Filed 6/27/14 P. v. Catalan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ord ered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT
DIVISION THREE

THE PEOPLE, Plaintiff and Respondent,

v. MARVIN ESTUARDO CATALAN , Defendant and Appellant. G04 874 6 (Super. Ct. No. 12 H F0 430 )
O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Christopher Evans, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Dacia A. Burz , under app ointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and
Warren Williams , Deputy Attorney s Genera l, for Plaintiff and Respondent. * * *2 Marvin Estuardo Catalan pleaded guilty to four felonies, including grand
theft (Pen. Code, § 487, subd. (a) ; all statutory references are to the Pena l Code unless noted), identity theft (§ 530.5, subd. (a)), and two counts of forgery (§ 470, subd. (d))

. The court imposed a four

- year hybrid or split sentence (§ 1170, subd. (h)) comprised of a

one
- year, four

- month jail term followed by two years and eight months of mandatory supervision on specified terms and conditions. After Catalan violated the terms of his mandatory supervision , the trial court revoked and reinstated his supervision and added
550 day s to his jail sentence. Catalan contends the court abused its discretion by imposing a sentence exceeding the recommended term under the Criminal Justic e Realignment Act of 2011 ( Realignment Act ), operative October 1, 2011. ( Stats. 2011,
1st Ex. Sess. 2011

– 2012, ch. 12, § 1 ; s ee, e.g., § 1230, subd

. (b)(3)

. ) For the reasons expressed below, we affirm.
I

F ACTS AND P ROCEDURAL B ACKGROUND
I n April 2012, Catalan pleaded guilty to four felon ies, including grand theft, identity theft, and forgery. The prosecutor agreed to dismiss 1 5 similar counts involving
additional victims . Catalan provided the following factual basis for his plea: “ [O]n or between [April 10, 2011 and August 28, 2011], I unlawfully took money [and] personal property of Giovanni G. which had a value exceeding ($950). I also did willfully [and] unlawfully obtain personal identifying [ information ] of Giovanni G. [and] d id unlawfully use that information for an unlawful purpose, specifically to obtain currency, without the consent of Giovanni G. I also with the intent to defraud, did unlawfully [and] falsely make, alter, forge, pass, or attempt to pass, as true [and] gen uine, a check #182 [for] $825, knowing it was false, altered, forged, [and] counterfeit [and] did the same [with]3

check #183 as well. All victims to my offenses include, Giovanni G., Motoaki S.[,] Juvenal C., Coral O. [and ] Janet J., of whom I agree to be responsible for r estitution to all said victims, despite the remaining counts being dismissed . . . . ”

The guilty plea form advised Catalan he faced a maximum term of five years in custody , but the court would impose a four

- year hybrid or split sentence (§ 1170, subd. (h)), including one year and four months in custody , followed by two years and eight months of mandatory supervision on various terms and conditions. The court
ordered him not to “ possess any blank checks, write any portion of any checks, have any checking account, nor use or possess any credit cards or open credit accounts, unless approved in advance by your probation or mandatory supervision officer. ” Catalan agreed he would “ be on mandatory supervision (P.C. 1170(h)(5)[]) for the period of time and subject to the terms and conditions specified in this plea agreement. I understand if I violate any term or condition of mandatory supervision I could be sent to county jail for the remainder of my sentence as set forth on page 6, less any cr edit for time served. ” He also agreed to waive his right to appeal from “ any legally authorized sentence that the court imposes which is within the terms and limits of this plea agreement. ”

In April 2013, the probation department filed a petition alleg ing Catalan had violated the terms of his supervision by opening “ three checking accounts without prior permission ” of his probation officer. According to the petition, Catalan admitted he

“‘ made a big mistake ’” and also had written a “ check for $500.00 from one account to another knowing he did not have sufficient funds. ”

At the violation hearing in May 2013, Catalan testified the probation officer had authorized him to open one checking account so he could direct deposit his4

paychecks. The probation officer testified he authorized a bank account , but not a checking account, and Catalan “ was to have no checks

. . . . ”

T he court found Catalan violated the term s of his supervision. The prosecution argued Catalan should receive 783 days in custody, the balance of his supervision time. Catalan ’ s lawyer argued “ to do anything [] other than give him 90 to 120 days ” for his first violation would violate the R ealignment Act

. The court revoked and reinstated supervision and ordered Catalan to serve 730 days in custody with actual and conduct credits of 92 days.

