Opinion
NOT TO BE PUBLISHED
Superior Court County No. YA054791-01 of Los Angeles, Eric C. Taylor, Judge
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth N. Sokoler, Marc E. Turchin, Deputy Attorneys General, for Plaintiff and Respondent.
GILBERT, P.J.
Larry Anthony Williams appeals a judgment following conviction of carjacking, with findings of personal use of a deadly weapon during the criminal offense, two prior serious felony convictions, and service of a prior prison term. (§§ 215, subd. (a), 12022, subd. (b)(1), 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).) We reverse and remand for resentencing, but otherwise affirm.
All statutory references are to the Penal Code.
FACTS AND PROCEDURAL HISTORY
In the late afternoon of April 7, 2003, Joseph Grammatico, a salesman at Martin Chevrolet in Torrance, saw Williams enter the automobile lot and look at a gold-colored 2001 Chevrolet Camaro convertible. Grammatico approached Williams and they discussed the Camaro. Williams stated that he wanted to "test-drive" the Camaro, but that he had no driver's license. Grammatico accepted a California identification card issued to "Angelo Mansueto" from Williams, and agreed to drive the Camaro automobile on a short drive with Williams as a passenger. Although the procedure was unusual, Grammatico "always assume[d] a sale, being a salesman."
Grammatico drove approximately four or five blocks from the Chevrolet dealership. Williams then demanded that Grammatico drive to the curb. As Grammatico did so, Williams took a large knife from his jacket and pointed it at Grammatico. Williams ordered Grammatico from the automobile. Frightened and in fear for his safety, Grammatico submitted.
Williams then asked Grammatico if he carried a cellular telephone. Although Grammatico had a cellular telephone, he replied that he did not. Williams then drove away.
Grammatico immediately telephoned the manager of Martin Chevrolet and reported that Williams had carjacked the automobile. Frightened and in shock, Grammatico also telephoned the police emergency dispatcher. He reported that a tall, heavy Black man, with a goatee and pony tail, had carjacked the Camaro convertible by displaying a large knife. The prosecutor played the recording of the emergency telephone call at trial.
Within minutes of the police emergency telephone call, police officers saw the Camaro automobile. As they followed it, Williams exceeded the speed limit and did not observe stop signs. Other police officers also pursued Williams and soon detained him.
A police officer found a large knife under the rear passenger seat of the automobile. A fingerprint examiner later analyzed latent fingerprints obtained from the knife and concluded that there was insufficient detail for comparison purposes.
Approximately 30 minutes after the carjacking, police officers drove Grammatico to the place where they detained Williams. Grammatico identified Williams as the carjacker and identified the knife as the weapon that Williams had displayed.
At trial, Williams presented evidence from psychiatrist Jack Rothberg, who opined that Williams suffers from psychosis of long-standing, due to schizophrenia or substance abuse. Doctor Rothberg did not opine whether Williams suffered psychotic symptoms at the time of the carjacking. He conceded, however, that the circumstances of the automobile taking reflect in part clear thinking and mental organization.
The jury convicted Williams of carjacking and found that he personally used a deadly weapon during commission of the offense. (§§ 215, subd. (a) & 12022, subd. (b)(1).) In a bifurcated proceeding, the trial court found that Williams suffered two prior serious felony convictions alleged for recidivist sentencing purposes, and that he served a prior prison term. (§§ 667, subd. (a), 667, subds. (b)-(i), 1170.12, subds. (a)-(d), & 667.5, subd. (b).) The trial court sentenced Williams to a prison term of 35 years to life. It ordered that the one-year enhancements for personal weapon use and service of a prior prison term run concurrently to the 35-years-to-life prison term.
Williams appeals and contends that the trial court erred by denying his motion for a mistrial. The Attorney General concedes that the concurrent sentence for the one-year enhancements for personal weapon use and service of a prior prison term are unauthorized sentences.
DISCUSSION
I.
