Filed 9/30/26 P. v. Shirley CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D085602
Plaintiff and Respondent,
v. (Super. Ct. No. RIF121134)
BILLY DAVID SHIRLEY, JR.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Riverside County,
Gary Polk, Judge. Affirmed.
Debbie Yen, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant
Attorney General, Arlene A. Sevidal, Assistant Attorney General,
Kristine A. Gutierrez and Emily Reeves, Deputy Attorneys General, for
Respondent.
Billy David Shirley, Jr., appeals the trial court’s order resentencing
him under Penal Code1 section 1172.75 for his 2009 convictions for
attempted murder, attempted carjacking, and being a felon in possession of a
firearm. After having struck Shirley’s one-year prison prior (§ 667.5, subd.
(b)), the court on resentencing further reduced his sentence from a total
remaining term of 64 years to life to a total term of 39 years to life by striking
one of the 25-years-to-life section 12022.53, subdivision (d), firearm
enhancements attached to the two attempted murder counts. Shirley argues
that the trial court abused its discretion when it declined to strike both of
these firearm enhancements. He further contends that the trial court
misunderstood the full scope of its discretion by not recognizing that it could
have dismissed both firearm enhancements and substituted a lesser
enhancement. Shirley also asks this court to vacate the remaining balance of
his restitution owed under section 1465.9, subdivision (d), which was recently
enacted and renders restitution fines unenforceable upon the expiration of 10
years after they were imposed.
We conclude based on the record before us that the trial court was
aware of the scope of its discretion and properly exercised that discretion in
striking only one of Shirley’s firearm enhancements. We agree with the
parties regarding restitution; section 1465.9, subdivision (d), mandates that
we vacate the remaining balance of Shirley’s $10,000 restitution fine, but it
does not apply to his $3,878.60 direct victim restitution, which remains
enforceable and collectible. We therefore vacate any remaining balance of
Shirley’s $10,000 restitution fine and in all other respects affirm the trial
court’s order.
1 Undesignated statutory references are to the Penal Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Statement of Facts from Underlying Convictions2
On December 30, 2004, Jorge D. and Brian C. were on the side of the
road in a remote area because their car had broken down. While they were
trying to fix their car, Shirley came up to them and asked if their cell phones
were working, and Brian told him that they did not have a signal. Shirley
pulled out a handgun, pressed it against Jorge’s side and demanded his car
keys. After Jorge and Brian explained that they could not find the keys and
the car was not working, Shirley grew agitated and grabbed other keys from
them, but these were not the car keys. Shirley then walked up to Brian and
shot him in the ribs. He next approached Jorge and shot him in the chest.
Jorge was six feet away from Shirley and looking into his face when he was
shot.
Diane S. was driving by when the shooting occurred and saw a man on
the ground, heard a scream, and then saw a man shoot another man in his
stomach. Her children began screaming hysterically and she told them to get
down on the floor of the car. The shooter jumped into the passenger side of a
white SUV, which then followed her car. The SUV followed her closely for
some distance before turning away. Once she had cell phone service, Diane
called the police and described the shooter, his clothing, and his vehicle.
When he was arrested later that day, Shirley was wearing clothing matching
Diane’s description of the shooter.
Both Brian and Jorge were badly injured and transported to the
hospital. When shown the photographic lineup in the hospital, Jorge picked
Shirley as the shooter. At trial, Jorge explained he was sure of the
2 We summarize these facts as recited in our prior unpublished opinion
affirming Shirley’s convictions for context only. (People v. Shirley (Apr. 6,
2011, D056969) [nonpub. opn.].)
3
identification because he was standing within six feet of, and looking directly
at, the shooter when he was shot. Thirteen days later, after Brian was
discharged from the hospital and no longer on medication, he also identified
Shirley as the shooter from a photographic lineup.
The jury convicted Shirley of two counts of attempted murder with
findings that they were willful, deliberate, and premeditated (§§ 664/187,
subd. (a); counts 1 and 2), two counts of attempted carjacking (§§ 664/215,
subd. (a); counts 3 and 4), and one count of felon in possession of a firearm
(§ 12021, subd. (a)(1); count 5). The jury also found true that Shirley fired a
firearm causing great bodily injury (§ 12022.53, subd. (d); § 1192.7, subd.
(c)(8)) as to the attempted murder and attempted carjacking counts and
suffered one prison prior conviction (§ 667.5, subd. (b)).
