People v. Foster CA1/4 ( 2021 )

Filed 12/15/21 P. v. Foster CA1/4
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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.
We 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 (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.
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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
Condor tactical pouch near defendant’s sternum, loaded with six
live rounds. The sergeant also located a usable quantity of
methamphetamine and two used pipes in defendant’s pockets,
notwithstanding defendant’s earlier denial that he did not have
any “dope” on his person or in his car. After being read his
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warnings under Miranda v. Arizona (1966) 384 U.S. 436,
defendant admitted the firearm, methamphetamine, and pipes
were his. He stated he had the firearm for his personal
protection.
After the sergeant’s testimony, the trial court admitted
certified documents showing defendant’s 2018 felony vandalism
conviction (for which defendant was on probation at the time of
the current offenses) as well as his 2009 conviction for
manslaughter. Based on the testimony and exhibits, the court
found defendant guilty of all charges and found true the strike
prior.
Prior to sentencing, defendant filed a Romero motion
asking the court to strike his prior manslaughter conviction.
Defendant, who was 31 at the time of the sentencing, contended
that the strike should be stricken because it had occurred when
he was only 19, and because defendant’s older, more “criminally
sophisticated” co-defendant was the more culpable party in the
homicide. Defendant admitted he had previously been the
subject of a sustained juvenile petition for attempted robbery,
and that he was on probation for a domestic violence-related
felony vandalism conviction. He argued, however, that the
current offenses were non-serious, non-violent convictions
resulting from his methamphetamine abuse and attendant
paranoia. Defendant further asserted that he had shown
remorse and dedication to programming while in custody, and
that he had successfully completed parole after his manslaughter
conviction.
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The court denied the Romero motion, commenting that
although it was impressed with defendant’s efforts while in
custody, it was troubled by defendant’s use of methamphetamine
coupled with his possession of a loaded firearm—circumstances
the court believed “indicate . . . a greater danger to society.” The
court also found concerning defendant’s use of a false name and
failure to notify the police that he had a loaded weapon on his
person. Taking into account the circumstances of the current
offenses, the fact that defendant was on felony probation at the
time of his arrest, the seriousness of defendant’s prior offenses
(including the manslaughter conviction that involved a firearm),
and the factors under California Rules of Court, rule 4.410, the
court declined to strike the prior strike.
The court sentenced defendant to the low term of two years
on the Health and Safety Code section 11370.1, subdivision (a)
offense, doubled to four years due to the prior strike. The court
imposed and stayed the sentence on defendant’s remaining felony
offenses pursuant to Penal Code section 654, and imposed a
concurrent six-month sentence on the Penal Code section 148.9
misdemeanor.
DISCUSSION
We review for abuse of discretion a trial court’s refusal to
strike a prior strike, reversing only if the ruling “ ‘falls outside
the bounds of reason’ ” under the applicable law and relevant
facts. (People v. Carmony (2004) 33 Cal.4th 367, 374; People v.
Williams (1998) 17 Cal.4th 148, 162 (Williams).)
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Defendant fails to demonstrate an abuse of discretion. In
denying the motion, the court articulated multiple appropriate
reasons for its decision: the danger posed by defendant’s
possession of a concealed, loaded firearm while using
methamphetamine; defendant’s use of a false name and failure to
disclose his concealed firearm when contacted by police; the
serious, gun-involved nature of defendant’s prior strike; and the
fact that defendant was on felony probation at the time of the
instant offenses. These considerations are relevant factors for a
court analyzing a Romero motion (Williams, supra, 17 Cal.4th at
p. 161), and the court’s decision was well within the bounds of
reason.
DISPOSITION
The judgment is affirmed.
BROWN, J.
WE CONCUR:
POLLAK, P. J.
ROSS, J.
People v. Foster (A160718)

Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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