P. v. Croteau
jury convicted John Richard Croteau of five counts of residential burglary (Pen. Code, 459 & 460; counts 1, 2, 4, 5 & 6) and one count of receiving stolen property ( 496, subd. (a); count 7). The jury acquitted Croteau of the alleged count 3 residential burglary. (496, subd. (a).)
The court sentenced Croteau to an aggregate term of 12 years in prison, consisting of the upper term of six years on count 1, consecutive 16-month midterms on counts 2, 4, 5 and 6, and a consecutive eight month term on count 7.
Defendant appealed, contending the court abused its discretion in refusing to sever for trial the first residential burglary count from the other five residential burglary counts. He, therefore, asserted he was denied a fair trial because the joinder had a substantial influence on the jury's verdicts.
During the pendency of his appeal, Court asked the parties for supplemental briefing on the applicability of Blakely v. Washington (2004) 542 U.S. 296 (Blakely) on the upper term imposed on count 1 and the consecutive sentences on the other counts in this case, and also on the legality of the parole revocation fine imposed under section 1202.45.
In an unpublished opinion filed November 19, 2004, this court reversed the upper term sentence on count 1 as well as the parole revocation fine and remanded for resentencing. In all other respects the trial court judgment was affirmed. The California Supreme Court granted review[3]and subsequently remanded the case to this court with directions to vacate our decision and reconsider the case in light of People v. Black (2005) 35 Cal.4th 1238, which held that the Blakely requirement of a jury trial for sentencing factors did not apply to California's determinate sentencing law (DSL). In an unpublished opinion filed October 18, 2005, we followed the holding in Black and affirmed the judgment as modified to correct an error in the parole revocation fine.
On February 20, 2007, the United States Supreme Court granted Croteau's petition for writ of certiorari, vacated the judgment in this case, and remanded the cause to this court for further consideration in light of Cunningham v. California (2007) 549 U.S.[127 S.Ct. 856] (Cunningham), which determined that that portion of the DSL permitting a court to impose an upper term sentence based on aggravating facts not found true by a jury or beyond a reasonable doubt is unconstitutional and violates the holdings in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely, supra, 542 U.S. 296, and United States v. Booker (2005) 543 U.S. 220 (Booker). The parties have submitted supplemental briefing pursuant to our request regarding the effect of the holding in Cunningham on Croteau's sentence. After further consideration, Court again affirm Croteau's convictions, reverse the parole revocation fine and his upper term sentence on count 1, and remand the matter for resentencing.
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