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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 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 
2

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 bloodalcohol 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). 
3

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 oneyear 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. 
4

 _________________________ 

 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.