People v. Olbert CA3

Filed 12/17/24 P. v. Olbert CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C100375

Plaintiff and Respondent, (Super. Ct. No. 10F07539)

v.

ROBERT BRIAN OLBERT,

Defendant and Appellant.

In 2023, after defendant Robert Brian Olbert had served approximately 13 years of his 20-year prison sentence, the Secretary of the Department of Corrections and Rehabilitation (CDCR) sent a letter to the sentencing court recommending that the court recall defendant’s sentence and resentence him. The sentencing court recalled defendant’s sentence and reduced it to 19 years. The court declined to further reduce the

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sentence by striking a five-year enhancement under Penal Code section 13851 because the court found defendant posed a risk to public safety based on defendant violating prison rules by attempting to bring a bottle of liquid soap back to his cell. The court found, based on the court’s personal experience, that defendant could use the liquid soap as a weapon. We requested supplemental briefing addressing whether substantial evidence supports the sentencing court’s finding that dismissing the five-year enhancement posed a risk to public safety. The People argue that the sentencing court did not abuse its discretion, but offer no evidentiary basis in the record for the court’s finding that defendant could use a bottle of liquid soap as a weapon. The People do not assert that we can consider the court’s personal experience as evidence, and we conclude we may not. Finding no other evidence in the record to support this finding, we conclude that the sentencing court abused its discretion by basing its decision on a finding unsupported by substantial evidence. We will vacate defendant’s sentence and remand for resentencing. The parties agree that the sentencing court should not have included certain repealed fees as part of defendant’s sentence, so we will also direct the court not to impose those fees on remand. BACKGROUND Defendant pleaded no contest to allegations that in 2010, he attempted a robbery and then, in a second incident, committed a robbery using a knife, attempted an additional robbery using a knife, unlawfully used personal identifying information, unlawfully possessed access card information, possessed a completed check with the intent to pass it fraudulently, and possessed stolen property. Defendant also admitted having been previously convicted of robbery in 1992.