Filed 6/27/14 Certified for publication 7/23/14 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE



THE PEOPLE,

    Plaintiff and Respondent,                                      G048746

         v.                                                        (Super. Ct. No. 12HF0430)

MARVIN ESTUARDO CATALAN,                                           OPINION

    Defendant and Appellant.



                  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 appointment 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 Attorneys General, for Plaintiff and Respondent.
              Marvin Estuardo Catalan pleaded guilty to four felonies, including grand

theft (Pen. Code, § 487, subd. (a); all statutory references are to the Penal 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 days to his jail sentence. Catalan contends the court abused its discretion by

imposing a sentence exceeding the recommended term under the Criminal Justice

Realignment Act of 2011 (Realignment Act), operative October 1, 2011. (Stats. 2011,

1st Ex. Sess. 2011–2012, ch. 12, § 1; see, e.g., § 1230, subd. (b)(3).) For the reasons

expressed below, we affirm.

                                              I

                         FACTS AND PROCEDURAL BACKGROUND
              In April 2012, Catalan pleaded guilty to four felonies, including grand theft,

identity theft, and forgery. The prosecutor agreed to dismiss 15 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] did 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] genuine, a check #182 [for]
$825, knowing it was false, altered, forged, [and] counterfeit [and] did the same [with]



                                              2
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 restitution 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 credit 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 alleging 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 his




                                              3
paychecks. The probation officer testified he authorized a bank account, but not a

checking account, and Catalan “was to have no checks . . . .”
              The court found Catalan violated the terms 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 Realignment 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 730-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”

probation and restitution payments.

              At a hearing in July 2013, the court reduced 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.




                                              4
                                              II

                                        DISCUSSION
              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 to

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 sentence for violating

mandatory supervision did not breach Catalan’s plea agreement and Catalan does not

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 of



                                              5
state prison. (People v. Scott (2014) 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

except 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 prosecuted for such offenses.” (See § 1203.2,

subd. (b)(1) [“Upon 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 notice and review of written report from the




                                              6
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 exercise 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 supervision 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 broad 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 what the

interests 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 [Realignment 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 by



                                               7
achieving reduced recidivism through 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 remained 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

evidence-based practices will improve public safety outcomes and facilitate the felon’s

reintegration back into society.

               Section 17.5 defines “‘community-based punishment’” as “correctional

sanctions and programming encompassing a range of custodial and noncustodial
responses to criminal or noncompliant offender activity,” including, but are not limited

to, short-term flash incarceration in jail for a period of not more than 10 days, intensive

community supervision, home detention with electronic or GPS monitoring, mandatory

community service, restorative justice programs (e.g., mandatory victim restitution and

victim-offender reconciliation), work, training, or education in a furlough or work release

program, day reporting, substance abuse treatment and random drug testing, community-

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 interventions. The section
also defines “‘[e]vidence-based practices’” as “supervision policies, procedures,



                                              8
programs, and practices demonstrated by scientific research to reduce recidivism among

individuals under probation, parole, or post release supervision.”
              Section 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 purposes 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.” Subdivision (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 probation 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 to 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 [evidence-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 intermediate



                                              9
sanctions that include, but are not limited to, electronic monitoring, mandatory

community service, home detention, day reporting, restorative justice programs, work
furlough programs, and incarceration in county jail for up to 90 days.” (Italics added.)

              The court placed Catalan under local supervision. (§ 1229, subd. (e)

[“‘Local supervision’ means the supervision of an adult felony offender on probation,
mandatory supervision, or postrelease community supervision”].) Section 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 mandatory supervision. In any event, section 1230

concerns how funds should be spent, but it does not constrict or limit a court’s discretion

in modifying a hybrid sentence after a defendant violates a mandatory supervision term.

It is apparent the Legislature 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 argues the court abused its discretion because 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 release, 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,




                                            10
programs, and practices 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 intermediate sanctions

as authorized in subdivision (b) of Section 3454 [including 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 postrelease 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) shall not exceed a period of 180 days in the

county jail for each custodial sanction.”

              Catalan argues section 3455 reflects “the Legislature’s intent that low-level

felons who violate conditions of their supervised released must be sanctioned with

incremental severity.” But section 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 constrains a trial court

from adding more than 180 days to the custody component of a hybrid sentence
following a violation of mandatory supervision.



                                              11
              Here, under the plea agreement, the trial court sentenced Catalan to a

hybrid sentence consisting of county jail followed 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 supervision, and the court exercised its discretion to lift, in part,
its suspension 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. We have

not found any other authority suggesting the modification of Catalan’s sentence was an

abuse of discretion.

                                             III

                                        DISPOSITION
       The judgment is affirmed.



                                                   ARONSON, J.

WE CONCUR:



MOORE, ACTING P. J.



FYBEL, J.




                                             12
Filed 7/23/14

                            CERTIFIED FOR PUBLICATION

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                     DIVISION THREE


THE PEOPLE,

   Plaintiff and Respondent,                         G048746

       v.                                            (Super. Ct. No. 12HF0430)

MARVIN EDUARDO CATALAN,                              ORDER GRANTING REQUEST
                                                     FOR PUBLICATION
   Defendant and Appellant.



                Pursuant to California Rules of Court, rule 8.1105(c), and for good cause
shown, plaintiff and respondent’s request to publish the opinion filed on June 27, 2014 is
GRANTED. The entire opinion is ordered published in the Official Reports. (Cal. Rules
of Court, rule 8.1105(b).).


                                                  ARONSON, ACTING P. J.

WE CONCUR:



MOORE, J.



FYBEL, J.
