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                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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

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of confinement unless it appears by the record that the prisoner has refused to satisfactorily
perform labor as assigned by the sheriff, chief of police, or superintendent of an industrial
farm or road camp."
                Here the trial court found Wimer earned "credit for time served of 226 days of
actual time." The court awarded her "30 days of good time/work time" credits.
                As the parties note, under the statutory formula, Wimer would be entitled to
56 days of work time credits for 226 days of time served. The trial court reduced her work
time credits on the grounds that she had engaged in misconduct while in jail as shown by the
"write-ups" mentioned in the probation report. But there was no finding, and no evidence,
that she "refused to satisfactorily perform labor" assigned to her. A defendant is entitled to
work time credits unless "the prisoner has refused to satisfactorily perform labor as
assigned." (People v. Lara, supra, 54 Cal.4th at p. 903.) The trial court erred in reducing
Wimer's work time credits.
                The Trial Court's Jurisdiction to Reduce Good Behavior Credits
                Wimer contends the trial court lacked jurisdiction to reduce her good behavior
credits. We disagree.
                "The presentence credit scheme, section 4019, focuses primarily on
encouraging . . . good behavior by persons temporarily detained in local custody . . . ."
(People v. Buckhalter (2001) 26 Cal.4th 20, 36.) Section 4019, subdivision (c) 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 of confinement unless it appears by the record that the
prisoner has not satisfactorily complied with the reasonable rules and regulations established
by the sheriff . . . ."
                Here the trial court found Wimer "is not entitled to any conduct credits or if
entitled to any conduct credits, an amount much reduced." Citing the probation report, the
court noted that "[s]he received four major write-ups, one for mutual combat, one for refusal
to house, one for deception and one for contraband."
                Wimer contends that "the authority to forfeit 'good time' credits for a jail is
vested in the Sheriff, not the court."

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              A similar argument was raised in People v. Duesler (1988) 203 Cal.App.3d
273. There the defendant claimed "any decision to deduct 'good time' credits should be
made only by the sheriff or Department of Corrections, since conduct credits are intended to
be a disciplinary tool to motivate good prisoner behavior." (Id., at p. 276.) The Court of
Appeal said, "We disagree. Conduct credits for presentence custody are credited to the
defendant's term of imprisonment 'in the discretion of the court imposing the sentence.'"
(Ibid.)
              In Duesler, the court noted, however, that "[a]though the sheriff is authorized
to deduct conduct credits for inmates jailed under a misdemeanor sentence or as a condition
of probation, his role with respect to presentence custody credit is to provide the sentencing
court with information, records and recommendations." (People v. Duesler, supra, 203
Cal.App.3d at p. 276.) Here Wimer was sentenced on a felony, not a misdemeanor.
                                          Due Process
              Wimer contends the trial court's procedure contravened her right to a due
process evidentiary hearing. We disagree.
              "[B]efore a sentencing court may withhold conduct credits, the defendant is
entitled to prior notice and an opportunity to (1) rebut the findings of his jail violations, and
(2) present any mitigating factors." (People v. Duesler, supra, 203 Cal.App.3d at p. 277.)
              At a sentencing hearing on December 12, 2014, the trial court told Wimer, "I
don't think she's entitled to good time/work time credits based upon her performance and her
behavior while at the Ventura County jail." Wimer's counsel asked "for an evidentiary
hearing in which [she] can subpoena the person who wrote her up and give her an
opportunity to respond as to what happened." (Italics added.) The court granted this request
and continued the hearing to December 23, 2014.
              At the December 23 hearing, Wimer's counsel did not present evidence.
Instead, she argued the legal issue.
                                       Hearing on Remand
              The People contend the case must be remanded for another hearing and argue:
"[T]he court awarded 30 days of 'goodtime/worktime' and did not distinguish between the

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two types of credit. . . . Since the court had discretion to deny all goodtime credit but the
evidence was insufficient to deny any worktime credit, a remand for resentencing to allow
the trial court to clarify and revisit its order is appropriate." We agree.
              The trial court's findings are unclear. It first indicated that it could deny all
credits, but it also said a reduction of some credits was appropriate. The court's findings are
not sufficient to indicate which category of credits the court intended to reduce.
              Wimer notes there is no indication in this record that the probation department
or sheriff recommended that her good behavior credits be reduced. In Duesler, the court
said, "The record, in fact, contains no recommendation by the probation officer or sheriff as
to Duesler's custody credits, as contemplated by California Rules of Court . . . ." (People v.
Duesler, supra, 203 Cal.App.3d at p. 276.) Such recommendations will assist the court in
determining whether credits should be reduced and Wimer may present evidence in
response to those recommendations at the hearing on remand.
                                         DISPOSITION
              The order reducing Wimer's work time credits is reversed. The order on good
behavior credits is vacated and that matter is remanded to the trial court with directions to
hold a new hearing on remand and proceed in a manner consistent with this opinion.
              NOT TO BE PUBLISHED.




                                            GILBERT, P. J.
We concur:



              YEGAN, J.



              PERREN, J.



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                               Donald D. Coleman, Judge

                            Superior Court County of Ventura

                           ______________________________


             Stephen P. Lipson, Public Defender, Michael C. McMahon, Chief Deputy, for
Defendant and Appellant.


             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, for Plaintiff and Respondent.




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