Filed 8/29/13 P. v. McConnell CA6
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H038310
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1108885)

             v.

JOSEPH DEAN McCONNELL,

         Defendant and Appellant.



         Defendant Joseph Dean McConnell appeals from a vandalism conviction. On
appeal, defendant contends that the trial court erred in imposing a probation-supervision
fee without holding a hearing regarding his ability to pay the fee. We conclude that the
trial court erred in failing to follow the required statutory procedures before imposing the
probation-supervision fee. We therefore will reverse the order requiring defendant to pay
the probation-supervision fee, remand the case for a hearing regarding defendant’s ability
to pay a probation-supervision fee, and affirm the judgment in all other respects.
                                  FACTUAL AND PROCEDURAL HISTORY
         In the early morning hours of April 3, 2011, defendant used a crowbar to break
open a kennel at the Silicon Valley Animal Control Authority. He retrieved his pet dog
from the kennel. Defendant’s conduct significantly damaged the kennel.
       An information, filed on September 22, 2011, charged defendant with vandalism
causing $400 or more in damage (Pen. Code, § 594, subds. (a) & (b)(1)).1 On
November 7, 2011, pursuant to a negotiated agreement, defendant pleaded guilty to the
charge. Under the terms of the agreement, the trial court postponed sentencing for a
period of six months, and it agreed to reduce the conviction to a misdemeanor if
defendant paid $4,547 in restitution during the six-month period.
       Six months later, on May 11, 2012, defendant informed the court that he was
unable to pay the full restitution amount. Pursuant to the terms of the agreement, the
court declared defendant’s conviction to be a felony. The court suspended imposition of
sentence and placed defendant on formal probation for a period of three years. The court
ordered defendant to pay a probation-supervision fee of $110 per month. The court
informed defendant that it would give him six more months to pay the restitution, and
that it would reduce the conviction to a misdemeanor if defendant paid the full restitution
amount during that six-month period.
       A few weeks later, on June 22, 2012, defendant gave the court a receipt showing
that he had paid the full restitution amount. The court accordingly reduced defendant’s
conviction to a misdemeanor pursuant to section 17, subdivision (b). The court converted
defendant’s formal probation to court probation. The court informed defendant that his
grant of court probation did not include a probation-supervision fee, but it ordered
defendant to pay the outstanding balance on the probation-supervision fee associated with
the previous grant of formal probation.
       Defendant filed a timely notice of appeal. This appeal followed.




       1
           Subsequent unspecified statutory references are to the Penal Code.
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                                         DISCUSSION
       Defendant argues that the order imposing the probation-supervision fee must be
reversed because the trial court failed to hold a hearing regarding his ability to pay the
fee, as required by section 1203.1b. The People contend that defendant forfeited his
claim because he failed to request a section 1203.1b hearing in the trial court. We
conclude that defendant’s claim is not forfeited, and that the trial court erred in failing to
follow the required statutory procedures before imposing the probation-supervision fee.
We therefore will reverse the order requiring defendant to pay the probation-supervision
fee, and we will remand the case to the trial court for a hearing regarding defendant’s
ability to pay a probation-supervision fee.
Background
       After defendant pleaded guilty on November 7, 2011, the court told defendant:
“You don’t need to go to probation because it is a waived referral . . . .” The “waived
referral” probation report therefore did not contain any information regarding defendant’s
financial status. The report nonetheless recommended a probation-supervision fee “not to
exceed $110 per month.”
       When the trial court placed defendant on formal probation on May 11, 2012, the
court announced its intention to impose a probation-supervision fee of $110 per month.
Defendant stated to the court, “Can’t be done.” Defense counsel asked the court to lower
the probation-supervision fee to $30 per month, arguing that a higher fee would be a
“financial hardship” for defendant. Defense counsel informed the court that defendant
was disabled and unable to work, and that defendant’s only monthly income was his $829
disability check. The court denied the request for a lower probation-supervision fee, and
it ordered defendant to pay a probation-supervision fee of $110 per month.
       When the court converted defendant’s formal probation to court probation on
June 22, 2012, the court informed defendant that there were no supervision fees

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associated with the grant of court probation. The court ordered, however, that defendant
pay the outstanding balance on the $110 monthly probation-supervision fee associated
with the previous grant of formal probation.2
The Statutory Framework of Section 1203.1b
       Section 1203.1b authorizes the trial court to order a defendant “to pay all or a
portion of the reasonable cost of any probation supervision.” (§ 1203.1b, subd. (a).)
Before ordering a defendant to pay such a fee, however, the court must follow the
procedures articulated in section 1203.1b.
       Section 1203.1b mandates the following procedures: “The court shall order the
defendant to appear before the probation officer, or his or her authorized representative,
to make an inquiry into the ability of the defendant to pay all or a portion of these costs.
The probation officer, or his or her authorized representative, shall determine the amount
of payment and the manner in which the payments shall be made to the county, based
upon the defendant’s ability to pay. The probation officer shall inform the defendant that
the defendant is entitled to a hearing, that includes the right to counsel, in which the court
shall make a determination of the defendant’s ability to pay and the payment amount.
The defendant must waive the right to a determination by the court of his or her ability to
pay and the payment amount by a knowing and intelligent waiver.” (§ 1203.1b,
subd. (a); see also People v. Pacheco (2010) 187 Cal.App.4th 1392, 1400-1401
(Pacheco), overruled on another point in People v. McCullough (2013) 56 Cal.4th 589,
599.) Section 1203.1b further mandates: “When the defendant fails to waive the right . .
. to a determination by the court of his or her ability to pay and the payment amount, the


