P. v. Croteau

Filed 11/19/04 P. v. Croteau CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 977.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN RICHARD CROTEAU,
Defendant and Appellant.
D042779
(Super. Ct. Nos. 157199 & 160730)
APPEAL from a judgment of the Superior Court of San Diego County, Michael
Kirkman and Joe O. Littlejohn, Judges. Affirmed in part, reversed in part and remanded.
A jury convicted John Richard Croteau of five counts of residential burglary (Pen.
Code,1 §§ 459 & 460; counts 1, 2, 4, 5 & 6)2 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).)
1 All further statutory references are to the Penal Code unless otherwise specified.

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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.
Croteau appeals, 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, asserts he was denied a fair trial because the joinder had a substantial
influence on the jury's verdicts.
During the pendency of this appeal, we asked the parties for supplemental briefing
on the applicability of the recent United States Supreme Court case of Blakely v.
Washington (2004) 542 U.S. ___ [124 S.Ct. 2531; 159 L.Ed.2d 403] (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 restitution fine imposed under section 1202.45.
After careful consideration of all the briefing, the record and law, we reverse the
sentence on count 1, vacate the parole restitution fine and remand for resentencing. In all
other respects, we affirm.
FACTS
Although Croteau does not challenge the sufficiency of the evidence, we
summarize the pertinent facts brought out at trial regarding each count as background for
our discussion.
2 As to count 1, the jury found someone (other than an accomplice) was inside the
residence at the time of the burglary. (§ 667.5, subd. (c)(21).)

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COUNT 1
Around midnight on January 24, 2003, as Pamela and David Scott slept in their
Rancho Del Mar home, Pamela awoke screaming that someone was coming up the stairs
to their bedroom.3 David saw flashlight beams bouncing around the nearby halls and
also began to yell and scream. He ran into the hallway just in time to see the intruder flee
out the front door as the alarm went off.
Meanwhile, Pamela had called the police. When San Diego Sheriff's deputies
arrived, David reported a digital camera missing, along with his billfold, which contained
credit cards, two or three $100 bills, a few $20 bills, and three or four "real crisp, brand
new" $5 bills.
During their investigation, deputies found a backpack containing a diver's card
with Croteau's picture, name, and birthdate outside a broken window. Deputies also
noticed bicycle tracks leading away from the backpack, down the grass, and into the
driveway, where they found a clip-on pedal.
The deputies traced information on Croteau's dive card to his residence at 4948
Ladera Sarina, Rancho Santa Fe. They then drove to a single-family residence with a
detached barn/loft area, which was less than one mile from the Scotts' home. When they
arrived, the main house was dark, but lights were on in the loft.
3 The Scotts refer to their neighborhood as Rancho Del Mar. This is synonymous
with Rancho Santa Fe, as evidenced by police officers' descriptions of the area as Rancho
Santa Fe.

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As the deputies approached the barn/loft, they noticed a red bicycle missing its
pedals with moist, dirty, grass-covered tires, leaning against the wall. The tire patterns on
the bicycle seemed similar to tracks left on the Scotts' driveway. Deputies later walked
from Croteau's home to the Scotts' home looking for additional evidence and found a
second bicycle pedal on a nearby driveway.
After inspecting the bicycle, one deputy walked upstairs to the loft, home to
Michael and Amber Flippen, and knocked loudly until Michael came to the door. He told
the deputies Croteau lived in the main house and led the deputies to an unlocked side
door, offering to find Croteau himself. After he was told to wait outside, deputies entered
the main house, calling, "Sheriff's department. Come out," several times. Two of
Croteau's roommates stepped out of a side bedroom and were asked to wait outside.
Croteau then poked his head out of a rear bedroom door, darted back inside and slammed
the door, yelling, "I don't know who you are. I'm going to call the sheriffs. I'm going to
call the cops." One of the deputies responded, "We are the cops."
Shortly afterward, Croteau emerged from the bedroom, sweaty and angry.
Without any prompting from the deputies, Croteau told them that if this was about his
dive bag, it was stolen from his porch earlier in the day. A deputy then escorted Croteau
outside where he was patted down. Croteau again stated his dive bag had been stolen,
only this time he claimed the theft occurred on a diving trip. Croteau consented to the
removal of some papers from his pocket and the deputy pulled out several $100 bills,
some brand new $5 bills and some $1 bills. The denominations roughly matched those
David Scott had described as stolen from his billfold.

