CA Unpub Decisions

J.B. appeals an order terminating her parental rights to her son, J.F., and freeing the child for adoption. She contends that the juvenile court abused its discretion when it failed to find the “sibling relationship” exception to the statutory preference for adoption applicable to J.F.
We will affirm the judgment.

Defendant and appellant Dennis Deon Cross was charged with numerous offenses. He agreed to plead guilty to one felony charge, admit one strike prior and three prison term priors, in exchange for dismissal of the remaining counts. Pending sentencing, defendant was released on his own recognizance pursuant to a “Cruz waiver.”[1] That is, defendant promised to appear for sentencing and agreed to an additional three years of incarceration if he did not appear as promised. Defendant failed to appear for sentencing, and became subject to the increased sentence under the Cruz waiver.
Now, however, defendant claims he should be allowed to withdraw his plea, asserting that a mistake in the amount of presentence custody credits he may be awarded was a material part of the plea bargain. We affirm.

On October 5, 2011, a complaint charged defendant and appellant Shandra Champion with possession of cocaine under Health and Safety Code section 11350, subdivision (a) (count 1), and theft with three or more prior convictions for theft crimes under Penal Code section 490.5 (count 2). The complaint further alleged that defendant had two prison priors under Penal Code section 667.5, subdivision (b).
Defendant pled guilty to both counts and admitted one prison prior. Defendant was sentenced to two years four months in county jail.
On November 18, 2011, defendant filed her timely notice of appeal. On appeal, defendant contends that the trial court erred in imposing a booking fee and a drug program fee without determining her ability to pay the fees. For the reasons set forth post, we shall affirm the judgment.

A jury found defendant and appellant Concepcion Lazu Laboy guilty as charged of first degree murder (Pen. Code, § 187, subd. (a)), and further found true the allegation under Penal Code section 12022, subdivision (b)(1), that defendant personally used a deadly weapon, namely a knife, in the commission of that crime. The trial court sentenced defendant to serve a determinate term of one year in state prison on the allegation defendant personally used a deadly weapon, followed by an indeterminate term of 25 years to life in state prison on the first degree murder conviction.
In this appeal, defendant raises various claims of error, the details of which we recount below in our discussion of those claims. We conclude, as we explain below, that defendant’s claims are meritless. Therefore, we will affirm.

Plaintiff and appellant D.R. Systems, Inc. appeals from a summary judgment in favor of defendant and respondent State Board of Equalization (Board) on plaintiff's second amended complaint for a refund of sales and use tax. On the parties' cross-motions, the trial court granted summary judgment in Board's favor, ruling plaintiff had not made a timely or valid administrative claim for refund. On appeal, plaintiff contends that a January 7, 2005 letter, alone or in conjunction with other communications to Board, constituted a timely claim for refund during the relevant time period as defined by Revenue and Taxation Code[1] section 6904 and Board is equitably estopped from claiming that section 6904 was not satisfied. Alternatively, plaintiff contends the sufficiency of its January 7, 2005 letter and other communications, as well as application of equitable estoppel, are triable issues of material fact precluding summary judgment.
On this record, Board is not entitled to summary judgment because there are triable issues of material fact as to whether Board should be equitably estopped from raising plaintiff's failure to exhaust administrative requirements as a defense. Accordingly, we reverse the judgment.

Appointed counsel for defendant James Archie Eugene Moore, Jr., asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) Finding no arguable error that would result in a disposition more favorable to defendant, we will affirm the judgment.

Appointed counsel for defendant Balraj Sanghera Singh has filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal.[1] (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)

A modification decision.

