P. v. Foster CA2/1

Filed 3/18/13 P. v. Foster CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE

THE PEOPLE, B237200

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. TA112529) v.

MELVYN KENARD FOSTER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Paul A. Bacigalupo, Judge. Affirmed in part and reversed in part; sentence vacated and remanded with directions. Marilyn Drath, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.

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Melvyn Foster appeals from a judgment entered after a jury convicted him of criminal threats, attempted criminal threats, possession of a firearm by a felon, possession of ammunition by a felon, and two counts of assault with a firearm. The jury found firearm enhancement allegations to be true. The trial court found prior conviction allegations to be true. The court denied Foster’s motion to strike his four prior serious or violent felony convictions and sentenced him under the Three Strikes Law to 100 years to life in prison. Foster contends the trial court made errors in sentencing him. We agree and vacate his sentence and remand the matter for a new sentencing hearing. BACKGROUND On May 21, 2010, Sharon Johnson went to pick up some personal belongings at a home she had recently shared with her ex-boyfriend, defendant Foster. Johnson’s friend, Lynette Simpson, drove Johnson to the home. Foster no longer lived there either. He had moved to a new residence with another girlfriend. Simpson and Johnson were sitting in Simpson’s car, getting ready to leave Johnson and Foster’s former residence, when Foster approached Simpson’s car. He had been a passenger in a car which had pulled up and stopped directly behind Simpson’s car. Foster reached into the car through the front passenger side window and took Simpson’s car keys out of the ignition. Simpson, who was sitting in the driver seat, grabbed the keys back from Foster. As Simpson started to get out of the car, Foster pointed a small silver handgun between Simpson’s and Johnson’s faces. Johnson was sitting in the front passenger seat of Simpson’s car. The gun was about two to three inches away from Simpson’s face. Foster told Simpson if she wanted to live she should not move “because he was prepared to die.” Johnson started screaming and crying and pleading with Simpson that she should listen to Foster and stay in the car. Simpson complied. Foster and Johnson began arguing. Foster pointed the gun down in front of Johnson, level with her chest or waist. After about five or six minutes of discussion with Johnson about the distribution of their personal property, Foster walked away. He entered the back seat of the car that was parked behind Simpson and the car drove away. Simpson made a 911 call and the police responded to the scene.