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Deputies then drove Croteau to the Encinitas Sheriff's station. As a deputy walked
through the station carrying the dive bag, Croteau called out, "I see you found my dive
bag."
Deputies subsequently searched Croteau's home pursuant to a search warrant and
found an abundant amount of stolen property throughout the residence, but primarily in
Croteau's bedroom.
COUNT 2
On October 21, 2002, Mehraban Iraninejad left his Rancho Santa Fe home for
work around 8:30 a.m. and returned around 5:00 p.m., after his father had called to say
things looked suspicious. Iraninejad discovered his home had been burglarized and
called the sheriff's department.
A deputy sent to Iraninejad's home determined the burglar had probably entered by
breaking the screen window to the laundry room and collected latex gloves left nearby.
Iraninejad reported his watches, passport, laptop, cameras, and an assortment of foreign
currency were missing, including Euros and money from Switzerland and the Bahamas.
Deputies later found Iraninejad's Social Security card and currency from those countries
in Croteau's bedroom.
DNA testing performed on the gloves from the laundry room revealed two sources
of DNA, a male and a female. Croteau could not be excluded as the male, meaning it
was 4,400 times more likely the DNA belonged to him than to a random person.

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COUNT 3
On November 20, 2002, Joseph Capozzi left his Rancho Santa Fe home around
11:00 a.m. He returned around 5:00 p.m. and discovered the sliding glass door in the
kitchen was open and its locking mechanism had been pried apart. When his wife
returned home and discovered the chaotic state of their bedroom, they summoned
sheriff's deputies and reported they were missing jewelry boxes, credit cards, a wallet,
Social Security cards, sterling silver flatware, and heart medication. The deputies
collected latex gloves at the scene but were not able to identify a DNA provider. Items
stolen from the Capozzis' home were later discovered in the Flippens' loft.
COUNT 4
On December 3, 2002, Theodore and Anabel Mintz left their Rancho Santa Fe
home around 4:30 p.m. When they returned around 9:00 p.m., a helicopter was flying
overhead and sheriff's deputies informed them their house had been burglarized. The
glass door leading into the master bedroom had been smashed in, apparently with a steel
stake left nearby. Inside, the master bedroom and a nearby office had been ransacked.
The Mintzes determined many things were missing but could not determine the full
extent of the theft.
Deputies opined the burglar had probably used latex gloves because fingerprints
could not be lifted from powder-lined smudges on the Mintzes' drawers. Similar powder
smudges were often left when deputies wore latex gloves to investigate a crime scene.
The Mintzes' Social Security cards were later found in Croteau's bedroom; their
flashlight was found in his hallway, and their camera was found in the Flippens' loft.

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COUNT 5
On December 22, 2002, Peter F. Newell left his Rancho Santa Fe condominium
for a weeklong trip to the Bay area. When a friend stopped by to pick up the mail, she
observed the condominium was in a general state of disarray, with Newell's belongings
strewn all over the floor. After noticing the sliding glass door was open, she called the
sheriff's department.
Newell later reported about $800 missing from his top drawer along with a $600
coin collection, credit card statements and numerous other items of personal property.
About $7,000 had been charged to his credit cards over the course of seven days.
Newell's pen set, wallet, money clip, cardholder, IBM watch, and NCAA and Olympics
memorabilia were later found in Croteau's bedroom. In addition, Croteau's DNA
matched DNA found in latex gloves at the scene.
COUNT 6
On January 21, 2003, Russell Ehdaie left his Rancho Santa Fe home to teach
martial arts. When he returned home, he found his front door open and his back sliding
glass door smashed in.
Upon entering his home with sheriff's deputies, Ehdaie immediately noticed two
Persian carpets were missing from the living room, along with a laptop he had left on a
recliner. Further inspection revealed the entire house had been ransacked, and items were
missing from every room.

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Many of Ehdaie's possessions were later found in Croteau's bedroom, including
two ornate jewelry boxes, a backpack, handmade crafts from Iran, and two laptops. In
addition, his briefcase and credit cards were found in the Flippens' loft.
COUNT 7
Croteau was charged with the count 7 receiving stolen property offense based on
the presence of a Social Security card and Goofy watch in his bedroom, which had been
stolen from Nina Walker's Rancho Penasquitos home on December 16, 2002. It was also
based on the presence of a Social Security card and two watches belonging to Chanda
Shaha in his bedroom, whose Tierresanta home had been burglarized on December 17,
2002. In addition, Freling Baker's knife collection, watch, wallet, travel clock, camera
and calculator were found in Croteau's bedroom, along with Baker's wife's necklace and
ring. The items had been stolen from Baker's La Jolla home on January 16, 2003.
Baker's wife's checks and other necklaces were later found in the Flippens' loft. Lastly,
the count 7 charge was based on the presence of concert tickets, jewelry, and a jewelry
box in Croteau's bedroom, all of which had been stolen from Gerald Blank's La Jolla
home on January 17, 2003.
The Defense
Croteau testified in his own defense, denying he had burglarized any of the homes
alleged in counts 1 through 6, and denying he had "fenced" stolen property. Croteau,
who lived at the residence in Rancho Santa Fe at the time of the burglaries, stated he was
a freelance masonry subcontractor, and rented rooms in his house to the Flippens and
several others. Oftentimes the Flippens and the other roommates would give him