In late June 2013, Catalan moved for recall and reconsideration of the sentence (§ 1170, subd. (d)) based on his remorse and plans to complete beauty school and pay off his student loans. He also asserted the 73 0

- day term imposed for a first
violation did not “ give effect to the Legislature ’ s intent and its express commands, ” and

“ would be counterproductive by thwarting his efforts to reintegrate into society ” because

“ he will default on his student loan and not be able to use it for future schooling, he will lose his stable residence, he will likely face immigration consequences for this long period of incarceration, and he will not be employed (as he has been in the past) to make ” probat ion and restitution payments.

At a hearing in July 2013, the court reduce d the additional custody time by 180 days, to 550 days, over the prosecutor ’ s objection. Catalan ’ s lawyer objected that a
550

- day term remained excessive for a first violation in a mandatory supervision case

. The court awarded Catalan credits of 202 days.5 II
D ISCUSSION Catalan contends the court abused its discretion by imposing a 550

- day term for his first violation of mandatory supervision. He asserts the sentence does “ not reflect an intermediate sanction of up to [90] days as recommended by the applicable statute [(§ 1230, subd. (b)(3)] , ” “ was not reflective of the objective [and] intent of the Legislature ” expressed in section 17.5, and “ exceeded the implicitly maximum custody sanction of 180 days for felony probationers ” under section 3455, subdivision (d).

As noted above, Catalan agreed he would “ be on mandatory supervision (P.C. 1170(h)(5)[]) for the period of time and subject to the terms and conditions specified in this plea agreement. I understand if I violate any term or condition of mandatory supervision I could be sent to county jail for the remainder of my sentence as set forth on page 6, less any credit for time served. ” He also agreed to waive his right t o appeal from “ any legally authorized sentence that the court imposes which is within the terms and limits of this plea agreement. ” The court ’ s 550

- day s entence for violating mandatory supervision did not breach Catalan ’ s plea agreement and Catalan does n ot complain the court imposed an unauthorized sentence , but rests his claim solely on an
abuse of discretion. Because Catalan waived his right to appeal any authorized sentence falling within the limits of his plea agreement, he arguably may not maintain this appeal

. We turn to the merits, however, because the Attorney General does not raise the issue of
waiver. ( See People v. Castrillon (1991) 227 Cal.App.3d 718 .)

We conclude the court did not abuse its discretion. The Realignment Act
became effective on October 1 , 2011 . Under the Realignment Act, qualified persons convicted of nonserious and nonviolent felonies are sentenced to county jail instead of6

state prison. ( People v. Scott (201 4 ) 58 Cal.4th 1415, 1418

. ) Trial courts have discretion to commit the defendant to county jail for a full term in custody, or to impose a hybrid or split sentence consisting of county jail followed by a period of mandatory supervision. ( Ibid. ; People v. Cruz (2012) 207 Cal.App.4th 664 ; § 1170, subd. (h) (5)(B) .)

Section 1170, subdivision (h)(5)(B)(i) provides the court may “ suspend execution of a concluding portion of the term selected in the court ’ s discretion, during which time the defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally applicable to persons placed on probation, for the remaining unserved portion of the sentence imposed by the

court. The period of supervision shall be mandatory, and may not be earlier terminated
excep t by court order. Any proceeding to revoke or modify mandatory supervision under this subparagraph shall be conducted pursuant to either subdivisions (a) and (b) of
Section 1203.2 or Section 1203.3. ”

Section 1203.2 , subdivision (a) provides in relevant part that at any time during the period of supervision “ the court may revoke and terminate the supervision of the person if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation or parole officer or otherwise that the person has violated any of the conditions of his or her supervision, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecute d for such offenses. ” (See § 1203.2, subd. (b) (1) [ “ U pon its own motion or upon the petition of the supervised person, the probation or parole officer , or the district attorney, the court may modify, revoke, or terminate supervision of the person ” after n otice and review of written report from the7

probation officer on grounds set forth in subdivision (a) if the interests of justice so require ].) Section 1203.3 provides , “ The court shall

. . . have the authority at any time during the term of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170 to revoke, modify, or change the conditions of the

court ’ s order suspending the execution of the concluding portion of the supervised
person ’ s term. [¶] (b) The e xercise of the court ’ s authority in subdivision (a) to revoke, modify, or change . . . mandatory supervision, or to terminate probation, is subject to the following: [¶] (1) Before any sentence or term or condition of probation or condition of mandatory s upervision is modified, a hearing shall be held in open court before the judge.

