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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,

 Plaintiff and Respondent,

v.

MARSHALL ALAN KIRSNER,

 Defendant and Appellant.

2d Crim. No. B263855

(Super. Ct. No. LA069758-01)

(Ventura County)

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.
2

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 

 

2 Vehicle Code section 23152, subdivision (a) presently provides, "It is unlawful for a 

person who is under the influence of any alcoholic beverage to drive a vehicle." At the 

time of appellant's conviction in 2012, subdivision (a) provided that it is unlawful to drive 

"under the influence of any alcoholic beverage or drug." 
3

petition for the recall of his felony sentence and for resentencing to misdemeanors 

pursuant to section 1170.18, subdivision (a), which applies to "[a] person currently 

serving a sentence for a conviction . . . of a felony or felonies who would have been 

guilty of a misdemeanor under [Proposition 47] had [it] been in effect at the time of the 

offense . . . ." (Italics added.)

Although appellant's supervising county agency was the Ventura County 

Probation Agency, he properly sought relief in the Los Angeles County Superior Court, 

where he had been convicted. Section 1170.18, subdivision (a) provides for the filing of 

a "petition for a recall of sentence before the trial court that entered the judgment of 

conviction."

On January 16, 2015, a hearing was conducted on appellant's petition. The 

Los Angeles County Superior Court designated both felony drug convictions as 

misdemeanors pursuant to section 1170.18, subdivisions (f) and (g). These subdivisions 

apply to "[a] person who has completed his or her sentence for a conviction . . . of a 

felony or felonies who would have been guilty of a misdemeanor under [Proposition 47] 

had [it] been in effect at the time of the offense . . . ." (Id., subd. (f), italics added.) The 

court found that appellant had "completed" his sentence for the felony convictions. It

ordered "proceedings terminated." 

Despite the Los Angeles County Superior Court's order designating the 

felony drug convictions as misdemeanors, appellant subsequently filed a petition in 

Ventura County Superior Court requesting that the same felony drug convictions be 

designated as misdemeanors pursuant to section 1170.18, subdivisions (f) and (g). 

Appellant stated that he had "completed" his sentence for the felony convictions. On 

March 4, 2015, Judge Patricia M. Murphy of the Ventura County Superior Court granted 

the petition and designated the felony convictions as misdemeanors.

On March 6, 2015, Judge Murphy denied appellant's request to terminate 

PRCS and to apply his excess custody credits to his fines and fees. On March 23, 2015, 

appellant's supervising county agency filed a petition to revoke PRCS because appellant 

had violated its terms. Appellant admitted the violations. He agreed that he would be 
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confined in the county jail for 60 days and, upon his release, would be returned to PRCS. 

On April 16, 2015, Judge Charles W. Campbell of the Ventura County Superior Court

approved the modification of PRCS as agreed to by appellant. Judge Campbell denied 

appellant's request to terminate PRCS because Judge Murphy had previously denied the 

same request. Judge Campbell deemed the jail commitment to have been served and 

discharged appellant from custody. On May 4, 2015 appellant filed a notice of appeal 

from the Ventura County Superior Court's orders of March 6, 2015 and April 16, 2015

denying his request to terminate PRCS. 

On June 8, 2015, Judge Murphy made a "Nunc Pro Tunc" order "as of" 

March 4, 2015, the date on which she had designated the felonies as misdemeanors. "A 

nunc pro tunc order or judgment is one entered as of a time prior to the actual entry, so 

that it is treated as effective at the earlier date." (7 Witkin, Cal. Procedure (5th ed. 2008) 

Judgment, § 60, p. 595.) The nunc pro tunc order terminated PRCS and, over appellant's

objection, placed him on misdemeanor parole for one year beginning on March 4, 2015. 

The misdemeanor parole was pursuant to section 1170.18, subdivision (d), which 

provides, "A person who is resentenced pursuant to subdivision (b) shall be given credit 

for time served and shall be subject to parole for one year following completion of his or 

her sentence . . . ." Appellant did not file a notice of appeal from the nunc pro tunc order.

The Ventura County Superior Court proceedings on June 8, 2015, are not 

reflected in the record on appeal. They are reflected in the court's "Docket Report," that 

appellant attached at the end of his opening brief. The People have not objected to the 

attachment of the Docket Report and refer to it in their brief. Pursuant to Evidence Code 

sections 452, subdivision (d), and 459, subdivision (a), we take judicial notice of the 

Docket Report.

