P. v. Foster
Appellant Michael Foster is an inmate at Corcoran State Prison (Corcoran). He was tried twice on a charge of battery by a confined inmate on a nonconfined person, correctional officer Matthew McVay. (Pen. Code, 4501.5.)[1] At both trials, McVay testified that while he was counseling appellant on Thanksgiving Day in 2004 for being in the yard at an improper time appellant struck him on the side of the head. Appellant denied striking McVay, testifying that it was McVay who hit and kicked him. Judge Lynn Atkinson presided over the first trial. A mistrial was declared after the jurors deadlocked seven-to-five in favor of a guilty verdict. Judge James LaPorte presided over the second trial. Appellant was found guilty by the jury in the second trial; also, the jury found true two prior strike allegations. ( 1170.12, subds. (a)-(d); 667, subds. (b)-(i).) Appellant was sentenced to 25 years to life, to be served consecutive to a previously imposed term in an unrelated case.
These issues are properly resolved on habeas corpus.
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