People v. Kirsner CA2/6

Filed 6/29/16 P. v. Kirsner CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B263855 (Super. Ct. No. LA069758-01) Plaintiff and Respondent, (Ventura County)

v.

MARSHALL ALAN KIRSNER,

Defendant and Appellant.

Marshall Alan Kirsner appeals from orders made after his felony convictions had been reduced to misdemeanors pursuant to Penal Code section 1170.18, enacted by Proposition 47.1 In his notice of appeal filed on May 4, 2015, appellant claimed that the Ventura County Superior Court had erroneously denied his request to terminate postrelease community supervision (PRCS). After the filing of the notice of appeal, the court changed its mind. On June 8, 2015, it terminated PRCS and placed appellant on misdemeanor parole for one year. Appellant did not file an appeal from the June 8, 2015 order. Appellant contends that on June 8, 2015, the Ventura County Superior Court exceeded its jurisdiction in placing him on misdemeanor parole because (1) he had completed his sentence for the felony convictions; and (2) it was bound by a previous determination of the Los Angeles County Superior Court that he had completed his 1 All statutory references are to the Penal Code unless otherwise stated.

sentence. In addition, appellant argues that the one-year misdemeanor parole period must be reduced by his excess custody credits and prior period on PRCS, and that the denial of such a reduction violates equal protection. Finally, appellant contends that on March 6, 2015, the trial court erroneously denied his request to apply his excess custody credits to his fines and fees. We conclude that, except for the final contention, the appeal filed on May 4, 2015, is moot in view of the June 8, 2015 order terminating PRCS. We further conclude that the purported appeal from the June 8, 2015 order must be dismissed because appellant did not file a notice of appeal from that order. We reverse the trial court's March 6, 2015 order denying appellant's request that his excess custody credits be applied to his fines and fees. Procedural Background The procedural background is convoluted. In July 2012 in Los Angeles County Superior Court, appellant pleaded nolo contendere to two felony drug possession charges (Health & Saf. Code, §§ 11350, subd. (a), 11377, subd. (a)) and to driving under the influence of alcohol or drugs, a misdemeanor. (Veh. Code, § 23152, subd. (a).)2 Appellant admitted one prior prison term enhancement (§ 667.5, subd. (b)) and one prior "strike" within the meaning of California's Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) He was sentenced to prison for 40 months. In September 2014 appellant was released from prison on PRCS for a period not exceeding three years. The supervising county agency was the Ventura County Probation Agency. The passage of Proposition 47 in November 2014 made the two drug possession offenses misdemeanors unless the defendant has one or more prior convictions of specified serious felonies. Appellant does not have such a disqualifying prior conviction. In January 2015 he filed in Los Angeles County Superior Court a