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personal property if they did not have money for rent. Other times, the Flippens would
give him "trinkets and things" for use of his computer and leniency on their rent
payments. Croteau also "donated half of [his] closet to them" because they had no closet
in the loft.
Croteau testified he knew "something was up" and suspected Amber Flippen had
stolen purses when he saw $900 price tags on a number of handbags in his bedroom and
saw identification in the bags that did not belong to the Flippens. He said nothing to
them because he "didn't want to believe" they were involved in illegal activities.
Although Croteau admitted he had a fake identification card with Amber's photo pinned
on his cork board, he denied he "possessed" false documents or was creating them.
Croteau testified he did not know why the sheriffs had come to his residence. He
also denied he brought up the dive bag first. Rather, he claimed that when the sheriffs
said they had found a backpack with his identification at the scene of a crime, he asked if
it was a dive bag, because his dive bag had been stolen out of his yard earlier that day.
According to Croteau, the cash in his pocket at the time of the pat down came from
another roommate, who owed him $300 in rent. He claimed he was holding the jewelry
found in his safe for other people. He denied needing money.
Croteau conceded all the latex gloves in evidence belonged to him. He explained
that he wore gloves in his garage when working with wood, lacquer or varnish. Croteau
also acknowledged his DNA was found on one pair of gloves. He further admitted he
had been convicted of a felony in 1988 for automobile burglary.

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DISCUSSION
I
SEVERANCE MOTIONS
Croteau contends the trial court abused its discretion when it denied his motion to
sever count 1 (burglary of the Scotts' residence) from counts 2 through 6 (the remaining
burglary counts). He specifically argues the court erred because the evidence was not
cross-admissible and the "spillover" effect of aggregating the evidence from count 1,
which was strong, with counts 2 through 6, which were weaker, created potential
prejudice. Croteau also asserts he was denied a fair trial because the joinder of the counts
had a substantial influence on the jury's verdict. After setting out the factual background
for these motions, we explain why Croteau's contentions fail.
A. Factual Background
Pretrial, the People brought a motion to consolidate this case (SDSC No. 157199),
which charged the count 1 burglary and count 7 receiving stolen property, with a later
case (SDSC No. 160730), which charged Croteau with five residential burglaries (counts
2-6). Croteau opposed the motion and brought his own motion to sever the cases, or the
counts, for trial.
The court granted the motion to consolidate the later case into the earlier case,
which is the case on appeal, noting joinder was appropriate under section 954 because the
offenses were of the same class of crimes and committed "within a matter of months of
one another." The court left to the discretion of the trial court the issue of severance,
taking into account the specific issues related to the evidence in this case and any

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prejudice that might be suffered by Croteau. Subsequently, when the matter was before
the trial court for in limine motions, Croteau again presented his motion for severance.
The trial judge denied the motion, stating:
"I'll indicate on the record that Penal Code Section 954 expresses the
preference for joint trials for similar matters against a single
defendant if the crimes charged are an offense of the same class of
crime or different offenses connected together in their commission
unless the defendant can establish a clear showing of prejudice in
this case. [¶] Since there was no evidentiary hearing or no
information pursuant to the Court, then the Court's not in a position
to assume anything. And there's been no showing of any kind made
by the defendant in this case. All of the offenses are the same class
of crime, that is they are theft crimes. There are six counts of
burglary, one count of receiving property -- receiving the stolen
property involving a single defendant, Mr. Croteau. [¶] In this case
all of the counts are cross-admissible in that the discovery . . . of all
the stolen items took place at the defendant's residence and [gave]
rise to an investigation which resulted in the charges which make up
the various instant counts in this case. [¶] Defendant states the
position that he may be prejudiced if he intends to present a separate
defense. And he also states that the jury may use the evidence of
one crime charged to infer criminal disposition on the part of the
defendant as to the other charges. And he also states that the jury
may accumulate the evidence of the various crimes charged
implying guilt. [¶] However, the law is that prejudice is not
assumed and must be clearly established by the parties seeking the
severance. And, again, I have no evidence -- I have argument[s] and
legal positions but no evidence before me to determine if there is any
prejudice that I can glean from my information that I have. [¶] The
defendant must show a substantial danger of undue prejudice, and
the prejudice has to be of the nature -- as to the nature so great that
the defendant would be denied a fair trial. [¶] And there [has] been
no such showing, and consequently the motion to sever is denied."
B. Application of the Law
Generally, the denial of a severance motion is reviewed for abuse of discretion.
(People v. Osband (1996) 13 Cal.4th 622, 666.) "A court abuses its discretion when its