B. 2009 Sentencing After Trial
In October 2009, the trial court sentenced Shirley to a total term of 81
years to life. It imposed indeterminate consecutive terms of 15 years to life
for each of the attempted murders and 25 years to life for each of the firearm
enhancements attached to each of those counts. The court imposed and
stayed the middle term of two years six months for each of the attempted
carjackings and indeterminate terms of 25 years to life for the firearm
enhancements attached to each of those counts. Lastly, the court imposed
the middle term of two years for the felon in possession of a handgun
conviction in count 5, to run concurrently to count 1, and a consecutive term
of one year for the prison prior.
On direct appeal, we affirmed the judgment. (People v. Shirley, supra,
D056969.)
4
C. 2012 Resentencing
In June 2011, the Supreme Court on its own motion granted review in
Shirley’s case and transferred it to this court with directions to vacate the
judgment and correct the sentence to comport with section 664. In May 2012,
Shirley was resentenced to a determinate sentence of 65 years to life plus an
indeterminate sentence of one year to life.3 The court sentenced Shirley to
consecutive terms of life with the possibility of parole as to the attempted
murder counts, 25 years to life as to the firearm enhancements associated
with each of those counts, and one year for the prior offense. The court
again imposed the middle term of two years six months for count 5, to run
concurrently to count 1. The court also imposed the middle term of two
years six months for counts 3 and 4, plus 25 years to life for the firearm
enhancements associated with each of those counts, and stayed them
pursuant to section 654.
D. 2023 Striking of Prison Prior
In October 2023, the trial court recalled Shirley’s sentence and struck
the previously imposed prison prior as legally invalid under section 1172.75,
subdivision (a).4 Shirley’s sentence was thus reduced to a term of 64
3 The May 2012 minute order originally and inaccurately stated that
Shirley was sentenced to total indeterminate sentence of 51 years to life
instead of the determinate sentence of 64 years to life and indeterminate
sentence of one year to life imposed by the court. The court corrected this
order in September 2018.
4 Section 1172.75, subdivision (a), “retroactively invalidates prison prior
enhancements imposed pursuant to section 667.5, subdivision (b), except
those that were based on a conviction for a sexually violent offense.” (People
v. Green (2024) 104 Cal.App.5th 365, 368.) If the defendant’s sentence
includes a legally valid prison prior enhancement, the court must recall the
sentence to eliminate the enhancement and conduct a full resentencing to
5
years to life. The court sent the matter to a different department for full
resentencing, which was delayed by over a year for reasons not explained
in the record.
E. 2025 Resentencing
In October 2024, Shirley filed a resentencing brief under sections
1172.75, 1170, and 1385. Shirley asked the court to strike the two 25-years-
to-life section 12022.53, subdivision (d) firearm enhancements previously
imposed, in the exercise of its discretion to strike enhancements under
section 1385, subdivision (c). He did not argue that the court should impose
lesser firearm enhancements under the holdings of People v. Tirado (2022) 12
Cal.5th 688, 692, 694 (Tirado) and People v. McDavid (2024) 15 Cal.5th 1015,
1030 (McDavid).
The People opposed the motion, arguing that the trial court should
(1) decline to exercise its discretion to strike Shirley’s enhancements and
(2) deny full resentencing. According to the People, Shirley’s background and
the aggravating circumstances of the crime counteracted any potentially
mitigating circumstances, and dismissal of the enhancements would
endanger public safety because it would likely result in Shirley’s imminent
release.
Shirley submitted a reply arguing that his significant childhood trauma
was a contributing factor in the crimes he committed and that he has taken
steps to address and correct his issues. He attached a letter to the court
describing his childhood trauma and abuse as well as his growth during his
time in prison.
“ ‘apply any other changes in law that reduce sentences or provide for judicial
discretion.’ ” (Id. at p. 373.)
6
The trial court conducted the full resentencing in January 2025. At the
beginning of the hearing, the court confirmed with defense counsel that “your
request on behalf of Mr. Shirley is that he be [re]sentenced to consecutive
sentences for his convictions in counts 1 and 2 [the attempted murder counts]
of 7 years to life in prison each for a total of 14 years to life in prison, and
you’re asking me to use my discretion under 1385(c) to dismiss the 12022.53
enhancements.” (Italics added.) Defense counsel confirmed that this was
correct. During the hearing, defense counsel did not request that the court
exercise its discretion to impose lesser firearm enhancements under Tirado,
supra, 12 Cal.5th 688 and McDavid, supra, 15 Cal.5th 1015.
