Opinion
B307328
11-09-2021
THE PEOPLE, Plaintiff and Respondent, v. ERICK CATALAN, Defendant and Appellant.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. PA081168, David W. Stuart, Judge. Affirmed.
John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jaime L. Fuster and Joseph P. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, P. J.
Erick Catalan appeals from the judgment following his resentencing. He contends the trial court again misunderstood its discretion to sentence him to consecutive or concurrent terms. We affirm the judgment.
PROCEDURAL BACKGROUND
Catalan was convicted of three counts of child molestation. It is unnecessary to repeat the facts supporting his convictions here. They may be found at People v. Catalan (Oct. 4, 2019, B290568) [nonpub. opn.].)
In his first appeal, Catalan challenged only the sentence imposed by the trial court. We found no sentencing error as to counts 1 and 3 but concluded the sentence on count 2 was unauthorized. The trial court had ordered the terms for counts 2 (midterm of 6 years) and 3 (midterm of 12 years; the principal term) to be served as mandatory, full, consecutive terms. We concluded the trial court was "neither required nor permitted to impose a full consecutive sentence" as to count 2 pursuant to the sentencing scheme in effect at the time of the commission of the offense. (People v. Catalan, supra, B290568, at p. *6.) Instead, "[t]he trial court could have imposed a concurrent sentence on count 2 or a consecutive sentence comprised of one-third the midterm for the subordinate offense ([Pen. Code, ] §§ 669, 1170.1)." (Ibid.) We remanded the case to permit the trial court to resentence on both counts 2 and 3. We affirmed in all other respects. (Id. at p. *7.)
At the resentencing hearing, Catalan's counsel requested, "in my sentencing memorandum, that as to count 2 and 3 that there be 654, or it be run concurrent, 654 as to 2 and 3, and then concurrent as to count 1." The trial court denied counsel's Penal Code section 654 request, finding counts 2 and 3 involved separate dates and separate acts. The court made no comment on the request for the sentence to run concurrently. It resentenced Catalan as follows: "Count 1 is unchanged. It is an indeterminate term of 15 years to life. Counts 2 and 3 involve determinate terms, and the court selects count 3 to be the princip[al] term, and I originally sentenced the defendant to - is that the midterm of 12 years? Yes. . . . Right. Midterm of 12 years in the state prison. And this is all state custody, of course. And as to count 3 [the parties agree that the trial court meant count 2], pursuant to the Court of Appeal's opinion, it should have been consecutive as under the consecutive sentencing rules as opposed to full term consecutive. So I will follow that mandate from the Court of Appeal. Count 2 is a consecutive one-third midterm, which is two years, one third of six years is two. So total is 15 years to life on count 1, plus 14 years determinant [sic]."
It is unclear from this statement whether defense counsel intended to ask for concurrent sentences on counts 2 and 3. The referenced sentencing memorandum is not in the record. If counsel requested concurrent sentences for counts 2 and 3 in his sentencing memorandum, that fact bolsters our conclusion that there was no sentencing error. Even if he did not, our analysis remains the same.
Catalan timely appealed.
DISCUSSION
Catalan asserts the trial court's pronouncement of sentence establishes that it continued to erroneously believe it was required to impose consecutive sentences on counts 2 and 3. He relies on this single sentence by the court: "And as to count 3, pursuant to the Court of Appeals' opinion, it should have been consecutive as under the consecutive sentencing rules as opposed to full term consecutive." We do not read this statement as Catalan does. We review the meaning of a trial court's order or judgment de novo. (In re Insurance Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1429.)" 'The true measure of an order . . . is not an isolated phrase appearing therein, but its effect when considered as a whole. [Citations.] In construing orders they must always be considered in their entirety, and the same rules of interpretation will apply in ascertaining the meaning of a court's order as in ascertaining the meaning of any other writing. If the language of the order be in any degree uncertain, then reference may be had to the circumstances surrounding, and the court's intention in the making of the same.'" (Ibid. quoting Roraback v. Roraback (1940) 38 Cal.App.2d 592, 596.)
Catalan asserts the trial court misspoke when it referred to count 3. We agree it is apparent the trial court intended to refer to count 2.
Here, the court referenced our opinion when it made the remark. Our opinion explicitly set forth the option of a concurrent or consecutive sentence on count 2: "The trial court could have imposed a concurrent sentence on count 2 or a consecutive sentence comprised of one-third the midterm for the subordinate offense." (People v. Catalan, supra, B290658, at p. *6.) We" 'presume that the trial court knew and applied the governing law.'" (People v. Wang (2020) 46 Cal.App.5th 1055, 1091; see also Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 701 [trial court required to follow appellate court's direction on remand].) Given these facts, we conclude the trial court understood the extent of its discretion and properly articulated it.
Catalan argues the trial court misread our opinion and believed "that it was require[d] only to impose the consecutive sentence in count three pursuant to section 1170.1, rather than section 667.6." This directly contradicts our conclusion that "the trial court correctly used the version of section 667.6 then in effect to impose a fully consecutive sentence on count 3." (People v. Catalan, supra, B290658 at p. *6.) We decline to conclude the trial court misread our opinion in this way. Catalan has failed to meet his burden to show the trial court erred when it resentenced him. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BAKER, J. KIM, J.