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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

Plaintiff and Respondent,

v.

MELVYN KENARD FOSTER,

Defendant and Appellant.

 B237200

 (Los Angeles County

 Super. Ct. No. TA112529)

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.

__________________________________
2

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.
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On May 26, 2010, five days after the assaults on Simpson and Johnson, Foster told 

Francois Kerkhoff he was going to shoot him and his dogs. As set forth above, when 

Foster moved out of the residence he shared with Johnson, he moved in with another 

girlfriend. Kerkhoff lived next door to Foster’s girlfriend. Foster and Kerkhoff were in a 

dispute because Kerkhoff’s dog had injured Foster’s dog and Foster wanted Kerkhoff to 

pay a portion of the veterinarian’s bill. On May 26, Kerkhoff was in his backyard when 

Foster approached the fence separating their yards and threatened to shoot Kerkhoff and 

his dogs. Foster was holding a small aluminum-colored handgun in his hand. Kerkhoff 

made a 911 call and then waited outside in his front yard for the police to arrive.

The police responded to the scene and searched the residence Foster shared with 

his girlfriend. In a bedroom, an officer discovered a small silver handgun in a dresser 

drawer underneath some clothes. Next to the gun was a magazine loaded with 

ammunition.

In front of the jury, Foster stipulated he had been convicted of a felony. Before 

the verdicts were read, Foster waived jury trial on prior conviction allegations.

The jury found Foster guilty of criminal threats against Lynette Simpson (Pen. 

Code,1 § 422; count 1); attempted criminal threats against Francois Kerkhoff (§§ 422 & 

664; count 3); possession of a firearm by a felon (former § 12021, subd. (a)(1); count 4); 

possession of ammunition by a felon (former § 12316, subd. (b)(1); count 5); assault with 

a firearm on Simpson (§ 245, subd. (a)(2); count 6); and assault with a firearm on Sharon 

Johnson (count 7).2 On counts 1, 3, 6 and 7, the jury found true the special allegation that 

Foster used a firearm within the meaning of section 12022.5, subdivision (a).

The trial court held a bench trial on the prior conviction allegations and the 

prosecution submitted evidence to prove the prior convictions. The trial court found true 

that Foster had sustained four prior convictions of serious or violent felonies (assault with 

 

 

1 Statutory references are to the Penal Code unless otherwise indicated.

 

2 Count 2 for dissuading a witness from testifying (§ 136.1, subd. (a)(1)) was dismissed 

before the case went to the jury.
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a firearm) within the meaning of the Three Strikes law. (§§ 667, subds. (b)-(i) & 

1170.12, subds. (a)-(d).) The court also found true that Foster had sustained other felony 

convictions for obstructing an officer in the performance of duty by threat or violence 

(§ 69) and for possession of a controlled substance (Health & Saf. Code, § 11350). 

Foster filed a motion to dismiss the prior strike allegations under People v. Superior 

Court (Romero) (1996) 13 Cal.4th 497, which the trial court denied.

The trial court sentenced Foster to 100 years to life in prison: On count 6 for 

assault with a firearm on Simpson, 25 years to life, plus the 10-year high term for the 

firearm enhancement under section 12022.5, subdivision (a); on count 7 for assault with a 

firearm on Johnson, a consecutive term of 25 years to life;3 on count 3 for attempted 

criminal threats against Kerkhoff, a consecutive term of 25 years to life, plus the 10-year 

high term for the firearm enhancement under section 12022.5, subdivision (a); and a 

consecutive five-year term for the prior serious felony enhancement under section 667, 

subdivision (a)(1). The court imposed and stayed the sentences on counts 1, 4 and 5.

DISCUSSION

I. Consecutive Sentencing

Foster asserts the trial court did not understand it had discretion to sentence him to 

concurrent terms on counts 6 and 7 (the assaults with a firearm on Lynette Simpson and 

Sharon Johnson) under the Three Strikes law. He contends the matter must be remanded 

for a new sentencing hearing due to this prejudicial error. Based on our review of the 

record it appears the court erroneously believed consecutive sentences were mandatory. 

Accordingly, we vacate Foster’s sentence and remand the matter for a new sentencing 

hearing.4

 

 

3 The trial court imposed and stayed the 10-year high term on the firearm enhancement 

under section 12022.5, subdivision (a). As Foster acknowledges, it was improper for the 

court to stay the term for the firearm enhancement. “[A]n additional and consecutive 

term of imprisonment” must be imposed and this enhancement allegation may not be 

stricken. (§ 12022.5, subds. (a) & (c).)

 

4 Foster frames the issue on appeal as ineffective assistance of counsel. He argues his 

counsel rendered ineffective assistance in failing to object to, and set forth the law 
5

Consecutive sentences are not mandatory under section 667, subdivision (c)(6), 

where multiple crimes are committed on the same occasion or arise from the same set of 

operative facts. (People v. Deloza (1998) 18 Cal.4th 585, 591; section 667, subd. (c)(6) 

[“If there is a current conviction for more than one felony count not committed on the 

same occasion, and not arising from the same set of operative facts, the court shall 

sentence the defendant consecutively on each count . . . .”].) Thus, the trial court in this 

case had discretion to impose either consecutive or concurrent terms on counts 6 and 7. 

(People v. Deloza, supra, 18 Cal.4th at pp. 591, 596.)

