P. v. Musharbash

Filed 11/1/07 P. v. Musharbash CA2/4

On remand from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Philip S. Gutierrez, Judge. Affirmed in part and remanded for resentencing.

Dennis L. Cava, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown Jr., Attorneys General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar, Marc J. Nolan and Lawrence M. Daniels, Deputy Attorneys General, for Plaintiff and Respondent.

Joseph Musharbash appealed from the judgment entered following a jury trial in which he was convicted of four counts of grand theft of personal property (Pen. Code, 487, subd. (a)) and four counts of second degree commercial burglary (Pen. Code, 459). Sentenced to prison for a total of three years, he contended the jury did not make the factual determinations necessary to impose the upper term. In an opinion filed April 18, 2005, we affirmed the conviction but reversed the sentence and remanded the matter for resentencing. Thereafter, a petition for review in the Supreme Court of California was granted and the matter was transferred to this court with directions to vacate our decision and to reconsider the cause in light of People v. Black (2005) 35 Cal.4th 1238. On October 20, 2005, we filed an opinion finding no constitutional error in sentencing in light of that case.

Appellant, thereafter, filed a petition for writ of certiorari in the United States Supreme Court. The Court granted appellants petition, vacated our judgment, and remanded the matter to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham). We recalled the remittitur, vacated the opinion, and granted the parties leave to file supplemental briefs addressing the effect, if any, of Cunningham on appellants sentence. While the case was pending, the California Supreme Court considered Cunningham issues in People v. Black (2007) 41 Cal.4th 799 (Black) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). We afforded the parties additional time to address those opinions. After review of Cunningham, Black, Sandoval, and the parties supplemental briefs, we affirm the convictions but remand the matter for resentencing.

FACTUAL AND PROCEDURAL SUMMARY

In June 2003, appellant deposited and cashed various checks written on accounts with insufficient funds. The signers on the accounts were appellant and another individual named Khalifeh Abdelaziz, and the business associated with the account was Econo Lube N Tune. Downey Savings lost approximately $5,000 and Bank of America lost approximately $12,000 as a result of paying amounts out of these accounts that exceeded the amounts deposited.

On October 21, 2003, Detective Rick Luginbill of the Claremont Police Department interviewed codefendant Rula Musharbash, appellants sister. Following waiver of her Miranda[1] rights, Ms. Musharbash stated she had never worked at Econo Lube N Tune but would run errands for appellant, her brother. At one point, appellant asked her to cash a check at Downey Savings, which she did. She took the money to appellants business and paid the employees in cash.

Following waiver of his Miranda rights, appellant told Claremont Police Officer Lori Pierceall that he had opened the business with Khalifeh and sometimes they had problems with money. They knew they could transfer funds from the Bank of America account into the Downey Savings account because there was a grace period. They did not have money in the account, but because of the grace period, it looked like there was money in the account.

Appellant testified that he had been assured by his business partner that the partner would put money into the accounts to cover the amount of cash needed.

At sentencing the court noted there were three factors addressed by the prosecution in its sentencing memorandum: The sophistication of the crime. And one of the things that struck [the court] was basically Mr. Musharbashs position at trial was that he wasnt sophisticated enough to pull this off in terms of the kiting. But yet his background, as reflected by the letters, indicate that he knows the latest technology, hes active in websites, he does internet research. [] So it was--kiting is sophisticated. You have to know the banks weak spot in terms of being able to pull off the transactions, because you need to do multiple transactions quickly so that the bank cant detect it. And you can, in a very quick period of time, basically keep multiplying the benefit if you do it correctly. And it was done correctly in this case, so the crime was sophisticated. [] The amount of loss was substantial, in the amount of $17,000. . . . [] The other point . . . is basically he induced--I mean if you acknowledge that the jurors found, albeit very quickly, they found that his sister Rula Musharbash, was not guilty. She was not an active participant. [] Basically my read on that is that she went along unwittingly with what Mr. Musharbash told her to do. And therefore, he induced her to do something. And he basically put his sister--we talk about a person not willing to harm someone else. But you look at what he put his sister Rula Musharbash to, through, his own sister. . . .

As to count 1, a violation of Penal Code section 487, subdivision (a), the court sentenced appellant to prison for the upper term of three years. The court stated it selected the upper term because of the sophistication of the crime, the amount of the loss and the fact that appellant induced others to participate in the crime. For count 2, a violation of Penal Code section 459, appellant was sentenced to the midterm of two years, stayed pursuant to Penal Code section 654. For counts 3, 5, and 7, also violations of Penal Code section 487, subdivision (a), appellant was sentenced in each to the midterm of two years in prison, concurrent to count 1. For counts 4, 6, and 8, also violations of Penal Code section 459, appellant was sentenced to prison for the midterm of two years, stayed pursuant to Penal Code section 654.

DISCUSSION

Appellant contends his sentence in count 1 to the upper term of three years, based on factual findings not found true by the jury nor held to the standard of proof beyond a reasonable doubt, violated his Fifth, Sixth, and Fourteenth Amendment rights under the case of Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531].[2]

In Cunningham, the United States Supreme Court, applying principles established in its earlier decisions in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [147 L.Ed.2d 435, 120 S.Ct. 2348] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403, 124 S.Ct. 2531] (Blakely ), concluded that Californias [determinate sentencing law] DSL does not comply with a defendants right to a jury trial. [U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. [Citation.] (Sandoval, supra, 41 Cal.4th at p. 835.)

The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. (Blakely, supra, 542 U. S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.] (Sandoval, supra, 41 Cal.4th at pp. 836-837.) Here, the trial court selected the upper term based on the sophistication of the crime, the substantial loss and the fact that appellant induced others to participate in the crime. None of these factors fell within the two exceptions set forth in Blakely[3] and we conclude, therefore, appellants Sixth Amendment rights were violated by imposition of the upper term.

The denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard. (Sandoval, supra, 41 Cal.4th at p. 838.) [W]e must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jurys verdict would have authorized the upper term sentence. (Id., at p. 838.) [I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Id. at p. 839.) Sandoval observed that to the extent a potential aggravating circumstance at issue in a particular case rests on a somewhat vague or subjective standard, it may be difficult for a reviewing court to conclude with confidence that, had the issue been submitted to the jury, the jury would have assessed the facts in the same manner as did the trial court. (Id. at p. 840.)

In the present case whether the crime was sophisticated or involved the taking of a substantial amount of money are vague and subjective standards. Additionally, while the trial court stated it understood the jurys not guilty verdict as to appellants sister and codefendant to mean appellant induced her to participate in crimes, appellant argues the jurys acquittal of Ms. Musharbash was an implicit finding that appellant did not induce her to participate in the crimes. We are unable to conclude beyond a reasonable doubt that a jury would necessarily have found the crime was sophisticated, involved the taking of a large amount of money or that appellant induced his sister to participate in the crimes. Imposition of the upper term sentence in count 1 must be reversed and the case remanded to the trial court for resentencing in a manner consistent with the principles expressed in Sandoval, supra, 41 Cal.4th at pages 846-847. There, the Supreme Court held that cases which are remanded for resentencing based on Cunningham error are to be governed by the principles of the statutory DSL amendments recently adopted by the Legislature.

DISPOSITION

The sentence is vacated and the matter is remanded for resentencing. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P.J.

SUZUKAWA, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line attorney.

[1]Miranda v. Arizona (1966) 384 U.S. 436.

[2] Respondent withdraws its argument that appellant forfeited his Cunningham claim by failing to object under the right to a jury trial at his sentencing hearing.

[3] Appellants criminal record consisted of three misdemeanor convictions for driving with a suspended license.