1 Filed 1/15/15 P. v. Bracken CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

v. ROSS EDWARD BRACKEN, Defendant and Appellant. A141739
(Sonoma County Super. Ct. No. SCR645842)

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 im posed 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 conv iction in case No. SCR599192. The Atto rney General concedes the e rror. Accordingly we reduce appellant’s sentence for his misdemeanor conv iction 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. SCR6 45842, was filed by the Sonoma County District Attorney charging appellant with one felony count of dr iving a vehicle while having a blood-alcohol c ontent of greater than 0.20 percent, in violation of Vehicle Code2 section 23152, subdivision (a), and one count of driving while intoxica ted in violation of Vehicle Code section 23152, subdivision (b). The complaint also alleged that appellant had suffered three prior convictions for drivi ng while intoxicated, w ithin the meaning of Vehicle Code section 23550. One of these prior driving under th e influence (DUI) convictions was a misdemeanor conviction in March 2011 in cas e No. SCR599192, for which appellant had received probation. He was on probation at the time he committe d the offenses alleged in the criminal complaint, and a probation violation wa s 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 bloodalcohol content of greater than 0.20 percent, in violation of Vehi cle Code section 23152, subdivision (a). The alternativ e count was dismissed by the pros ecution 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 curre nt offense. The trial court referred the matter to the probation department for a pr esentence report, and sentencing was set for April 17, 2014. At the same tim e, 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 senten ced appellant to the aggravated term of three years for the felony conv iction in case No. SCR645842. 1 In addition, the court imposed a consecutive prison term of one ye ar for the misdemeanor conviction in case No. SCR599192. Notice of this appeal was th en filed on April 30, 2014.
III. DISCUSSION The single issue raised by appellant in th is 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).3 misdemeanor conviction in case No. SCR599192. As a result, he asks this court to vacate his sentence for that conviction and either im pose a consecutive sentence of four months (one-third the midterm), or remand the ca se to the trial court for resentencing. The Attorney General conc edes that the trial court erred in imposing a full oneyear consecutive term for the misdemea nor 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 senten cing triad (mitigated term, midterm, or aggravated term), and appellant’s subordin ate misdemeanor term for the conviction in case No. SCR599192 can be no more than one-third th e 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 resenten cing, 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, ove rruled on another point in People v. Snyder (1958) 50 Cal.2d 1 90, 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 judgme nt is affirmed.4 _ ____________ ____________ RUVOLO, P. J.

We concur:

_____________ ____________ RIVERA, J.

_____________ ____________ BOLANOS, J.*

* Judge of the San Francisco City and Co unty Superior Court, assigned by the Chief Justice pursuant to article VI, sect ion 6 of the California Constitution.