Filed 10/2/13 P. v. Foster CA5




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,

         Plaintiff and Respondent,                                                    F065436

                   v.                                                    (Super. Ct. No. 12CM0313)

JAMES HOWARD FOSTER,                                                              OPINION

         Defendant and Appellant.




                                                   THE COURT
         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
         Benjamin Owens, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Office of the State Attorney General, Sacramento, California, for Plaintiff and
Respondent.



        Before Wiseman, Acting P.J., Levy, J., and Peña, J.
                                             -ooOoo-
       Appellant, James Howard Foster, pled no contest to inflicting corporal injury on a
cohabitant (Pen. Code, § 273.5, subd. (a))1 and was sentenced to a two-year prison term.
Following independent review of the record pursuant to People v. Wende (1979) 25
Cal.3d 436 we affirm.
                     FACTUAL AND PROCEDURAL HISTORY
       Foster was in a dating relationship with Theresa Johnson for three years and had
been living with her for two months prior to December 31, 2011. On that date, at
approximately 7:00 a.m., Foster got on top of Johnson as she slept in her bed and he
began punching her in the head and choking her. Foster got off Johnson and left after her
adult son came into the room and yelled at him.
       On January 5 or 6, 2012, Johnson returned from a trip out of town and found that
her apartment had been broken into and ransacked. Johnson also discovered that
someone urinated on her bed, poured bleach and paint thinner on her clothes, cut up her
shoes, and cut the extension cords to certain items. Additionally, some of Johnson’s
jewelry was missing.
       Foster called Johnson the night she returned and admitted taking her property,
including the jewelry. Foster told Johnson to meet him across the street and that he was
going to finish things off, and shoot her.
       On April 30, 2012, the district attorney filed a first amended information charging
Foster with making criminal threats (count 1/§ 422), first degree burglary (count 2/§§ 459
& 460, subd. (b)), inflicting corporal injury on a cohabitant (count 3), assault by means of
force likely to cause great bodily injury (count 4/§ 245, subd. (a)), and vandalism



1      All further statutory references are to the Penal Code.


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(count 5/§ 594, subd. (b)(1)). The information also alleged 12 prior prison term
enhancements (§ 667.5, subd. (b)).
       On June 8, 2012, Foster entered his no contest plea to the inflicting corporal injury
charge in exchange for the dismissal of the remaining counts and enhancements and a lid
of two years.
       On July 9, 2012, the court denied Foster’s Marsden2 motion. The court then
appointed Attorney James Oliver for the limited purpose of investigating whether there
was a basis for Foster to withdraw his plea.3 The court then trailed the matter to allow
Attorney Oliver to speak with Foster and to review defense counsel’s file in this matter.
When the court took up the matter again, Attorney Oliver advised the court that he did
not find any legal basis for Foster to withdraw his plea.
       On July 11, 2012, the court sentenced Foster to prison for the mitigated term of
two years.
       Foster’s appellate counsel has filed a brief which summarizes the facts, with
citations to the record, raises no issues, and asks this court to independently review the
record. (People v. Wende, supra, 25 Cal.3d 436.) However, on December 31, 2012,
Foster filed a document that consists primarily of a recitation of numerous legal
principles and citations with no explanation of how they apply to his case. Foster also
contends that the district attorney presented false evidence in the trial court and that he
was denied the effective assistance of counsel by defense counsel’s failure to interview

2      People v. Marsden (1970) 2 Cal.3d 118.
3      Parenthetically we note that the court erred, albeit not prejudicially, “by
appointing substitute counsel without a sufficient showing that failure to appoint
substitute counsel would substantially impair or deny defendant’s right to assistance of
counsel, and by appointing substitute counsel for the limited purpose of evaluating
defendant’s reasons for wanting to withdraw his plea rather than appointing substitute
counsel for all purposes.” (People v. Sanchez (2011) 53 Cal.4th 80, 92.)


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and present an important witness or other evidence. However, our review of the record
did not disclose any evidence that supports either of these assertions.
       Further, following an independent review of the record we find that no reasonably
arguable factual or legal issues exist.
                                          DISPOSITION
       The judgment is affirmed.




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