The court resentenced Shirley and exercised its discretion to strike one
of his 25-years-to-life firearm enhancements, thus imposing a total sentence
of 39 years to life. The court imposed a base term of seven years to life for
count 1, a term of 25 years to life for the section 12022.53, subdivision (d),
enhancement for count 1, a term of seven years to life for count 2, and a term
of two years as to count 5. The court further imposed and stayed terms of
two years six months for each of counts 3 and 4, and a term of 25 years to life
for the section 12022.53, subdivision (d), enhancement for both counts. The
trial court also reimposed a $10,000 restitution fine under section 1202.4,
subdivision (b), and $3,878.60 in victim restitution under section 1202.4,
subdivision (f).
Shirley filed a timely notice of appeal.
7
DISCUSSION
A. The Trial Court Did Not Abuse Its Discretion in Striking Only One of the
Firearm Enhancements
Shirley first contends that the trial court abused its discretion when it
declined to dismiss both of his firearm enhancements accompanying the
attempted murder counts. We disagree.
Section 1385 grants the trial court discretion to dismiss a firearm
enhancement, and subdivision (c)(1) provides that “the court shall dismiss an
enhancement if it is in the furtherance of justice to do so, except if dismissal
of that enhancement is prohibited by any initiative statute.” Section 1385,
subdivision (c)(2), provides: “In exercising its discretion under this
subdivision, the court shall consider and afford great weight to evidence
offered by the defendant to prove that [certain enumerated] mitigating
circumstances . . . are present. Proof of the presence of one or more of these
circumstances weighs greatly in favor of dismissing the enhancement, unless
the court finds that dismissal of the enhancement would endanger public
safety.” Under the statute, the term “endanger public safety” means that
“there is a likelihood that the dismissal of the enhancement would result in
physical injury or other serious danger to others.” (Ibid.) The Supreme
Court has explained that “if the court does not find that dismissal would
endanger public safety, the presence of an enumerated mitigating
circumstance will generally result in the dismissal of an enhancement unless
the sentencing court finds substantial, credible evidence of countervailing
factors that ‘may nonetheless neutralize even the great weight of the
mitigating circumstance, such that dismissal of the enhancement is not in
furtherance of justice.’ ” (People v. Walker (2024) 16 Cal.5th 1024, 1029.)
8
We review the trial court’s decision not to strike a sentence
enhancement under section 1385 for abuse of discretion. (People v. Mendoza
(2023) 88 Cal.App.5th 287, 298 (Mendoza).) The abuse of discretion standard
is highly deferential, and we will not disturb the trial court’s exercise of
discretion absent a showing that the court acted in an arbitrary, capricious,
or patently absurd manner that resulted in a miscarriage of justice. (Ibid.)
Shirley has not made such a showing. He contends that the trial court
abused its discretion for three main reasons. First, Shirley was a youthful
offender who committed the crimes for which he is currently incarcerated at
age 20, which is a highly relevant factor, as youth possess a unique capacity
for growth and change. (People v. Franklin (2016) 63 Cal.4th 261, 283.)
Second, during his approximately two decades in prison, Shirley has worked
to rehabilitate himself and confront the childhood trauma that contributed to
his criminal behavior. Finally, Shirley has renounced his gang affiliation and
earned several certificates related to gang abandonment and awareness. His
counsel further argued at the resentencing hearing that many of Shirley’s
violent encounters in prison occurred as a result of him dropping out of the
gang.
