P. v. Demetry
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, Court 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, Court order the judgment modified. As so modified, the judgment is affirmed.
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