Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050701516
McGuiness, P.J.
Appellant Kenneth James Burke was sentenced to serve 46 years to life in prison following a court trial. On appeal, he challenges the imposition of a one-year sentence enhancement for the use of a dangerous or deadly weapon (Pen. Code, § 12022, subd. (b)(1)), contending the court committed prejudicial misconduct by considering evidence not admitted at trial. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
Factual and Procedural Background
Because appellant challenges only the one-year weapons use enhancement, our recitation of the factual and procedural background focuses primarily on the facts relevant to that enhancement.
On June 21, 2006, appellant walked into the Genghis Khan restaurant in Concord carrying what appeared to be a black handgun. Appellant motioned toward the cash register with the gun and told the cashier to give him the money. He pointed the gun at the cashier, who complied with his request and handed him the money from the register. Appellant put the money in his pocket and left.
Within a half an hour after receiving a dispatch about the robbery, police apprehended appellant near the restaurant. Inside appellant’s backpack, Concord police officer Alison Bevan found a “loaded air soft gun.”
In a two-count amended information, the Contra Costa District Attorney charged appellant with second degree robbery (§§ 211, 212.5, subd. (c)) and second degree commercial burglary (§§ 459, 460, subd. (b)). The district attorney alleged that appellant had used a deadly or dangerous weapon during the commission of the offenses. (§ 12022, subd. (b)(1).) The district attorney further alleged that appellant had suffered eight prior serious felony convictions qualifying as “strikes” under California’s three strikes law. (§§ 667, subdivisions (b)–(i), 1170.12.) The amended information contained additional sentence enhancement allegations for prior serious felony convictions and prior prison terms pursuant to section 667, subdivision (a)(1) and section 667.5, subdivisions (a) and (b).
Appellant waived his right to a jury trial. A bench trial commenced on December 4, 2007. The following day the court found appellant guilty as charged and found the prior conviction allegations true. On January 18, 2008, the court sentenced appellant to serve 46 years to life in prison, composed of a 25 years-to-life sentence for the third strike robbery conviction (§§ 211, 212.5, subd. (c), 667, subds. (b)–(i), 1170.12), one consecutive year for the use of a deadly or dangerous weapon in the commission of the robbery (§ 12022, subd. (b)(1)), and five consecutive years each for four prior serious felony convictions (§ 667, subd. (a)). Pursuant to section 654, the court stayed the sentence for the second degree burglary conviction (§§ 459, 460, subd. (b)) and the related enhancement for use of a deadly or dangerous weapon in the commission of the burglary (§ 12022, subd. (b)(1)).
The abstract of judgment incorrectly states that the four 5-year enhancements were imposed under section 667, subdivisions (b)–(i).
Appellant timely appealed the judgment of conviction.
Discussion
Appellant’s sole claim on appeal is that the one-year weapons use enhancement should be reversed because the trial court committed prejudicial misconduct by considering evidence not admitted at trial. He contends the court improperly considered testimony given at the preliminary hearing, but not admitted at trial, regarding the nature of the weapon brandished by appellant. As explained below, although it was error for the court to review prior testimony not admitted into evidence at trial, we conclude there is no substantial likelihood appellant suffered actual harm as a consequence of the court’s actions.
Facts
At trial, Concord police officer Alison Bevan described the weapon found in appellant’s pocket as a “loaded air soft gun” containing a pressurized CO2 cartridge. The gun shot “some sort of a pellet or BB” and was loaded with pellets when found. In response to a question posed by the trial judge, Bevan confirmed the gun was similar in size to her sidearm. The judge also asked Bevan if “this [gun] actually ejects like BBs?” Bevan responded, “Yes, similar pellets. They’re not necessarily metal, but they’re similar pellets.” When the judge asked if the gun could kill a bird, Bevan responded, “Probably.”
At the time the prosecution rested, the gun had not been admitted into evidence. Both sides notified the trial court there was an issue regarding whether the weapon was deadly or dangerous. The prosecutor asked if he could reopen his case in chief to permit a witness to testify about the weapon. After defense counsel objected, the trial court declined the prosecutor’s request to reopen. The prosecutor explained he was “relying on case law” that a “pellet gun is a deadly weapon as a matter of law,” and that if the court was not inclined to accept that, he sought to present further testimony on the weapon.
The following day, the trial judge announced she was going to reopen the case to address the factual issue of whether the weapon recovered from appellant was deadly or dangerous. She explained she was doing so pursuant to Evidence Code section 730, which permits a court on its own motion to call an expert to testify regarding a fact or matter as to which expert evidence may be required. Defense counsel objected, stating that the court should proceed on the record as of the time the prosecution rested. The prosecutor had no objection to calling an expert witness but expressed his view the record was sufficient to establish appellant used a BB gun, which is considered a deadly or dangerous weapon as a matter of law.
The trial judge stated she had conducted the preliminary hearing, at which Bevan had described the weapon as an “air gun” that “doesn’t actually fire anything” and just “makes a sound.” The judge was concerned that Bevan’s trial testimony was “in complete contradiction of what she said at the prelim which was [the gun] only makes sounds.” Defense counsel objected to the court’s review of the preliminary hearing transcript, which had not been offered into evidence at trial.