A developer obtains a large construction loan to build a luxury vacation resort and enters into contracts to sell several penthouse condominiums at the resort. The purchasers deposit earnest money which, in accordance with state law, is covered by surety bonds. The developer defaults on the construction loan and the lender bank forecloses. The condominium purchasers sue the developer and the sureties for the return of their earnest money deposits. One surety cross-complains, claiming the bank is responsible “in some manner.” Thus begins the surety’s unsuccessful search for a cause of action under which the bank may properly be held liable for the return of the earnest money deposits.
The surety, RLI Insurance Company (RLI), appeals from a judgment of dismissal after the trial court sustained, without leave to amend, the demurrer of the lender, Bank of America (the Bank), to RLI’s first amended complaint. RLI contends the trial court abused its discretion in sustaining the demurrer without leave to amend. RLI asserts it can amend its cross-complaint to state that the RLI surety bonds were assigned to the Bank and under that assignment the Bank assumed the obligations under the surety bonds, including the obligation to reimburse RLI.
As we will explain, the trial court properly sustained the demurrer without leave to amend. RLI’s theory of assignment is based on the loan documents. The allegations of RLI’s proposed second amended cross-complaint show that according to the loan agreement, the assignment of the surety bonds was “as further security for the Loan.” “It has long been the law in California, reaffirmed by the Uniform Commercial Code, that an assignment for security transfers the rights but not the obligations inherent in the assigned contract.” (Black v. Sullivan (1975) 48 Cal.App.3d 557, 564 (Black).) Because RLI’s proposed amendment does not, and cannot, allege that the Bank assumed the obligations of the surety bonds, its proposed causes of action for statutory reimbursement, equitable subrogation, restitution, equitable indemnity, and implied contractual indemnity must fail. We shall affirm the judgment.

In this appeal, mother R.W. contends there is insufficient evidence to support the juvenile court’s order removing three-year-old Angelo W. from her custody (Welf. & Inst. Code, § 361).[1] We affirm.

A jury found defendant Dennis Robert Mains guilty of first degree murder, during which he personally used a gun. It then found he was sane at the time of the crime. The trial court sentenced him to state prison for the prescribed term.
Indisputably guilty of the act of homicide, defendant attempts to find reversible error in connection with his proffered defenses of provocation from the victim and his purportedly psychotic state of mind. To this end, he challenges the trial court’s refusal to instruct on mistake of fact stemming from medicinally induced hallucinations; its failure to instruct on the elements of second degree murder; its failure to allow consideration of voluntary intoxication in connection with the subjective mental states involved in the elements of provocation or imperfect self-defense; and its refusal to admit evidence bolstering his testimony that he thought the victim was poisoning him and had behaved violently toward him. He also contends the trial court erred when it failed to grant a continuance after the prosecution provided a large amount of discovery on the eve of trial. We shall affirm the judgment.

Plaintiffs and appellants Rarebreed Motorcycle Club, Inc. (Rarebreed) and its officers Preston Thomas Harris (Harris), Kenneth Williams and Lanny Thomas (sometimes collectively appellants) appeal from the summary judgment granted in favor of defendant and respondent County of Los Angeles (County). We affirm, finding no triable issue of material fact on appellants’ cause of action for nuisance.

Shelley B. (Shelley), as guardian ad litem for A.M. and V.M. (minors), appeals the declaratory relief judgment in favor of respondent Wawanesa General Insurance Company (Wawanesa) establishing that it has no duty to pay a negligent supervision judgment against Mary M. (Mary) arising out of her ex-husband’s sexual molestation of A.M. We affirm because coverage was barred by a sexual molestation exclusion.

Appellant Patrick Douglas Hubbard (Hubbard) appeals from the judgment entered following his conviction of first degree murder in violation of Penal Code sections 187, subdivision (a), and 189.[1] The trial court sentenced Hubbard to 25 years to life for murder, which it doubled pursuant to section 667, subdivision (e)(1), plus five years pursuant to section 667, subdivision (a), for a total term of 55 years to life.
Hubbard was accused of stabbing a man in the course of a robbery. On November 25, 2000, Michael Williams (Williams) saw a Hispanic male, later determined to be Fernando Padilla Garcia (Garcia), come out of a salon located in a strip mall. Garcia was then pulled back inside by an African-American male. A few seconds later, Garcia staggered out and fell to his knees.
The African-American male followed Garcia outside and hovered over him. He had a wallet and knife in his hands and was going through Garcia’s pockets. Williams, who had come within 15 feet, turned and walked away. As he walked away, he heard what sounded like a knife going into a human body. Garcia has been stabbed 29 times; four of the wounds were fatal and caused death within minutes.
Williams called the police and within minutes of their arrival, he provided a description of the suspect and described what he had seen. Investigating Officer Michael Pelletier found blood and signs of a struggle inside the salon. A crack cocaine pipe was found on the floor near the bathroom, along with a partially smoked Newport brand cigarette and a pack of Newport cigarettes.