People v. Michel CA3

Filed 11/26/13 P. v. Michel CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte) ----

C072358 THE PEOPLE, (Super. Ct. No. CM036816) Plaintiff and Respondent,

v.

JOSE MANUEL MICHEL,

Defendant and Appellant.

Defendant Jose Manuel Michel pleaded no contest to assault with a deadly weapon and admitted inflicting great bodily injury. (Pen. Code, §§ 245, subd. (a)(1), 12022.7, subd. (a).) Sentenced to six years in prison, he appeals. The sole issue on appeal is the propriety of the trial court’s requiring defendant to pay a $736 probation report fee. (Pen. Code, § 1203.1b.) Defendant contends the record does not support a finding that he has the ability to pay such a fee. He did not, however, object to the imposition of the fee in the trial court.

1

Relying on People v. Pacheco (2011) 187 Cal.App.4th 1392, defendant contends his failure to object in the trial court did not forfeit the issue for appeal. He noted in his briefs, however, that the issue was pending before the California Supreme Court. During the pendency of this appeal, the California Supreme Court issued its opinion in People v. McCullough (2013) 56 Cal.4th 589. McCullough holds that the failure to object to the imposition of a booking fee forfeits the argument on appeal that there was no evidence of the defendant’s ability to pay such a fee and disapproves People v. Pacheco, supra, 187 Cal.App.4th 1392. We discern no distinction between the imposition of the booking fee and the probation report fee in this regard. Accordingly, we conclude defendant’s claim is forfeited. DISPOSITION The judgment is affirmed.

RAYE , P. J.

We concur:

HULL , J.