People v. Shirk CA2/2

California Court of Appeal May 7, 2021 No. B300878Unpublished

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Holding. The court held that the defendant forfeited her ability-to-pay challenge by failing to object at sentencing and that the case must be remanded to strike prior prison term enhancements pursuant to the retroactive application of Senate Bill No. 136.

Issues

Whether the defendant forfeited her challenge to the imposition of restitution fines and assessments by failing to object in the trial court.
Whether the amendment to Penal Code section 667.5, subdivision (b) regarding prior prison term enhancements applies retroactively to the defendant's nonfinal judgment.

Disposition. Affirmed and remanded with directions.

Quotations verified verbatim against the opinion

“Appellant’s failure to object to the imposition of the restitution fine or assessments and her failure to assert any inability to pay them (unlike the defendant in Dueñas) thus forfeited the issue on appeal.”

“Accordingly, the amendment to section 667.5, subdivision (b) applies retroactively to this case.”

“The matter is remanded to the trial court for resentencing to strike the two one-year prior prison term enhancements imposed pursuant to former Penal Code section 667.5, subdivision (b).”

Filed 5/7/21 P. v. Shirk CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

THE PEOPLE, B300878

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA073677) v.

TAMMY LYNN SHIRK,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Denise M. McLaughlin-Bennett, Judge. Affirmed and remanded with directions. Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Scott A. Taryle and Colleen M. Tiedemann, Deputy Attorneys General, for Plaintiff and Respondent. _________________________________

Tammy Lynn Shirk appeals the judgment entered following a jury trial in which she was convicted of multiple drug-related offenses.1 Following a court trial on appellant’s prior convictions, the court found appellant had served two prior prison terms within the meaning of Penal Code2 section 667.5, subdivision (b). The trial court sentenced appellant to a total term of 15 years and four months3 in prison, which included two one-year enhancements pursuant to section 667.5, subdivision (b).

1 Appellant was convicted of two counts of possession for sale of methamphetamine (Health & Saf. Code, § 11378, counts 1 & 7), two counts of sale, offer to sell, or transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a), counts 2 & 5), one count of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a), count 4), one count of sale, offer to sell, or transportation of heroin (Health & Saf. Code, § 11352, subd. (a), count 6), and one count of possession for sale of heroin (Health & Saf. Code, § 11351, count 8). 2 Undesignated statutory references are to the Penal Code.

People v. Shirk CA2/2

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B300878

TAMMY LYNN SHIRK,

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