Filed 8/29/13 P. v. McConnell CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent,

v. JOSEPH DEAN McCONNELL, Defendant and Appellant. H038310 (Santa Clara County Super. Ct. No. C1108885)

Defendant Joseph Dean McConnell appeals from a vandalism conviction. On appeal, defendant contends that the trial c ourt 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 pr ocedures before imposing the probation-supervision fee. We therefore will reverse the order requir ing 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.
F ACTUAL AND P ROCEDURAL H ISTORY In the early morning hours of April 3, 2011, defendant used a crowbar to break open a kennel at the Silicon Va lley Animal Control Authority. He retrieved his pet dog
from the kennel. Defendant’s conduct significantly damaged the kennel.2 An information, filed on September 22, 2011, charged defenda nt 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 restituti on during the six-month period. Six months later, on May 11, 2012, defe ndant informed the court that he was unable to pay the full restitution amount. Purs uant 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 pr obation-supervision fee of $1 10 per month. The court informed defendant that it would give him si x more months to pa y the restitution, and
that it would reduce the conviction to a misdem eanor if defendant paid the full restitution amount during that si x-month period. A few weeks later, on June 22, 2012, defe ndant 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 secti on 17, subdivision (b). The court converted defendant’s formal probation to court probatio n. 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 th e 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 re ferences are to the Penal Code.3 D ISCUSSION Defendant argues that the order imposing the probation-supervision fee must be
reversed because the trial court failed to ho ld 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 th e probation-supervision fee, and we will remand the case to the tria l court for a hearing regarding defendant’s ability to pay a probation-supervision fee. Background After defendant pleaded guilty on November 7, 2011, th e court told defendant: “You don’t need to go to proba tion because it is a waived referral . . . .” The “waived referral” probation report therefore did not co ntain any information regarding defendant’s financial status. The report nonetheless reco mmended 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 proba tion-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 mo nth, 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 de nied the request for a lower probation-supervision fee, and it ordered defendant to pay a probation-supervision fe e of $110 per month.
When the court converted defendant’s fo rmal probation to court probation on June 22, 2012, the court informed defenda nt that there were no supervision fees4 associated with the grant of court probation. The court ordered, however, that defendant pay the outstanding balance on the $110 mont hly probation-supervision fee associated with the previous gran t 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 c ourt 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 th e probation officer, or his or her authorized representative, to make an inquiry into the ab ility 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 paym ents shall be made to the county, based upon the defendant’s ability to pay. The probation officer sh all inform the defendant that
the defendant is entitled to a h earing, that includes the right to counsel, in which the court
shall make a determination of the defendan t’s ability to pay and the payment amount. The defendant must waive the right to a determ ination 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: “Whe n 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 defe ndant 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 Ma y 11, 2012 to June 22, 2012. Thus, it appears that defendant was obligated to pa y the $110 monthly probation-supervision fee only for a two-month period.5 probation officer shall refer the matter to th e court for the scheduling of a hearing to determine the amount of payment and the manne r in which the payments shall be made. The court shall order the defendant to pay th e reasonable costs if it determines that the defendant has the ability to pay those costs ba sed 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 Peop le’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-supe rvision 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 ar ticulated in section 1203.1b. ( Valtakis, supra, 105 Cal.App.4th at p. 1076.) Valtakis held that the defendant’s “fa ilure 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 as pect 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 pa y 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-supervisi on fee in order to preserve an appellate challenge to the fee. Here, defendant object ed to the $110 monthly probation-supervision
fee. When the trial court an nounced its intention to impose the fee, defendant informed the court that he could not afford to pay th e fee. Defense counse l specifically requested that the court impose a lower fee, arguing that the $110 monthly fee would be a financial6 hardship for defendant. Thus, unlike the defendant in Valtakis , defendant did not stand silent as the court imposed the probation-supe rvision fee. We therefore conclude that
defendant’s claim is not forfeited. The Trial Court Erred in Im posing the Probation-Supervi sion 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 th at the trial court erroneously imposed the probation-supervision fee.
In Pacheco, the defendant challenged a $64 pe r month probation-supervision fee, arguing that the trial court failed to de termine 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 fo llowing 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 eviden ce 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 de termined defendant’s ab ility to pay the $110 per month probation-supervisi on fee, there is no evidence th at the court or a probation
officer advised defendant of hi s right to a hearing regarding his ability to pay the fee, and
there is no evidence that defenda nt waived his right to such a hearing. Indeed, given the7 circumstance that the trial court specifica lly advised defendant to not report to the probation department, it appears that the tria l 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 de fendant’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 orde r imposing the probation-supervision fee and
remand the matter to the trial court for a he aring regarding defendant’s ability to pay a probation-supervision fee. 3

D ISPOSITION The order imposing a $110 per month prob ation-supervision fee is reversed. The
matter is remanded with directions to the trial court to determ ine, in accordance

3 Defendant requests that we simply strike the order imposing the probationsupervision fee—and not remand the matter fo r a hearing regarding his ability to pay such a fee—because evidence in the re cord suggests that he is indigent. We believe that remand for a hearing regarding defendant’s ability to pay a pr obation-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 de fendant’s] financial circ umstances support[s] his claim of indigency.” ( People v. Hall(2002) 103 Cal.App. 4th 889, 893.)8 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.