PEOPLE v. RAMOS

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Court of Appeal, Fifth District, California.

The PEOPLE, Plaintiff and Respondent, v. Sabino RAMOS, Defendant and Appellant.

No. FO24863.

Decided: August 12, 1996

Joseph C. Shipp, under appointment by the Court of Appeal, Oakland, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Roger E. Venturi and Maureen A. Daly, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

The defendant, Sabino Ramos, was charged with eight counts of second degree robbery (Pen.Code, § 212.5, subd. (c)); 1  three counts of assault with a firearm against some of the robbery victims (§ 245, subd. (a)(2));  one count of possession of a controlled substance (Health & Saf.Code, § 11377, subd. (a));  and individual misdemeanor counts of being under the influence of a controlled substance (Health & Saf.Code, § 11550, subd. (a)) and of driving under the influence (Veh.Code, § 23152, subd. (a)).  In addition, it was alleged he personally used a firearm in the commission of the eight robberies (§ 12022.5, subd. (a)) and he inflicted great bodily injury in the commission of two of the robberies and two of the assaults (§ 12022.7, subd. (a)).  He entered a plea of not guilty to all charges and denied the enhancement allegations.

Criminal proceedings were briefly suspended pending a hearing and determination by the court that Ramos was mentally competent to stand trial. (§ 1368.)

After entering an additional plea of not guilty by reason of insanity, Ramos pleaded guilty to the eight robbery counts and the three drug-related charges, and admitted all but one of the accompanying enhancement allegations (as discussed below), on the conditions that the three assault charges would be dismissed, that he would receive a court trial on the issue of his sanity, and that, if found sane, he would be sentenced to no more than twenty-two years in prison.

The court subsequently determined Ramos was legally sane at the time of the offenses and sentenced him to 22 years in accordance with the plea bargain.   It later recalled the sentence and resentenced him to the same aggregate term after modifying its basis for calculating some of the subordinate terms.   On appeal Ramos challenges the sentence in several respects.2

FACTS

It is unnecessary for purposes of this appeal to provide anything more than a very brief rendition of the facts.   In four separate incidents during a ten-day period in March 1995, Ramos and one or the other of two juvenile accomplices robbed a total of eight victims at gunpoint.   In two of these incidents, Ramos and/or his companion struck some of the victims with guns.   When Ramos was arrested a few days later, police determined he was under the influence of PCP and in possession of methamphetamine.

DISCUSSION

I. The Count 9 Enhancements.**

II. Conduct Credits.

 Ramos served 213 days in custody prior to sentencing.   Accordingly, the court granted him an additional 31 days conduct credits pursuant to section 2933.1 which provides in part:

“(a) Notwithstanding any other law, any person who is convicted of a felony offense listed in section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in Section 2933 [relating to prison credits].

“․

“(c) Notwithstanding Section 4019 or any other provision of the law, the maximum credit that may be earned against a period of confinement in, or commitment to, a county jail, industrial farm, or road camp, or a city jail, industrial farm, or road camp, following arrest and prior to placement in the custody of the Department of Corrections, shall not exceed 15 percent of the actual period of confinement for any person specified in subdivision (a).”  (Emphasis added.)

Among those offenses listed in section 667.5, pertaining to “violent felonies,” is “any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5 ․” (§ 667.5, subd. (c)(8).)

Fifteen percent of 213 days is 31.95 days.   Thus the trial court awarded Ramos the largest whole number of days which did not exceed 15 percent, or more accurately 15.00 percent.   Ramos contends “15 percent,” as that term is used in section 2933.1, should be construed to mean some figure from 15.00 percent to and including 15.99 percent.   He claims at a minimum he is entitled to 32 days (15.02 percent, the smallest number of days equal to or exceeding 15 percent), but would also justify 33 days (15.49 percent rounded down to 15 percent) and argues most strongly in favor of 34 days (15.96 percent, the greatest number of days less than 16 percent).

 We reject defendant's argument.   The fundamental goal of statutory construction is to “ascertain and effectuate legislative intent.”   (People v. Woodhead (1987) 43 Cal.3d 1002, 1007, 239 Cal.Rptr. 656, 741 P.2d 154.)   We look first to the words themselves to determine intent, and no interpretation is necessary if they are clear and unambiguous.  (Id. at pp. 1007–1008, 239 Cal.Rptr. 656, 741 P.2d 154.)   But when the intent is not clear from the statute itself, “the provision must be given a reasonable and common sense interpretation consistent with the apparent purpose and intention of the lawmakers, practical rather than technical in nature, which upon application will result in wise policy rather than mischief or absurdity.”   (DeYoung v. City of San Diego (1983) 147 Cal.App.3d 11, 18, 194 Cal.Rptr. 722.)