. . . ” Catalan agrees sections 1203.2 and 1203.3 give the trial court the authority to modify or revoke conditions of mandatory supervision . He also agrees the court enjoys b road discretion in matters involving probation and sentencing, and the defendant bears the burden of proof when alleging an abuse of discretion. ( People v. Stuckey (2009) 175 Cal.App.4th 898, 916 [ trial court has broad discretion to determine w hat the
int erests of justice require in a particular situation ]; People v. Aubrey (1998)
65 Cal.App.4th 279, 282 ; People v. Rodrigues (1994) 8 Cal.4th 1060, 1124

- 1125 [trial

court ’ s exercise of discretion will not be disturbed on appeal except on a showing the
court exercised discretion in an arbitrary , capricious , or patently absurd manner that resulted in a manifest miscarriage of justice].) But Catalan argues the trial court did not

“ fully appreciate [] that its objective under the [Rea lignment Act ] was to promote and
foster ‘ evidence based programs ’ and ‘ community based correction ’ punishment, including emphasizing intermediate sanctions so as to increase the public safety by8

achieving reduced recidivism thr ough rehabilitation rather than resorting to more
incarceration

. . . . ”

Catalan cites section 17.5. That section, added by the Realignment Act, contains legislative findings concerning recidivism. The Legislature found reincarceration rates for people released from prison had remain ed unchanged or
worsened , and criminal justice policies based on building and operating more prisons do not result in improved public safety

. The Legislature also declared California must reinvest its criminal justice resources to support community

- based corrections programs
and evidence

- based practices , and sentencing low

- level felony offenders to locally run community

- based corrections programs with community

- based punishment and
evidenc e
- based practices will improve public safety outcomes and facilitate the felon ’ s reintegration back into society.

Section 17.5 define s “ ‘ c ommunity

- based punishment ’ ” as “ correctional sanctions and programming encompassing a range of custodial and noncus todial responses to criminal or noncompliant offender activity , ” including , but are not limited
to, s hort

- term flash incarceration in jail for a period of not more than 10 days , i ntensive community supervision , h ome detention with electronic or GPS monitor ing , m andatory community service , r estorative justice programs (e.g., mandatory victim restitution and
victim

- offender reconciliation ), w ork, training, or education in a furlough or work release
program , d ay reporting , substance abuse treatment and random drug testing , c ommunity

based residential programs offering structure, supervision, drug treatment, alcohol treatment, literacy programming, employment counseling, psychological counseling, mental health treatment, or any combination of these and other int erventions. The section
also define s “ ‘[ e ] vidence

- based practices ’ ” as “ supervision policies, procedures,9

programs, and practices demonstrated by scientific research to reduce recidivism among individuals under probation, parole, or post release supervision. ”

S ection 17.5 describes the goals and purposes of realignment. It does not contain any specific limits on the trial court ’ s authority to modify a sentence following
the violation of a mandatory supervision term

.

With these broad purpose s in mind, Catalan argues the court abused its
discretion “ because its sentence did not reflect an intermediate sanction of up to [90] days as recommended by the applicable statute in section 1230, subdivision (b)(3) for felony probationers violations for [ sic ] mandatory supervision. ” Section 1230, subdivision (a)
authorizes counties to establish a Community Corrections Performance Incentives Fund (CCPIF) “ to receive all amounts allocated to that county for purposes of implementing this chapter. ” Subdivis ion (b) of the section provides, “ Notwithstanding any other law, in any fiscal year for which a county receives moneys to be expended for the implementation of this chapter, the moneys, including any interest, shall be made
available to the [chief probatio n officer] of that county, within 30 days of the deposit of those moneys into the fund, for the implementation of the community corrections program authorized by this chapter. ” Subdivision (b)(3) further provides: “ Funds allocated to probation pursuant t o this act shall be used to provide supervision and rehabilitative services for adult felony offenders subject to local supervision, and shall be spent on evidence

- based community corrections practices and programs, as defined
in subdivision (d) of Section 1229 [e vidence

