Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB049124 Arthur Harrison, Judge.
Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Eric Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
Sami Sayah, a convenience store clerk, was killed during a robbery. Defendant Robert Samuels was charged with murdering him, a violation of Penal Code section 187, subdivision (a). It was also alleged that defendant personally used a firearm within the meaning of section 12022.53, subdivisions (b), (c) and (d), and that the murder was committed during a robbery, within the meaning of section 190.2, subdivision (a)(17). Count 2 charged a robbery (§ 211) and alleged personal use of a firearm (§ 12022.53, subds. (b), (c) & (d)).
All further statutory references will be to the Penal Code unless otherwise indicated.
The jury found defendant guilty of first degree murder and robbery. It found the personal-use allegation under section 12022.53, subdivision (d), to be true, and it found the special circumstance allegation under section 190.2, subdivision (a)(17), to be true.
Defendant was sentenced to an indeterminate term of life without possibility of parole, plus a consecutive 25-year-to-life term for the personal-use allegation of section 12022.53, subdivision (d). Sentence was imposed and stayed on count 2 pursuant to section 654.
Defendant appeals, contending that the trial court should have declared a mistrial sua sponte after a testifying detective referred to defendant as a suspect in another (uncharged) robbery. He also contends that the 25-year consecutive sentence on the personal-use allegation violated double-jeopardy principles. Finding no error, we affirm.
FACTS
Sami Sayah worked at a gas station located at the corner of Highland and Palm in San Bernardino. The station was equipped with a video surveillance system with seven cameras, including four cameras in the convenience store section of the gas station.
On the morning of November 13, 2004, Sayah’s body was found at the store. The surveillance system recorded two persons entering the store and asking for some merchandise. When the clerk was distracted, the first suspect drew a gun, jumped over the counter, and asked the clerk where the safe was. The first suspect asked the clerk to open the cash register, and he disabled the camera which was focused on the cash register. The first suspect then removed rolls of coins from under the counter and gave them to the second suspect. The second suspect was taking merchandise and, while he was doing so, he placed his gun on the counter. Sayah grabbed the gun and the first suspect then shot Sayah at least two times. The first suspect then fired two shots at a locked door, which turned out to be a bathroom. The two men left the store, crossed a street and went into a dirt field. Coins and merchandise were subsequently recovered from the field, next to a wall at the end of the field and on the other side of the wall. Approximately $600 to $800 in cash was taken from the store.
Two witnesses saw the men leaving the store but they were unable to identify them. Dogs tracked the men to an apartment complex on the other side of the field, but the dogs lost the scent in the neighborhood.
The primary issue in the case was the identity of the persons shown in the surveillance video. Defendant, who represented himself, asserted that he was living in North Carolina at the time of the crime. He testified that he returned to California on September 16, 2004, to help his mother. He returned to North Carolina on October 15, 2004, before the crime was committed. He produced airline ticket coupons to support his testimony. He also produced a North Carolina driver’s license showing it was issued on October 20, 2004. A North Carolina police officer testified that defendant had to be physically present to obtain the license. Defendant was arrested in North Carolina on June 23, 2005, and was extradited to California.
The prosecution presented seven witnesses from the neighborhood, including defendant’s mother and girlfriend, to establish that defendant was the person seen on the surveillance video and/or that he had been in the neighborhood shortly before the crime was committed. While most of the witnesses were not cooperative in their testimony, they were impeached by the testimony of the detective who had interviewed them.
There was testimony that threats had been made against witnesses and we therefore elect not to identify the neighborhood witnesses by name.
Defendant’s mother testified that defendant was known by the nicknames of “Green Eyes” and “Blast.” She also testified that defendant had visited her between November 1 and November 15, 2004, to help her move from her apartment. She also admitted telling the lead officer, Detective William Flesher, that she last saw defendant at 11:00 p.m. on the night before the gas station robbery. She denied that defendant was the person in pictures taken from the surveillance video, but she admitted telling Detective Flesher that the suspect could be her son.
On cross-examination, she stated that her son arrived in September to help her move.
Detective Flesher testified that he gave defendant’s mother a ride home after her first day of testimony. She told him that defendant was the person shown in the photos taken from the surveillance video. Detective Flesher also testified that defendant’s mother had positively identified defendant as one of the robbers in an earlier interview.
