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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


                                                        -ooOoo-




*        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.


1      References to code sections are to the Penal Code unless otherwise specified.


                                             2.
        At the afternoon session on September 16, 2014, Foster entered into a plea
agreement whereby he agreed to enter a no contest plea to count 1 and admit the two
strike priors. In exchange for his plea, the People would dismiss the other two counts and
it was agreed the prior convictions would be stricken and the maximum term of
imprisonment would be three years. Foster initialed and signed a felony advisement,
waiver of rights, and plea form.
        The trial court went through each provision of the change of plea form in court
with Foster, including the indicated sentence, consequences of entering the plea, and
Foster’s constitutional rights, with Foster indicating each time that he understood. At the
conclusion of this exchange, the trial court found a factual basis for the plea. The trial
court also found that Foster had knowingly and understandingly waived his constitutional
rights and freely and voluntarily entered the plea. The other two counts were dismissed
in accordance with the plea agreement.
        On October 15, 2014, the matter was set for sentencing. The trial court granted
Foster’s motion to strike the prior convictions in the interests of justice. The trial court
imposed the midterm of two years and various fines and fees. The abstract of judgment
accurately reflects the sentence imposed.
        Foster timely filed a notice of appeal and requested a certificate of probable cause,
which was denied. Appellate counsel was appointed on February 9, 2015.
                                           DISCUSSION
        Appellate counsel filed a Wende brief on April 8, 2015. That same day, this court
issued its letter to Foster inviting him to submit a supplemental brief. Foster filed a
supplemental brief May 1, 2015, indicating that his act had no malicious intent and the
sentence imposed was unfair. In Foster’s request for a certificate of probable cause, he
claimed he felt pressured to enter into a plea out of fear of a strike prison sentence being
imposed, had ineffective assistance of counsel, and there was no factual basis for the
plea.

                                              3.
       The record reflects that the trial court thoroughly reviewed the change of plea
form with Foster prior to accepting his no contest plea. The trial judge invited Foster to
stop her at any point in the discussion if he did not understand, which he did on one
instance to clarify the three-year lid sentence. Foster affirmatively represented that he
understood the consequences of his plea and the waiver of his constitutional rights. The
trial court sentenced Foster in accordance with his plea agreement and the abstract of
judgment accurately reflects the sentence imposed.
       Foster appears to be suffering from postplea apprehension, which is not a basis for
setting aside a plea agreement. (People v. Knight (1987) 194 Cal.App.3d 337, 344.)
Feeling pressured to enter into the plea agreement rather than face a sentence of 60 years
to life does not constitute duress; Foster was under the same pressures as every other
defendant faced with the option of going to trial or accepting a plea bargain. (People v.
Huricks (1995) 32 Cal.App.4th 1201, 1208.)
       As for the factual basis, the arson was viewed by the fire department and police
department and at least two witnesses identified Foster as the man who set the fire.
Furthermore, there is no indication in the record that defense counsel rendered ineffective
assistance. Defense counsel was able to negotiate a plea for a sentence with a three-year
lid, dismissal of two other counts, and the striking of Foster’s prior convictions; certainly
a better result than a term of 60 years to life, which Foster faced in light of the witnesses
and evidence in the case.
       After 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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