People v. Moore CA6

Filed 6/14/16 P. v. Moore CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H042279 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1119756)

v.

BRADLEY PAUL MOORE,

Defendant and Appellant.

In 2013, defendant Bradley Paul Moore pleaded guilty to possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).) The trial court granted a two-year term of formal probation with four months in county jail as a condition of probation. At a probation revocation hearing in 2015, defendant admitted violating the terms of his probation, but he argued his conviction had been reduced to a misdemeanor as a matter of law by the enactment of Proposition 47. Defendant objected to the requirement that he file a petition to reduce his conviction to a misdemeanor under Proposition 47’s resentencing provisions. (Pen. Code, § 1170.18.)1 After the trial court overruled defendant’s objection, defendant petitioned for resentencing, whereupon the court granted the petition and reduced his conviction to a misdemeanor. The trial court ordered that defendant’s probation remained revoked.

1 Subsequent undesignated statutory references are to the Penal Code.

Defendant raises three claims on appeal. First, he argues the trial court erred by requiring him to file a petition to reduce his conviction to a misdemeanor. He contends Proposition 47 retroactively reduced his offense to a misdemeanor under In re Estrada (1965) 63 Cal.2d 740 (Estrada). Second, he contends the trial court erred by ordering that probation remained revoked after the court granted his petition for resentencing. Finally, he contends the minutes of the probation revocation hearing must be corrected to show he admitted violating probation. As to the first claim, we will conclude the trial court properly required the filing of a petition before it resentenced defendant. As to the second and third claims, the Attorney General concedes the merits of those claims. We agree with the parties and accept the Attorney General’s concessions as to the latter two claims. Accordingly, we will reverse the order continuing revocation of probation and remand with instructions to amend the minutes of the probation revocation hearing. I. FACTUAL AND PROCEDURAL BACKGROUND A. Facts of the Offense2 On October 22, 2011, police stopped defendant for driving with an expired registration tag. A records check showed defendant was driving with a suspended license. After defendant consented to a search of his vehicle, police found “numerous off-white crystal rock-like substances” on the driver’s side floorboard. Subsequent testing showed the substances to be methamphetamine with a total weight of one gram. Police also found a glass pipe with burnt residue in the car. After police took defendant into custody, he displayed symptoms consistent with being under the influence of a stimulant.