People v. Jimenez-Barraza CA6

Filed 11/13/24 P. v. Jimenez-Barraza CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H051877 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. 22CR010463)

v.

GABINO JIMENEZ-BARRAZA,

Defendant and Appellant.

Defendant Gabino Jimenez-Barraza appeals from a trial court judgment executing a previously suspended five-year prison sentence after Jimenez-Barraza admitted a probation violation. Appointed counsel for Jimenez-Barraza filed an opening brief that provides the procedural and factual background of the case but raises no legal challenge to the disposition. Jimenez-Barraza was advised of the right to file written arguments on his own behalf but has not responded. Therefore, under People v. Wende (1979) 25 Cal.3d 436 we independently reviewed the record, which showed that Jimenez-Barraza freely, knowingly, and intelligently waived his right to a hearing and admitted a probation violation, and that the trial court properly imposed the previously suspended sentence. However, finding an issue regarding custody credits, we asked for supplemental briefing, and both parties informed us that there was an error in calculating the credits. As explained below, we agree and therefore modify and affirm the judgment.

I. BACKGROUND The facts recounted below are taken from the probation and supplemental probation reports and other portions of the record. A. The Underlying Case On November 25, 2022, Jimenez-Barraza had a verbal and physical altercation with his roommate. During the altercation, Jimenez-Barraza grabbed a knife and stabbed his roommate in the stomach. The Monterey County District Attorney’s Office charged Jimenez-Barraza by complaint with one felony count of assault by means likely to produce great bodily injury (Pen. Code, § 254, subd. (a)(4)). (Subsequent undesignated statutory references are to the Penal Code.) The complaint also alleged two enhancements, one for personal infliction of great bodily injury (§ 12022.7, subd. (a)) and another for personal use of a deadly and dangerous weapon (§ 12022, subd. (b)(1)). On June 27, 2023, pursuant to a plea agreement, Jimenez-Barraza pleaded no contest to the felony assault charge and admitted the infliction of great bodily injury enhancement, with the remaining enhancement to be dismissed at sentencing. The trial court advised Jimenez-Barraza that the plea agreement was for a five-year sentence with execution of the sentence suspended and that if he were placed on probation and violated it, he would have to serve the five-year sentence. The parties stipulated to a factual basis for the plea under People v. West (1970) 3 Cal.3d 595, and the court accepted the plea. At the same hearing, Jimenez Barraza admitted to a violation of probation in another case. On August 10, 2023, the trial court sentenced Jimenez-Barraza to the lower term of two years for the assault charge and three years for the bodily injury enhancement, to be served consecutively. The court suspended execution of the sentence and placed Jimenez-Barraza on formal probation for two years. One of the conditions of probation was that Jimenez-Barraza must “totally abstain from the use of alcohol, marijuana, or 2