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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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.



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       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




1 Undesignated statutory references are to the Penal Code.


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result in a forfeiture of the issue. After briefing was completed in this case, the California
Supreme Court issued a decision in People v. McCullough, supra, 56 Cal.4th at page 597.
The Supreme Court ruled that “a defendant who fails to contest the booking fee when the
court imposes it forfeits the right to challenge it on appeal.” (Id. at p. 591.) The Supreme
Court concluded: “Given that imposition of a fee is of much less moment than
imposition of sentence, and that the goals advanced by judicial forfeiture apply equally
here, we see no reason to conclude that the rule permitting challenges made to the
sufficiency of the evidence to support a judgment for the first time on appeal ‘should
apply to a finding of’ ability to pay a booking fee . . . .” (Id. at p. 599.)
       The Supreme Court’s reasoning applies equally to the main jail classification fee
in this case. We conclude that defendant’s insufficient evidence claims are forfeited.
(McCullough, supra, 56 Cal.4th at p. 599.)
                                               II
       In the alternative, defendant claims his trial counsel was ineffective for failing to
object to the booking and classification fees. He asserts that his counsel’s failure to
object cannot be explained as a reasonable tactical choice, as the record indicates the trial
court was sympathetic to defendant’s need to rehabilitate himself from addiction. He also
contends that had counsel “pointed out that those fees [were] discretionary, and that
[defendant] lacked ability to pay them, it is reasonably likely the judge would have
stricken them.”
       To establish ineffective assistance of counsel, defendant must show that (1) his
counsel’s representation fell below an objective standard of reasonableness, and (2) but
for counsel’s error, there is a reasonable probability that defendant would have obtained a
more favorable result. (Strickland v. Washington (1984) 466 U.S. 668, 688, 694 [80
L.Ed.2d 674, 693, 697-698]; People v. Ledesma (1987) 43 Cal.3d 171, 215–218.) In this
case, we need not determine whether counsel’s performance was deficient, because



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defendant has not established prejudice. (Strickland v. Washington, supra, 466 U.S. at
p. 697 [80 L.Ed.2d at p. 699].)
       Defendant’s claim assumes the trial court was unaware of its discretion and did
not properly consider defendant’s ability to pay the booking and classification fees. But,
on a silent record such as this, we must presume the trial court was “aware of and
followed the applicable law” when exercising its discretion. (People v. Mosley (1997)
53 Cal.App.4th 489, 496; accord, Evid. Code, § 664.) We do not assume error where the
record does not establish on its face that the trial court misunderstood the scope of its
discretion. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1521–1523; People v.
Davis (1996) 50 Cal.App.4th 168, 170–173.) We also presume the trial court considered
ability to pay. (People v. Nelson (2011) 51 Cal.4th 198, 227.)
       Defendant does not “ ‘identify anything in the record indicating the trial court
breached its duty to consider his ability to pay; as the trial court was not obligated to
make express findings concerning his ability to pay, the absence of any findings does not
demonstrate it failed to consider this factor.’ ” (People v. Nelson, supra, 51 Cal.4th at
p. 227.) Nor has defendant suggested there is any additional information that was not
considered by the trial court. Furthermore, “[a]bility to pay does not necessarily require
existing employment or cash on hand.” (People v. Staley (1992) 10 Cal.App.4th 782,
785.) The trial court may consider the defendant’s ability to pay in the future, including
the defendant’s ability to obtain wages in prison. (People v. Hennessey (1995)
37 Cal.App.4th 1830, 1837.)




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       Because the trial court presumably considered the relevant information and
defendant’s ability to pay, defendant has not established prejudice.
                                      DISPOSITION
       The judgment is affirmed.




                                                                MAURO               , J.


We concur:


              BUTZ                   , Acting P. J.


              MURRAY                 , J.




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