Wednesday, January 30, 2019
Court of Appeal:
Ascertainment of How the Weapon Appeared in Natural Light, to See if It Matched Victim’s Description of It, Was Permissible ‘Fact-Finding,’ Opinion Says
By a MetNews Staff Writer
A judge did not commit misconduct in examining a gun in chambers to determine if its appearance, in different light, would match the description by a robbery victim, the Third District Court of Appeal has held.
C.B., a minor, challenged the findings by Sacramento Superior Court Judge Alyson Lewis that he had committed robbery and assault by means likely to produce great bodily injury, and had personally used a firearm in the robbery. The gun had been described by the victim as “silver”; the weapon found in the possession of C.B., 13, was black.
After taking the gun into her chambers and examinining it in natural light—simulating circumstances of the outdoor robbery—Lewis declared:
“While the defense does raise a theoretical doubt, the Court has determined that that doubt is not a reasonable doubt as the gun, in the Court’s assessment, does look different in different lights. Not interpreting it the way the defense interprets is that it’s a black matte firearm.
“That is not how the Court sees the firearm, and I do think a reasonable witness description is as provided by the witness.”
Canon of Ethics
The youth asserted that Lewis, in conducting an examination of his gun in chambers, committed prejudicial misconduct. Her action, he asserted, violated Canon 3B(2) of the Code of Judicial Ethics, which provides that “a judge shall not independently investigate facts in a proceeding and shall consider only the evidence presented or facts that may be properly judicially noticed.”
In an unpublished opinion, filed Monday, affirming the juvenile delinquency adjudication, Justice Ronald B. Robie said:
“Here, the judge considered the appearance of the gun in natural light and determined that the gun looked different in different lighting conditions, and thus, found the victim’s description of the gun was reasonable. This was permissible factfinding, not misconduct.”
The victim identified C.B. as his assailant after finding shots of him—holding a gun—on Instagram and Facebook. He said the gun depicted in the postings was the same one with which he was struck in the chest in the course of the robbery.
C.B. also argued that there was prosecutorial misconduct because a photograph of the weapon distorted its appearance. Robie responded:
“[T]he photographing of the seized gun under different lighting conditions in an attempt to recreate the appearance of the gun, as seen in a social media post, is not manipulating evidence. The district attorney investigator who aided in taking these photographs did not clean or otherwise alter the gun prior to taking the photograph.”
“Further, while a photograph taken of the seized gun with blinds drawn and a flash initially appears to be of limited probative value concerning the appearance of the gun wielded by the victim’s assailant, given that the robbery occurred outside on a cloudy day when it was beginning to rain, that does not mean that the People committed prosecutorial misconduct by photographing that gun under different lighting conditions in an attempt to recreate the same appearance as in the minor’s social media post holding what the People alleged was the same gun. In fact, whether the gun recovered was the same gun from the social media post was relevant because the victim testified the gun in the social media post appeared to be the same gun used to rob him.”
The matter was remanded to the trial court for a decision on whether to exercise its discretion, under legislation enacted in 2017, to strike the firearm enhancement.
The case is In re C.B., C086207.
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