Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County Super. Ct. No. F06905853. Robert H. Oliver, Judge.
David Y. Stanley, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Levy, Acting P.J., Gomes, J., and Kane, J.
A jury convicted appellant Carlos Zuniga of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (c)), and found true enhancement allegations that (1) in committing the instant offense, appellant acted for the benefit of, at the direction of, or in association with, a criminal street gang, with the specific intent to promote, further or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)), and (2) a principal in the commission of the instant offense personally used a firearm (§ 12022.53, subd. (e)(1)) The jury acquitted appellant of a second count of second degree robbery. The court imposed a prison term of 23 years, consisting of the three-year midterm for the substantive offense, 10 years for the gang enhancement and 10 years, the court erroneously stated, for an enhancement for personal use of a firearm under section 12022.53, subdivision (b). The abstract of judgment reflects the sentence as pronounced by the court.
All statutory references are to the Penal Code.
We refer to the former enhancement as the gang enhancement and to the latter enhancement as the vicarious firearm-use enhancement.
On appeal, appellant contends (1) the court erred in denying appellant’s motion for a mistrial, and (2) the abstract of judgment should be corrected to indicate a 10-year vicarious firearm-use enhancement (§ 12022.53, subd. (e)(1)) rather than an enhancement for personal use of a firearm (§ 12022.53, subd. (b)). We will modify the judgment to correct the sentencing error, direct the trial court to issue an amended abstract of judgment and affirm the judgment as modified.
FACTUAL AND PROCEDURAL BACKGROUND
Charges and Verdicts
As indicated above, appellant was charged with two counts of second degree robbery. The first, alleged in count 1, occurred on November 23, 2005, and the second, alleged in count 2, occurred on November 26. The jury convicted appellant on count 2 and acquitted him on count 1.
Except as otherwise indicated, references to dates of events are to dates in 2005.
Facts
Jarnail Singh testified to the following. He was working as a clerk at the Wildflower Market (market) in Selma when, at approximately 8 p.m. on November 23, two men, each wearing a ski mask, entered the store. One of the men pointed a firearm at Singh and said, “give me all your money.” The other man grabbed the cash register, and the two men left the store, got into a car and drove off. The cash register contained approximately $700 to $800 in cash and approximately $1,000 in checks.
Uttam Singh testified to the following. He was working at the Gil Shell Station (gas station) in Caruthers when, at approximately 5:10 a.m. on November 26, shortly after he opened the store, two men entered. Each man was wearing a hooded sweatshirt and had his face covered, and one of the men had a shotgun. The gunman demanded that Singh open the cash register and get on the floor. Singh complied. The two men took approximately $200.
California Highway Patrol Officer John Staricka testified to the following. On January 27, 2006, he and his partner, acting on information they obtained during the course of an investigation of a report of vandalism, went to a residence in the Caruthers area. As Officer Staricka approached, he smelled a strong odor of what he thought was burnt marijuana. Through an open window he saw two males, each lying on a bed. On one of the beds, the officer saw a bag containing a green leafy substance he suspected was marijuana.
One of the persons in the room identified himself as Alvaro Roman, age 17. Roman stated “it was his room” and that his parents were not home, and gave the officers permission to enter. The other person initially identified himself as “Jose Martinez,” but Officer Staricka determined, based on a wanted poster he had in his patrol car, that the person was appellant.
Fresno County Deputy Sheriff Manuel Flores testified that he had 15 years of experience as a sworn peace officer and that he was assigned to investigate the robberies at the market and the gas station. As part of that investigation, on January 28, 2006, after receiving information that Roman was involved in those robberies, he interviewed Roman, who was in custody at juvenile hall. Initially, Deputy Flores “explained the Wildflower robbery,” indicating that Roman was involved. Roman nodded his head in agreement.
The deputy then asked Roman to tell him about the robbery, and appellant stated the following. Two cars drove to the market. He was a passenger in one, along with persons known to him as “Pinky” and “Try Me.” When they arrived at the market, Pinky and Try Me got out and went into the market, while Roman waited in the car. At one point, Roman turned to look back at the market, and saw his two cohorts running back to the car. Pinky had a shotgun in his hand.
Roman further stated the following. After the robbery, he, Pinky and Try Me drove to the home of Carmelo Uristique, Roman’s brother. When they arrived, Roman got out of the car and saw that Try Me was holding a cash register and Pinky was holding the shotgun. Pinky gave the shotgun to Uristique.
Deputy Flores interviewed Roman again on February 3, 2006. At that time, the deputy showed Roman a photograph of appellant, and Roman identified appellant as Pinky. Roman then gave a different account of the market robbery, stating that he and appellant entered the market, appellant had a shotgun and Roman took the cash register.
Thereafter, Deputy Flores showed Roman several surveillance camera photographs taken during the robbery of the gas station. Roman identified himself as the person shown in one of the photographs holding a shotgun. He identified another person, shown in the photograph wearing a hooded sweatshirt, as appellant. Roman stated appellant gave him $100 after the robbery.
