The People v. McConnell CA6

Filed 8/29/13 P. v. McConnell CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, 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.