Williams argues that the trial court abused its discretion by denying his motion for a mistrial based upon a police officer's testimony regarding review of parole records during preparation of a booking form. He asserts that the error denied him a fair trial and due process of law because the improper evidence was of such character that its effect is not removed by the trial court's admonitions. (People v. Allen (1978) 77 Cal.App.3d 924, 934-935 [witness' s unexpected statement that defendant ". . . ' was on parole and . . . couldn't stand another beef'" was improper and incurable by admonition].) Williams points out that his defense at trial concerned his lack of specific intent to deprive Grammatico of the Camaro automobile due to psychiatric illness.
During cross-examination of Police Officer Edward Galang, defense counsel inquired concerning the sources of information the officer reviewed in preparing the booking sheet: "Did you also, on that [booking] form, provide information that you received from other sources, computer or anything like that?" Officer Galang replied: "Other information, as far as parole information?" Defense counsel responded: "Other information such as anything else, certain I.D. numbers . . . ." Later, defense counsel moved for a mistrial, asserting that Galang's response was prejudicial because it intentionally referred to Williams' s parole status.
The trial court must grant a motion for mistrial when a party's chances of receiving a fair trial have been irreparably damaged. (People v. Avila (2006) 38 Cal.4th 491, 573.) The trial court possesses broad discretion, however, in ruling upon a motion for mistrial. (Ibid.) "'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.'" (Ibid.) Although most motions for mistrial involve prosecutorial or juror misconduct, a witness' s volunteered statement may also provide the basis for a finding of prejudice. (People v. Wharton (1991) 53 Cal.3d 522, 565-566 [no incurable prejudice where witness "blurted-out" that defendant "got the word out" that witness was a "snitch"].) It is "only in the exceptional case" however, that the trial court's admonition will not cure the effect of improper prejudicial evidence. (People v. Allen, supra, 77 Cal.App.3d 924, 935.)
The trial court did not abuse its discretion and did not deny Williams a fair trial by denying his mistrial motion. The witness' s reference to "parole information" was ambiguous and brief and did not necessarily indicate that Williams was on parole. (People v. Bolden (2002) 29 Cal.4th 515, 554-555 [police officer volunteered that he located defendant through a parole office; no error in denying mistrial because reference was brief and no reasonable juror would infer that defendant had served a prior prison term].) The isolated reference to "parole information" was not incurably prejudicial. (People v. Valdez (2004) 32 Cal.4th 73, 124-125 [police officer witness volunteered that defendant had been at "Chino [prison];" no error in denying mistrial because reference was isolated and prejudice curable by instruction].) Moreover, no reasonable connection exists between a defendant having been on parole and his ability to form the specific intent to commit a particular offense on a particular date. Williams suffered no prejudice from Galang's statement.
II.
The Attorney General contends that the trial court erred by imposing concurrent one-year prison terms for the personal weapon use and prior prison term enhancements. (§§ 12022, subd. (b)(1) & 667.5, subd. (b).) He points out that unless the trial court exercises its discretion to strike the one-year enhancement for personal weapon use or prior prison term served, imposition of a consecutive prison term for each enhancement is mandatory. (Ibid.)
Section 12022, subdivision (b)(1), provides in part that "[a]ny person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year. . . ." Section 667.5, subdivision (b), provides in part that "in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony . . . ." Thus, the statutes provide for mandatory consecutive sentences unless the trial court exercises its discretion to strike the enhancements pursuant to section 1385, subdivision (c)(1). (People v. Langston (2004) 33 Cal.4th 1237, 1241; In re Scott (2005) 133 Cal.App.4th 573, 581.)
During sentencing, Williams asserted that the trial court "does have discretion to sentence concurrently or to impose and stay the 1 year priors." The prosecutor did not object to or correct defense counsel's statement. The trial court then imposed one-year prison terms for each enhancement, to be served concurrently.
It is true that the trial court may have intended leniency to Williams by the imposition of concurrent sentences. Its articulated discretion is controlling, however, and we express no opinion regarding resentencing upon remand. (§ 1385, subd. (c); People v. Humphrey (1997) 58 Cal.App.4th 809, 813.)
We reverse and remand to allow the trial court to either impose consecutive sentences for the personal weapon use and prior prison term enhancements, or to exercise its discretion and strike the enhancements. The judgment is otherwise affirmed.
We concur: YEGAN, J., COFFEE, J.