At the hearing, the trial court methodically walked through all relevant
factors in deciding whether to dismiss one or both of Shirley’s firearm
enhancements. The court first noted that there were several mitigating
circumstances present: multiple enhancements were alleged in a single case
(§ 1385, subd. (c)(2)(B)); the application of the enhancements would result in
a sentence exceeding 20 years (§ 1385, subd. (c)(2)(C)); and the current
offense was connected to prior victimization or childhood trauma (§ 1385,
subd. (c)(2)(E)). The court stated that the presence of those mitigating factors
“weighed heavily in favor of dismissing the enhancement or enhancements
9
unless the Court finds there is a likelihood that dismissal of the enhancement
would result in physical injury or other serious danger[] to others,” and noted
for the record that it had “read and considered the recent opinions in People
versus Gonzalez, 103 Cal.App[.]5th 215, as well as People versus Mendoza,
88 Cal.App[.]5th 299 [sic].”
Specifically, the court noted, People v. Gonzalez (2024) 103 Cal.App.5th
215 (Gonzalez) explains that “ ‘a crucial part of the inquiry is how the
dismissal of the enhancement w[ill] impact the length of the defendant’s
sentence.’ ” (See Id. at p. 228.) Gonzalez further explains that “an inquiry
into whether public safety will be endangered by the dismissal of an
enhancement for a defendant serving a lengthy indeterminate sentence
should also take into account that the defendant’s release from prison is
contingent on review by the Board of Parole Hearings . . . who will have the
opportunity to assess the defendant’s dangerousness at that time.
[Citations.] That future review will act as a safety valve against a release
that would endanger the public and is relevant to a trial court’s analysis of
whether the dismissal of an enhancement imposed on a defendant serving an
indeterminate prison term will endanger public safety.” (Gonzalez, at p. 228.)
The trial court read these passages from Gonzalez into the record at Shirley’s
hearing and noted: “I am making my decision today looking at when
Mr. Shirley would be released from custody to evaluate his dangerousness,
not his dangerousness at the time the crime was committed, not at the time
that he was sentenced by Judge Webster in 2012, but my evaluation is made
off of when he would be released. I believe that is what the case law states
that I should do.”
We agree with the trial court’s assessment of its duty under the
applicable law. (Gonzalez, supra, 103 Cal.App.5th at p. 228; Mendoza, supra,
10
88 Cal.App.5th at p. 299 [affirming trial court’s finding of a danger to the
public under § 1385, subd. (c)(2) where “dismissal of the enhancement
would . . . require [the defendant’s] immediate release”].) Applying this case
law to Shirley’s specific request that the firearm enhancements be stricken,
the trial court set forth various hypotheticals regarding Shirley’s potential
release date: “So with my calculations, if the two gun allegations are imposed
and he’s sentenced to 64 years to life, his release date -- or he would come up
for parole in 2069. . . . So in 2069, he would be 84, about to be 85 years old,
based off of my calculations.” “The Court then calculated if one of the gun
allegations were stricken, one was imposed, that would result in a 39-year-to-
life sentence. My calculations have a[n] expected coming up for parole date of
2044, and Mr. Shirley at that time would be 59 years old.” “And then the
third scenario is that if both gun allegations are dismissed, his expected
release date -- on a 14-year-to-life sentence, he would be eligible for parole in
the near future, as he would have completed that -- those two 7-to-life
sentences -- or the two 7-year part of -- it’s a life sentence so he would be able
to come up before the parole board.”
The court also considered the documents Shirley submitted showing
his participation in Alcoholics Anonymous and Narcotics Anonymous
programming, his program completion certificates for substance abuse,
anger management, gang awareness and recovery, among other courses, as
well as his letters of support. The court further considered Shirley’s prison
disciplinary record from 2013 to 2024, which included possession of controlled
substance, participation in a race riot, and at least five other acts of violence
against fellow inmates while in prison—several of which required officers to
deploy chemical agents or grenades to stop the fighting.
11
After evaluating all of these factors, as well as the circumstances of
the underlying crimes, the trial court concluded that Shirley “present[ed]
a current threat to public safety” and “that the dismissal of both of the
enhancements would have the likelihood to result in physical injury or other
serious danger to others.” Given the violence of the attempted murders and
the circumstances, the court found “that a person that commits this type of
an offense is a serious threat to society, and a relatively long prison sentence
is necessary to protect the public and keep the defendant away from the
public and provide time for the defendant to become rehabilitated.” Though
the court took into account Shirley’s efforts at rehabilitation, it also
considered his “consistent pattern of violence” while in prison and was
“concerned that many of these assaults took place after Mr. Shirley
completed programming to address underlying issues that he was suffering
with,” including as recently as 2023. The court therefore concluded that
striking both of Shirley’s firearm enhancements “would make Mr. Shirley
immediately eligible for parole, and he still presents a great risk of physical
injury and serious danger to others.”
