Filed 8/4/26 P. v. Foley CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B346060
Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. VA108109)
MICHAEL WILLIAM FOLEY,
Defendant and Appellant.
THE COURT:
In 2009, defendant and appellant Michael Foley
(defendant) was convicted by a jury of one count of kidnapping to
commit another crime (Pen. Code,1 § 209, subd. (b)(1); count 1),
one count of robbery (§ 211; count 2), and one count of false
imprisonment of an elder, dependent adult (§ 368, subd. (f);
1 All further undesignated statutory references are to the
Penal Code.
count 3). After a court trial on defendant’s priors, the court found
defendant suffered two prior strikes within the meaning of the
“Three Strikes” law (§§ 1170.12, subds. (a)–(d), 667, subds. (b)–
(i)), suffered one prior serious felony conviction within the
meaning of section 667, subdivision (a)(1), and had served five
prior prison terms as defined in section 667.5, subdivision (b).
Defendant was sentenced to an aggregate term of 68 years
to life.2 In count 1, defendant was sentenced to 25 years to life
pursuant to the Three Strikes law, plus five years for the section
667, subdivision (a)(1) enhancement and another four years for
the four 1-year prison prior enhancements, for a total of 34 years
to life. An identical consecutive term was imposed in count 2.
Sentence on count 3 was stayed pursuant to section 654.
In 2022, defendant was identified by the California
Department of Corrections and Rehabilitation (CDCR) as an
individual who may be eligible for resentencing pursuant to
section 1172.75. On December 4, 2024, defense counsel filed a
resentencing brief requesting full resentencing “applying current
sentencing laws.” In it, counsel asked the court “to strike and
dismiss both strike priors, as well as the one Penal Code section
667(a) five-year prior” along with all of the now-invalid one-year
prior prison term enhancements, and impose a sentence of seven
years to life on count 1 and a consecutive 1 year (one-third the
2 On direct appeal, this court modified defendant’s sentence
to strike the two 1-year section 667.5, subdivision (b)
enhancements imposed in counts 1 and 2 stemming from case
No. YA026853, lowering defendant’s sentence from 70 years to
life to 68 years to life. (See People v. Foley (Apr. 28, 2010,
B216553) [nonpub. opn.].)
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midterm) on count 2.3 On April 29, 2025, the People filed their
opposition. In it, the People argued defendant presents a risk to
public safety and asked the court to strike the eight now-invalid
enhancements but otherwise keep the remainder of defendant’s
sentence intact.
On May 8, 2025, the court held a resentencing hearing
pursuant to section 1172.75. The court indicated it had read the
parties’ briefs and attachments, as well as defendant’s CDCR
“C[entral]-file.” Defense counsel reiterated the request to dismiss
the strike priors and all enhancements and impose a sentence of
seven years to life on count 1, plus the low term of two years on
count 2. Counsel argued defendant is in his 50’s, reducing his
risk of recidivism, and no longer poses a threat to public safety.
The People argued defendant, “even at 53 … is still
considered a public safety risk” due to his “numerous prior
convictions, [and] his numerous violations of rules while he’s been
incarcerated,” and “there has been nothing to show that he’s done
anything to rehabilitate himself.”
Upon resentencing, the court struck the eight 1-year prior
prison term enhancements, reducing defendant’s sentence by
eight years and resulting in a sentence of 60 years to life. The
court found defendant “does not fall outside the scheme of the
third strike law” and, as a result, declined to dismiss the two
prior strike convictions. Noting defendant’s prison record is
“riddled with violations from drugs, to alcohol, to fighting,” the
court found “by clear and convincing evidence that the defendant
is a danger and a safety risk to the public” and “decline[d] to
3 At the hearing, counsel noted this request was in error and
asked the court to impose the low term on count 2.
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exercise [its] discretion to strike the strikes and the five-year
enhancements.” The court concluded the hearing by updating
defendant’s custody credits, consisting of 223 total presentence
credits and 5,837 actual postsentence credits. The May 12, 2025
abstract of judgment does not reflect the postsentence custody
credits.
Defendant timely filed his notice of appeal.
On April 3, 2026, defendant’s appointed counsel filed a brief
pursuant to People v. Wende (1979) 25 Cal.3d 436, raising no
issues and asking this court to undertake an independent review
of the record. Counsel indicated he sent defendant a copy of the
brief and the record and advised him of his ability to file a
supplemental brief on his own behalf.
We also notified defendant of his counsel’s brief and gave
him leave to file, within 30 days, his own brief or letter stating
any grounds or argument he might wish to have considered. To
date, defendant has filed no such brief or letter.
We have examined the entire record and are satisfied that
no arguable issues with regard to his resentencing hearing exist
and that defendant has, by virtue of counsel’s compliance with
the Wende procedure and our review of the record, received
adequate and effective appellate review of the judgment entered
against him in this case. (Smith v. Robbins (2000) 528 U.S. 259,
278.)
While undertaking our review, however, we have
discovered the May 12, 2025 abstract of judgment does not reflect
defendant’s postsentence credits of 5,837 actual days announced
by the court during the resentencing hearing. This is a clerical
error. “Courts may correct clerical errors at any time.” (People v.
Mitchell (2001) 26 Cal.4th 181, 185.)
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DISPOSITION
The court’s resentencing order is affirmed. The trial court
is ordered to prepare a corrected abstract of judgment reflecting
defendant’s total postsentence credits and forward a certified
copy to the CDCR.
LUI, P. J. CHAVEZ, J. RICHARDSON, J.
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