Trial Judge: Honorable Theresa J. Canepa Trial Court: Contra Costa County Superior Court (Contra Costa County Super. Ct. No. 50912584)
The opinion of the court was delivered by: Kline, P.J.
CERTIFIED FOR PUBLICATION
After a one-day jury trial, appellant was convicted of three counts of second degree robbery (Pen. Code, §§ 211/212.5, subd. (c)),*fn1 and a single count of second degree commercial burglary (§§ 459/460, subd. (b)). The jury also found appellant had used a firearm in the commission of three of the four offenses. (§ 12022.53, subd. (b).) The court sentenced appellant to a total prison term of 13 years, including the mandatory 10-year consecutive sentence for the firearm enhancement.
At the commencement of trial defense counsel advised the court that appellant admitted the charged robberies and burglary "and we're only challenging the gun. [¶] I don't anticipate putting on any witnesses that will talk about the gun that was allegedly used. What I am going to be arguing is this lack of evidence to show that it is a real gun."
After the presentation of evidence was completed, the prosecutor requested a "pinpoint instruction" telling the jury that the inability of appellant's victims to say conclusively that the "gun" he used in the commission of the crimes was real "does not create a reasonable doubt as a matter of law that the gun was not a firearm." Over appellant's objection, the court gave the proposed instruction.
Appellant contends that the giving of the challenged instruction directed a verdict for the prosecution with respect to the use of a firearm and is therefore reversible per se. At the very least, he alternatively argues, the instruction impermissibly lightened the prosecution's burden of proving the firearm use allegation, and that error is prejudicial under the harmless beyond a reasonable doubt standard set forth in Chapman v. California (1967) 386 U.S. 18. We shall conclude that the instruction is not reversible per se because it did not direct the verdict, but that it did impermissibly lighten the prosecution's burden to prove the use allegation beyond a reasonable doubt and therefore should not have been given. However, because the error was not prejudicial under the applicable Chapman standard, we shall affirm the judgment.
FACTS AND PROCEEDINGS BELOW
On the evening of January 28, 2008, appellant and Slava McDonald entered a branch bank located in a Raley's supermarket in Antioch. McDonald slammed a gun on the counter, pointed it at the two tellers, Linda Pineda and Matthew Rybolt, and demanded money. At the same time, appellant lifted his shirt, exposing a gun with a black handle tucked in his waistband.
Pineda testified that appellant's gun appeared to her to be real, not a "fake gun." She drew that conclusion because it looked "hard," like the gun her mother, a police officer, sometimes brought home. Rybolt focused only on McDonald's gun, describing it as a "revolver" having a "cylinder."
When the tellers said they had no access to money, McDonald told them to get the manager. Pineda then informed her supervisor, Christina Burton, and the branch manager, Allissa Flenoid, that the bank was being robbed. Flenoid testified that when she approached appellant and McDonald, the latter pointed a "little silver gun." Appellant was holding a gun on the counter. Flenoid described this gun as black in color, not "an old western style gun" like the one McDonald used but similar to the weapon in the holster of the bailiff in the courtroom. When McDonald demanded money, Flenoid gave him about $1,500 she took from a drawer. During this time, appellant and McDonald walked back and forth in front of Flenoid's office and she was able to see appellant's weapon. When asked by the district attorney whether she thought it was a real gun, Flenoid answered "yes." She also stated that there was nothing "about that gun made [her] believe it was a fake gun." Flenoid's entire encounter with the robbers lasted about 10 minutes.
Christina Burton also saw both of the robbers' guns, which they banged several times on the counter. She too believed appellant's gun was real and also that it was loaded, as it appeared to her to be a heavy metal object and there was nothing about it indicating it might not be a real gun. When, during cross-examination, defense counsel asked, "you really aren't able to determine a real gun from a fake gun; would that be fair to say?" Burton answered, "I think that for the most part I could be able to tell the difference. I mean, my kids have fake ones at the house, so I know what that looks like." Burton had also seen other "fake type guns," such as BB guns and "a fake lighter gun." She stated that "the way they were holding [the guns] and how they were using the guns" is what made her believe that the gun was real.
Appellant was not apprehended until June 2009, almost 18 months after the robberies. Detective Santiago Castillo of the Antioch Police Department interviewed appellant after his arrest and a video of the interview was received in evidence and played to the jury, as was a video surveillance showing some portions of the robbery as it occurred.
After Castillo read him his Miranda*fn2 rights, appellant waived them and admitted he committed the charged robberies, but said the gun he used was a "slider" that was "broke," while McDonald's gun was "like an antique," a "Winchester almost or something like that," and, "I don't even know if it was a toy or what." After the robbery, appellant gave his gun, which he referred to as his "heat," to a friend named "T." The gun was not found by the police at one of the two addresses at which appellant said he resided; the police apparently did not search the other residence he identified. At no time during his interview with Castillo did appellant suggest that the gun he used was a "fake" or a "toy." The only reference appellant made to a "toy" gun related to McDonald's weapon.
Castillo had often arrested persons for offenses involving firearms and was cognizant of the terminology they and others used in referring to them. According to Castillo, most arrestees do not refer to their weapons as "guns" but use "street terms," such as "heat," the word appellant used to describe the gun he used in the robberies. When asked what he thought such persons meant by "heat," Castillo answered: "[a] loaded firearm." Castillo had never heard an arrestee or anyone else refer to a toy gun as "heat."
By consulting records maintained by the Automated Firearms System administered by the California Department of Justice, Castillo learned that two semi-automatic pistols were registered to appellant. Appellant purchased one of them, a nine-millimeter Beretta model M9, on July 22, 2006, about a year and a half before commission of the charged offenses.
Asked to explain the difference between a revolver and a pistol, Castillo said a revolver "is your old western cowboy style gun" with a "revolving cylinder in the middle." Semi-automatics are "more blocky, squared" and have no external cylinder. "One of the differences between a revolver and a semi-automatic," Castillo said, "is that once a bullet has been fired out of a revolver, the cylinder retains the casing which is what houses the bullet or cartridge. And in a semi-automatic, once that bullet has been fired, the gun ejects the casing." A semi-automatic pistol has a "rail" on top. When the weapon is fired, a "slide" running along the rail moves back, ejecting the spent casing and loading another bullet into the chamber. Both pistols registered to appellant had such a slide. When interviewed by Castillo, appellant described the weapon he used during the robberies on January 28, 2008, as having a "slide."
Appellant presented no witnesses. After deliberating for about an hour and a half, the jury found appellant guilty of all charges. The jury also found true the allegation that in the commission of three of the four charged offenses appellant used a "firearm" within the meaning of section 12022.53, subdivision (b), as required to subject him to the 10-year enhancement authorized by that statute.
On December 3, 2010, appellant was sentenced to a prison term of three years on the first robbery count, plus a consecutive term of 10 years on the arming enhancement. Sentences ...