P. v. Musharbash

Filed 4/18/05 P. v. Musharbash CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH MUSHARBASH,
Defendant and Appellant.
B174478
(Los Angeles County
Super. Ct. No. KA063863)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Philip S. Gutierrez, Judge. Affirmed in part, reversed in part and remanded.
Dennis L. Cava, 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 and Marc J. Nolan, Deputy Attorneys General, for Plaintiff
and Respondent.

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Joseph Musharbash appeals from 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 contends the
jury did not make the factual determinations necessary to impose the upper term.
For reasons explained in the opinion, we reverse the sentence and remand the
matter for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
As appellant only challenges the sentence, it will suffice to observe that in
June 2003, appellant deposited and cashed various checks written on accounts with
insufficient funds. Downey Savings lost approximately $5,000 and Bank of
America lost approximately $12,000 as a result of paying amounts out of
appellant’s accounts that exceeded the amounts deposited. 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. Musharbash’s position at
trial was that he wasn’t 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, he’s active in websites, he does internet research. [¶] So it was--kiting
is sophisticated. You have to know the bank’s weak spot in terms of being able to
pull off the transactions, because you need to do multiple transactions quickly so
that the bank can’t 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,

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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. Four 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.___
[124 S.Ct. 2531].

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In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi ), the United
States Supreme Court held: “Other than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” In Blakely v.
Washington, supra, 124 S.Ct. 2531, 2537 (Blakely ), the Supreme Court held that
“the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge
may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant. . . . In other words, the relevant ‘statutory maximum’ is not the
maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” (Italics omitted.) It
appears that the holding applies to all cases not yet final when Blakely was decided
in June 2004. (See Schriro v. Summerlin (2004) 542 U.S. ___ [124 S.Ct. 2519].)
Appellant argues that Blakely applies to the California determinate
sentencing law. We agree. Under Penal Code section 1170, subdivision (b),
“[w]hen a judgment of imprisonment is to be imposed and the statute specifies
three possible terms, the court shall order imposition of the middle term, unless
there are circumstances in aggravation or mitigation of the crime.” Circumstances
in aggravation cannot include a fact on which an enhancement is based or a fact
which is an element of the underlying offense. (Cal. Rules of Court, rule 4.420(c)
and (d).) Like the “standard range” in the Washington sentencing scheme
considered in Blakely, the middle term under California law is the maximum
sentence the court can impose “solely on the basis of the facts reflected in the jury
verdict or admitted by the defendant.” (Blakely, supra, 124 S.Ct. 2531, 2537.)
Here, the court imposed the upper term based on three factors. The court
found that the crime was sophisticated, the loss was substantial and appellant
induced another to participate in the crime. Appellant was entitled to have a jury

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determine these facts used to impose the upper term, and the resulting sentence
here is an invalid sentence.
DISPOSITION
Appellant’s sentence is reversed and the matter is remanded for
resentencing1
in accordance with the views expressed in this opinion and in all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HASTINGS, J.
We concur:
EPSTEIN, P.J.
CURRY, J.
1
The court may impose any otherwise lawful resentence suggested by the facts
available at the time of rensentencing but may not sentence appellant to a greater term
than originally imposed. (In re Ditsch (1984) 162 Cal.App.3d 578, 582.)

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