Roman also stated that he and appellant had spent the night before the gas station robbery at the home of Liliana M. (Liliana) in Caruthers. Liliana was 16 years old at the time. She testified to the following. Appellant and Roman stayed at her house on the night of November 25. Appellant had a gun with him. Appellant and Roman left at approximately 5:00 a.m. on November 26. Just before they left, appellant told Roman “[t]hey were going to jack . . . [¶] [t]he Shell.” When Roman and appellant left, appellant was wearing a “gray sweater” and Roman was wearing a hooded “black sweater.” Upon being shown a surveillance photograph of the gas station taken at the time of the robbery, Liliana identified appellant as the person in the photograph wearing a grey sweater and Roman as the person wearing the black sweater. She based her identification on the clothing worn by the persons depicted in the photograph.
Roman testified to the following. He was found to be unfit for treatment in the juvenile court system, and pled guilty to robbery. He and another person robbed the market. He did not know who the other person was. Roman “went inside with a gun” and his accomplice “[y]anked the cash register out.” Roman knew appellant, but he (Roman) did not tell Deputy Flores appellant was involved in the robbery or that appellant was known as Pinky. Roman also did not tell the deputy that he went to his brother’s home after the robbery or that he and appellant gave a gun to Roman’s brother.
Roman testified further to the following. He and another person robbed the gas station. Roman “[went] inside with a gun.” He did not know who his accomplice was; he “barely met him that day.” Roman identified himself as the person shown in a photograph in the gas station, holding a gun, but he did not recognize another person shown, who was wearing a hooded sweatshirt, and he did not tell Deputy Flores that person was appellant.
The People presented evidence in support of the gang enhancement. Because this evidence is not relevant to the contentions raised on appeal, will forgo summarizing it.
Additional Background
On direct examination, after Deputy Flores testified he showed Roman a photograph of appellant, the following exchange took place:
“Q And . . . can I have you relate to us the process you went through in showing [Roman] that photograph?
“A Just explaining to him about the shotgun and what was going on with the Wildflower, and asking him who Pinky was, because Carmelo [Uristique] had told me, I asked Carmelo and Carmelo had told me.”
At that point defense counsel objected on hearsay grounds and moved for a mistrial. The court denied the motion but sustained the hearsay objection and admonished Deputy Flores, “Detective, again, if I can have you avoid testifying to statements made to you by anybody else other than Alvaro Roman.”
The next morning, outside the presence of the jury, defense counsel told the court he was “concerned” that Deputy Flores would not limit his answers to the questions asked, but would instead “volunteer information he’s not supposed to . . . .” The prosecutor said he would “admonish him.”
When trial resumed later that morning, after Deputy Flores testified Roman had told him where he (Roman) and appellant were on November 26 prior to the gas station robbery, the following exchange occurred:
“Q What did he tell you in that regard?
“A He told me that he was . . . in the town of Caruthers over at . . . [Liliana’s] residence. . . .
“[¶] Q Who was with him at Liliana’s house?
“A He explained to me that [appellant] was with him. . . .
“[¶] Q And did Alvaro Roman tell you how long they stayed at Liliana’s home?
“A All night.
“Q And what, if anything, did he tell you about what happened in the early morning hours?
“A Well, they were drinking at the residence. They were with her, and then they, [appellant] had brought up the issue of wanting to -- [appellant] had brought up that he had hit the
“[Defense counsel]: Objection.
“THE WITNESS: - - Texaco.”
At that point, defense counsel moved to strike Deputy Flores’s last response, on hearsay grounds, and requested a side-bar conference. An unreported discussion ensued, after which the court admonished the jury as follows: “The objection of [defense counsel], I will describe it for these purposes, is hearsay, is sustained. The jury will disregard the question and will disregard the witness’[s] last answer, specifically, . . . any comment [appellant] made about any alleged act of robbery of anything, including a gas station. You will specifically disregard that. I gave you instructions at the outset. The witness has been counseled to respond only to the questions that are asked and not to provide information that is not asked.”
Later, outside the presence of the jury, the court noted that in the previous unreported side-bar conference defense counsel had moved for a mistrial. Defense counsel then argued that it was his understanding that the prosecutor had specifically told Deputy Flores not to mention that Roman had stated that appellant had robbed a Texaco station, and that “no instruction from the court can eliminate that from the jury’s mind.”
We refer to this motion as the second motion for mistrial.
The court denied the second motion for mistrial, stating as follows: “[T]he jury had been advised that if there [are] . . . sustained objections, they are to disregard the question and the answer. They will be likewise advised at the conclusion of this trial. The jury was specifically, as to this issue this morning, as well as yesterday, advised that . . . they were to disregard the question and the answer, and specifically, in addition this morning the witness was reminded, if not admonished, to limit his responses to questions to the question being asked. [¶] The court believes, given the totality of the evidence . . . in this case, regardless of what the jury may make of it and the immediate objection and response by the court that there is not anything approaching undue prejudice that could not be cured by an instruction or an admonition, and the motion for mistrial accordingly, will be denied.”
