People v. Lesbrowder CA3

Filed 8/7/14 P. v. Lesbrowder 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Amador)
----
THE PEOPLE, C074304
Plaintiff and Respondent, (Super. Ct. No. 12CR19944)
v.
RYAN BRAN KNOWLESBROWDER,
Defendant and Appellant.
Pursuant to a plea agreement, the trial court sentenced defendant Ryan Bran
Knowlesbrowder to an aggregate state prison term that included a subordinate term
longer than allowed by law.1 Defendant asks us to strike the unauthorized portion of the
1 The notice of appeal, which appears to have been filled out by defendant himself, gives
his surname as “Knowles-Browder.” Throughout most of the record on appeal, however,
it appears as one word, “Knowlesbrowder,” and we will use that spelling in this opinion.
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sentence. The Attorney General proposes instead that we remand the matter to the trial
court, as we did under similar circumstances in People v. Superior Court (Sanchez)
(2014) 223 Cal. App. 4th 567 (Sanchez), so defendant may have the opportunity to
withdraw his plea. We shall remand the matter for that purpose.
FACTUAL AND PROCEDURAL BACKGROUND
An information charged defendant with carjacking (counts I & II; Pen. Code,
§ 215, subd. (a));2 attempted carjacking (counts III-VI; §§ 664/215, subd. (a)); second
degree robbery (count VII; § 211); first degree burglary (count VIII; § 459); second
degree commercial burglary (count IX; § 459); felony vandalism (count X; § 596,
subd. (b)(1)); misdemeanor evading an officer (count XI; Veh. Code, § 2800.1,
subd. (a)); and misdemeanor petty theft (count XII; § 484, subd. (a)). The victim alleged
in count I was Margaret V.; the victim alleged in count V was Rosario M.; and the victim
alleged in count VII was Allen M. As to counts I through X, the information alleged that
defendant committed the offenses while released from custody on bail or on his own
recognizance (§ 12022.1) and that he had served three prior prison terms (§ 667.5,
subd. (b)). As to count V, the information further alleged that defendant used a deadly or
dangerous weapon in the commission of the offense. (§ 12022, subd. (b)(2).)
In a written plea agreement, defendant pleaded guilty to counts I, V, and VII
(People v. West (1970) 3 Cal. 3d 595) and admitted two prior prison terms in return for an
aggregate sentence of nine years two months in state prison and the dismissal of the
remaining allegations (plus four other pending cases). The aggregate sentence consisted
of five years (the midterm) on count I, plus 10 months (one-third the midterm) on
count V, plus one year four months (one-third the midterm) on count VII, plus two years
for the prior prison terms.
2 Undesignated section references are to the Penal Code.
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The trial court accepted the plea in open court, reserving a ruling on the dismissal
of the remaining counts and cases. The parties stipulated that the preliminary hearing
provided the factual basis for the plea.
The evidence at the preliminary hearing showed as to counts I, V, and VII: on
September 11, 2012, while inside a church, defendant struck Rosario M. with a flashlight
and demanded her car keys, but she did not give them up. He then demanded money
from her husband, Allen M., who gave him $6. Finally, he left the scene in a car
belonging to Margaret V., who had given him her car keys.
On May 23, 2013, the trial court sentenced defendant to an aggregate state prison
term of nine years two months, calculated as in the plea agreement. The court dismissed
the remaining allegations in the case, along with the four trailing cases.
DISCUSSION
Defendant contends the sentence of one year four months on count VII (second
degree robbery) was unlawful. The Attorney General agrees, and so do we.
According to the plea agreement, which the trial court followed in imposing
sentence, the term on count VII, a consecutive subordinate term, was intended to be one-
third the midterm. (Cf. § 1170.1, subd. (a).) But the midterm sentence for second degree
robbery is three years. (§ 213, subd. (a)(2).) Therefore, one-third the midterm is one
year, not one year four months.3
In People v. Velasquez (1999) 69 Cal. App. 4th 503 (Velasquez), the appellate court
reduced a bargained-for sentence that exceeded lawful parameters to the term authorized
by law, reasoning that the mistake in the plea bargain stemmed from the prosecutor’s
negligence and therefore must be interpreted against the People. (Id. at pp. 505-507.)
3 As defendant points out, one year four months is one-third the midterm for first degree
robbery. (§ 213, subd. (a)(1)(B).)
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Relying on Velasquez, defendant argues in his opening brief that this court should modify
his sentence by reducing the term on count VII to one year. We decline to do so.
In Sanchez, supra, 223 Cal. App. 4th 567, which according to defendant was filed
after he submitted his opening brief, this court disagreed with Velasquez. (Sanchez, at
pp. 575-576.) We held that Velasquez erred by failing to consider the contract principles
underlying plea bargaining. (Sanchez, at p. 575, citing People v. Segura (2008)
44 Cal. 4th 921, 930-931.) In accordance with those principles, we concluded that where
an unauthorized sentence arrived at by a plea bargain results from a mutual mistake of
law, the remedy is to vacate the sentence and put the parties back into the positions they
occupied before they entered into the bargain. (Sanchez, supra, 223 Cal.App.4th at
pp. 577-578.)
In defendant’s reply brief, he acknowledges Sanchez but asserts that it is not yet
final and again asks us to reduce his sentence by four months, following Velasquez.
However, defendant’s first point is no longer correct: the California Supreme Court
denied the defendant’s petition for review in Sanchez. (Sanchez, supra, 223 Cal. App. 4th
567, review den. Apr. 30, 2014, S217087.) And we see no reason to reconsider Sanchez.
DISPOSITION
The matter is remanded to the trial court with directions to vacate defendant’s
sentence and the plea bargain, to permit him to withdraw his plea if he so wishes, and to
conduct further proceedings consistent with this opinion.
RAYE , P. J.
We concur:
BUTZ , J.
MAURO , J.
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