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ruling 'falls outside the bounds of reason."' (Ibid.) We find the court's ruling on the
motion to sever was reasonable.
Under section 954, "[a]n accusatory pleading may charge two or more different
offenses connected together in their commission . . . or two or more different offenses of
the same class of crimes or offenses, under separate counts, . . . provided, that the court in
which a case is triable, in the interests of justice and for good cause shown, may in its
discretion order that the different offenses or counts set forth in the accusatory pleading
be tried separately or divided into two or more groups and each of said groups tried
separately . . . ." "Offenses committed at different times and places against different
victims are, nevertheless, 'connected together in their commission' when there is a
'common element of substantial importance' among them. [Citations.]" (People v.
Matson (1974) 13 Cal.3d 35, 39.)
The joinder of such related charges, "whether in a single accusatory pleading or by
consolidation of several accusatory pleadings, ordinarily avoids needless harassment of
the defendant and the waste of public funds which may result if the same general facts
were to be tried in two or more separate trials [citation], and in several respects separate
trials would result in the same factual issues being presented in both trials." (People v.
Ochoa (1998) 19 Cal.4th 353, 409.)
Here, count 1 and counts 2 through 6 were all for residential burglaries and thus
were clearly of the same class since all theft offenses are classified as crimes against
property. (See People v. Allen (1999) 21 Cal.4th 846, 866.) Also, the counts were
generally related as a string of residential burglaries in the Rancho Santa Fe area, within a

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month or two, which were tied together circumstantially by the stolen property
discovered during a search of Croteau's home. Joinder of such counts under section 954
was therefore appropriate and preferred unless Croteau could make "a clear showing of
potential prejudice" due to the consolidation of such properly joined counts. (People v.
Bradford (1997) 15 Cal.4th 1229, 1315 (Bradford).) Croteau failed to do so.
"'"The burden is on the party seeking severance to clearly establish that there is a
substantial danger of prejudice requiring that the charges be separately tried.'"
[Citation.]" (Bradford, supra, 15 Cal.4th at p. 1315.) Whether joinder of properly joined
counts would cause prejudice depends on the circumstances of each case, "but certain
criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever
trial." (Frank v. Superior Court (1989) 48 Cal.3d 632, 639.) The denial of a severance
motion "may be an abuse of discretion where: (1) evidence on the crimes to be jointly
tried would not be cross-admissible in separate trials; (2) certain of the charges are
unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been
joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of
aggregate evidence on several charges might well alter the outcome of some or all of the
charges; and (4) any one of the charges carries the death penalty or joinder of them turns
the matter into a capital case. [Citations.]" (People v. Sandoval (1992) 4 Cal.4th 155,
172-173 (Sandoval), distinguished on another point in People v. Lewis (2001) 26 Cal.4th
334, 390.)
These criteria, however, are not "equally significant." (Bradford, supra, 15
Cal.4th at p. 1315.) "'[T]he first step in assessing whether a combined trial [would have

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been] prejudicial is to determine whether evidence on each of the joined charges would
have been admissible . . . in separate trials on the others.[4] If so, any inference of
prejudice is dispelled.' [Citations.] Cross-admissibility suffices to negate prejudice, but
is not essential for that purpose. Although "'we have held that cross-admissibility
ordinarily dispels any inference of prejudice, we have never held that the absence of
cross-admissibility, by itself, sufficed to demonstrate prejudice.'" [Citation.]" (Id. at pp.
1315-1316; fn. added.)
"[T]he propriety of a ruling on a motion to sever counts is judged by the
information available to the court at the time the motion is heard." (People v. Cummings
(1993) 4 Cal.4th 1233, 1284.) In this case, the prosecutor originally argued the evidence
of stolen property upon which the count 7 charge was based would be cross-admissible in
separate trials on all the other counts. Croteau claimed the evidence in counts 1 and 7
was not cross-admissible with the other counts but recognized that section 954.1 "does
not provide the offenses cannot be severed because evidence is not cross-admissible."
The court in ruling on the matter stated that "all of the counts are cross-admissible,"
because the discovery of all the stolen property was at Croteau's residence and gave rise
to the investigation, which resulted in all the charges in the consolidated case. The court
also found that Croteau had not met his burden of showing "a substantial danger of
prejudice" arising from the joinder of the charges. (Sandoval, supra, 4 Cal.4th at p. 172.)
4 Although evidence of other crimes is not cross-admissible to establish a
disposition to commit crimes under Evidence Code section 1101, it is admissible to

