People v. Ruppell CA6

Filed 4/30/15 P. v. Ruppell CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039786 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS062403A)

v.

ROBERT ALAN RUPPELL,

Defendant and Appellant.

Defendant Robert Alan Ruppell pleaded no contest to one count of first degree burglary (Pen. Code, § 459)1 as charged in an information filed September 11, 2006. On July 6, 2007, he was sentenced to a total term of nine years in prison, consisting of the lower term of two years, doubled due to a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12), with an additional five years for a prior serious felony conviction (§ 667, subd. (a)). The trial court awarded 379 credits, as detailed in the probation report, consisting of 330 days in custody credits plus 49 days of conduct credits. The abstract of judgment, however, indicated that credits were to be calculated under section 4019 rather than section 2933.1. In April 2013, the California Department of Corrections and Rehabilitation (CDCR) wrote to the trial court seeking clarification of whether Ruppell’s credits were to be calculated under section 4019 or whether his conviction counted as a violent felony under 667.5, subdivision (c), thus limiting his work/conduct credit calculation to 15 1 Further unspecified statutory references are to the Penal Code.

percent. Following a hearing, the trial court ordered that the minute order and abstract of judgment be amended to confirm that Ruppell was convicted of felony first degree burglary, with a person present, and that his credits were limited to 15 percent pursuant to section 2933.1. On appeal, Ruppell argues that his plea of no contest to first degree burglary did not constitute an admission of the “person present” allegation and that this allegation was therefore dismissed along with the remaining charges, enhancements and special allegations at the time of his sentencing. We find no merit to Ruppell’s contentions and will affirm the order. I. FACTUAL AND PROCEDURAL BACKGROUND On July 19, 2006, Hanan El-Amin was in bed watching television when she saw a man, later identified as Ruppell, approach the double doors leading from the patio to her bedroom. He tried to open the doors, at which point El-Amin got up and started yelling at him. Ruppell appeared surprised someone was inside2 and ran off. Further investigation revealed that an iPod had been stolen off the nightstand in a separate bedroom occupied by one of El-Amin’s housemates. A window screen above that nightstand had been pried open. After Ruppell was arrested on unrelated charges a few weeks later, the stolen iPod was found in a search of his motor home. Ruppell was charged by information with one count of first degree burglary (§ 459, count 1)3 as follows: “PC 459 FIRST DEGREE BURGLARY, PERSON PRESENT [¶] COUNT: 001, On or about JULY 19, 2006 the crime of FIRST DEGREE BURGLARY, PERSON PRESENT, in violation of Section 459 of the Penal Code, a