BURGLAR WINS APPEAL BECAUSE MAN WAS DEAD : LEGAL TWIST IN '94 CASE RESULTS IN REDUCED CHARGE, SENTENCE.

Byline: Janet Gilmore Daily News Staff Writer

When Edmond Ramos broke into a San Fernando home in 1994, he didn't know that Virgil Wagner was home.

Legally speaking, Wagner wasn't - he was dead.

A Los Angeles appeals court ruled Monday that Ramos should not have been convicted of first-degree burglary because the home was not occupied and its inhabitant didn't plan to return.

``Is a dead man `temporarily absent' from his house?'' asked 2nd District Court of Appeal Justice Miriam Vogel, in her written opinion. ``Since we doubt that he will ever return, we think not.''

The court therefore reduced the charge to second-degree burglary, shaved 10 years off Ramos' sentence and sent the case back to a San Fernando judge for a possible further reduction of his sentence.

The case stems from a November 1994 incident in which Ramos smashed a window on Wagner's home and entered the house. He told authorities that he didn't think anyone was home, that is, until he walked by Wagner's bedroom, peered in, and saw a body on the bed.

Wagner had died of natural causes that day. One look at his face scared Ramos enough to run from the house, but not before grabbing a videocassette recorder.

Prosecutors contended that Ramos' break-in constituted a first-degree burglary because Wagner continued to occupy the house until his body was removed. They also argued that it was unclear whether Wagner died during the break-in or before.

But the appeals court defined an inhabited dwelling as one that is currently being used, in which the occupant is present or intends to return.

``We reject as metaphysical sophistry the attorney general's suggestion that the house was inhabited because Wagner `went to sleep, fully intending to remain in his house,' '' according to the panel's opinion.

``By the time Ramos got there, Wagner was dead and, to the best of our knowledge, unable to entertain any intent of any kind.''

Prosecutor Linda Johnson said the Attorney General's Office has not decided whether to seek another hearing or appeal to the state Supreme Court.

Dennis Cava, Ramos' attorney, said the case is unusual.

``Could a dead person return?'' he asked, chuckling. ``Well, who believes that?''

The 40-year-old Ramos, who was supporting his drug habit through crime, was sentenced for the burglary under the ``three strikes, you're out'' law because he had three previous convictions for robbery and burglary.

However, the San Fernando judge handling the case can consider whether to not count his latest burglary, possibly sparing him a lifetime behind bars. Instead, he could get just 20 years in prison.