughters head face down on a couch, and punching her in the back of the head, causing serious injury. He was charged with two counts of inflicting corporal injury on a minor, with great bodily injury (GBI) enhancements for each count (Pen. Code, 273d, subd. (a); 12022.7, subd. (d)).

jury convicted defendant Steven Medlyn of first degree murder and first degree burglary (Pen. Code, 187, subd. (a); 459). The trial court sentenced defendant to a prison term of 25 years-to-life for the murder conviction (Pen. Code, 190, subd. (a)), and a consecutive term of six years for the burglary conviction.
Defendant argues: (1) the remedy for the improper admission of defendants post-arrest silence was insufficient, (2) his Sixth Amendment rights were violated when the trial court imposed an upper, consecutive term for burglary, (3) his sentence for burglary should have been stayed pursuant to Penal Code section 654, and (4) the trial court improperly imposed upon him the cost of the presentence report without a finding that he had the ability to pay.
Court shall remand for a determination of defendants ability to pay the cost of the presentence report, and shall direct the trial court to correct a clerical error on the abstract of judgment, but shall otherwise affirm the judgment.