People v. Kirsch CA2/6

Filed 8/4/16 P. v. Kirsch 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B265318 (Super. Ct. No. MA062121) Plaintiff and Respondent, (Los Angeles County)

v.

NICHOLAS KIRSCH,

Defendant and Appellant.

Appellant Nicholas Kirsch pled no contest to possession for sale of a controlled substance (Health & Saf. Code, § 11351) and admitted four prior prison terms (Pen. Code, § 667.5, subd. (b)).1 The trial court sentenced Kirsch to eight years in prison, consisting of four years for the base term and one year for each of the prior prison terms (section 667.5 enhancements), but suspended execution of the sentence and granted probation with terms and conditions including 180 days in jail. Following passage of section 1170.18 (Proposition 47) by voter initiative in November 2014, Kirsch successfully petitioned for two of the prior felony convictions on which his section 667.5 enhancements were based to be designated as misdemeanors. (§ 1170.18, subd. (g).) While execution of the previously imposed sentence was

1 All further statutory references are to the Penal Code.

suspended, he moved the trial court to strike those two enhancements. The trial court denied relief, ruling that the changed status of the underlying convictions from felonies to misdemeanors did not render the sentence enhancements invalid. Subsequently, the trial court terminated probation, finding that Kirsch had violated its terms, and ordered execution of the previously suspended eight-year sentence. (§ 1203.2, subd. (c).) Kirsch contends that the trial court erred by not dismissing the two section 667.5 enhancements for convictions that are now misdemeanors. We affirm. DISCUSSION2 This appeal presents a purely legal issue—whether sentence enhancements validly imposed under section 667.5, subdivision (b), remain valid after the underlying felony convictions are designated as misdemeanors pursuant to Proposition 47. Our review is de novo. (People v. Sherow (2015) 239 Cal.App.4th 875, 878.) Proposition 47 does not apply directly to the instant case, which involves an offense that is ineligible for resentencing. Kirsch contends that Proposition 47 applies indirectly through his prior convictions: “Any felony conviction that is . . . designated as a misdemeanor . . . shall be considered a misdemeanor for all purposes . . . .” (§ 1170.18, subd. (k).) He argues that the trial court “refused to follow this language.” The fallacy of his argument is that the trial court did not, as he asserts, “enhanc[e] the sentence with convictions previously reduced to misdemeanors.” (Italics added.) Rather, he was sentenced when the convictions at issue were felonies. The section 667.5 enhancements were valid at that time. Proposition 47 relief in other cases does not “diminish or abrogate” the existing valid judgment in this case. (§ 1170.18, subd. (n) [“Nothing in [Proposition 47] is intended to diminish or abrogate the finality of judgments in any case not falling within [its] purview”].) Kirsch mistakenly relies on cases “hold[ing] that a reduction of a conviction to a misdemeanor followed by resentencing, bars any court from later using that conviction to enhance the sentence.” The trial court did not impose sentence