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We agree and conclude that on the information before the court at the time of its ruling,
there was no abuse of discretion in denying the severance motion.
Croteau disputes the court's conclusion "all the counts were cross-admissible,"
arguing that like the situation in People v. Bean (1988) 46 Cal.3d 919 (Bean), where the
California Supreme Court held the facial similarities of the murders were not sufficiently
distinctive on the issue of identity to be cross-admissible (id. at pp. 936-939), the
similarities of the various residential burglaries in this case were also not sufficiently
distinctive to show modus operandi for cross-admissibility. Croteau's reliance on Bean is
misplaced.
In a trial on each individual burglary count, evidence of other charged burglaries
generally would be admissible to show that Croteau committed the charged burglary as
part of a common scheme or plan, which is relevant to the element of intent. (Evid.
Code, § 1101, subd. (b); §§ 459, 460.) The burglaries, which were committed within a
two and one-half month period, all shared certain characteristics, all being residential,
within the Rancho Santa Fe area, within several miles of Croteau's residence, sharing
similar methods of entry (through sliding glass doors and windows), with similar items
taken (cameras, identification, laptops, credit cards, cash, jewelry and Social Security
cards), the burglar frequently left latex gloves behind (twice with Croteau's DNA on
them), and the bulk of the stolen property was found in Croteau's bedroom or in areas of
his home to which he had access.
establish other relevant facts, including intent, motive, knowledge, or identity. (Evid.
Code, §1101, subd. (b).)

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As the California Supreme Court noted in People v. Ewoldt (1994) 7 Cal.4th 380:
"To establish the existence of a common design or plan, the common
features must indicate the existence of a plan rather than a series of
similar spontaneous acts, but the plan thus revealed need not be
distinctive or unusual. . . . Unlike evidence of uncharged acts used
to prove identity, the plan need not be unusual or distinctive; it need
only exist to support the inference that the defendant employed that
plan in committing the charged offense. [Citation.]" (Id. at p. 403.)
Thus, in general, the charged burglary offenses in these cases were
sufficiently similar to each other to support an inference Croteau acted according
to a plan in committing each crime. Moreover, several aspects of some of the
offenses, such as the latex gloves with his DNA on them found at the scenes, in
addition to the other similarities, were sufficiently alike to each other as to support
cross-admissibility on modus operandi for identity. (See Bradford, supra, 15
Cal.4th at p. 1316.) That all of the charged burglaries were not committed in
exactly the same manner simply does not preclude cross-admissibility as Croteau
argues. (People v. Kraft (2000) 23 Cal.4th 978, 1030-1032.)
Although the court did not specifically determine the cross-admissibility of
proposed evidence with regard to count 1 as to each other count, it essentially
found such possible due to the nature of the string of similar, residential burglaries
and the discovery of all the stolen property at Croteau's residence.
However, even assuming the court erroneously stated the evidence
regarding all counts was cross-admissible, the potential prejudice Croteau asserted
would result by joining count 1 with the other counts, "[does] not rise to the level

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of demonstrating that the court's denial of severance was an abuse of discretion.
(Sandoval, supra, 4 Cal.4th at p. 173.)
Croteau presented no additional argument of prejudice at the motion
hearing other than to assert there would be a prejudicial "spillover" effect in
joining count 1 with the other counts because it was a stronger case and he might
present different defenses to each count. Although the possibility of a "spillover"
effect may have existed as to counts 3, 4 and 6, because the evidence in those
counts was admittedly weaker than in count 1 (supported mainly by the evidence
of the stolen property found in Croteau's home), Croteau's "spillover" argument
fails completely as to counts 2 and 5 where the evidence regarding those offenses
was independently strong because of the latex gloves with DNA matching
Croteau's found at the crime scenes in addition to the items from the burglaries
being found in his bedroom. The jury acquitted Croteau of the weakest count,
count 3, where the stolen items were found only in the Flippens' loft. This tends to
show the jury did not aggregate the stronger evidence from count 1 with the
similar counts and that no prejudice to Croteau actually occurred from any alleged
"spillover." (See Bradford, supra, 15 Cal.4th at p. 1318.) Croteau's claim
regarding presenting different defenses was purely speculative.
Moreover, the facts underlying count 1 were not more likely to inflame a
jury than any of the other property offenses charges. Nor was this a capital case,
or rendered one because of the joinder of the counts. Thus, as the trial judge
properly found, Croteau did not meet his burden of showing a "substantial danger