DISCUSSION
Motion for Mistrial
Appellant contends the court committed reversible error in denying the second motion for mistrial. He argues that inadmissible evidence that the jury heard--Roman’s testimony that appellant stated he (appellant) wanted to rob a Texaco station--was particularly prejudicial because it implicated appellant in conduct similar to the conduct underlying his conviction, viz., robbery of a gas station; Deputy Flores, a highly experienced officer “who surely knows better,” “subvert[ted] the criminal justice system” by deliberately making the statement that appellant admitted he “hit,” i.e. robbed, a Texaco station; and the court’s admonition that the jury disregard that statement was “not particularly strong.”
“[E]vidence of other crimes always involves the risk of serious prejudice . . . .” (People v. Griffin (1967) 66 Cal.2d 459, 466; accord, People v. Harris (1994) 22 Cal.App.4th 1575, 1580 [“[t]here is little doubt exposing a jury to a defendant’s prior criminality presents the possibility of prejudicing a defendant’s case and rendering suspect the outcome of the trial”].)
“Whether in a given case the erroneous admission of such evidence warrants granting a mistrial or whether the error can be cured by striking the testimony and admonishing the jury rests in the sound discretion of the trial court. [Citation.] ‘ “A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” [Citation.] Although most cases involve prosecutorial or juror misconduct as the basis for the motion, a witness’s volunteered statement can also provide the basis for a finding of incurable prejudice.’ ” (People v. Harris, supra, 22 Cal.App.4th at p. 1581.)
Whether or not it was an abuse of discretion to deny appellant’s motion for a mistrial, we conclude any error was harmless. In determining whether a court’s erroneous failure to grant a mistrial motion is prejudicial, we utilize the standard of review articulated in People v. Watson (1956) 46 Cal.2d 818, 836, and thus we may find such error prejudicial only if it is reasonably probable that a different outcome more favorable to appellant would have been reached without the error. (People v. Harris, supra, 22 Cal.App.4th at p. 1581 [applying Watson standard to erroneous denial of motion for mistrial]; People v. Williams (1981) 115 Cal.App.3d 446, 453 [same].)
The evidence that appellant committed the robbery of the gas station was strong. Liliana testified without contradiction that appellant left her home at 5:00 a.m. on the day of the robbery, after saying he intended “to jack . . . [¶] [t]he Shell,” and she identified appellant as one of the persons depicted in the surveillance photograph taken at the gas station at the time of the robbery.
Appellant suggests Liliana’s testimony was less than credible because she was closer in age to Roman than to appellant “and thus inferentially could have been a better friend to [Roman] than to [appellant], putting her in the position of perhaps wanting to help Mr. Roman by supporting his version of events.” (Italics added.) This claim is specious for several reasons. First, any inference that Liliana would be biased in favor of Roman because the two were close in age is an extremely weak one. Second, any claim of such bias is belied by Liliana’s identification of Roman as one of the persons depicted in the surveillance photograph of the gas station. Finally, it is entirely unclear how bias in favor of Roman would operate to the disadvantage of appellant. Under Roman’s “version of events” as revealed in his testimony, although Roman was acquainted with appellant, Roman did not know the identity of his accomplice in the gas station robbery. Thus, his testimony was helpful to appellant.
Appellant also attacks Liliana’s credibility on the grounds that the record shows that Deputy Flores “was willing to step outside the lines to get a conviction,” and therefore the deputy “might have” pressured Liliana to fabricate her testimony, and Liliana, because of her young age, was susceptible to such pressure. This claim too is mere speculation.
We also note that the jury’s acquittal of appellant on count 1, where the strongest evidence of appellant’s guilt was the evidence of Roman’s statements to Deputy Flores, indicates the jury placed little stock in Roman’s statements implicating appellant in the charged offenses. On this record, it is not reasonably probable that appellant would have obtained a more favorable result had the jury not been exposed to the evidence of appellant’s statement regarding his intent to rob a Texaco station.
Abstract of Judgment
As indicated above, the jury found true a vicarious firearm-use enhancement under section 12022.53, subdivision (e)(1); the court, in imposing this enhancement, erroneously indicated it was imposing an enhancement for personal use of a firearm under section 12022.53, subdivision (b); and the abstract of judgment reflects the court’s error. Appellant contends, and the People do not dispute, this court should direct the trial court to issue an amended abstract of judgment correcting the error. We will modify the judgment to correct the court’s error, and direct the court to issue an amended abstract of judgment reflecting the correction. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [unauthorized sentence subject to judicial correction whenever error comes to attention of reviewing court].)
DISPOSITION
The judgment is modified as follows: (1) the 23-year prison term imposed by the court includes a 10-year term for the enhancement under section 12022.53, subdivision (e)(1) for personal use of a firearm by a principal in the commission of the instant offense, and (2) the sentence does not include an enhancement for personal use of a firearm under section 12022.53, subdivision (b). The trial court is directed to prepare an amended abstract of judgment reflecting this modification, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.