People v. Guadarrama CA1/2

Filed 3/26/15 P. v. Guadarrama CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, Plaintiff and Respondent, A141233 v. ALEJANDRO GUADARRAMA, (Sonoma County Super. Ct. No. SCR617087) Defendant and Appellant.

Defendant Alejandro Guadarrama appeals the prison sentence imposed in this case on the ground that he did not waive custody credits for time served in Victory Outreach, a residential treatment program, and is entitled to them pursuant to Penal Code section 2900.5, subdivision (a). We agree that the record does not show that he waived credits, and we will remand the matter to the trial court to determine whether the placement qualifies for custody credits and, if so, to modify the judgment accordingly. FACTUAL AND PROCEDURAL BACKGROUND Because this appeal is based on the issue of whether defendant waived custody credits, we will not discuss the underlying facts of this case. Defendant was charged by information with assault with a deadly weapon (a bottle) (Pen. Code, § 245, subd. (a)(1)),1 actively participating in a criminal street gang (§ 186.22, subd. (a)), and misdemeanor resisting arrest (§ 148, subd. (a)(1)). The information also alleged two enhancements: the assault was committed for the benefit of

1 All statutory references are to the Penal Code.

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a criminal street gang (§ 186.22, subd. (b)(1)(C)), and defendant personally caused great bodily injury in the commission of the crime (§ 12022.7, subd. (a)). Defendant entered into a negotiated disposition of the case on July 13, 2012. The prosecution amended the gang enhancement to allege a violation of section 186.22, subdivision (b)(1)(B)), and struck the great bodily injury enhancement. When the court asked defendant’s attorney to recite the terms of the plea, he stated that it was an “open plea” to the court to the assault with a deadly weapon charge and the amended gang enhancement. The court informed defendant that the maximum penalty was up to nine years in state prison. The court asked defendant whether “any other promises [had] been made to you,” and defendant answered “[n]o.” The court stated that it had “discussed the issue of the Victory Outreach [program] with your counsel” and asked that a representative from Sacramento Victory Outreach identify himself in the courtroom. The matter was set over for preparation of a probation report and sentencing. Defendant was sentenced on August 30, 2012, to nine years in prison, with execution of sentence suspended. Defendant was placed on probation with various conditions, including that he enter the Victory Outreach residential treatment program. Before sentencing, the court spoke to defendant’s family members and then asked to hear from defendant about his “commitment” to changing his life. This is the sum total of what was said at the sentencing hearing regarding custody credits: “THE COURT: Your brother is a good example of what you should aim for. “THE DEFENDANT: Yeah. “THE COURT: There would be a waiver of past custody credits? “[Defendant’s Attorney] MR. FLAGERMAN: While he’s at Victory Outreach, Your Honor, yes. “THE COURT: Prepared for sentencing? “MR. FLAGERMAN: So prepared.” After remarks by the deputy district attorney and further comments by defense counsel—none of which addressed waiver of custody credits—the trial judge stated in part: