Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. LA044046, Martin Herscovitz, Judge.
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Thomas C. Hsieh, Deputy Attorney General, for Plaintiff and Respondent.
MALLANO, Acting P. J.
Mehdi Alamouti appeals from a judgment entered on resentencing. He contends that imposition of the upper term on the principal offense (count 1) constituted reversible error under Cunningham v. California (2007) ___U.S. ___ [127 S.Ct. 856] (Cunningham). We agree, reverse the judgment on count 1, remand the matter for resentencing, and affirm the judgment in all other respects.
The facts are taken from our opinion in People v. Alamouti (Jun. 22, 2005, B176867) [nonpub. opn.] pages 7–9 (Alamouti I), which was defendant’s appeal from the original judgment.
Sam Shakib owned several business enterprises, including rental properties. Starting in 1997 or 1998, defendant became Shakib’s property manager and bookkeeper for the rental property enterprise. Defendant had full access to Shakib’s office and wrote out business checks for the signatures of Shakib and Shakib’s brother, who was also authorized to sign on the rental property account. Defendant received a monthly salary for his services, as well as an apartment in which to live.
Around March 2003, Shakib learned that defendant had moved out of the apartment and subleased it to someone else. In September 2003, defendant was in jail on an unrelated matter. Shakib wanted to withdraw money from the account to which defendant had access in order to buy a car for his daughter. Shakib was unable to do so by check because such a transaction would need to go through the office computer and defendant was the only one with the access code. Shakib therefore went to the bank to make the withdrawal. While there, Shakib determined that the balance on the account was substantially less than it should have been. In looking through account documents, Shakib identified a $23,000 check to “cash” dated May 1, 2003, and a $75,000 check to defendant dated August 4, 2003. Although Shakib had not signed or authorized either check, both had been endorsed by defendant and purported to bear Shakib’s signature. Shakib demanded that the bank replace the funds. The bank refused to do so.
Shakib later identified three more checks made out to and endorsed by defendant, all of which purported to bear Shakib’s signature and which Shakib had not signed or authorized. The checks were dated June 22, 2001, October 3, 2001, and April 9, 2002, respectively. All were in the amount of $100,000. One of the checks bore the notation “loan,” and another contained the notations “loan fee” and “loan/biz purchase.” Shakib testified that he had never loaned any money to defendant or engaged in business dealings with him.
In defense, defendant presented witnesses who testified that Shakib was dishonest in his business dealings and had removed a computer from defendant’s apartment. In argument to the jury, defendant conceded that the signatures on the five checks at issue were not in Shakib’s normal handwriting but suggested different scenarios which would raise a reasonable doubt as to defendant’s guilt. These included that payments to defendant were legitimate because the checks could have been signed by Shakib’s brother, that the transfers were part of a scheme by Shakib to hide money from his wife, with whom Shakib had had disagreements, and that the transfers were part of a scheme by which Shakib could make fraudulent claims against the bank for reimbursement of his loses.
PROCEDURAL BACKGROUND
Defendant was convicted by jury of five counts of forgery (Pen. Code, § 470, subd. (d), counts 1–5) and one count of grand theft by embezzlement of property valued at more than $400 (id., § 487, subd. (a), count 6), 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)). Defendant was sentenced to the middle term of two years on the forgery alleged in count 1 and consecutive eight-month terms on the remaining four forgery counts. In imposing the middle term on count 1, the court stated that it found “neither factors in aggravation or mitigation.” In addition, 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 by embezzlement was stayed under Penal Code section 654.
Defendant appealed. In Alamouti I 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 ordered that one of the two-year terms be stricken and remanded the matter to permit the trial court to consider its sentencing choices. (Alamouti I, supra, B176867, at pp. 7–9.)
At the resentencing hearing, defendant, appearing in propria persona, argued that there had been no changes in circumstances to warrant imposition of an upper term. He further argued that, in mitigation, his conduct in custody had been exemplary. The court rejected defendant’s arguments and sentenced him to the upper term of three years on count 1, stating: “One, you took an advantage of a position of trust with Mr. Sam Shakib. [¶] Two, that he was particularly vulnerable, which is sort of a function of the first aggravating factor, too, in that he gave up control of his financial affairs to you, wrongfully. [¶] And the third factor in aggravation would be the planning, sophistication, and professionalism involved in the commission of these offenses. [¶] I can’t think of any factors in mitigation.” In accordance with the mandate of Alamouti I, the court struck one of the two-year enhancements, leaving the remainder of the sentence unchanged for an aggregate term of seven years eight months.
In an apparent clerical error, the abstract of judgment characterizes the three-year term on count 1 as “M” for middle, rather than “U” for upper.