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of prejudice requiring that the charges be separately tried" under the elements
provided in Sandoval. (Bean, supra, 46 Cal.3d at p. 938.)
C. Due Process/Fair Trial
Although on this record we cannot find the trial court abused its discretion in
denying the severance motion, "[b]ecause the issue is raised on appeal following trial
[and Croteau asserts he was denied a fair trial by the denial of his severance motion], we
must also consider whether, 'despite the correctness of the trial court's ruling, a gross
unfairness has occurred from the joinder such as to deprive the defendant of a fair trial or
due process of law.' [Citation.]" (Sandoval, supra, 4 Cal.4th at p. 174.) Croteau's bald
assertion of gross unfairness caused by joining a strong count with multiple weaker
counts is based on several cases factually distinguishable from his. (Bean v. Calderon
(9th Cir. 1998) 163 F.3d 1073; People v. Grant (2003) 113 Cal.App.4th 579.) The record
shows the trier of fact carefully considered the admissible evidence and acquitted Croteau
of the weakest count 3 residential burglary charge. He has not demonstrated any actual
prejudice from an alleged "spillover" effect of count 1, resulting from the joinder of the
charges for trial. (Bradford, supra, 15 Cal.4th at p. 1318.) Rather, Croteau
mischaracterizes the record, ignoring the proximity of the burglarized residences to his
residence, the similarity of the break-ins and property taken, the closeness in time of the
six burglaries, and the presence of latex gloves at several burglaries, two of which
contained his DNA. Contrary to Croteau's assertion, more than the cache of stolen
property in his bedroom and home tied him to the multiple burglaries.

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The jury simply did not believe Croteau's testimony that all the stolen property in
his bedroom belonged to the Flippens, or were given to him by the Flippens and his other
roommates as gifts or in lieu of rent.
Croteau contends the prosecutor in closing referred to the incredible amount of
cumulative evidence and its spillover impact deprived him of due process and a fair trial.
We reject that argument. The prosecutor mentioned the latex gloves found at several of
the residences which were linked to Croteau, Croteau's incredible testimony, the amazing
amount of stolen property found in Croteau's bedroom and throughout his residence. In
addition, he discussed each burglary separately, pointing out the strength of the evidence,
both direct and circumstantial, as to each count, and the similarities of the burglaries to
each other. Both counsel also told the jurors to consider the evidence independently for
each count. Because Croteau was acquitted on one of the counts, the record reflects the
jury necessarily compartmentalized the evidence and considered each count separately.
We, therefore, conclude Croteau has failed to show that denial of severance deprived him
of a fair trial. (Sandoval, supra, 4 Cal.4th at p. 174.)
II
BLAKELY ISSUES
After considering the probation report and hearing arguments from counsel and
testimony from several victims of the residential burglaries, including the Scotts with
regard to the emotional trauma they experienced during and since the burglary of their
home, the court denied probation and sentenced Croteau to serve 12 years in prison. In
doing so, the trial judge stated:

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"[T]he court is of the opinion that there are aggravating factors . . .
necessitating [imposition of] the upper term. And those factors are
factors that I can consider under the judicial council sentencing
rules. [I]t was clear that the defendant inflicted emotional injury on
the victims who are involved here, and the court can consider that as
a factor to aggravate under [California Rules of Court,] rule 4.414,
subdivision (a)(4). [¶] The testimony of the victims who came to
testify today obviously have been that. It was my belief even before
they testified that there was emotional injury inflicted upon them.
[¶] Additionally, the court can consider in aggravation the
defendant's involvement, which I consider to be sophisticated. And
further, the court can consider whether or not I feel that, if not
imprisoned, that he would continue to be a danger. And it appears to
the court that I can reasonably infer, based upon his conduct, that if
he were not imprisoned, that he would in fact continue this and
remain a danger in the community. [¶] So for those reasons, the
court is going to aggravate the principal term and define that term as
count 1, and impose the upper term of six years."
The court then imposed consecutive sentences of 16 months for counts 2, 4, 5 and
6,5 and eight months for count 7. The court noted it was "consecutizing the counts based
upon the fact that -- certainly the court has the discretion. But it appears that [California
Rules of Court,] rule 4.425, subdivision (a)(3) would justify consecutive sentencings
since these crimes were committed at different times and at separate places and do not
appear to be a single period of abhorrent behavior."
Although Croteau raised no issue on appeal regarding the court's imposition of the
count 1 upper term or the consecutive terms, because the decision in Blakely recently
held that a trial court may not increase a sentence beyond the statutory maximum of the
5 Although it appears the court misspoke when it imposed only six months for count
6, the court minutes and abstract of judgment correctly reflect the sentence for count 6 is
16 months.

