People v. Wimer CA2/6

Filed 12/15/15 P. v. Wimer CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B261446 (Super. Ct. No. 2014014700) Plaintiff and Respondent, (Ventura County)

v.

SHAWN MICHELLE WIMER,

Defendant and Appellant.

Shawn Michelle Wimer appeals an order reducing her presentencing conduct credits. She pled guilty to first degree residential burglary, a felony. (Pen. Code, § 459.)1 The trial court sentenced her to a state prison term of two years and gave her a credit of 226 days for time served. It awarded her 30 days of total conduct credits based on a finding that she did not follow rules and regulations of the jail. (§ 4019, subd. (b) & (c).) We conclude, among other things, that: 1) the trial court erred by reducing Wimer's work time credits, 2) the court had jurisdiction to reduce Wimer's good behavior credits, 3) the court afforded Wimer an evidentiary hearing with due process protections, but 4) the case must be remanded for a new hearing because of conflicting and incomplete findings. We reverse and remand.

1 All statutory references are to the Penal Code.

FACTS At a December 12, 2014, hearing, the trial court advised Wimer that it intended to deny her good time/work time credits because she had violated the rules and regulations of the jail. Wimer's counsel requested an evidentiary hearing to contest that claim. Counsel indicated that she was going to subpoena "the person who wrote [Wimer] up" and Wimer could "respond as to what happened." The court granted counsel's request for an evidentiary hearing, and set a December 23, 2014, hearing date. At the December 23 hearing, Wimer's counsel told the trial court that she would not present any evidence and would submit on the probation report. She argued that the court lacked jurisdiction to decide conduct credits. She said, "It's incumbent upon the prison administrators to determine whether or not to award conduct credits. . . . This Court doesn't have the authority to do that." The trial court said, "I believe [section] 4019 tells me I do have the authority to do it because I do have the authority to determine credits." The court noted that the probation report indicated that, while in jail, Wimer "received four major write-ups, one for mutual combat, one for refusal to house, one for deception and one for contraband." It said, "I think she's entitled to earn credit for time served of 226 days of actual time and 30 days of good time/work time for a total credit of 256 days." DISCUSSION Work Time Credits Wimer contends the trial court erred by awarding her less than her full entitlement to 56 days of work time credits. The People agree. So do we. A trial court's ruling on custody credits "is reviewable for abuse of discretion." (People v. Lara (2012) 54 Cal.4th 896, 903.) "But no authority suggests the court's discretion in the matter is so broad as to permit it to withhold conduct credits from a prisoner who has satisfied the statutory prerequisites and is entitled to receive them . . . ." (Ibid.) Section 4019, subdivision (b) provides, in relevant part, "for each four-day period in which a prisoner is confined . . . , one day shall be deducted from his or her period