 Moreover, “[w]hen language which is susceptible of two constructions is used in a penal law, the policy of this state is to construe the statute as favorably to the defendant as its language and the circumstance of its application reasonably permit.   The defendant is entitled to the benefit of every reasonable doubt as to the true interpretation of words or the construction of a statute.”  (People v. Overstreet (1986) 42 Cal.3d 891, 896, 231 Cal.Rptr. 213, 726 P.2d 1288.)

Nevertheless, “15 percent” cannot reasonably be understood to mean a number somewhere between 15 and 16 percent.   If the Legislature had intended the term to refer to a range of values, it surely would have said so.   But in that event, additional language would have been necessary to identify which of several figures within the range was the correct one for calculating custody credits.   There being no such language, we will not presume the Legislature intended to leave the term uncertain in favor of giving it a single unambiguous meaning.   Therefore, we conclude “15 percent” means exactly 15.00 percent and nothing more.

It follows that Ramos was properly awarded 31 days of conduct credit because that is the greatest whole number of days which does not “exceed 15[.00] percent of the actual period of confinement ․” (§ 2933.1, subd. (c).)  This interpretation is also consistent with the manifest purpose of section 2933.1 to limit the presentence conduct credits for violent felons.  Section 2933.1 was adopted as an urgency statute “[i]n order to protect the public from dangerous repeat offenders who otherwise would be released ․” (Stats.1994, ch.   713 (Assem.   Bill No. 2716), § 2.)   We cannot ignore this language even though our approach makes a difference of only one day in a twenty-two-year prison sentence.

 Finally, whatever the proper interpretation of section 2933.1, Ramos argues its limitations do not apply to his eight-month consecutive sentence for possession of a controlled substance, which is not a violent felony within the meaning of section 667.5.   Instead, he maintains his conduct credits for that offense must be calculated according to the more liberal provisions of section 4019.   However, the language of section 2933.1 does not support his position.   The statute applies “[n]otwithstanding Section 4019 or any other provision of the law” and limits to 15 percent the maximum number of conduct credits available to “any person who is convicted of a felony offense listed in Section 667.5.”   That is, by its terms, section 2933.1 applies to the offender not to the offense and so limits a violent felon's conduct credits irrespective of whether or not all his or her offenses come within section 667.5.   The Legislature could have confined the 15 percent rule to the defendant's violent felonies if that had been its intention.  (Cf. § 2900.5, subdivision (b), limiting presentence credits to the custody “attributable to proceedings related to the same conduct for which the defendant has been convicted.”)

In summary, we conclude the trial court correctly calculated and applied Ramos's presentence conduct credits to comply with but not exceed the 15.00 percent limitation of section 2933.1.

III. Direct Restitution.***

DISPOSITION

The judgment is modified to strike the personal use enhancement imposed in count 9.   The matter is remanded to the trial court for resentencing;  it appears the trial court failed to impose or strike the three-year great bodily injury enhancement, also with regard to count 9.   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   The robberies were charged in the information under Penal Code section 212.5, subdivision (b).   An amendment to section 212 effective January 1, 1995, moved the provision relating to second degree robbery from subdivision (b) to subdivision (c).  (Stats.1994, ch. 919, § 1.)All future statutory references are to the Penal Code.

2.   Ramos appealed from “the judgment of conviction and sentencing” but did not file a certificate of probable cause as is generally required for an appeal following a guilty plea. (§ 1237.5;  Cal. Rules of Court, rule 31(d).)   A certificate of probable cause is not required, however, if the appeal is based solely upon grounds occurring after entry of the plea which do not challenge its validity, and the notice of appeal states that it is based upon such grounds.  (Cal. Rules of Court, rule 31(d).)   We subsequently granted Ramos's motion to amend his notice of appeal to add the following language:“This appeal is also based upon grounds occurring after entry of the plea which do not challenge its validity.   These grounds include, but are not limited to, imposition of an unauthorized enhancement for personal firearm use, and improper calculation of appellant's presentence conduct credits pursuant to the recently enacted ‘15 percent’ limitation contained in Penal Code section 2933.1.”

FOOTNOTE.   See footnote *, ante.

FOOTNOTE.   See footnote *, ante.

MARTIN, Acting Presiding Justice.

DIBIASO and HARRIS, JJ., concur.

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