At trial, defendant’s girlfriend denied that defendant’s nickname was Green Eyes, and she was evasive about whether she saw him around the time of the crime. She did not identify defendant from any of the surveillance photos. However, Detective Flesher testified that she told him defendant resembled the suspect in pictures taken from the surveillance video. She also told Detective Flesher that some people called defendant Green Eyes, and that she last saw defendant on the morning of the crime. Defendant told her that he was leaving California and she did not see him for several months after he left.
Other persons from the neighborhood identified defendant as the first suspect, either in court or in statements to police. At the very least, they placed defendant in the neighborhood shortly before the crime, thus undercutting defendant’s defense.
For example, one neighborhood witness identified defendant as one of the suspects in pictures taken from the surveillance video. He also testified that defendant was known as Green Eyes and that defendant lived in the neighborhood in November 2004. Detective Flesher testified that the witness told him in an interview that he saw defendant in the neighborhood the day before the crime was committed. In his trial testimony, the witness admitted he made the statement to the detective, but he did not remember at trial if he saw defendant the day before the murder. Detective Flesher also testified that the witness told him that he had heard defendant and his associates talking about a robbery to obtain money.
Another witness denied knowing defendant in court but told Detective Flesher that defendant and two other men had committed the crime. He also identified defendant from the pictures taken from the surveillance video.
A third witness denied knowing defendant at trial but Detective Flesher testified that the witness identified defendant as the first suspect in the surveillance video.
A footprint on the store counter was also traced to the type of shoe that defendant owned. It was apparently left when the first suspect jumped onto and over the counter.
The jury evidently disbelieved defendant’s testimony that he was in North Carolina at the time of the shooting and believed that defendant was one of the men shown in the surveillance video.
DISCUSSION
A. Defendant’s Contention That the Trial Court Should Have Declared a Mistrial Sua Sponte.
During the testimony of Detective Flesher, the prosecutor asked him to detail the steps he took to investigate this crime. Detective Flesher replied that he examined the physical evidence at the scene, interviewed witnesses, used canines to try to track the suspects, and prepared information for the news media. He then said: “We interviewed prior—the victims of robberies, the one primarily that occurred the day before in which the same suspects were identified as being involved. We tracked down the property that was taken during that first robbery.” At that point, defendant, representing himself, said: “Objection, Your Honor. What does that first . . . robbery have to do with this one?” The trial court replied: “The objection is sustained. The suggestion that the defendant had committed other acts on the videotape will be disregarded.” The witness then continued describing the further steps taken in the investigation of the crime.
Defendant now contends that the sustaining of his objection was not enough and that the trial court had a sua sponte duty to declare a mistrial as a result of Detective Flesher’s statement. First, he argues that the statement was improper because the jury had been told that defendant was a suspect in the charged crime, and the jury could reasonably infer that the reference to “the same suspects” included a reference to defendant. Second, he argues that although the trial court sustained defendant’s objection, it did not properly admonish the jury to disregard the testimony. The reference to “other acts on the videotape” was unclear and did not clearly tell the jury to disregard the detective’s testimony. Accordingly, defendant concludes that the general presumption that the jurors would understand and follow the court’s admonition is inapplicable.
Defendant cites People v. Bolden (2002) 29 Cal.4th 515: “A trial court should grant a mistrial only when a party’s chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. [Citation.] Here, although the witness referred briefly to a parole office in connection with obtaining defendant’s address, the witness’s answer was nonresponsive and the prosecutor interrupted before the answer was completed. It is doubtful that any reasonable juror would infer from the fleeting reference to a parole office that defendant had served a prison term for a prior felony conviction. The incident was not significant in the context of the entire guilt trial, and the trial court did not abuse its discretion in ruling that defendant’s chances of receiving a fair trial had not been irreparably damaged.” (Id. at p. 555.)
The People agree that the unsolicited statement of a defendant may provide the basis for a finding of incurable prejudice. The People cite People v. Ledesma (2006) 39 Cal.4th 641: “The issue here is whether the witness’s comment was so incurably prejudicial that a new trial was required. ‘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.] A witness’s volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice. [Citations.] But we do not presume that knowledge that a defendant previously has been convicted and is being retried is incurably prejudicial. [Citation.]” (Id. at p. 683.)
