Duesler

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. The court’s withholding of Duesler’s conduct credits was made without…