CA Unpub Decisions

This appeal presents the unique situation where a former employee is seeking to arbitrate her dispute with her former employer, and the employer refuses to arbitrate, arguing the employee waived her contractual right to arbitrate. From May 2004 to December 2004, Cherise Nelson was employed by a company involved in providing funeral related services.[1] As part of Nelson's employment, she signed an agreement containing an arbitration clause that covered claims arising out of her employment.
Nelson elected to pursue potential class actions in federal court in Arizona instead of demanding arbitration. These class actions concerned wage and hour claims stemming from Nelson's employment from May 2004 to December 2004. After litigating for over three years in these various actions, Nelson demanded arbitration against her former employer and related entities. When the entities did not respond to the arbitration demand, Nelson filed a petition to compel arbitration against SCI; CCFS; SCI Funeral and Cemetery Purchasing Cooperative, Inc.; SCI Western Market Support Center, L.P.; SCI California Funeral Services, Inc., Greenwood Memorial Park; Jane D. Jones; and Thomas Ryan (collectively Respondents). The superior court denied Nelson's petition, finding she had waived her right to arbitrate.
Nelson appeals, claiming the court erred in finding waiver. We determine substantial evidence supports the court's finding of waiver and thus affirm.

The People charged appellants Lisa Marie Pierson and Raymond Lavern Springs, Jr., with robbery (count 1) (Pen. Code, § 211);[1]assault by means of force likely to produce great bodily injury (count 2) (§ 245, subd. (a)(l)); vehicle theft (count 3) (Veh. Code, § 10851, subd. (a)); and false imprisonment by violence (count 4; §§ 236, 237, subd. (a)). Additionally, the People charged Springs with rape of an unconscious person (count 5) (§ 261, subd. (a)(4)) and forcible rape (count 6) (§ 261, subd. (a)(2)).
A jury found Pierson guilty of the lesser included offense of grand theft on count 1, not guilty on count 2, and guilty as charged on count 3. The jury was unable to reach a verdict as to count 4 and as to the lesser included offense of simple assault on count 2. The trial court declared a mistrial as to those counts, and dismissed the counts in the interest of justice. The same jury found Springs guilty as charged. The trial court sentenced Pierson to two years in the custody of the sheriff and sentenced Springs to an aggregate term of 14 years four months in state prison.
Appellants claim that the trial court erred in failing to stay execution of their sentences on count 3 for auto theft pursuant to section 654, in light of the trial court's imposition of sentences on count 1 for robbery (Springs) and grand theft (Pierson). Appellants contend that the theft of the victim's car keys formed the basis of their convictions on count 1 and that this conduct was incidental to the criminal objective of stealing the victim's car, which formed the basis of their convictions on count 3. Springs also contends that the trial court erred in relying on the same aggravating factors in imposing sentences on various counts, and that the trial court erred in relying on a stayed count (count 5) in imposing an upper term full strength consecutive sentence on count 6.[2]
We conclude that section 654 did not require the trial court to stay appellants' sentences on count 3, that Springs forfeited his claim that the trial court improperly relied on the same aggravating factors in sentencing him on several different counts, and that any error that the court committed in relying on a stayed count in sentencing Springs on count 6 was harmless. We therefore affirm the judgments.

Carolyn Volk appeals from a summary judgment in her medical malpractice action against Dr. Anthony Bianchi. Volk contends the judgment should be reversed because (1) Dr. Bianchi's breach of the standard of care and that he caused her injuries were matters of common knowledge and thus required no expert testimony, (2) the declaration of Dr. Bianchi's expert was deficient, and (3) the trial court abused its discretion in denying her request for a continuance. We reject Volk's contentions and affirm the judgment.

Defendants Keshawn Price and George Austin each appeal from his judgment of conviction after the jury found Price guilty of count 3, assault (Pen. Code,[1] § 245, subd. (a)(1)) and Austin guilty of counts 1 through 5, as follows: robbery (§ 211; count 1); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1); count 2); assault by means likely to produce great bodily injury (ibid.; count 3); and assault with a deadly weapon and by means of force likely to produce great bodily injury (ibid.; counts 4 & 5).[2] The jury also found true that Price committed count 3 and Austin committed counts 1 through 5 for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court sentenced Price to five years and Austin to 17 years in state prison.
Price on appeal contends the trial court erred and thus abused its discretion when it refused to sever his trial from Austin's trial and when it refused to bifurcate the gang allegations from the substantive charges. He also contends the court erred in failing to give sua sponte a unanimity instruction. Lastly, he contends the court erred and therefore abused its discretion when it ordered him to pay restitution jointly and severally with other codefendants.