The issue is whether the comment of the witness justifies a mistrial or whether the error can be cured by striking the statement and admonishing the jury. (People v. Harris (1994) 22 Cal.App.4th 1575, 1581.) Here, a motion for mistrial was not made, and the trial court impliedly decided that the error could be cured by sustaining the objection and advising the jury to disregard the suggestion that defendant had committed other criminal acts.
The admonition was vague and unspecific in its reference to “other acts on the videotape” and clearly should have been phrased better. But defendant’s objection that the first robbery did not have anything to do with the charged crime was sustained. The jury could reasonably understand that the trial court agreed with defendant’s statement and that the jurors were being admonished to disregard the suggestion that defendant was a suspect in another uncharged robbery. In any event, the deferential abuse of discretion standard of review is applicable, and we cannot find on this record that the trial court’s implied decision that there was no incurable prejudice from the statement of the witness was an abuse of its discretion.
We agree with the People that the statement that defendant was a suspect in an uncharged robbery was brief, defendant’s objection was immediate, and the trial court sustained the objection and admonished the jurors to disregard the suggestion that defendant had committed other uncharged acts. Although the admonishment was flawed by its reference to a videotape, the overall impression was that the jurors were to disregard the statement of the officer.
Defendant quotes People v. Harris, supra, 22 Cal.App.4th at page 1580: “‘There 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.’” This is certainly true, but the question of whether the potential prejudice is incurable is a different question. Although defendant argues that any admonishment could not cure the prejudice from the officer’s statement, we find that the evaluation and determination of whether the prejudice was incurable or not is best done by the trial court.
We cannot say that the remark here created incurable prejudice as a matter of law. As noted above, our Supreme Court has held that knowledge that a defendant previously has been convicted and is being retried is not incurably prejudicial. (People v. Ledesma, supra, 39 Cal.4th at p. 683.) Here, the remark was only that defendant was suspected of being involved in another robbery. The remark was very brief and the evidence against defendant was relatively strong. In the context of all of the evidence, the trial court could have reasonably concluded that any prejudice was curable. In short, while the trial court certainly had the power to declare a mistrial, we find that it had no duty to declare a mistrial sua sponte under the circumstances presented here.
B. The Imposition of a Consecutive 25-year Enhancement Under Section 12022.53, Subdivision (d).
In relevant part, section 12022.53, subdivision (d), provides a sentence enhancement when a person uses a firearm in the commission of a specified felony and proximately causes death. Murder is one of the listed felonies, and defendant cogently argues that the double-jeopardy protection against multiple punishments for the same act is violated when the enhancement is applied to murder cases because the act which causes death is used both as an element of the offense and an enhancement.
Defendant concedes, however, that our Supreme Court has recently rejected this argument and held that double-jeopardy principles are not applicable under the circumstances here. (People v. Izaguirre (2007) 42 Cal.4th 126, 130-134; People v. Sloan (2007) 42 Cal.4th 110, 115-124.) Defendant also notes that an appellate court has held that section 654 does not prevent the imposition of the section 12022.53, subdivision (d), enhancement. (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1313-1314; see also People v. Palacios (2007) 41 Cal.4th 720, 725.)
We are, of course, bound by the decisions of our Supreme Court and we therefore must reject defendant’s argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Correction of the Abstract of Judgment.
The People request correction of the abstract of judgment. The trial court correctly stated at sentencing that defendant was sentenced to life without the possibility of parole for the special-circumstance murder and an additional and consecutive term of 25 years to life for the section 12022.53, subdivision (d), enhancement. The clerk’s minutes incorrectly state that defendant was sentenced to a total indeterminate sentence of 50 years to life. The abstract of judgment states that the sentence on the murder charge is life without the possibility of parole. It states that the term on the enhancement is 25 years, and a box is incorrectly checked indicating that the sentence on the murder charge is 25 years to life. We agree with the People that the abstract should be corrected to show that the sentence on the section 12022.53, subdivision (d), enhancement is an additional and consecutive term of 25 years to life.
DISPOSITION
The judgment is affirmed. The trial court is directed to amend the abstract of judgment in accordance with the views expressed in this opinion and to forward a certified copy to the appropriate prison authorities.
We concur: HOLLENHORST Acting P.J., MILLER J.