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standard range for an offense based on additional facts not found by a jury, we asked for
supplemental briefing on the applicability of Blakely to such terms imposed in this case.
In his supplemental brief, Croteau contends that the trial court's reliance on factors
not found true by the jury for imposition of the count 1 upper term as well as the
consecutive terms violated the holding of Blakely, supra, 124 S.Ct. 2531, 159 L.Ed.2d
403. The attorney general responds that Croteau has waived both issues by failing to
timely object to the court's sentencing choices below, that Blakely does not apply to the
California sentencing procedure which requires the finding of an aggravating
circumstance to impose the upper term, or to the imposition of consecutive sentences, and
that, even if Blakely error exists and the issue is not waived, such error did not prejudice
Croteau.
With regard to the waiver issue, this court recently rejected similar arguments
brought by the attorney general as brought here. In both People v. George (2004) 122
Cal.App.4th 419 (George) and People v. Lemus (2004) 122 Cal.App.4th 614 (Lemus), we
held the waiver rule of People v. Scott (1994) 9 Cal.4th 331, did not support the
application of the waiver rule in cases claiming Blakely error raised for the first time on
appeal where Blakely had been decided after the sentencing in that case. (George, supra,
122 Cal.App.4th at p. 424; Lemus, supra, 122 Cal.App.4th at pp. 619-620.) Having
reviewed both George and Lemus in light of this case, we continue to adhere to such
holding.
Further, like the defendant in Lemus, Croteau vigorously advocated in the trial
court for a midterm sentence because such would provide a sufficiently lengthy term of

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imprisonment in light of the Scotts being at home when he burglarized their residence.
He pointed out that he had never been to prison, he had generally selected houses he
believed were empty and, contrary to the probation report, he was not armed at the time
he committed the burglaries. As we found in Lemus, "[u]nder the circumstances, it would
be unreasonable to find that [Croteau] abandoned a constitutional challenge of which he
was unaware." (Lemus, supra, 122 Cal.App.4th at p. 620.)
Moreover, with regard to "whether Blakely precludes a trial court from making
findings on aggravating facts in support of an upper term sentence," we noted in George
and Lemus that such issue is currently under review by the California Supreme Court in
People v. Towne (review granted July 14, 2004, S125677) and People v. Black (review
granted July 28, 2004, S126182 (Black)). (George, supra, 122 Cal.App.4th at p. 425;
Lemus, supra, 122 Cal.App.4th at p. 620.) Nevertheless, we undertook an analysis of
whether Blakely applied under the circumstances of George and Lemus where the court
had imposed upper term sentences in each respectively, and found that "[b]ecause the
maximum penalty the court can impose under California law without making additional
factual findings is the middle term, Blakely applies. Thus, the question becomes whether
the trial court could properly rely on any of the cited factors as the basis for its decision to
impose the upper term without violating Blakely." (George, supra, 122 Cal.App.4th at p.
425; Lemus, supra, 122 Cal.App.4th at p. 621.)
In the present case, the trial court relied on a number of aggravating factors as the
basis for its decision to impose the upper term as to count 1. The court noted Croteau had
inflicted emotional injury on the victims involved, was sophisticated in his involvement

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in the crimes, and would continue to be a danger in the community if not imprisoned
based upon his conduct. "In accordance with Blakely, the Constitution requires a jury
trial on any fact that 'the law makes essential to the punishment' other than the fact of the
defendant's prior conviction. [Citation.]" (George, supra, 122 Cal.App.4th at p. 426;
(Lemus, supra, 122 Cal.App.4th at p. 621.) Applying that standard to this case, it is clear
that there is no finding by the jury on which the trial court could rely for the selection of
the upper term sentence. Thus, like the situation in George or Lemus, the court here
stated factors in aggravation that would necessitate a jury trial under the holding of
Blakely, supra, 124 S.Ct. 2531, l59 L.Ed.2d 403.
The question then becomes whether the error under Blakely is harmless. As we
noted in response to the attorney general's argument in Lemus that any error under
Blakely is harmless if "any jury would have found the factors in aggravation to be true"
(Lemus, supra, 122 Cal.App.4th at pp. 621-622), such argument, advanced again here,
"misses the point of Blakely. [¶] The decision in Blakely is premised on the notion that
the defendant has a constitutional right under the Sixth Amendment to a jury trial as to
any factual determination which increases the sentence which could be imposed based
upon the finding of guilt on the offense alone. In this case, we have concluded [Croteau]
had a constitutional right to a jury trial on any fact that would justify the trial court
increasing the sentence beyond the presumptive middle term for [count 1]. Accordingly,
we believe that the loss of the jury trial right cannot be found harmless on the theory that
if a jury trial had been held the defendant would have lost on the issue. The point of
Blakely is that the jury trial must be held." (Lemus, supra, 122 Cal.App.4th at p. 622.)

