People v. Lipkin CA2/2

Filed 9/29/16 P. v. Lipkin CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B264599

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA432641) v.

KENNETH E. LIPKIN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. C. H. Rehm, Jr., Judge. Affirmed.

C. Matthew Missakian, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Senior Assistant Attorney General, Zee Rodriguez and Andrew S. Pruitt, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Kenneth E. Lipkin (defendant) of assault by means likely to produce great bodily injury and of inflicting great bodily injury when he threw a scalding hot cup of coffee at a Starbucks barista. On appeal, defendant argues that (1) his conviction is invalid because his attorney was constitutionally ineffective for not objecting to the prosecutor’s misstatement of the burden of proof during closing argument, and (2) he is entitled to be resentenced because the trial court did not order a posttrial probation report, even though defendant expressed his desire to be sentenced immediately. Because neither argument has merit, we affirm his conviction and sentence. FACTS AND PROCEDURAL BACKGROUND Just after 7:00 a.m. on December 18, 2014, defendant walked into a Starbucks and ordered a 16-ounce cup of coffee with whipped cream. When a barista served him a cup that he did see her freshly pour, he removed the lid, threw the cup of coffee at her, and said, “Mother fucking bitch, fuck you!” The coffee was brewed at over 200 degrees Fahrenheit. The scalding coffee produced first and second degree burns on the barista’s upper chest, causing a “consistent” “burning” pain for three days and blistering for a month. Defendant immediately left the store. The People charged defendant with assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4))1 and further alleged that he inflicted great bodily injury (§ 12022.7, subd. (a)). Defendant went to trial, and a jury convicted defendant and found the great bodily injury allegation to be true. On the day the jury returned its verdict, defendant “requested immediate sentenc[ing].” The trial court imposed a sentence of six years, comprised of a midterm sentence of three years on the assault charge plus an additional three years for the great bodily injury enhancement. Defendant filed this timely appeal.