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The People v. Don Harold Lee

November 27, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DON HAROLD LEE, DEFENDANT AND APPELLANT.



(Super. Ct. No. P08CRF0372)

The opinion of the court was delivered by: Duarte , J.

P. v. Lee 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Don Harold Lee appeals from the trial court's order modifying his probation to add the requirement that he pay $500 to El Dorado County Animal Services (EDCAS) for services it provided in connection with his crimes.

Defendant makes multiple claims regarding the perceived improprieties of the order to pay. Characterizing the payment to EDCAS as "victim restitution," he first argues that the order violated his plea agreement; he later adds that EDCAS was not a direct victim of his crimes, therefore not entitled to restitution in any event. He argues that the trial court declined to retain jurisdiction over restitution and that he was entitled to appear before the same sentencing judge for any further proceedings in connection with his original sentence.

The People counter that the order to pay was not a direct victim restitution order, but was a proper (collateral) restitution order issued as a modification of defendant's probation due to changed circumstances. The People do not address defendant's remaining contentions, arguing that they are mooted by his failure to properly classify the order to pay. However, noting correctly that the record shows a prosecutor and trial court seemingly confused regarding "the purpose of the $500 order," the People observe that the resulting modification of defendant's probation was accomplished without proper notice or probation report.

Agreeing with the People as to the intended character of the order and the flaws in the procedure, we shall remand for a probation modification hearing.

FACTUAL AND PROCEDURAL BACKGROUND

Offense Conduct

In August 2008, as 78-year-old Mildred Grant walked to her mailbox, two dogs owned by defendant attacked Grant, took her to the ground, and bit her multiple times.

In January 2009, the People filed an information charging defendant with felony negligent ownership of an animal resulting in injury. (Pen. Code,*fn1 § 399, subd. (b).) The information included two related charges and a great bodily injury allegation.

Plea Agreement

At an August 2010 hearing, the parties resolved the case by oral plea agreement and informed the trial court (Bailey, J.) in relevant part that "No restitution will be ordered. It would be deferred to the civil case, a civil judgment, if any."*fn2

In exchange for defendant's plea to a misdemeanor (section 399, subd. (b)), the trial court dismissed the remaining counts and allegation. The court suspended imposition of sentence and placed ...


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