- based practices include supervision policies, procedures, programs, and practices demonstrated by scientific research to reduce recidivism among individuals under local supervision ] , which may include, but are not limited to, the following: [¶] . . . [¶] (B) Implementing and expanding intermediate10

sanctions that include , but are not limited to, electronic monitoring, mandatory community service, home detention, day reporting, restorative justice programs, work furlough programs, and incarcer ation in county jail for up to 90 days

. ” (Italics added.) The court placed Catalan under local supervision. (§ 1229, subd. (e) [ “‘ L ocal supervision ’ means the supervision of an adult felony offender on probation, mandatory supervision , or po strelease community supervision ” ].) S ection 1230, subdivision (b) , however deals primarily with felony probationers who violate the terms of their probation, not persons like Catalan who are serving a felony hybrid or split
sentence and violate terms of their manda tory supervision. In any event, section 1230 concerns how funds should be spent, but it does not constrict or limit a court ’ s discretion
in modify ing a hybrid sentence after a defendant violat es a mandatory supervision term

. It is apparent the Legislatur e under sections 1229 and 1230 did not intend to mandate
intermediate sanctions for persons who violate conditions of their mandatory supervision and limit periods of incarceration up to 90 days

.

Catalan also argu es the court abused its discretion becau se the “ sentence of 550 days exceeded the implicitly maximum custody sanction of 180 days for felony probationers. (e.g. [§] 3455, subd. (d).) ” Section 3455 is part of the Postrelease Community Supervision Act of 2011 . (See § 3450 et seq.) Section 3451 specifies that
low

- level offenders serving a prison term who are released from prison on and after October 1, 2011, “ shall, upon release from prison and for a period not exceeding three years immediately following rele ase, be subject to community supervision provided by a county agency designated by each county ’ s board of supervisors which is consistent with
evidence

- based practices, including, but not limited to, supervision policies, procedures,11

programs, and practice s demonstrated by scientific research to reduce recidivism among individuals under postrelease supervision. ”

Section 3455 provides that where “ the supervising county agency has determined, following application of its assessment processes, that intermed iate sanctions
as authorized in subdivision (b) of Section 3454 [ includ ing flash incarceration in a city or county jail ] are not appropriate, the supervising county agency shall petition the court pursuant to Section 1203.2 to revoke, modify, or terminate postrelease community supervision. ” Where the court finds “ the person has violated the conditions of postrelease community supervision, the revocation hearing officer shall have authority to do all of the following: [¶] (1) Return the person to postrelea se community supervision with modifications of conditions, if appropriate, including a period of incarceration in county jail. [¶] (2) Revoke and terminate postrelease community supervision and order the person to confinement in the county jail. [¶] (3) Refer the person to a reentry court pursuant to Section 3015 or other evidence

- based program in the court ’ s discretion. ” (§ 3455, subd. (a).) Subdivision (d) of section 3455 provides “ Confinement pursuant to paragraphs (1) and (2) of subdivision (a) shal l not exceed a period of 180 days in the county jail for each custodial sanction. ”

Catalan argues section 3455 reflect s “ the Legislature ’ s intent that low

- level
felons who violate conditions of their supervised released must be sanctioned with
incremental severity. ” But s ection 3455 applies to persons who have been released from prison after serving their sentences. It does not apply to persons such as Catalan who are currently serving a hybrid sentence. We disagree section 3455 constrain s a trial court
from adding more than 180 days to the custody component of a hybrid sentence following a violation of mandatory supervision.12 Here, under the plea agreement, the trial court sentenced Catalan to a hybrid sentence consisting of county jail fol lowed by a period of mandatory supervision. Catalan agreed if he violated “ any term or condition of mandatory supervision ” he “ could be sent to county jail for the remainder of ” his sentence. Catalan thereafter violated the terms of his mandatory supervi sion, and the court exercised its discretion to lift, in part,
its suspen sion of Catalan ’ s sentence. The record reflects Catalan had a history of using
bad checks to defraud others and was engaging in that behavior again not long after being
released from custody. The court considered Catalan ’ s mitigating evidence and sentenced Catalan to less time in custody than it could have under the plea agreement. We have concluded the statutory provisions relied on by Catalan are inapposite. W e have not found any other authority suggesting the modification of Catalan’s sentence was an abuse of discretion.
III
D ISPOSITION The judgment is affirmed.

ARONSON, J.
WE CONCUR:

MOORE, ACTING P. J.

FYBEL, J.