The court also found, however, that based on the information presented
and the court’s confidence that Shirley was “on the path to rehabilitation,” it
was appropriate to strike one of the firearm enhancements accompanying the
attempted murder counts. This reduced Shirley’s total sentence to 39 years
to life.
It is clear from the record that the trial court did not act in an
arbitrary, capricious, or patently absurd manner when resentencing Shirley.
(See Mendoza, supra, 88 Cal.App.5th at p. 298.) Rather, the court carefully
balanced the totality of the information before it, including the factors Shirley
emphasizes on appeal—his youth when he committed the underlying crimes,
12
his efforts to rehabilitate himself, and the renunciation of his gang affiliation.
The court addressed each of these points at the hearing and explained that,
although Shirley was on the path to rehabilitation, he still posed a threat to
public safety. After Shirley was involved in violent incidents in prison, the
court stated, “[he] took classes in anger management, substance abuse, and
obtained his GED, and that shouldn’t be taken lightly. [But t]he Court is also
aware that still after that programming, he engaged in violent activity.”
Citing a recent example, the court noted that in November 2023, Shirley,
along with another inmate, attacked a fellow inmate and “assaulted him to
the point where deputies had to intervene and deploy gas grenades.” The
court thus concluded that reducing Shirley’s sentence such that he would be
eligible for immediate release would “pose a likelihood that he would commit
a crime that results in physical injury or serious danger to others.” (See also
Gonzalez, supra, 103 Cal.App.5th at p. 228; Mendoza, supra, 88 Cal.App.5th
at p. 299.)
This was a reasonable conclusion to draw. “A currently dangerous
defendant who will be released from prison within a short timeframe might
be found by the trial court to pose a greater danger to the public than a
defendant who is currently dangerous but who has no prospect of release
from prison until he is elderly.” (Gonzalez, supra, 103 Cal.App.5th at p. 228.)
That reasonable minds could differ as to whether Shirley continues to pose a
danger to public safety does not render the trial court’s determination an
abuse of discretion. (See People v. Carmony (2004) 33 Cal.4th 367, 377.)
Accordingly, we conclude the court did not abuse its discretion in dismissing
only one of the firearm enhancements accompanying the two attempted
murder counts.
13
B. The Record Does Not Establish that the Trial Court Misunderstood the
Scope of Its Discretion
Shirley contends in the alternative that the trial court abused its
discretion in not recognizing it had the discretion to impose a lesser firearm
enhancement rather than striking both enhancements. (Tirado, supra, 12
Cal.5th at pp. 692, 694 [trial court has discretion to strike a section 12022.53,
subdivision (d), enhancement and instead impose a lesser uncharged
enhancement; a court “unaware of the scope of its discretion is understood to
have abused it”]; McDavid, supra, 15 Cal.5th at p. 1030 [trial court can also
choose to exercise its discretion to strike a section 12022.53 enhancement and
substitute a lesser included, uncharged enhancement authorized elsewhere in
the Penal Code if supported by facts that have been alleged and found true].)
Shirley argues that the court could have imposed a lesser enhancement that
would have delayed his parole eligibility, which would have addressed the
court’s public safety concerns and provided Shirley with additional time for
rehabilitation. He contends that the court’s failure to recognize this
authority was an abuse of discretion.5 Again, we disagree.
Where the record demonstrates that “the trial court proceeded with
sentencing on the erroneous assumption it lacked discretion, remand is
necessary so that the trial court may have the opportunity to exercise its
sentencing discretion at a new sentencing hearing.” (People v. Brown (2007)
5 The People contend that Shirley has forfeited this argument because
defense counsel failed to raise the issue with the trial court. Anticipating
the People’s argument, Shirley contends that his counsel was ineffective if
the issue has been forfeited. “To forestall defendant’s claim of ineffective
assistance of counsel, we will exercise our discretion to reach the merits of
defendant’s claim” notwithstanding any possible forfeiture. (People v. Torres
(2025) 113 Cal.App.5th 88, 92; see also People v. Williams (1998) 17 Cal.4th
148, 161, fn. 6 [an appellate court has authority to reach a forfeited claim].)
14
147 Cal.App.4th 1213, 1228 (Brown).) Remand is unnecessary, however,
where the record either shows that the court was aware of its discretion or
reveals nothing as to the court’s awareness. (Id. at pp. 1228–1229.) Error
may not be presumed from a silent record. (Id. at p. 1229.) Instead, we must
presume that the trial court had a proper understanding of its sentencing
discretion and correctly followed the applicable law. (People v. Czirban
(2021) 67 Cal.App.5th 1073, 1097 (Czirban).)