Defendant again appealed, arguing this time that 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] (Blakely). We rejected his argument, noting that although Cunningham was then pending in the United States Supreme Court, we were bound by the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), which had held that Blakely did not apply to imposition of an upper term. (People v. Alamouti (May 30, 2006, B188185) [nonpub. opn.] pp. 2–3 (Alamouti II).)
Defendant next filed a petition for a writ of certiorari in the United States Supreme Court. While the petition was pending, Cunningham was decided. Thereafter, the United States Supreme Court granted defendant’s certiorari petition, vacated our judgment in Alamouti II, and remanded the matter to us for further consideration in light of Cunningham.
Following the United States Supreme Court’s remand, we recalled the remittitur we had issued in Alamouti II, received further briefing from the parties, and issued an opinion in which we reversed the upper term imposed on count 1 and remanded the matter for resentencing. (People v. Alamouti (May 15, 2007, B188185 [nonpub. opn.] (Alamouti III).) In that opinion, we concluded that the aggravating factors recited by the trial court violated Cunningham because they “were neither supported by jury findings nor involved recidivism.” (Alamouti III, at p. 6.) We further concluded that the error was prejudicial under Chapman v. California (1967) 386 U.S. 18 (Chapman), stating: “No doubt, evidence of these aggravating factors was presented to the jury. But California jurisprudence with respect to taking advantage of a position of trust, victim vulnerability, and criminal sophistication has thus far been limited to a trial court’s assessment of these circumstances unconstrained by requirements of specific elements and under the preponderance-of-the-evidence standard of California Rules of Court, rule 4.420(b). (See, e.g., People v. Dancer (1996) 45 Cal.App.4th 1677, 1693–1695, overruled on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123; People v. Jones (1992) 10 Cal.App.4th 1566, 1576–1577.) We have no basis upon which to conclude that a jury would find these aggravating circumstances true in this case, especially under the now-required standard of beyond a reasonable doubt. Accordingly, the judgment must be reversed with respect to the sentence imposed on count 1.” (Alamouti III, at pp. 6–7.)
In response to our opinion in Alamouti III, the Attorney General filed a petition for review in the California Supreme Court. The petition was granted. While the petition was pending, the California Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). On September 17, 2007, the California Supreme Court ordered the matter transferred back to us with directions to vacate our previous decision and reconsider the cause in light of Black II and Sandoval. As discussed below, on reconsideration we again conclude that the sentence imposed on count 1 should be reversed and the matter remanded for resentencing.
DISCUSSION
Defendant first contends that Black II and Sandoval should be disregarded as being in violation of the United States Constitution. Under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, this contention must be rejected. Defendant alternatively asserts that his sentence prejudicially violated Cunningham. There is merit in this contention.
“[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial [under Cunningham] so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.) In reviewing Cunningham error under the applicable Chapman test, the appellate court “must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Sandoval, supra, 41 Cal.4th 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.” (Sandoval, at p. 839.)
The Attorney General does not argue that any aggravating circumstance exists in this case that complies with the requirements of Cunningham. Rather, Cunningham error is conceded but the Attorney General argues that the error was harmless. We disagree.
In Sandoval, the California Supreme Court elaborated on difficulties that we noted in Alamouti III are inherent in assessing whether Cunningham error is prejudicial. Thus, the Sandoval court reasoned that because trial was conducted with the defendant being unaware of the importance of defending against aggravating circumstances (which would have to be proved beyond a reasonable doubt rather than by a preponderance of the evidence), not all of the evidence and theories relevant to such a defense may have been raised. The court also observed that certain of the aggravating factors enumerated in the Rules of Court are somewhat vague and subjective. (Sandoval, supra, 41 Cal.4th at pp. 839–840.)
We further note that the overarching charge in this case was grand theft by embezzlement with a loss over $150,000, a crime which by its nature involves taking advantage of a position of trust and victim vulnerability. As such, two of the three factors on which the trial court relied in aggravating defendant’s sentence are aspects in the underlying crime. In addition, both the embezzlement and the forgery counts of which defendant was convicted require an element of planning, sophistication, and professionalism, which was the third aggravating factor on which the trial court relied. Thus, the specter of an impermissible dual use of the same facts—to prove elements of the offense and to aggravate sentence—is raised if the circumstances recited by the trial court are relied upon in a harmless error analysis. (Cal. Rules of Court, rule 4.420(d); see People v. Clark (1992) 12 Cal.App.4th 663, 666.)
Based on the foregoing, it is appropriate to reverse the upper term sentence imposed on count 1 in this case and remand for resentencing. At resentencing, the court should follow the current version of Penal Code section 1170, subdivision (b) (Stats. 2007, ch. 3, § 2), which provides that sentencing terms shall rest within the sound discretion of the trial court. (See Sandoval, supra, 41 Cal.4th at pp. 832, 845–847.)
DISPOSITION
The judgment is reversed with respect to the sentence imposed in count 1 and the matter is remanded for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur: VOGEL, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.