People v. Moore CA3

Filed 8/19/16 P. v. Moore CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (San Joaquin) ----

THE PEOPLE,

Plaintiff and Appellant, C079480

v. (Super. Ct. No. SF127233A)

MARK SCOTT MOORE, JR.,

Defendant and Respondent.

Defendant Mark Scott Moore, Jr., pleaded no contest to felony possession of access card account information with the intent to defraud. The trial court placed him on probation for five years. Defendant subsequently filed a Penal Code section 1170.181 petition for resentencing pursuant to Proposition 47. The trial court granted the petition,

1 Undesignated statutory references are to the Penal Code.

1

reduced his felony conviction to a misdemeanor, and resentenced him by denying probation and awarding credit for time served. The People appealed, claiming (1) defendant’s conviction for possession of access card account information with the intent to defraud pursuant to section 484e, subdivision (d) is not eligible for section 1170.18 resentencing, and (2) upon granting the petition, the trial court should have allowed the prosecution to withdraw from the plea agreement. We agree with the People that defendant’s conviction for possession of access card account information with the intent to defraud pursuant to section 484e, subdivision (d) is not eligible for section 1170.18 resentencing. Because we will reverse the trial court’s orders for that reason, we will not address the People’s second contention. BACKGROUND Wendy Davis determined in 2013 that her ATM card was missing from her home. Defendant had rented a room from Davis and was later found in possession of the missing ATM card. Defendant pleaded no contest to felony possession of access card account information with the intent to defraud. (§ 484e, subd. (d) -- count 2.) The trial court placed him on probation for five years. Defendant subsequently filed a section 1170.18 petition for resentencing on his conviction. The trial court initially denied the petition, but after defendant filed a motion for reconsideration, the trial court granted the petition, reduced the section 484e, subdivision (d) conviction to a misdemeanor, and resentenced defendant by denying probation and awarding credit for time served. STANDARD OF REVIEW Because this court and the Central California Appellate Project were unable to contact defendant, defendant is not represented by counsel in this appeal and did not file a respondent’s brief. California Rules of Court, rule 8.220(a)(2) states this court “may