       2
         Although the actual amount owed by defendant is not included in the record, it
appears that the amount cannot be any greater than $220. Defendant was on formal
probation for less than two months, from May 11, 2012 to June 22, 2012. Thus, it
appears that defendant was obligated to pay the $110 monthly probation-supervision fee
only for a two-month period.
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probation officer shall refer the matter to the court for the scheduling of a hearing to
determine the amount of payment and the manner in which the payments shall be made.
The court shall order the defendant to pay the reasonable costs if it determines that the
defendant has the ability to pay those costs based on the report of the probation officer, or
his or her authorized representative.” (§ 1203.1b, subd. (b); see also Pacheco, supra, 187
Cal.App.4th at p. 1401.)
Defendant’s Claim is Not Forfeited
       Preliminarily, we must address the People’s argument regarding forfeiture. The
People contend that defendant forfeited his claim by failing to request a hearing regarding
his ability to pay the probation-supervision fee. The People cite People v. Valtakis
(2003) 105 Cal.App.4th 1066 (Valtakis) in support of this argument.
       In Valtakis, the defendant argued that the trial court erred in imposing a $250 fee
without following the procedures articulated in section 1203.1b. (Valtakis, supra, 105
Cal.App.4th at p. 1076.) Valtakis held that the defendant’s “failure to object to the fee
below has waived the claim on appeal.” (Ibid.) Valtakis reasoned that a defendant may
not “stand silent as the court imposes a fee—even a nominal one like the $250 here—and
then complain for the first time on appeal that some aspect of the statutory procedure was
not followed.” (Id. at p. 1075.)
       Contrary to the People’s assertion, Valtakis did not hold that a defendant must
request a hearing regarding his ability to pay a probation-supervision fee in order to
challenge such a fee on appeal. Rather, Valtakis held that a defendant must simply object
to the imposition of a probation-supervision fee in order to preserve an appellate
challenge to the fee. Here, defendant objected to the $110 monthly probation-supervision
fee. When the trial court announced its intention to impose the fee, defendant informed
the court that he could not afford to pay the fee. Defense counsel specifically requested
that the court impose a lower fee, arguing that the $110 monthly fee would be a financial

                                              5
hardship for defendant. Thus, unlike the defendant in Valtakis, defendant did not stand
silent as the court imposed the probation-supervision fee. We therefore conclude that
defendant’s claim is not forfeited.
The Trial Court Erred in Imposing the Probation-Supervision Fee Without Following
the Procedures Mandated by Section 1203.1b
       Having determined that defendant’s claims is not forfeited, we now address the
merits of defendant’s claim. As explained below, our holding in Pacheco, supra, 187
Cal.App.4th 1392 compels us to conclude that the trial court erroneously imposed the
probation-supervision fee.
       In Pacheco, the defendant challenged a $64 per month probation-supervision fee,
arguing that the trial court failed to determine his ability to pay the fee. (Pacheco, supra,
187 Cal.App.4th at pp. 1395-1396.) We held that the trial court erred in imposing the
probation-supervision fee without following the procedures mandated by
section 1203.1b, and we remanded the case to the trial court for a hearing regarding the
defendant’s ability to pay the fee. (Id. at pp.1401, 1404. ) We reasoned: “There is no
evidence in the record that anyone, whether the probation officer or the court, made a
determination of [the defendant’s] ability to pay the $64 per month probation supervision
fee. Nor is there any evidence that probation advised him of his right to have the court
make this determination or that he waived this right. In short, it appears that the statutory
procedure provided at section 1203.1b for a determination of [the defendant’s] ability to
pay probation related costs was not followed.” (Id. at p. 1401.)
       Defendant’s case is analogous to Pacheco. Like Pacheco, there is no evidence
that the trial court or a probation officer determined defendant’s ability to pay the $110
per month probation-supervision fee, there is no evidence that the court or a probation
officer advised defendant of his right to a hearing regarding his ability to pay the fee, and
there is no evidence that defendant waived his right to such a hearing. Indeed, given the

                                              6
circumstance that the trial court specifically advised defendant to not report to the
probation department, it appears that the trial court failed to follow section 1203.1b’s
preliminary requirement that the “court shall order the defendant to appear before the
probation officer” for an inquiry into the defendant’s financial status. (§ 1203.1b,
subd. (a).) Thus, because the trial court did not follow the procedures mandated by
section 1203.1b, we must reverse the order imposing the probation-supervision fee and
remand the matter to the trial court for a hearing regarding defendant’s ability to pay a
probation-supervision fee.3
                                       DISPOSITION
       The order imposing a $110 per month probation-supervision fee is reversed. The
matter is remanded with directions to the trial court to determine, in accordance




       3
         Defendant requests that we simply strike the order imposing the probation-
supervision fee—and not remand the matter for a hearing regarding his ability to pay
such a fee—because evidence in the record suggests that he is indigent. We believe that
remand for a hearing regarding defendant’s ability to pay a probation-supervision fee is
the appropriate remedy. Where a trial court fails to follow the procedures mandated by
section 1203.1b, remand for a section 1203.1b hearing is necessary even though
“information in the record relative to [the defendant’s] financial circumstances support[s]
his claim of indigency.” (People v. Hall (2002) 103 Cal.App.4th 889, 893.)
                                              7
with section 1203.1b, defendant’s ability to pay a probation-supervision fee before
imposing such a fee. The judgment is affirmed in all other respects.


                                         ______________________________________
                                                    RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




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