People v. Bracken CA1/4 ( 2015 )

Filed 1/15/15 P. v. Bracken CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A141739
v.
ROSS EDWARD BRACKEN, (Sonoma County
Super. Ct. No. SCR645842)
Defendant and Appellant.
I.
INTRODUCTION
Appellant Ross Edward Bracken appeals from a one-year sentence imposed for his
misdemeanor conviction in criminal case No. SCR599192 consecutive to a three-year
aggravated prison sentence imposed for his conviction in case No. SCR645842. He
contends that under Penal Code sections 1170 and 1170.1, he could be sentenced to no
more than four months consecutive for the misdemeanor conviction in case No.
SCR599192. The Attorney General concedes the error. Accordingly we reduce
appellant’s sentence for his misdemeanor conviction from one year to four months, and
order that the abstract of judgment be modified to reflect this reduction.
II.
PROCEDURAL AND FACTUAL BACKGROUNDS
A criminal complaint, case No. SCR645842, was filed by the Sonoma County
District Attorney charging appellant with one felony count of driving a vehicle while
having a blood-alcohol content of greater than 0.20 percent, in violation of Vehicle Code
1
section 23152, subdivision (a), and one count of driving while intoxicated in violation of
Vehicle Code section 23152, subdivision (b). The complaint also alleged that appellant
had suffered three prior convictions for driving while intoxicated, within the meaning of
Vehicle Code section 23550.
One of these prior driving under the influence (DUI) convictions was a
misdemeanor conviction in March 2011 in case No. SCR599192, for which appellant had
received probation. He was on probation at the time he committed the offenses alleged in
the criminal complaint, and a probation violation was pending as a result of the charges in
case No. SCR645842.
Pursuant to a negotiated plea, on March 11, 2014, appellant entered a plea of no
contest in case No. SCR645842 to one count of driving a vehicle while having a blood-
alcohol content of greater than 0.20 percent, in violation of Vehicle Code section 23152,
subdivision (a). The alternative count was dismissed by the prosecution in the interest of
justice. The plea was “open,” and appellant acknowledged that he could receive a state
prison sentence up to three years for the current offense. The trial court referred the
matter to the probation department for a presentence report, and sentencing was set for
April 17, 2014. At the same time, and in light of the plea, the trial court found appellant
to be in violation of his probation in case SCR599192.
At sentencing on April 17, the court sentenced appellant to the aggravated term of
three years for the felony conviction in case No. SCR645842.1 In addition, the court
imposed a consecutive prison term of one year for the misdemeanor conviction in case
No. SCR599192.
Notice of this appeal was then filed on April 30, 2014.
III.
DISCUSSION
The single issue raised by appellant in this appeal is his contention that the trial
court erred in sentencing him to a full, one-year consecutive sentence for the
1
Appellant was sentenced under Penal Code section 1170, subdivision (h).
2
misdemeanor conviction in case No. SCR599192. As a result, he asks this court to vacate
his sentence for that conviction and either impose a consecutive sentence of four months
(one-third the midterm), or remand the case to the trial court for resentencing.
The Attorney General concedes that the trial court erred in imposing a full one-
year consecutive term for the misdemeanor conviction in case No. SCR599192.
We agree. Although appellant was sentenced under the “2011 Realignment
Legislation addressing public safety” (Stats. 2011, ch. 15, § 1) (the Act) sentencing
regime codified in Penal Code section 1170, subdivision (h), that Act did not change the
length of terms under the traditional sentencing triad (mitigated term, midterm, or
aggravated term), and appellant’s subordinate misdemeanor term for the conviction in
case No. SCR599192 can be no more than one-third the maximum term (12 months) for
that crime, or four months rather than one year. (People v. Cruz (2012) 207 Cal.App.4th
664, 671-672.) Accordingly, we choose not to vacate the sentence and remand the case
to the trial court for resentencing, but instead, to exercise our authority under Penal Code
section 1260 and order that the abstract of judgment be modified to reduce the
consecutive one-year term imposed in case No. SCR599192 to a consecutive term of four
months. (People v. Kynette (1940) 15 Cal.2d 731, overruled on another point in People v.
Snyder (1958) 50 Cal.2d 190, 197.) In all other respects the judgment is affirmed.
IV.
DISPOSITION
The abstract of judgment in case No. SCR599192 is hereby ordered modified to
reduce the consecutive one-year term imposed in case No. SCR645942 to a consecutive
term of four months. In all other respects the judgment is affirmed.
3
_________________________
RUVOLO, P. J.
We concur:
_________________________
RIVERA, J.
_________________________
BOLANOS, J.*
* Judge of the San Francisco City and County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
4