There is nothing in the record here to suggest the trial court was
unaware of its discretion to impose a lesser enhancement. In its ruling, the
trial court understandably focused its analysis on the only request Shirley
actually made, which was that the firearm enhancements be stricken
entirely. Although neither the court nor counsel specifically mentioned the
possibility of substituting lesser firearm enhancements under Tirado and
McDavid, we cannot presume from a silent record that the court was
unaware of its discretion to do so. (See People v. Gutierrez (2009) 174
Cal.App.4th 515, 527.) Both Tirado and McDavid had already been decided
well before the resentencing hearing, and “we may not assume the court was
unaware of its discretion simply because it failed to explicitly refer to its
alternative sentencing choices.” (People v. Weddington (2016) 246
Cal.App.4th 468, 492.) We therefore presume the court recognized that, as
the Supreme Court clarified in McDavid and Tirado, it had the authority to
strike Shirley’s enhancement and substitute a lesser one in its place but
chose not to do so.6 (See McDavid, supra, 15 Cal.5th at pp. 1020–1021;
6 We also observe that imposing a lesser firearm enhancement would not
necessarily have resulted in a lesser total sentence than what the court
ultimately imposed. The court could have decided to impose a lesser firearm
enhancement in place of the one that was stricken, which would have
15
Tirado, supra, 12 Cal.5th at p. 700; Czirban, supra, 67 Cal.App.5th at
p. 1097.)
C. Restitution Fines
Last, Shirley contends on appeal that both of his section 1202.4 “fines”
must be vacated under section 1465.9, subdivision (d), which became effective
just days before his January 2025 resentencing. (§ 1465.9, subd. (d); Stats.
2024, ch. 805, § 1.) The statute provides that, upon the expiration of 10 years
after the imposition of a section 1202.4 restitution fine, the balance of the fine
“shall be unenforceable and uncollectible.” (§ 1465.9, subd. (d); People v.
Bertsch and Hronis (2026) 19 Cal.5th 183, 332.)
The People concede that the $10,000 restitution fine imposed under
section 1202.4, subdivision (b), must be vacated but argue that the $3,878.60
victim restitution fee imposed under section 1202.4, subdivision (f), should
not. On reply, Shirley agrees with the People’s position and requests that
this court vacate only the remaining balance of his $10,000 restitution fine.
We accept the People’s concession. Because the $10,000 restitution fine
was “levied on [Shirley] more than 10 years ago, any balance under those
fines is uncollectable and unenforceable by operation of law.” (People v.
Bertsch and Hronis, supra, 19 Cal.5th at p. 332; see also § 1465.9, subd. (d).)
Any unpaid balance of that fine is therefore vacated.
The $3,878.60 victim restitution fee, however, should not be vacated.
As the People point out, the purpose of a restitution fine is to punish the
defendant, whereas the purpose of direct victim restitution is to make the
victim reasonably whole. (People v. Holman (2013) 214 Cal.App.4th 1438,
1451.) Importantly, “[v]ictim restitution is mandatory under the California
resulted in a greater total sentence if the other firearm enhancement
remained the same.
16
Constitution.” (People v. Nichols (2017) 8 Cal.App.5th 330, 341; see also Cal.
Const., art. I, § 28, subd. (b)(13).) Because a victim’s right to restitution is
constitutional, “it cannot be bargained away or limited, nor can the
prosecution waive the victim’s right to receive restitution.” (People v. Gross
(2015) 238 Cal.App.4th 1313, 1318; accord Brown, supra, 147 Cal.App.4th at
pp. 1225–1226 [“[a] sentence without an award of victim restitution is
invalid”].) We therefore leave as is the portion of the order imposing victim
restitution.
DISPOSITION
The order is affirmed. The balance, if any, of the $10,000 restitution
fine levied against Shirley under section 1202.4, subdivision (b), is vacated.
The superior court is ordered to prepare an amended abstract of judgment
reflecting the vacatur of the unpaid balance of the restitution fine and to
provide a copy of that amended abstract to the Department of Corrections
and Rehabilitation.
BUCHANAN, J.
WE CONCUR:
McCONNELL, P. J.
DATO, J.
17