People v. Foster CA5

Filed 3/3/16 P. v. Foster CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIFTH APPELLATE DISTRICT

THE PEOPLE, F070371 Plaintiff and Respondent, (Super. Ct. No. F14905550) v.

FLOYD FOSTER, JR., OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.

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* Before Gomes, Acting P.J., Franson, J. and Peña, J.

INTRODUCTION Pursuant to a plea agreement, appellant Floyd Foster, Jr. pled no contest to one count of arson, a violation of Penal Code1 section 451, subdivision (d), in exchange for dismissal of two other counts, the striking of his two prior convictions, and a three-year maximum sentence. Foster was sentenced in accordance with the plea agreement to a two-year prison term. He appealed and appellate counsel filed a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende). We affirm. FACTUAL AND PROCEDURAL SUMMARY On June 6, 2014, around 11:00 p.m., the Fresno Fire Department responded to a call about a fire in an alley; the alley was flanked by apartment complexes. When the fire department arrived, they found a witness attempting to quell the fire with a garden hose and a fire in the middle of the alley. The pile of debris on fire was about 10 feet by 100 feet. The items burned included a sofa, mattress, and a box spring. The fire department determined the fire had been set intentionally and contacted the Fresno Police Department. At least two witnesses identified Foster as the person who set the fire. Among the items damaged by the fire was a PG&E pole and property owned by the State of California. Foster was charged with one count of arson, a violation of section 451, subdivision (d); and two counts of attempting to dissuade a witness in violation of section 136.1, subdivision (a)(2). It also was alleged that he had two strike priors. On September 16, 2014, in the morning, the trial court discussed the offer that had been made to Foster, at which time it was noted that Foster faced a maximum exposure of 60 years to life if tried and convicted of all charges. The trial court also inquired whether Foster wanted more time to discuss the offer and possible change of plea with his attorney.