People v. Duesler

[275]

Opinion

SCOVILLE, P. J.

Robert L. Duesler was convicted of second degree murder. On appeal he contends the sentencing court erroneously deducted his presentence conduct credits without an adequate hearing.

I

Duesler was a night janitor. Arriving at work one night, he drove into a parking lot where the victim was controlling traffic. Duesler explained he worked there, but the victim ordered him to get out of his car. Duesler did not respond, but drove home, returned with a gun and shot the victim several times.

Duesler was charged with murder by use of a handgun. (Pen. Code, §§ 187, 12022.5.) He pleaded not guilty and not guilty by reason of insanity. The jury found Duesler guilty of second degree murder. Duesler withdrew his insanity plea.

The trial court sentenced Duesler to 15 years to life in state prison, plus a 2-year enhancement for use of a deadly weapon. (Pen. Code, §§ 190, 12022.5.) At the sentencing hearing, the court credited Duesler with 76 days of “work time” credit, but ruled he was not entitled to “good time” credit based upon the probation report’s statement that he violated jail rules on 4 occasions.

2

The court’s withholding of Duesler’s conduct credits was made without discussion by the parties. The court briefly mentioned the infractions listed in the probation report and concluded Duesler was not entitled to good behavior credits.

II

Under Penal Code section 4019, certain prisoners are entitled to good behavior credit for time spent in county jail, “unless it appears by the record that the prisoner has not satisfactorily complied with . . . [jail] rules and regulations . . . .” (Pen. Code, § 4019, subd. (c).) Prisoners confined to jail prior to sentencing for a felony conviction are among those entitled to Penal Code section 4019 credits. (Pen. Code, § 4019, subd. (a)(4); see

People

v.