The Appeal Filed on May 4, 2015, Is Moot Except for the Issue Whether

Appellant's Excess Custody Credits Can Reduce His Fines and Fees

Appellant's May 4, 2015 notice of appeal was expressly from the March 6, 

2015 and April 16, 2015 orders denying his request to terminate PRCS. It was also 

impliedly from the March 6, 2015 order denying his request to apply his excess custody 
5

credits to his fines and fees. In view of the June 8, 2015 order terminating PRCS, the 

appeal is moot except for the excess custody credit issue. "A case becomes moot when a 

court ruling can have no practical impact or cannot provide the parties with effective 

relief. [Citation.]" (Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503.) 

Since the June 8, 2015 order mentioned nothing about applying appellant's excess 

custody credits to his fines and fees, the appeal as to that issue is properly before us.

Appellant Is Entitled to Have His Excess

Custody Credits Applied To his Fines and Fees 

When he was sentenced, appellant was ordered to pay numerous fines and 

fees, including a $200 restitution fine. Appellant argues, and the People concede, that 

"he is entitled to have his excess [custody] credits applied to his fines and fees under 

section 2900.5." The People allege, "[T]his Court should remand the matter to the trial 

court for the limited purpose of recalculating the fines and fees." The People note that 

"[a]ppellant had 730 days of custody credits remaining at the time of his Proposition 47 

resentencing." 

We accept the People's concession. Appellant committed the drug offenses 

in December 2011. At that time, section 2900.5, subdivision (a) required that excess 

custody credits be applied to restitution fines. In 2013 section 2900.5 was amended to 

eliminate the application of excess custody credits to restitution fines. (Stats. 2013, ch. 

59, § 7.) But "the ex post facto clause applies to [appellant's] $200 restitution fine, and 

therefore the restitution fine is governed by the statutes in effect at the time of his 

offense. [Citation.]" (People v. Morris (2015) 242 Cal.App.4th 94, 102.) 

The Purported Appeal from the June 8, 2015 Order Must Be Dismissed

Appellant did not file a notice of appeal from the June 8, 2015 order

terminating PRCS and placing him on misdemeanor parole for one year. The earlier 

notice of appeal filed on May 4, 2015, cannot be construed as encompassing the 

subsequent order. The notice of appeal stated that it was "limited" to review of the March 

6, 2015 and April 16, 2015 orders, "and specifically the aspect of the judgment imposing 

court-ordered Post Release Community Supervision." (See People v. Denham (2014) 
6

222 Cal.App.4th 1210, 1214 [notice of appeal from judgment cannot be construed as 

encompassing postjudgment victim restitution order that was separately appealable].)

" '[T]he filing of a timely notice of appeal is a jurisdictional prerequisite.' " 

(People v. Denham, supra, 222 Cal.App.4th at p. 1213.) We therefore must dismiss the 

purported appeal from the June 8, 2015 order. (See Id., at p. 1214 [Because defendant 

appealed from judgment and not from postjudgment victim restitution order, "the appeal 

must be dismissed as to the challenge to the victim restitution order"]; Sears, Roebuck & 

Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1352 

[court dismissed purported appeal from appealable order awarding sanctions because 

appellant had not filed a notice of appeal from that order, even though prior to that order 

appellant had filed a notice of appeal from other earlier orders].)3

 

3

The dismissal of the appeal from the June 8, 2015 order should not prejudice appellant. 

Our Supreme Court recently held that excess custody credits cannot reduce the one-year 

misdemeanor parole period. (People v. Morales (June 16, 2016, S228030) __ Cal.4th. __ 

[2016 Cal. Lexis 4001].) It follows that time spent on PRCS also cannot reduce the 

parole period. In any event, issues concerning misdemeanor parole are moot because it 

was due to expire four months ago on March 3, 2016.
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Disposition

The purported appeal from the June 8, 2015 order is dismissed because 

appellant did not file a notice of appeal from that order. The appeal from the March 6, 

2015 and April 16, 2015 orders is dismissed as moot except for the issue of whether on 

March 6, 2015, the trial court erroneously denied appellant's request to apply his excess 

custody credits to his fines and fees. The order denying that request is reversed, and the 

matter is remanded with directions to recalculate appellant's fines and fees.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

PERREN, J.
Patricia M. Murphy / Charles W. Campbell, Judges

Superior Court County of Ventura

______________________________

Stephen P. Lipson, Public Defender, Benjamin W. Maserang, Sr. Deputy 

Public Defender, William Quest, Deputy Public Defender, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez, 

Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.