CA Unpub Decisions

Defendant Kevin Lipscomb drove down Townsend Street in San Francisco and, without any provocation, shot and seriously injured a stranger who was standing on the sidewalk. He fled the scene in his car but was soon spotted by a number of San Francisco police officers, who began a pursuit. Defendant led them on a high-speed chase through the city streets, eventually abandoning his car to flee on foot when he became stuck in traffic. He was apprehended in an abandoned building and arrested. Following a jury trial in which defendant was convicted of multiple charges, the trial court sentenced him to 67 years to life.
Defendant now challenges his conviction on the ground that the victim’s identification of him as the shooter was obtained in what he claims was an unduly suggestive manner. He contends that his trial counsel’s failure to move to strike the identification constituted ineffective assistance, and that admission of the evidence violated his federal and state rights to due process. He also contends that a $27,800 restitution fine imposed by the trial court must be reduced to $10,000, the maximum fine permitted by Penal Code section 1202.4, subdivision (b).[1]
As the People concede, defendant’s argument concerning the restitution fine is well taken, and we order the abstract of judgment amended accordingly. His ineffective assistance of counsel and due process claims, however, lack merit. We thus affirm the judgment, subject to the aforementioned amendment.

These appeals[1] by Valerie Behrendt (Valerie), two of the many she has filed in this heavily litigated case, come to us following entry of final judgment on the petition for dissolution of marriage filed by respondent J. Russell Pitto (Russ).[2] We shall affirm the judgment in all respects.

Respondent Cathedral Hill Tower Condominium Association (the Association) brought this action in 2004 to preclude condominium unit owner Larisa Garbar from installing ceramic tile on her balcony and to compel her to remove unauthorized renovations that violated the Tower’s covenants, conditions, and restrictions (CC&Rs). In a cross-complaint, Garbar and her fiancé, Michael Rabichev (defendants) sought to recover damages for excess heat and noise in the unit, allegedly caused by the Association’s failure to maintain the Tower’s mechanical room above it.[1]
The trial court sustained a demurrer to defendants’ cross-complaint without leave to amend and granted the Association summary adjudication as to the balcony tile. After a bench trial, the court found Garbar violated the CC&Rs by failing to obtain approval for her renovations and by constructing a raised ceiling that encroached upon the common area above her unit. The court denied injunctive relief requiring restoration of the unit’s original ceiling, but granted the Association continued use of the common area ceiling space. The court deemed the Association the prevailing party and awarded attorney fees.
Defendants challenge the orders dismissing their cross-complaint and granting summary adjudication, the judgment, and the attorney fee award. The Association also appeals from the judgment, contending the trial court erred in denying injunctive relief.
We reverse the judgment as it relates to the cross-complaint and the prevailing party determination, but otherwise affirm it. We also reverse the attorney fee award.

Defendant Mir Massoud Kashani was found guilty by a jury of one count of committing grand theft.[1] On May 24, 2010, defendant filed a notice of appeal challenging the judgment of conviction. In People v. Kashani (Oct. 31, 2011, G043694) (nonpub. opn.), we affirmed the judgment of conviction; the California Supreme Court denied defendant’s petition for review.
While defendant’s appeal from his judgment of conviction was pending, on July 15, 2011, defendant filed a motion in the trial court, in which he requested that the trial court reduce his felony conviction to a misdemeanor under Penal Code section 17, subdivision (b) (the motion). On July 26, the trial court issued a minute order in which the court denied the motion. On September 15, defendant filed a notice of appeal as to the trial court’s order denying the motion. In his opening brief, defendant argues the trial court abused its discretion by denying the motion.
For the reasons we will explain, we dismiss the instant appeal for lack of jurisdiction. In the respondent’s brief, the Attorney General argues that the instant appeal must be dismissed because the trial court had no jurisdiction to rule on the motion during the pendency of the appeal from the judgment of conviction, and, thus, the court’s order denying the motion is not appealable.[2] In his reply brief, defendant acknowledges it “may be true” the trial court was without jurisdiction to rule on the motion.

G. G. (father) appeals from a 2011 order terminating parental rights (Welf. & Inst. Code, § 366.26) to his four-year-old son, J., and three-year-old daughter, M.[1] Father raises for the first time a series of issues dating as far back as the 2009 jurisdictional/ dispositional phase of the children’s dependency. On review, we will affirm.

