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Filed 9/12/16 P. v. Ram CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 r ule 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

P RAVEEN RAM,

Defendant and Appellant. A143509

(Alameda County Super. Ct. No. 173219)

BY THE COURT :

It is ordered that the opinion filed herein on August 31, 2016, be modified as

follows:

In the last paragraph on page 2, in the sec ond sentence beginning with “On

October 22, 2014,” the word “without” should be deleted and replaced with the word

“with”.

This modification does not change the judgment.

Dated:___________________

_________________________ Kline, P.J.1

Fil ed 8/31/16 P. v. Ram CA1/2 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

PRAVEEN RAM,

Defendant and Appellant. A143509

(Alameda County Super. Ct. No. 173219)

Defendant Praveen Ram appeals from the trial court’s order denying his petition

for certificate of rehabilitation and pardon purs uant to Penal Code section 4852.01

. 1 The

Attorney General concedes the trial court erred in finding Ram statutorily ineligible for

the relief sought

. We accept the Attorney General’s concession. We reverse the denial

order and remand the matter to the t rial court to determine whether to grant Ram’s

petition.

FACTUAL AND PROCEDURAL BACKGROUND

Sacramento Criminal Case

In 2000, the Sacramento County District Attorney filed a second amended

information charging Ram with two counts of sexual bat tery with r estraint (counts 1 and

3, § 243.4, subd. (a)); two counts of rap e ( counts 2 and 5

, § 261, subd. (a)(2)); two counts

of sexual penetration ( counts 4 and 7, § 289, subd. (a)); one count of sodomy (count 6,

1 Fu rther statutory references are to the Penal Code.2

§ 286, subd. (c)(2)) ; and one count of assault with intent to commit oral copulation ( count

8, § 220). 2

In March 2001, a jury found Ram guilty of counts 3, 5, and 6 ( sexual battery, rape,

and sodomy, respectively) , and not guilty of the remaining charges. Ram filed a motion

for a new trial. In December 2 001, the parties reached a negotiated disposition under

which the prosecutor stipulated to a new trial as to counts 5 and 6 (rape and sodomy,

respectively), and Ram agreed to withdraw his motion for new trial as to count 3 (sexual

battery) and waive his ri ght to appeal. The trial court approved the parties’ agreement,

and granted the motion for new trial as t o counts 5 and 6. As to count 3

, imposition of

sentence was suspended, and Ram was placed on formal prob ation for five years

.

In March 2009, the tri al court granted Ram’s motion to set aside the guilty verdict

and dismiss the accusatory pleading pursuant to section 1203.4. The order incorrectly

states that Ram was granted five years probation upon conviction of s ections 243.4,

subdivision (a)

, 261, s ubdivision (a)(2), and 286, subdivision (c)(2)

. In fact, Ram had no

conviction for the latter two offenses because the trial court ordered a new trial for counts

5 and 6. (§ 1180 [“The granting of a new trial places the parties in the same position as if

no trial had been had.”].)

Current Petition

On January 28, 2014, Ram file d a petition for certificate for rehabilitation pursuant

to section 4852.01 in the Alameda County Superior Court. On October 22, 2014, the trial

court denied the petition without prejudice on the ground Ram was “not eligible to seek

this relief under the statute.” The trial court stated that a certificate of rehabilitation

under section 4852.01 was unavailable to a person who has been convicted of violation of

2 As Ram notes, counts 5 through 8 are incorrectly numbered in the second amended information because count 5 is incomplete and there are two offenses listed
under count 8. The count denominated “COUNT SIX” is actually count 5, “COUNT SEVEN” is count 6, and the first offense under “COUNT EIGHT” is count 7 and the

second is count 8.3

section 286, subdiv ision (c), “which was one of the guilty verdicts rendered by the jury in

[the] Sacramento matter.”

On November 3, 2014, Ram filed a notice of appeal.

DISCUSSION

We review a decision whether to grant or deny a certificate of rehabilitation for an

abus e of discretion. ( People v. Lockwood (1998) 66 Cal.App.4th 222, 226 .) “A trial

court abuses its discretion when the factual findings critical to its decision find no support

in the evidence.” ( People v. Cluff (2001) 87 Cal.App.4th 991, 998.)

Under se ction 4852.01, “[a]ny person convicted of a felony .

. . , the accusatory

pleading of which has been dismissed pursuant to Section 1203.4, may file a petition for

certificate of rehabilitation and pardon pursuant to the provisions of this chapter if the

pe titioner has not been incarcerated in any prison, jail, detention facility, or other penal

institution or agency since the dismissal of the accusatory pleading and is not on

probation for the commission of any other felony, and the petitioner presents sati sfactory

evidence of five years residence in this state prior to the filing of the petition.” (Former

§ 4852.01, subd. (c), as amended by Stats.1997, ch. 61, § 2.) However, relief under

section 4852.01 “shall not apply to persons serving a mandatory life parole, persons

committed under death sentences, persons convicted of a violation of subdivision (c) of

Section 286, Section 288, subdivision (c) of Section 288a, Section 288.5, or subdivision

(j) of Section 289, or persons in the military service.” ( Id

. , subd. (d).)

The trial court denied Ram’s petition solely on the ground he was ineligible for

relief because he had been convicted of an offense under section 286, subdivision (c).

But Ram has no conviction under that statute. His only conviction i n th e Sacramento

criminal case wa s for violation of section 243.4. This conviction does not render him

ineligible for relief under section 4852.01. Accordingly, we reverse the trial court’s order

denying Ram’s petition based on statutory ineligibility, and r emand to allow the trial

court to consider the petition on the merits.4 DISPOSITION

The order denying Ram’s petition for certificate of rehabilitation and pardon is

reversed. The matter is remanded for the trial court to further consider whether Ram has

met the standards for a certificate of rehabilitation and pardon

.5 _________________________ Miller, J.

We concur:

_________________________ Kline, P.J.

_________________________ Richman, J.

A143509, People v. Ram