P. v. Gutierrez




Filed 3/9/11 P. v. Gutierrez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Appellant, v. VINCENT T. GUTIERREZ, Defendant and Respondent.

A128494 (Sonoma County Super. Ct. No. SCR522099)

After defendant violated the terms of his probation for the third time, the trial court agreed to place him in a treatment program in exchange for defendant waiving all credits for time served. When defendant again violated the terms of his probation, the trial court imposed a previously suspended state prison sentence. The court also granted defendant actual custody credits, under the mistaken belief that defendant had not previously waived the credits. The People appeal, arguing that the trial court erred in awarding the custody credits. We agree and reverse.
I.
Factual and Procedural
Background
Defendant was charged by information on January 16, 2008, with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)),[1] with an allegation that he personally inflicted great bodily injury in the commission of the offense (§ 12022.7, subd. (a)). The charges involved an attack with a board on a man (with whom defendant had previously fought); the attack broke the victim's arm. Defendant pleaded no contest on February 15, 2008. The plea form that defendant signed stated that he understood that although the trial court had indicated that it would not initially commit defendant to prison, there was â€