The People v. Olbert CA3

Filed 8/29/13 P. v. Olbert CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Plaintiff and Respondent, C070984

v. (Super. Ct. No. 10F07539)

ROBERT BRIAN OLBERT,

Defendant and Appellant.

Defendant Robert Brian Olbert pleaded no contest to robbery, attempted robbery, forgery, identity theft, access card theft and receiving stolen property. In sentencing defendant, the trial court ordered him to pay, among other things, a main jail booking fee and a main jail classification fee. (Gov. Code, § 29550.2.) Defendant now contends (1) there is insufficient evidence of his ability to pay the main jail booking fee and the main jail classification fee, and (2) if his claim is deemed forfeited, defendant’s trial counsel was ineffective for failing to object in the trial court.

1

We conclude (1) defendant forfeited his insufficient evidence claim (People v. McCullough (2013) 56 Cal.4th 589), and (2) his ineffective assistance claim also fails because he has not established prejudice. We will affirm the judgment. BACKGROUND Because the facts of the underlying offenses do not relate to defendant’s contentions on appeal, we focus on the relevant background. Defendant pleaded no contest to robbery (Pen. Code, § 211),1 attempted robbery (§§ 664/211), forgery (§ 475, subd. (c)), identity theft (§ 530.5, subd. (a)), access card theft (§ 484e, subd. (d)), and receiving stolen property (§ 496, subd. (a)). He admitted that he personally used a deadly weapon (§ 12022, subd. (b)(1)) and that he had a prior serious felony conviction. In exchange, the parties agreed the trial court would sentence defendant to a term of 25 years in state prison. The trial court granted the People’s motion to dismiss the remaining charges and enhancements. The probation report recommended imposition of a $287.78 main jail booking fee and a $59.23 main jail classification fee, both pursuant to Government Code section 29550.2. Defendant did not object to imposition of those fees. The trial court sentenced defendant in accordance with the plea agreement and ordered him to pay the main jail booking fee and main jail classification fee. DISCUSSION I Defendant contends there is insufficient evidence of his ability to pay the main jail booking fee and the main jail classification fee. Relying on People v. Pacheco (2010) 187 Cal.App.4th 1392, he claims the failure to object to the fees in the trial court did not