P. v. Demetry

Filed 4/20/07 P. v. Demetry 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, William R. Froeberg, Judge. Affirmed as modified and remanded for resentencing.

Douglas G. Benedon, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela A. Ratner Sobeck and Jeffrey J. Koch, Deputy Attorneys General, for Plaintiff and Respondent.

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Introduction

Defendant Milad Ragheb Demetry was convicted of misappropriation of public funds, grand theft, and access to and use of a computer to commit fraud. The trial court sentenced defendant to the upper term sentence for misappropriation, added a consecutive sentence for an enhancement based on the jurys finding that the value of property taken was in excess of $50,000, and ordered defendant to make victim restitution in the amount of $104,576.19.

On appeal, defendant argues his sentence is constitutionally improper, because the trial court imposed the upper term sentence based on aggravating factors that were not found by the jury beyond a reasonable doubt. We agree, and remand the matter for resentencing by the trial court. (Cunningham v. California(2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).) Three of the four aggravating factors on which the trial court relied to impose the upper term sentence defendants position of leadership or dominance over other participants in the crime; the level of planning, sophistication, and professionalism in committing the crime; and whether defendant took advantage of a position of trust or confidence were required to be found by the jury beyond a reasonable doubt.

The Attorney General argues the jurys findings under Penal Code sections 1203.045 and 12022.6 the amount of the theft exceeded $100,000, and the property taken exceeded $50,000 in value are equivalent to a jury finding on the fourth aggravating factor the crime involved an actual taking of great monetary value (Cal. Rules of Court, rule 4.421(a)(9)). Even if we were to accept this argument, the record does not clearly reflect the amount of weight the trial court placed on any of the aggravating factors; therefore, we cannot say beyond a reasonable doubt that the court would have sentenced defendant to the upper term based only on California Rules of Court, rule 4.421(a)(9). Remand for resentencing is required.

Additionally, defendant requests the judgment to be modified to specify his liability for restitution to the victim is joint and several. Because a trial court may make a restitution order joint and several, and the court clearly intended to do so in this case, we order the judgment modified. As so modified, the judgment is affirmed.

Statement of Facts

Defendant was a senior accounting assistant for the In-Home Supportive Services program (IHSS) administered by the Orange County Social Services Agency (SSA), which cares for the elderly, disabled, and minors who have medical problems and cannot care for themselves. Defendant had the ability to enter information about care providers and their time sheets on the IHSS computer system. Based on that provider time sheet information, the state controllers office issued checks to the care providers for payment.

Samira Mansoor provided care for her parents, and was paid through IHSS. Defendant contacted Mansoor in 2004, and advised her she could be paid for caring for other IHSS clients without actually doing any work. Defendant instructed Mansoor to sign the time sheets he filled out. When Mansoor received a check from the state controllers office, defendant instructed her to cash the check, and Mansoor and defendant split the cash. Defendant assured Mansoor that their actions were legal.

Hadil Al Mutairy also provided care for her parents and was paid through IHSS. From March through July 2004, defendant had Al Mutairy cash reimbursement checks for work she did not perform, and divide the money with him.

During the week of July 21, 2004, Pascale Scoggins, an IHSS supervisor, received a call from a care provider who complained she had not been paid for services she had provided to her mother-in-law during the last three months of her mother‑in‑laws life. Scoggins checked the computer records and discovered Mansoor had been paid for providing those services.

Further investigation revealed Mansoor had been paid on 18 different cases, none of which contained the appropriate paperwork or any authorization assigning Mansoor as the care provider. Scoggins also discovered Al Mutairy was receiving similar payments on 20 different cases; both Mansoor and Al Mutairy used different names and social security numbers when accepting the checks for care provider work they did not perform. Defendant was identified as the senior account assistant, and was responsible for inputting information, including time sheet information, into the computer system on all but two of the 38 cases.

The Orange County District Attorneys Office investigated further and determined that from March through July 2004, Al Mutairy received 229 checks totaling $48,734.10 for work she did not perform, and Mansoor received 169 checks totaling $55,842.09 for work she did not perform. Defendant made cash deposits totaling $22,000 to his credit union account during this period.

Defendant, Mansoor, and Al Mutairy were charged with misappropriation of public funds (Pen. Code,  424, subd. (a) [count 1]); grand theft (id.,  487, subd. (a) [count 2]); and access to and use of a computer to commit fraud (id., 502, subd. (c)(1) [count 3]). The information alleged that in connection with counts 1 and 2, the amount of the theft exceeded $100,000 (id.,  1203.045, subd. (a)), and property exceeding $50,000 was taken, damaged, or destroyed (id.,  12022.6, subd. (a)(1)). Mansoor pleaded guilty to count 2, and Al Mutairy pleaded guilty to all three counts. A jury found defendant guilty of all three counts, and found the special allegation and the conduct enhancement to be true.

The trial court selected count 1 as the base count, and sentenced defendant to the upper term of four years. Defendant was also sentenced to a consecutive one‑year term for the property value enhancement, for a total sentence of five years. Sentencing on counts 2 and 3 and the special allegation was stayed pursuant to Penal Code section 654. The court ordered defendant to pay restitution to SSA in the amount of $104,576.19. (Pen. Code,  1202.4, subd. (f).) Defendant timely appealed.

Discussion

I.

In light of Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856],
we remand for resentencing.

