P. v. Mvuemba

Filed 11/30/06 P. v. Mvuemba 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
THE PEOPLE,
Plaintiff and Respondent,
v.
LANDU MICHAEL MVUEMBA,
Defendant and Appellant.
B186622
(Los Angeles County
Super. Ct. No. SA 056090)
APPEAL from a judgment of the Superior Court of Los Angeles County.
Robert P. O’Neill, Judge. Affirmed.
________
Stephen Temko, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and
Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
_________

-- 1 of 4 --

2
Landu Michael Mvuemba appeals from his conviction of forcible rape and
sodomy, attempted forcible oral copulation, and committing a lewd act upon a child.
He contends that his federal constitutional rights were violated under Blakely v.
Washington (2004) 542 U.S. 296 (Blakely) when the trial court, following People v.
Black (2005) 35 Cal.4th 1238 (Black), sentenced him to the upper terms on two counts,
imposed sentence enhancements, and ordered that his sentences run consecutively
without jury findings to support these sentencing arrangements. We affirm.
BACKGROUND
On April 17, 2005, Mvuemba encountered a 15-year-old female in the parking
lot of a Chuck-E-Cheese restaurant, gave her his phone number, and then invited her to
his car to smoke marijuana and drink alcohol. She entered his car, and he then drove to
another location while they smoked and drank. During the time the victim was in his
car, Mvuemba penetrated her vaginally and anally and tried to force her to engage in
oral copulation. Soon thereafter, while the victim was still in his car, a police officer
pulled Mvuemba over for making an illegal left turn while driving without license
plates. The victim told the officer some of what had happened and was taken to a rape
treatment center. Mvuemba was arrested.
Mvuemba was charged and tried by jury for two counts of kidnapping and three
counts of committing a lewd act upon a child, of which he was acquitted, in addition to
the four counts for which he ultimately was convicted: forcible rape (Pen. Code, § 261,
subd. (a)(2)),1 forcible sodomy (§ 286, subd. (c)(2)), attempted forcible oral copulation
(§ 664 and § 288a, subd. (c)(2)), and one count of committing a lewd act upon a minor.
(§ 288, subd. (c)(1).) The charging information also alleged that Mvuemba had suffered
a prior felony “strike” conviction in 1997 for attempted robbery pursuant to section
1170.12, sudivisions (a) through (d) and section 667, subdivisions (b) through (i), as
well as a prior serious felony conviction under section 667, subdivision (a)(1) and a
1 All other statutory references are to the Penal Code.

-- 2 of 4 --

3
prior prison term under section 667.5, subdivision (b). The trial court sentenced
Mvuemba to a total term of 45 years and 4 months, based upon the upper terms of
8 years apiece for the rape and sodomy counts and middle or lesser terms for the other
two counts, with each separate term doubled because of the prior “strike,” all terms
ordered to run consecutively, an additional consecutive 5-year term for the prior serious
felony conviction, and an added one-year term for the prior prison term. Mvuemba
timely appealed.
DISCUSSION
Mvuemba contends the court erred in imposing upper and consecutive terms
without a jury finding aggravated sentencing factors, in violation of Blakely, supra, 542
U.S. 296. He acknowledges that in Black, supra, 35 Cal.4th 1238, the California
Supreme Court upheld the sentencing system used at his trial, but he argues that
California’s sentencing regime is unconstitutional under Blakely and notes that the
United States Supreme Court is currently reviewing a constitutional challenge to that
regime.2
Mvuemba recognizes that “Black is controlling at this time within the California
courts[.]” So do we. As such, we reject his arguments. (Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.) His invocations of out-of-state authorities
are unavailing.
We also reject the Attorney General’s contention that Mvuemba waived his
Blakely arguments by not raising them in the trial court. Unlike the defendant in People
v. Hill (2005) 131 Cal.App.4th 1089, 1103 (upon which the Attorney General relies),
who waived a Blakely challenge by failing to raise it at his sentencing which occurred
after Blakely but before Black, Mvuemba was sentenced after Black, at which point a
Blakely objection would have been futile under controlling law that the court was
compelled to follow. Under these circumstances, Mvuemba did not waive the issue.
2 The United States Supreme Court has granted certiorari in a case presenting this issue.
(Cunningham v. California, cert. granted Feb. 21, 2006, No. 05-6551, ___ U.S. ___ [126 S.Ct. 1329,
164 L.Ed.2d 47].)

-- 3 of 4 --

4
(People v. Chavez (1980) 26 Cal.3d 334, 350, fn. 5; City of Long Beach v. Farmers &
Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, J.
We concur:
VOGEL, Acting P.J.
JACKSON, J. *
* (Judge of the L. A. Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)

-- 4 of 4 --