P. v. Kappler

Filed 7/7/17 P. v. Kappler CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
DAVID WAYNE KAPPLER,
Defendant and Appellant.
B276251
(Los Angeles County
Super. Ct. No. GA088890)
APPEAL from a judgment of the Superior Court of Los Angeles
County, Michael D. Carter, Judge. Affirmed.
Brad Kaiserman, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant Attorney
General, Mary Sanchez and Nima Razfar, Deputy Attorneys General,
for Plaintiff and Respondent.

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David Wayne Kappler appeals a trial court order denying his
application to resentence him on a one-year prison term enhancement
related to a prior felony conviction. (Pen. Code, §§ 667.5, subd. (b);
1170.18.)1 He contends that, because his prior felony conviction was
reduced to a misdemeanor under section 1170.18, the conviction can no
longer support the enhancement.2 We disagree and therefore affirm.
BACKGROUND
In December 2013, appellant was charged by information with one
count of second degree commercial burglary.3 (§ 459.) The information
alleged that appellant had suffered one prior serious felony conviction
(§ 1192.7), one prior strike conviction (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)), and served four prior prison terms (§ 667.5, subd. (b)).
Appellant was convicted by jury of second degree commercial
burglary on April 29, 2014. The trial court found true the prior strike
allegation and three of the prior prison term allegations. On June 10,
2014, the court sentenced appellant to a term of six years in prison,
which included one year each for two of his prior prison terms under
section 667.5, subdivision (b). The prior felony conviction underlying
one of the section 667.5, subdivision (b) enhancements was a 2006
1 Unspecified statutory references are to the Penal Code.
2 Section 1170.18 is a provision of Proposition 47, the Safe
Neighborhoods and Schools Act.
3 The facts regarding appellant’s underlying offense are not pertinent to
the issue on appeal.

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conviction for a violation of Health and Safety Code section 11377,
possession of a controlled substance, case No. SWF012510. The court
ordered the sentence stayed for his third prior prison term, a 1995
controlled substance conviction.
Proposition 47 was enacted in November 2014. (People v. Morales
(2016) 63 Cal.4th 399, 404.) It “‘makes certain drug-and theft-related
offenses misdemeanors, unless the offenses were committed by certain
ineligible defendants’” (Ibid.)
On November 2, 2015, appellant’s conviction in case No.
SWF012510 was reduced to a misdemeanor pursuant to Proposition 47.
In April 2016, appellant filed a motion for resentencing in the
instant case on the basis that the one-year enhancement imposed for
the conviction in case No. SWF012510 could not be imposed because the
felony conviction had been reduced to a misdemeanor and therefore no
longer qualified for the section 667.5, subdivision (b) enhancement. The
court denied the motion, and this timely appeal followed.
DISCUSSION
Proposition 47 provides a procedure for defendants currently
serving a felony sentence for a Proposition 47 crime to petition for a
recall of the sentence and for resentencing (§ 1170.18, subd. (a)), as well
as a procedure for persons who have completed their sentence for such a
crime to file an application to have the offense designated as a
misdemeanor (§ 1170.18, subd. (f)). (People v. Diaz (2015) 238
Cal.App.4th 1323, 1328–1329 (Diaz I).) “Any felony conviction that is

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recalled and resentenced . . . or designated as a misdemeanor . . . shall
be considered a misdemeanor for all purposes, except that such
resentencing shall not permit that person to own, possess, or have in his
or her custody or control any firearm or prevent his or her conviction
under Chapter 2 (commencing with Section 29800) of Division 9 of Title
4 of Part 6.” (§ 1170.18, subd. (k).)
Section 667.5, subdivision (b) provides, with certain exceptions,
that: “where the new offense is any felony for which a prison sentence
or a sentence of imprisonment in a county jail under subdivision (h) of
Section 1170 is imposed or is not suspended, in addition and
consecutive to any other sentence therefor, the court shall impose a one-
year term for each prior separate prison term or county jail term
imposed under subdivision (h) of Section 1170 or when sentence is not
suspended for any felony[.]”
Section 1170.18 addresses “redesignation of convictions, not
enhancements.” (People v. Jones (2016) 1 Cal.App.5th 221, 228, review
granted Sept. 14, 2016, S235901 (Jones).) Nonetheless, appellant
contends that his controlled substance conviction cannot be used to
support the section 667.5, subdivision (b) enhancement because it has
been reduced to a misdemeanor under Proposition 47.
We addressed this issue in In re Diaz (2017) 8 Cal.App.5th 812,
review granted May 10, 2017, S240888 (Diaz II). The defendant, Diaz,
was convicted of possession of a firearm by a felon. At sentencing, the
trial court imposed two one-year enhancements under section 667.5,
subdivision (b) for prior prison terms. One of the felony convictions

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underlying the enhancement was a 2009 conviction under former
section 666, petty theft with a prior. (Id. at p. 816.) Like appellant,
“Diaz contended that his 2009 felony conviction of petty theft with a
prior would be a misdemeanor if Proposition 47 had been in effect at the
time of that offense, and that therefore it could not be the basis of an
enhancement of his sentence under section 667.5, subdivision (b).”
(Ibid.)
In Diaz’s appeal, we held that his “contention that Proposition 47
compelled the striking of his section 667.5, subdivision (b) enhancement
was premature,” because he had not first filed an application in the
court of conviction to have his 2009 conviction designated as a
misdemeanor. (Diaz II, supra, 8 Cal.App.5th at p. 816; see Diaz I,
supra, 238 Cal.App.4th at p. 1331.) Following his appeal, the superior
court granted his petition reducing the 2009 conviction to a
misdemeanor. Diaz then filed a petition for writ of habeas corpus
“requesting that his section 667.5, subdivision (b) enhancement based
on the 2009 conviction be stricken.” (Diaz II, supra, 8 Cal.App.5th at p.
816.)
We held that “the reclassification of defendant’s 2009 felony
conviction of petty theft with a prior as a misdemeanor, which occurred
after his original sentence, does not preclude its use to support his
section 667.5, subdivision (b) enhancement.” (Diaz II, supra, 8
Cal.App.5th at p. 817; see also, e.g., Jones, supra, 1 Cal.App.5th at p.
230 [provisions of section 1170.18 “explicitly allow offenders to request
and courts to grant retroactive designation of offenses such as Jones’s

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prison prior, but no provision allows offenders to request or courts to
order retroactively striking or otherwise altering an enhancement based
on such a redesignated prior offense”].) We noted that “[t]he Supreme
Court has granted review in several cases that have reached the same
conclusion. [Citations.]” (Diaz II, supra, 8 Cal.App.5th at p. 817, listing
cases.)
Because the issue is pending before the Supreme Court (allowing
appellant to preserve the issue for decision by the Supreme Court by
petitioning for review), we will not discuss his contention at length. We
addressed the retroactivity and equal protection arguments that
appellant here raises in Diaz. (See Diaz II, supra, 8 Cal.App.5th at pp.
818-826.) Appellant has not made any argument that allows us to
distinguish his situation from that presented in Diaz.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
EPSTEIN, P. J. COLLINS, J.

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