People v. Foster CA1/4

Filed 1/7/22 P. v. Foster CA1/4 Opinion after vacating opinion filed 12/15/21 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, A160718 v. ORLANDO FOSTER, (San Mateo County Case No. 19-NF-012133-A) Defendant and Appellant.

Defendant argues that the trial court abused its discretion in denying his motion to strike a prior conviction pursuant to People v. Romero (1996) 13 Cal.4th 497 (Romero), which allows courts to strike prior strike convictions in the interests of justice. He also argues that the trial court erred in imposing sentence on one misdemeanor count after not announcing a verdict on that charge. We agree that the sentence as to the misdemeanor count should be vacated and that the court minutes and abstract of judgment should be corrected. We otherwise affirm. BACKGROUND Defendant was charged in an amended information with felony possession of a controlled substance with a firearm, in violation of Health and Safety Code section 11370.1, subdivision

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(a), as well as four other firearm-related felonies and one misdemeanor violation of Penal Code section 148.9 (providing false information to a peace officer). The amended information further alleged that defendant had previously been convicted of manslaughter, which constituted a prior strike conviction. Defendant waived his right to a jury trial. During his bench trial, the prosecution presented evidence that defendant had been stopped by a Brisbane police sergeant who noticed defendant driving a car with a suspended registration. The sergeant testified that, when asked for identification, defendant provided a torn temporary driver’s license showing the name “Evans” and a July 13, 1980 date of birth. In response to questioning, defendant orally stated his name was “Randall” and gave two different September dates as his date of birth. When asked whether he was “on paper,” defendant provided his true name and date of birth and admitted that he was on probation with a search condition for a vandalism conviction from San Francisco. The sergeant testified that he believed defendant was under the influence of methamphetamine, based on defendant’s severe eyelid tremors. After defendant got out of the car, the sergeant conducted a search of “high-risk areas” for weapons, namely defendant’s waistband and pockets. The sergeant immediately felt an object under defendant’s clothing near his lower sternum. When asked what it was, defendant said he didn’t know. When asked whether “it” was loaded, defendant again claimed he didn’t know. The sergeant ultimately discovered an unregistered firearm in a