P. v. Alamouti

Filed 5/30/06  P. v. Alamouti CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

            APPEAL from a judgment of the Superior Court of Los Angeles County, Martin Herscovitz, Judge.  Affirmed.

            Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.

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            Mehdi Alamouti was convicted by jury of five counts of forgery (Pen. Code, §  470, subd.  (d)) and one count of grand theft of property valued at more than $400 (id., §  487, subd.  (a)), with findings that he had committed two or more related felonies that resulted in a taking of over $100,000 (id., §  186.11, subd.  (a)(3)) and that the victim's loss exceeded $150,000 (id., §  12022.6, subd.  (a)(2)).  He was sentenced to the middle term of two years on one count of forgery and consecutive eight-month terms on the remaining forgery counts, for a total of four years eight months.  Separate two-year enhancements were imposed under Penal Code sections 186.11, subdivision  (a)(3), and 12022.6, subdivision  (a)(2), for an aggregate term of eight years eight months.  (Sentence on the conviction of grand theft was stayed under Penal Code section 654.)

            Defendant appealed and we rejected all but one of his arguments, finding merit in the contention that he should not have been sentenced to separate two-year enhancements.  Accordingly, we struck one of the two-year terms and remanded the matter to permit the trial court to consider its sentencing choices.  (People v. Alamouti (Jun.  22, 2005, B176867 [nonpub. opn.] pp.  7–9.)  On remand, based on a finding of aggravating factors that defendant took advantage of a position of trust, the victim was particularly vulnerable, and the crime involved planning, sophistication, and professionalism, the trial court selected the upper of term of three years for forgery and imposed an aggregate sentence of seven years eight months.

            Defendant appeals again, this time arguing that notwithstanding the California Supreme Court's opinion in People v. Black (2005) 35 Cal.4th 1238, judicial imposition of the upper term infringed his federal constitutional jury trial right under Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531].  We recognize that Black may not be the final word on this issue.  (See People v. Cunningham (Apr.  18, 2005, A103501) [nonpub. opn.] cert. granted Feb.  21, 2006, No.  05-6551, sub  nom. Cunningham v. California (2006) ___ U.S. ___ [126 S.Ct. 1329, ___ L.Ed.2d ___].)  But for the time being, Black is the controlling authority.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)  Accordingly, defendant's contention must be rejected.

            The judgment is affirmed.

            NOT TO BE PUBLISHED.

                                                                                    MALLANO, J.

I concur:

            SPENCER, P. J.

I concur in the judgment only.

            VOGEL, J.

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