P. v. Kirsch

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
Plaintiff and Respondent,
v.
NICHOLAS KIRSCH,
Defendant and Appellant.
2d Crim. No. B265318
(Super. Ct. No. MA062121)
(Los Angeles County)
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.

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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
2 The relevant facts are set forth in the introduction.

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enhancements in this case after his convictions in the two other cases were designated as
misdemeanors. It had already done so. The trial court lacked discretion to resentence
him when it subsequently terminated probation. “[S]ection 1203.2, subdivision (c), and
[California Rules of Court, rule 4.435(b)(2)], by their terms, limit the court’s power in
situations in which the court chose to impose sentence but suspended its execution
pending a term of probation. On revocation of probation, if the court previously had
imposed sentence, the sentencing judge must order that exact sentence into effect
[citations] . . . .”3 (People v. Howard (1997) 16 Cal.4th 1081, 1088.)
Kirsch also relies on People v. Park (2013) 56 Cal.4th 782 (Park). Under
section 17, subdivision (b)(3), a trial court may declare a “wobbler” offense to be “a
misdemeanor for all purposes.” Otherwise, “the offense constitutes a felony for all
purposes.” (Park, 56 Cal.4th at p. 802.) Park held that “when a wobbler has been
reduced to a misdemeanor [under section 17,] the prior conviction does not constitute a
prior felony conviction [for the purpose of imposing a sentence enhancement under]
section 667(a).” (Id. at p. 799.)
Like the other cases Kirsch cites, Park involved sentencing that occurred
after the conviction being used to enhance the sentence had been reduced to a
misdemeanor. Park explained that the timing of the sentence reduction is crucial:
notwithstanding the “for all purposes” language, an order reducing a wobbler to a
misdemeanor does not retroactively invalidate sentence enhancements that were valid
when imposed. (See Park, supra, 56 Cal.4th at p. 802 [“There is no dispute that . . .
defendant would be subject to the section 667(a) enhancement had he committed and
3 The originally imposed sentence is “subject to its possible recall under section
1170, subdivision (d), after [the] defendant has been committed to custody.” (People v.
Howard, supra, 16 Cal.4th at p. 1088.) But the defendant, who is not among those
authorized to move for recall of the sentence, lacks standing to challenge the trial court’s
failure to exercise its discretion in that regard. (See People v. Pritchett (1993) 20
Cal.App.4th 190, 194.)

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been convicted of the present crimes before the court reduced the earlier offense to a
misdemeanor”].)
Although Kirsch claims he “is not asking for this Court to apply the
reductions retroactively,” that is exactly the relief he seeks. We cannot provide it. His
sentence was valid when imposed and remains so.
DISPOSITION
The order terminating probation and effectuating the previously executed
and suspended eight-year sentence is affirmed.
NOT TO BE PUBLISHED.
PERREN, J.
We concur:
GILBERT, P. J.
YEGAN, J.

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Daviann L. Mitchell, Judge
Superior Court County of Los Angeles
______________________________
Andrea Keith, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, and Mary
Sanchez and David A. Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.

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