Filed 10/3/13 P. v. Foley 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,

         Plaintiff and Respondent,                                                     F065508

                   v.                                                     (Super. Ct. No. F11902428)

JAMES MICHAEL FOLEY,
                                                                                     OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Brant K.
Bramer, Commissioner.
         Deborah Prucha, 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 Wiseman, Acting P.J., Levy, J. and Franson, J.
                                    INTRODUCTION
       On June 21, 2011, appellant, James Michael Foley, waived his constitutional
rights pursuant to Boykin v. Alabama (1969) 395 U.S. 238 and In re Tahl (1969) 1 Cal.3d
122 and pled no contest to one count of possession of illegal substances in a jail facility
(Pen. Code, § 4573.6).1 Appellant also admitted a prior serious felony conviction within
the meaning of the three strikes law (§§ 667, subds. (b)-(i) & 1170.12) and multiple prior
prison term enhancements (§ 667.5, subd. (b)).
       On July 22, 2011, the trial court struck the prior serious felony conviction pursuant
to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court
struck the prior prison term enhancements and imposed a sentence of three years for
possession of illegal substances in a jail facility. The court ordered appellant’s sentence
to be served concurrently with his sentence for a conviction in an unrelated case. The
court granted appellant 54 days of custody credits for time served in jail and conduct
credits of 26 days for total custody credits of 80 days. The court imposed a $200
restitution fine.
       On June 4, 2012, appellant filed a motion in the trial court requesting a
recalculation of his presentence custody credits seeking additional conduct credits. The
trial court denied appellant’s motion on June 27, 2012. Appellant appealed the trial
court’s denial of his motion. Appellate counsel has filed a brief for independent review
of the case by this court pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
                            APPELLATE COURT REVIEW
       Appellant’s appointed appellate counsel has filed an opening brief that
summarizes the pertinent facts, raises no issues, and requests this court to review the
record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes

1      All statutory references are to the Penal Code.


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the declaration of appellate counsel indicating that appellant was advised he could file his
own brief with this court. By letter on October 29, 2012, we invited appellant to submit
additional briefing. To date, he has not done so.
       After independent review of the record, we have concluded there are no
reasonably arguable legal or factual issues.
                                     DISPOSITION
       The judgment is affirmed.




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