In discussing its decision to sentence Foster consecutively on counts 6 and 7, the 

trial court stated: “So the one legal issue that I have is—well, there’s a number of legal 

issues here as it relates to concurrent versus consecutive sentencing. And, unfortunately 

for Mr. Foster, since there’s multiple victims— and under the Three-Strikes law, the 

spirit is to impose consecutive sentencing. [¶ . . . ¶] As to the assault behavior, I believe 

that’s consecutive sentencing. [¶] As to the 422 [criminal threats against Simpson; count 

1], though, since his conduct was part and parcel of the assault, I’d like counsel to 

address the subject of concurrent sentencing on the criminal threat in that—as opposed to 

consecutive sentencing, which is fairly huge. It’s 50 years versus 75. And we still 

haven’t even gotten to the enhancements or the other charges.” (Italics added.)

 

regarding, consecutive sentencing on counts 6 and 7. We need not decide whether 

Foster’s counsel rendered ineffective assistance. As discussed below, we conclude the 

trial court committed reversible error in imposing consecutive sentencing on counts 6 and 

7, for the reasons Foster articulates in his appellate briefing. We also conclude the claim 

of error was not forfeited despite the lack of objection by Foster’s counsel. In asking the 

trial court to strike his prior strikes, Foster argued for leniency at the sentencing hearing. 

Foster is not raising on appeal an issue about the manner in which the court exercised its 

discretion or the reasons it stated for imposing consecutive sentencing. (See People v. 

Scott (1994) 9 Cal.4th 331, 356 [“complaints about the manner in which the trial court 

exercises its sentencing discretion and articulates its supporting reasons cannot be raised 

for the first time on appeal”].) Foster is claiming the trial court erroneously believed—

and indicated on the record—it did not have discretion and had no alternative but to 

impose consecutive sentencing. This claim of error was not forfeited and may be raised 

on appeal.
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We agree with Foster’s assertion the record indicates the trial court did not 

understand its discretion to impose concurrent terms on counts 6 and 7. The court’s 

comment that, “under the Three-Strikes law, the spirit is to impose consecutive 

sentencing” is incorrect. Where multiple crimes are committed on the same occasion and 

arise from the same set of operative facts, like the crimes charged in counts 6 and 7, the 

trial court has discretion to impose either consecutive or concurrent terms. (People v. 

Deloza, supra, 18 Cal.4th at pp. 591, 596.) The Three Strikes Law does not mandate—or 

even favor—consecutive terms under these circumstances. We interpret the court’s 

comment to mean “unfortunately for Mr. Foster,” the court had no alternative but to 

impose consecutive terms on counts 6 and 7. The law provides otherwise.

Because the record indicates the trial court “misunderstood the scope of its 

discretion to impose concurrent sentences for defendant's current convictions, and 

erroneously believed consecutive sentences were mandatory,” we vacate Foster’s 

sentence and remand the matter for a new sentencing hearing. (People v. Deloza, supra, 

18 Cal.4th at p. 600.) We express no opinion on whether the court should impose 

concurrent or consecutive terms on counts 6 and 7 in the exercise of its discretion.

II. Section 667, Subdivision (a)(1), Enhancement

Foster contends the trial court erred in allowing the prosecution to amend the body 

of the information by interlineation, after the jury was discharged, to include a prior 

serious felony enhancement allegation under section 667, subdivision (a)(1).5

The “Information Summary” set forth on the first page of the information 

indicated the prosecution intended to allege a special enhancement allegation under 

section 667, subdivision (a)(1). Foster’s prior serious felony convictions were set forth in 

 

 

5 Section 667, subdivision (a)(1), provides: “In compliance with subdivision (b) of 

Section 1385, any person convicted of a serious felony who previously has been 

convicted of a serious felony in this state or of any offense committed in another 

jurisdiction which includes all of the elements of any serious felony, shall receive, in 

addition to the sentence imposed by the court for the present offense, a five-year 

enhancement for each such prior conviction on charges brought and tried separately. The 

terms of the present offense and each enhancement shall run consecutively.”
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the body of the information. After Foster waived jury trial on the prior conviction 

allegations and the jury was discharged, the prosecutor noted at a hearing prior to 

sentencing that the 667, subdivision (a)(1), enhancement was listed on the first page of 

the information, but not alleged in the body of the information. The prosecutor requested 

that the information be amended by interlineation. Noting that the prior serious felony 

convictions were set forth in the body of the information, over Foster’s objection the trial 

court granted the prosecutor’s request to amend the information by interlineation to 

include the special enhancement allegation under section 667, subdivision (a)(1), in the 

body of the information. As set forth above, the trial court later sentenced Foster to a 

consecutive five-year term for this enhancement.

Foster cites cases holding a trial court acts in excess of its jurisdiction when it 

allows the prosecution to amend an information to allege additional prior conviction 

allegations after a defendant waives jury trial on the original prior conviction allegations 

and the jury is discharged. (People v. Tindall (24 Cal.4th 767, 769-771; People v. 

Gutierrez (2001) 93 Cal.App.4th 15, 23-24.) “Under Penal Code section 1025, 

subdivision (b), a defendant has the statutory right to have the same jury decide both the 

issue of guilt and the truth of any prior conviction allegations.” (People v. Tindall, supra, 

24 Cal.4th at p. 770, fn. omitted.)

We conclude the trial court erred in allowing the prosecution to amend the body of 

the information by interlineation, after the jury was discharged, to include a prior serious 

felony enhancement allegation under section 667, subdivision (a)(1). The fact that the 

first page of the information cites this Penal Code section does not change our 

conclusion. There was no prior serious felony enhancement alleged in the information. 

The enhancement is stricken.
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DISPOSITION

The prior serious felony enhancement under Penal Code section 667, subdivision 

(a)(1), is stricken. The sentence is vacated and the matter is remanded for resentencing. 

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

MALLANO, P. J.

ROTHSCHILD, J.