Velasquez

To our knowledge, David Rodriguez Velasquez presently occupies a singular place in California penal history. That is to say, he is the only person ever to have been sentenced to state prison for three years for annoying or molesting a child with a qualifying prior conviction in violation of Penal Code section 647.6, subdivision (c)(2). For this offense, the Legislature has determined that the punishment is either two years, four years, or six years in prison. We modify the judgment to the only permissible sentence which could be imposed consistent with his negotiated disposition, i.e., two years.

When appellant originally entered into his negotiated disposition, he was expressly advised that he would not immediately be sentenced to prison. Rather, he would be placed on felony probation and serve one year in county jail as a condition of probation. He was advised that if he were to violate probation, a state prison sentence no greater than three years could be imposed. It is theoretically possible, but unlikely, that a prosecutor would offer such a maximum disposition upon a future revocation of probation. The fair inference is that the prosecutor simply misread the range…