Kyle Hoffman and Luis William Palafox (Hoffman and Palafox; collectively, defendants) stand convicted, following a jury trial, of two counts of first degree murder (Pen. Code,[1] § 187, subd. (a)), with multiple-murder (§ 190.2, subd. (a)(3)), robbery-murder (id., subd. (a)(17)(A)), and burglary-murder (id., subd. (a)(17)(G)) special circumstances. Each defendant, 16 years of age or older when the offenses were committed (Welf. & Inst. Code, § 707, subd. (d)(1)), was sentenced to two consecutive terms of life in prison without the possibility of parole (LWOP) and ordered to pay various fees, fines, and restitution. Hoffman now raises claims of trial error and insufficiency of the evidence, while both contend a sentence of LWOP is unconstitutional when imposed on a juvenile offender. We strike the parole revocation restitution fines, but otherwise affirm.

M.L. (mother) is the mother of A.A., born in November 2005. Mother argues the juvenile court erred when it terminated her parental rights and freed A.A. for adoption by her foster parents at a hearing held on January 5, 2012, pursuant to Welfare and Institutions Code section 366.26.[1] Specifically, mother argues the juvenile court should have declined to terminate her parental rights under the parental benefit exception to the preference for adoption, found at section 366.26, subdivision (c)(1)(B)(i). As discussed below, we conclude that, even if mother did not waive this argument by failing to raise it below, it has no merit. Thus, we affirm the juvenile court’s orders terminating mother’s parental rights and freeing A.A. for adoption.

Jason G., the father of Jordan G., appeals an order granting de facto parent status to the paternal grandparents. Jason contends the juvenile court used an incorrect legal standard in finding the grandparents qualified as de facto parents. Jason also contends the court erred because Jordan had been removed from the grandparents' care.

In November 2011, defendant attempted to pass a diesel truck on State Route 89 in Siskiyou County. He lost control of his vehicle and collided into two other cars. Law enforcement officers responded to the scene of the accident and completed a preliminary alcohol screening test, which registered defendant’s blood-alcohol content at .098 percent and .087 percent.
As a result of the collision, Michelle D., driver of the second vehicle, suffered a broken jaw, broken facial bones, broken ribs, and a broken foot and ankle. Michael D., the driver of the third car, injured his forehead and forearm. Defendant’s passenger, Lucee S., also suffered a broken foot, a broken knee, and fractures in both of her hands.

Appellant V. D., the mother of the minor J. Y., appeals from the juvenile court’s orders denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code,[1] §§ 395, 388, 366.26). She contends that it was an abuse of discretion for the juvenile court to deny her petition for modification seeking reunification services and custody of the minor. We affirm.

A jury found defendant and appellant James Windley, Jr. guilty of three counts of assault with a firearm on a peace officer and of first degree residential burglary. On appeal, he contends that the assault convictions must be reversed because (1) there is insufficient evidence of either his intent to shoot his gun or that he knew one of the victims was a peace officer; (2) the prosecutor committed misconduct by misstating the law on intent; and (3) the trial court misinstructed the jury on the law of assault. He also contends that the trial court abused its discretion by denying his Pitchess[1] motion as to one of the three peace officers he assaulted, and he asks us to independently review the in camera hearing concerning the records of the other two officers. We conditionally reverse the judgment and remand so that the trial court can conduct an in camera hearing under Pitchess, and we modify the judgment to correct a sentencing error.

J.G. appeals from a dispositional order entered in a proceeding commenced under Welfare and Institutions Code section 602. He contends the juvenile court erred in ordering him to register as a sex offender, because he was not committed to the custody of the Department of Juvenile Justice. (Pen. Code, § 290.008.) We will strike the provision of the dispositional order requiring sex offender registration and affirm the order in all other respects.

The issues on this appeal concern an insurance policy on the life of respondent, Andrew Wong, and the proceeds paid on that policy after he died during the course of the parties’ divorce proceedings. Appellant, Nancy Wong, had been the named beneficiary during the parties’ marriage and for some time after their separation, until respondent changed the beneficiary designation to the parties’ children. Appellant contends the trial court erred in failing to determine that the life insurance policy was a community property asset to be divided between the parties, and abused its discretion in denying her request to be reinstated as a beneficiary of the policy. We affirm.

Defendant, David Edward Palmer, was convicted by negotiated no contest plea of possession of 3, 4-methylenedioxy methamphetamine (MDMA) (Health & Saf. Code, § 11378). Pursuant to the plea agreement, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions, including that he serve nine months in county jail and pay a $50 criminal lab analysis fee plus penalty assessments and a $150 drug program fee plus penalty assessments.
On appeal, defendant contends that the conviction must be reversed and the matter remanded so that the trial court can make a proper inquiry into the factual basis for the plea. He further contends that the probation order must include a breakdown of all the penalty assessments ordered. We will affirm.