Alvarez

Defendant pled no contest to assault and battery and was sentenced to a term of two years. On appeal, he contends the court erred in finding him statutorily ineligible for probation under Penal Code section 1203, subdivision (e)(2) because he did not personally use a deadly weapon. We agree, and remand for resentencing.

Procedural History

Defendant and Javier Lopez were charged by criminal complaint with assault with a deadly weapon (count 1; Pen. Code 1 , § 245, subd. (a)(1)) and battery with serious bodily injury (count 2; § 243, subd. (d)). The complaint further alleged on both counts that defendant and Lopez personally used a deadly and dangerous weapon (a knife) and personally inflicted great bodily injury within the meaning of sections 667 and 1192.7.

*405 At the preliminary hearing, the court held defendant to answer on counts 1 and 2, but found insufficient evidence to hold him to answer on the enhancement allegations. In its ruling the court found “ample evidence” that Lopez used the knife on the alleged victim and defendant aided and abetted in the attack. Subsequently, defendant pled no contest to counts 1 and 2, on the condition he receive a prison sentence…