Bevan went on at the preliminary hearing to testify that the gun fires pellets that can “hurt someone” and injure an eye, if fired at close range.
The judge explained she was “probably very inclined to find true this weapon enhancement” after the prosecution rested, but “the more [she] thought about it” the more she felt she had “to seek the truth.” The judge stated: “And is it improper for me to read the prelim transcript? I don’t know. . . . And I do remember just how much the weapon thing bothered me ever since then. So I don’t know if that’s considered going outside the record. It might be. . . . But here we are. I’m going to go ahead and look at. I have looked at it, and now I want the witness to please take the stand.”
The court called a sheriff’s deputy, Walter Clymens, to testify about the weapon. Clymens described it as follows: “It is a BB gun. It’s not an air soft gun, what they would call an air soft. Air soft shoots plastic BBs. This one appears to have the capabilities of shooting a regular steel BB.” He testified he would not consider it to be a toy. According to Clymens, the gun could not kill somebody but could cause serious injury to an eye. He also testified BB guns are capable of killing birds.
The trial judge concluded by noting that a few sentences in the preliminary hearing transcript had led her to believe the gun was a toy. The court stated, “The testimony of the officer yesterday did not help that much, but the Court was going to find beyond a reasonable doubt it was a deadly or dangerous weapon based upon the testimony of the victim. But aside from that, the Court is now convinced beyond a reasonable doubt after having seen the object, which is, in fact, a BB gun and not what the officer said at the prelim, which was an air soft pistol . . . . So after having seen it, the Court is persuaded beyond a reasonable doubt that it is a BB gun, which is a pellet gun which [as] a matter of law [is] a dangerous weapon.”
Analysis
Appellant contends the court committed misconduct by considering officer Bevan’s preliminary hearing testimony, which had not been offered into evidence. He relies upon the general rule that jurors are not to consider information outside the evidence presented in court. (See English v. Lin (1994) 26 Cal.App.4th 1358, 1363-1364.) This rule applies with equal force to the court when it sits as trier of fact: “When a trial judge sits as the trier of fact, the judge takes the place of a jury, and his or her conduct is subject to the same rules. [Citation.] Consequently, the judge cannot receive information from sources outside the evidence in the case or conduct any out-of-court experiments. [Citations.] . . . By undertaking a collateral investigation, the judge abdicates his or her responsibility for deciding the parties’ dispute on the pleadings and evidence properly brought before the court. [Citation.]” (Guadalupe A. v. Superior Court (1991) 234 Cal.App.3d 100, 108-109.)
The People correctly point out that, in a court trial, the court is presumed to understand the law and “distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decisionmaking process. [Citations.]” (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) It is inevitable that, in the course of ruling on motions and dealing with other routine matters, a trial judge will become aware of information not properly considered by a trier of fact. (People v. Coddington, supra, 23 Cal.4th at p. 644.) Notwithstanding the court’s likely exposure to information not offered into evidence at trial, the court is presumed to properly exercise its duty to consider only the evidence presented at trial, absent evidence to the contrary. (Ibid.)
In this case, the trial judge happened to have presided over the preliminary hearing. Ordinarily, the court would enjoy the presumption that it did not rely on information outside the evidence presented at trial, such as the preliminary hearing testimony. The presumption is inapplicable here, however, because the court admitted it reviewed the preliminary hearing testimony to aid in its determination of an issue in dispute. Because the preliminary hearing testimony was not properly before the court at trial, it was error for the court to consider it.
We observe it would have been proper for the court to ask the witness to clarify whether the gun simply made a sound or emitted a projectile that could cause injury, if the court had a concern about whether there was sufficient evidence to support a finding the gun was a deadly or dangerous weapon. (See 3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial § 80, p. 114.) Indeed, the court did ask the witness several questions about the gun, including whether it emitted BBs and whether one could kill a bird with the gun.
Nevertheless, we conclude any error was harmless. “[W]hen misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially like the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test.” (In re Carpenter (1995) 9 Cal.4th 634, 653.)
Both appellant and the People rely on In re Carpenter, supra, 9 Cal.4th 634, a case addressing juror bias resulting from receipt of information from extraneous sources. Carpenter establishes a two-part test for determining whether a juror’s consideration of information outside the evidence at trial is prejudicial. (In re Carpenter, supra, 9 Cal.4th at pp. 653-654.) The parties have not cited any cases applying this two-part test to judicial misconduct resulting from a court’s consideration of information outside the evidence received at trial. As a general matter, when we consider a claim of judicial misconduct, “[w]e assess whether any judicial misconduct or bias was so prejudicial that it deprived defendant of ‘ “a fair, as opposed to a perfect, trial.” ’ [Citation.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1112.) Because we conclude appellant’s claims fail under any potentially applicable standard for assessing prejudice, it is unnecessary to decide which standard applies under the circumstances presented here.