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Moreover, whether we apply the traditional harmless error standard or the
constitutional harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24,
we cannot conclude that the error in this case is harmless. Although the probation report
contains several factors which the trial court could have used to impose an upper term
without violating Blakely because they relate to prior convictions,6 because the
sentencing court did not mention or rely on any of those circumstances, and did not
expressly balance the aggravating factors against the mitigating factors or find that there
were no mitigating factors, we cannot determine on this record whether the elimination of
the improperly relied upon factors would not have made a difference in the court's
sentencing decision. (George, supra, 122 Cal.App.4th at pp. 426-427.) Accordingly, we
reverse the judgment as to the upper term sentence for count 1 and remand for
resentencing.
With regard to the consecutive terms imposed for Croteau's other counts we note
the issue of whether Blakely has any effect on a trial court's imposition of consecutive
sentences is also pending before our Supreme Court. (Black, supra (review granted
July 28, 2004, S126182).) Nevertheless, we have reviewed the opinion in People v.
Sample (2004) 122 Cal.App.4th 206 (Sample), and agree with its holding and reasoning
that Blakely does not apply to the imposition of consecutive terms. (Sample, supra, 122
Cal.App.4th at pp. 225-227.)
6 The probation report shows that Croteau's prior convictions as an adult or
sustained petitions in juvenile delinquency proceedings are numerous or increasing in

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Croteau's claim the court violated Blakely when it imposed consecutive sentences
for his six counts thus fails, consistent with the reasons given by the court for imposing
those consecutive terms, "the verdicts reflect findings that the crimes covered by counts
[2, 4, 5 , 6 and 7] were committed against separate victims, at different times, and in
different places, thus exposing [Croteau] to the sentence imposed." (Sample, supra, 122
Cal.App.4th at p. 227.)
In sum, the upper term sentence for count 1 must be vacated and the case
remanded to the superior court to conduct a new sentencing hearing consistent with the
principles discussed in this opinion.
III
PAROLE RESTITUTION FINE
During our review of the sentencing record for the Blakely issues in this case, we
discovered that the trial court had imposed a restitution fine of $2,400 under section
1202.4, subdivision (b) and a parole restitution fine of $600 under section 1202.45.
Because section 1202.45 states that "the court shall at the time of imposing the restitution
fine pursuant to subdivision (b) of Section 1202.4, assess an additional restitution fine in
the same amount as that imposed pursuant to subdivision (b) of Section 1202.4[,]" which
is then suspended unless the person's parole is revoked (§ 1202.45), the court imposed an
unauthorized parole restitution fine, or committed an "obvious legal error[] at
sentencing[.]" (People v. Smith (2001) 24 Cal.4th 849, 852 (Smith).) Such legal error is
seriousness; that he was on probation when the present offenses were committed; and that
his past performance on probation had been unsatisfactory.

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not waivable and is subject to correction by this court when discovered on appeal. (Id. at
p. 852.)
Based on this discovery, we requested the parties submit supplemental briefing on
the issue. Croteau concedes that because the amount of the restitution fine imposed
under section 1202.4, subdivision (b) has not been challenged, the $600 parole revocation
fine cannot be lawfully imposed in this case. (Smith, supra, 24 Cal.4th at p. 853.)
Because we are remanding the matter for resentencing, we direct the trial court at that
time to vacate the $600 amount imposed for the parole revocation fine and impose in its
place the same amount as that imposed under section 1202.4, subdivision (b). (§ 1260;
Smith, supra, 24 Cal.4th at p. 852.)
DISPOSITION
The judgment is reversed as to the sentence on count 1 and the parole restitution
fine, and the matter is remanded for resentencing in a manner consistent with the views
expressed in this opinion. In all other respects, the judgment is affirmed.
HUFFMAN, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.

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