People v. Lesbrowder CA3

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).)

3 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,…