“The first of these tests is analogous to the general standard for harmless-error analysis under California law. Under this standard, a finding of ‘inherently’ likely bias is required when, but only when, the extraneous information was so prejudicial in context that its erroneous introduction in the trial itself would have warranted reversal of the judgment. . . . [¶] But a finding that the information was ‘harmless’ by appellate standards, and thus not ‘inherently’ biasing, does not end the inquiry. Ultimately, the test for determining whether juror misconduct likely resulted in actual bias is ‘different from, and indeed less tolerant than,’ normal harmless error analysis, for if it appears substantially likely that a juror is actually biased, we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict. [Citation.] A biased adjudicator is one of the few ‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards.’ [Citations.] Thus, even if the extraneous information was not so prejudicial, in and of itself, as to cause ‘inherent’ bias under the first test, the totality of the circumstances surrounding the misconduct must still be examined to determine objectively whether a substantial likelihood of actual bias nonetheless arose. Under this second, or ‘circumstantial,’ test, the trial record is not a dispositive consideration, but neither is it irrelevant. All pertinent portions of the entire record, including the trial record, must be considered. ‘The presumption of prejudice may be rebutted, inter alia, by a reviewing court’s determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.’ [Citation.]” (In re Carpenter, supra, 9 Cal.4th at pp. 653-654.)
Here, there was nothing inherently prejudicial about the preliminary hearing testimony. Indeed, to the extent officer Bevan testified at the preliminary hearing that the gun did not shoot projectiles and only made a sound, the information aided appellant’s defense. Appellant concedes the preliminary hearing testimony was not inherently prejudicial, and admits he fails the first part of the Carpenter test. Nevertheless, he contends the misconduct was prejudicial under the second, “totality of the circumstances” part of the Carpenter test. Appellant argues he was prejudiced by the court’s consideration of the preliminary hearing testimony because it caused the court to call an expert witness, and that without the expert’s testimony the evidence would have been insufficient to support a finding the gun was deadly or dangerous. We disagree.
The court indicated it was going to find beyond a reasonable doubt that the gun was a deadly or dangerous weapon, even before it reviewed the preliminary hearing transcript and called an expert witness. The evidence was sufficient to support such a finding. Officer Bevan testified that the gun fires projectiles similar to BBs and that it could probably kill a bird. As a matter of law, “[a] BB gun or pellet gun is not a ‘firearm’ for purposes of sentence enhancements [citation], but is a ‘dangerous weapon’ as the term is used in section 12022, subdivision (b). [Citations.]” (People v. Dixon (2007) 153 Cal.App.4th 985, 1001; see also In re Bartholomew D. (2005) 131 Cal.App.4th 317, 326.)
Appellant agrees that a BB gun is a dangerous weapon, as that term is defined in section 12022, subdivision (b), but argues the critical question is whether the gun shoots metal projectiles. Appellant focuses on officer Bevan’s testimony that the pellets fired from the gun were “not necessarily metal, but they’re similar pellets,” contending that this testimony left a reasonable doubt about whether the gun shoots metal projectiles.
Appellant’s focus on whether a gun fires metal projectiles is misplaced. The critical inquiry is whether a gun is a toy or is capable of inflicting serious injury, in which case it is not a toy. The court in In re Bartholomew D. explained: “We are convinced that a pellet gun is a dangerous weapon under section 12022, subdivision (b), as a matter of law because it is dangerous to others in the ordinary use for which it was designed. Unlike a toy gun, which is designed for play and is incapable of shooting a projectile, or a starter pistol, which is not designed to release a projectile but to make a loud noise to signal the beginning of a race, a BB gun is not an imitation gun. It is an instrument designed to shoot by expelling a metal projectile at a target, is commonly recognized as such, and thus . . . is reasonably perceived as capable of inflicting serious injury. [Citation.] Indeed, the victim here perceived the instrumentality as ‘a semiautomatic handgun.’ He testified he was certain it was a handgun; that it was a semiautomatic and not a revolver. It was without question a real gun. And, in fact, its appearance provoked the desired reaction: submission to appellant’s criminal enterprise and demands. In short, the BB gun wielded by appellant was by design a weapon, and its use to expel a projectile supports the section 12022, subdivision (b) enhancement, even in the absence of evidence of its capacity to be used in a dangerous manner.” (In re Bartholomew D., supra, 131 Cal.App.4th at p. 326, fn. omitted.)
Although the court in In re Bartholomew D. referred to a “metal projectile,” there is nothing to indicate a projectile must be metal in order for the gun to be considered dangerous under section 12022, subdivision (b). A gun that emits a pellet-like projectile with sufficient force to kill a bird is not a toy but instead has the capacity to inflict serious injury. Further, just as in In re Bartholomew D., the gun was wielded by appellant as a weapon, and its use provoked the desired response from the victim.
Accordingly, we conclude there is no substantial likelihood appellant suffered actual harm as a consequence of the court’s improper consideration of testimony from the preliminary hearing. Even if the court had not chosen to call an expert witness following its review of the preliminary hearing testimony, there would have been sufficient evidence to uphold the weapons use enhancement under section 12022, subdivision (b).
Disposition
The judgment is affirmed.
We concur: Pollak, J., Siggins, J.