Citing Blakely v. Washington (2004) 542 U.S. 296 (Blakely), defendant argues his upper term sentence on count 1 violated his constitutional rights to due process and a jury trial. The United States Supreme Court has held Californias determinate sentencing law violates a defendants rights under the Sixth and Fourteenth Amendments to the United States Constitution to a jury trial to the extent it permits a trial court to impose an upper term sentence based on facts found by the court instead of by a jury beyond a reasonable doubt. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].)[1]

Here, the trial court imposed the upper term sentence, citing several aggravating factors relating to the crime. (Cal. Rules of Court, rule 4.421(a)(4) [defendant induced others to participate in the commission of the crime and occupied a position of leadership and/or dominance of the other participants]; id., rule 4.421(a)(8) [defendant carried out the crime in a manner indicating planning, sophistication, or professionalism]; id., rule 4.421(a)(9) [the crime involved an actual taking of great monetary value]; id., rule 4.421(a)(11) [defendant took advantage of a position of trust or confidence to commit crime].)

We reject the Attorney Generals preliminary contention that defendant forfeited the right to make this argument on appeal by failing to raise it in the trial court. Unlike the defendant in People v. Hill (2005) 131 Cal.App.4th 1089, 1103, who waived a challenge based on Blakely by failing to raise it at his sentencing hearing, defendant was sentenced after the California Supreme Court decided People v. Black (2005) 35 Cal.4th 1238, which held that Blakely did not apply to imposition of an upper term. Any objection by defendant would have been futile, as the trial court would have been required to follow Black. Defendant therefore did not forfeit his right to make this argument on appeal. (People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5.)

As to the merits, the Attorney General argues the jurys findings on the special allegation and enhancement that defendant took property valued in excess of $50,000 and in excess of $100,000 are equivalent to a jury finding that the crime involved an actual taking of great monetary value. The Attorney General further argues that because the upper term sentence can be supported if based on a single proper aggravating factor (People v. Osband (1996) 13 Cal.4th 622, 728-729), we should affirm defendants sentence. We need not, however, determine whether a finding of great monetary value is inherent in the jurys findings that defendant took in excess of $100,000 and property valued in excess of $50,000.

The Attorney General does not address the other factors on which the upper term sentence was based, which are precisely the sort of aggravating factors that Cunningham and Blakely require to be found by a jury beyond a reasonable doubt. The trial courts consideration of these factors is reviewed under the harmless error standard of Chapmanv.California (1967) 386 U.S. 18.

In this case, we cannot say beyond a reasonable doubt that the trial court would have sentenced defendant to the upper term based only on the great monetary value factor (Cal. Rules of Court, rule 4.421(a)(9)), because the appellate record does not clearly reflect the weight the trial court placed on each of the aggravating factors.

To the extent the record reflects any weight given to the aggravating factors, that defendant took advantage of a position of trust or confidence appears to have most affected the trial courts decision. The court stated: In reviewing circumstances in aggravation as opposed to mitigation, the defendant induced others to participate in the commission of the crimes and occupied a position of leadership and/or dominance of the other participants in its commission. The defendant carried out the crime in a way that indicates planning, sophistication, or professionalism. The crime involved an actual taking of great monetary value. [] The defendant took advantage of a position of trust or confidence in that the ultimate victims of this offense were the most hopeless, helpless individuals in society. It really shocks the conscience of the court to think that he would take money away from people who could not take care of themselves. I have very little sympathy for that. (Italics added.)

Thus, the trial court here imposed an upper term sentence based on several aggravating factors that were not tried to and found by a jury beyond a reasonable doubt. Even if the trial court could impose the upper term sentence based on the great monetary value factor, in light of the jurys findings on the special allegation and the sentencing enhancement, we cannot say the error in considering other factors was harmless because we cannot determine the weight the trial court gave to that single factor. Under Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], we remand for resentencing.

II.

Defendants restitution obligation is joint and several.

Defendant asks that we modify the judgment to state that defendants restitution obligation is joint and several. (Mansoor and Al Mutairy were also ordered to pay restitution to SSA.) The Attorney General notes that at the sentencing hearing, the trial court stated on the record its understanding defendants restitution obligation was joint and several, and the payment of $26,500 in restitution by Mansoor did not decrease the appropriate amount of defendants restitution order.

Penal Code section 1202.4, subdivision (f) neither authorizes nor prohibits the trial court from making a restitution order joint and several. (People v. Blackburn (1999) 72 Cal.App.4th 1520, 1535; People v. Madrana (1997) 55 Cal.App.4th 1044, 1051.) A restitution order under section 1202.4, subdivision (f) is enforceable as a civil judgment. (Pen. Code,  1202.4, subd. (i).) Whether liability under a civil judgment is determined to be joint and several is a matter within the trial courts discretion. (Code Civ. Proc.,  379, subd. (b).)

Here, the judgment does not specify the restitution order is a joint and several liability of defendant, although the trial courts comments show it clearly intended it to be so. As did the appellate court in People v. Blackburn, supra, 72 Cal.App.4th at page 1535, [t]o make sure this is clear (though out of an excess of caution), we will modify the judgment so as to provide expressly that the direct victim restitution ordered is joint and several.

Disposition

The judgment is modified to provide expressly that defendant is jointly and severally liable for the direct victim restitution of $104,576.19. The judgment as modified is affirmed, and the matter is remanded for resentencing.

FYBEL, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

IKOLA, J.

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[1] Defendants opening brief on appeal was filed before the United States Supreme Court issued its opinion in Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856].