Appointed counsel for defendant Michael Neal Johnson has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment.

Appointed counsel for defendant Corey Gene Piper has asked us to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment.

T.S. (mother) appeals from the juvenile court’s order terminating her parental rights as to minors A.S. and T.L. (Welf. & Inst. Code, [1] § 366.26.) She contends the record does not show by clear and convincing evidence that the minors are adoptable. Disagreeing, we shall affirm.

Appointed counsel for defendant Sonny William Montgomery has asked this court to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment.

Appointed counsel for defendant Uriel Torres Valerio has asked us to review the record to determine whether there exist any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) We shall affirm the judgment.

A jury found defendant guilty of possession of heroin and ecstasy (MDMA) in prison (Pen. Code, § 4573.6). In a bifurcated proceeding, the trial court found true defendant’s prior strike conviction for robbery. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) The trial court sentenced defendant to six years in prison, the midterm of three years doubled. Pursuant to Penal Code section 1170.1, subdivision (c), it also resentenced defendant on a prior conviction for the same offense to a consecutive term of two years (one-third the midterm doubled).
On appeal, defendant contends the trial court erred when it admitted evidence of his prior conviction for possessing heroin in prison, because he offered to stipulate that he knew what heroin was, thus establishing the knowledge element of the crime. Although we agree that admission of the prior conviction was error, we find the error harmless. Accordingly, we shall affirm.

In 1994, defendant Bradley Deon Hoover kidnapped and murdered his victim. He was first charged with these crimes in 1994, and was incarcerated on an unrelated charge that same year, but his kidnapping and murder case did not proceed to jury trial until the year 2011--a 17-year delay. Before his trial commenced, he moved to dismiss his case for dilatory prosecution. The trial court denied his motion.
The jury found him guilty of first degree murder while engaged in the commission of the crime of kidnapping (count 1; Pen. Code,[1] §§ 187, subd. (a); 190.2, subd. (a)(17)(B)) and kidnapping (count 2; § 207, subd. (a)), and the trial court sentenced him to life in prison without possibility of parole. Defendant appeals, contending that the trial court erred by denying his pretrial motion to dismiss and the delay in his prosecution deprived him of due process. He adds that the jail classification and booking fees imposed at sentencing should be stricken because there was no showing he had the ability to pay. Disagreeing, we shall affirm the judgment.

Delinquent minor E.L. (minor) appeals from a judgment committing him to the Division of Juvenile Justice (DJJ) (the successor to the California Youth Authority or CYA, see 3 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000 & 2011 supp.) Punishment, § 8). He contends a DJJ commitment was statutorily prohibited because his “most recent offense alleged in any petition” was not a DJJ-eligible offense (Welf. & Inst. Code,[1] § 733, subd. (c)), the juvenile court improperly required him to register as an arsonist, and the juvenile court abused its discretion in committing minor to DJJ absent evidence he would benefit therefrom. We disagree and shall affirm.

A jury convicted defendant Edward Che Renshaw as charged of four felony sex offenses against alleged victim C., and found he had substantial sexual contact with her and caused her great bodily injury in connection with two of the counts.[1] (Pen. Code, §§ 288, subd. (a) [lewd act with child under 14], 288.5, subd. (a) [continuous sexual abuse of child under 14], 288.7, subds. (a) [sodomy with child 10 or younger] & (b) [oral copulation or sexual penetration with child 10 or younger], 1203.066, subds. (a)(2) & (a)(8).) The trial court sentenced defendant to prison for 18 years, consecutive to a term of 40 years to life, and defendant timely appealed.
On appeal, defendant contends no substantial evidence supports count two because the victim was over 10 (but not yet 11) and the relevant statute requires that the victim be “10 years of age or younger.” (Pen. Code, § 288.7, subd. (a).) He also claims the trial court erred by permitting the People to introduce prejudicial uncharged act evidence showing he committed sexual offenses against other girls and young women. Finally, defendant contends the trial court should have granted his motion for a new trial based on juror misconduct.
As we explain, we find no error. Accordingly, we shall affirm the judgment.

The mother, Josephine D., appeals from an October 24, 2012 parental rights termination order. The mother argues she was prejudiced by the juvenile court’s decision to proceed with the Welfare and Institutions Code section 366.26 hearing and terminate her parental rights.[1] The mother contends a delay in the section 366.26 hearing was warranted because the department was in the process of placing the child, Sandra M., with a relative. Had the child been placed with a relative, the mother potentially could have retained parental rights under the section 366.26, subdivision (c)(1)(A) exception to adoption. We conclude the mother forfeited the delay issue. We affirm the order terminating the mother’s parental rights.