People v. Langevin

Opinion

PUGLIA, P. J.

Pursuant to a plea bargain, defendant pled guilty to voluntary manslaughter (Pen. Code, § 192, subd. 1) and admitted firearm use (Pen. Code, § 12022.5). The court sentenced defendant to state prison for the middle term of four years, plus two years consecutive for the use enhancement. Defendant was credited with 246 days presentence time served in county jail (Pen. Code, § 2900.5) and with 123 days good behavior and participation credits (Pen. Code, § 4019).

On appeal, defendant contends the sentencing court (1) did not state adequate reasons for denying probation, (2) did not consider the sentencing alternatives offered by former Penal Code section 1170.8 (now § 1170.9), and (3) did not credit him with Penal Code section 2933 worktime allegedly accrued during presentence confinement in county jail. The first contention is treated in the published part (pt. I) and the last two contentions are addressed in the unpublished part (pts. II and III) of this opinion. (Cal. Rules of Court, rule 976.1.) We shall affirm.

I.

The probation report recommended probation. Although firearm use ordinarily requires a prison term, the report presented circumstances in mitigation, including defendant’s military service in Vietnam, upon which the court, if so inclined, might base a finding that defendant’s case was an unusual one “where the interests of justice would best be served” by a grant of probation (see Pen. Code, § 1203, subd. (e)(2)). After reading and considering the probation report and hearing other evidence in mitigation, the court denied probation with this statement; “There were a great number who served courageously in Vietnam, and the record seems clear that [defendant] was one of those, [¶] We have here a man being killed in Butte County and under the laws of this State, the Court feels we must look at

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the matter in perspective. And I recognize that there are going to be sharp differences of opinion of what’s the true perspective. I think society has a right to expect those who go through extremely stressful experiences, such as Vietnam, nevertheless when they return to society, must [comport] with the rules of society. And killing a man under the circumstances of this case is not in accordance with the rules of society.”