Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F04099
NICHOLSON, J.
In a trial of three individuals, conducted before three separate juries, defendant Markanthony Antonucci was convicted of two counts of robbery (counts one & two), one count of carjacking (count three), assault with a deadly weapon or by means likely to produce great bodily injury (count four), and battery as lesser included offense of battery with serious bodily injury (count five). Defendant’s jury also found true enhancements for personal use of a firearm and personal infliction of great bodily injury. Defendant was sentenced to prison for 22 years eight months.
On appeal, defendant (1) contends “the trial court committed prejudicial error by informing separate juries that some of the defendants had incriminated others,” and (2) requests that we conduct an in camera review of the sealed medical records of witness Ashley Morgan. We reject defendant’s first contention and, after having conducted the requested review, conclude the records contain no information that would be of benefit to defendant. We affirm the judgment.
FACTS
On May 7, 2006, Ashley Morgan, following an argument with defendant, who was her boyfriend, went to the apartment of her friend, Alyssa Shafer, and eventually met up with Michael Hudson, Krystal Webb, and Kevin Kelly, who was pimping for Webb and another woman. Later that evening, Morgan went riding with Kelly, Hudson and Webb in Kelly’s Thunderbird and kept in touch with defendant by cell phone, telling him who she was with, what they were doing, and that the men had asked her to prostitute for them. Defendant was angry, said that when he found Kelly and Hudson they “were going to get what was coming to them,” and that he would deal with Morgan later.
Morgan testified under a grant of immunity.
At one point while Morgan was speaking with defendant, she saw him driving his Mazda, accompanied by codefendant-to-be, Arlando Algere, along Stockton Boulevard in the opposite direction that she was traveling. Morgan so informed defendant and he turned around and followed the Thunderbird. Defendant signaled for the Thunderbird to pull over and both cars pulled behind a market.
Morgan, followed by Webb, walked to the Mazda. Antonucci told Morgan that “what he was about to do [was] for [her].” Antonucci got out the Mazda and when he turned around Morgan saw that he was holding a “silver.38.” Algere retrieved a shotgun with a pistol grip from the Mazda’s trunk.
At gunpoint, defendant and Algere ordered Kelly and Hudson out of the Thunderbird. Algere struck Kelly with the shotgun, knocking him down, and then went through his pockets. Defendant ordered Hudson to get on the ground, told him to “give it up” and to strip, and then took personal items from him.
Defendant called Webb a “ho” and struck her in the face with the gun, causing her to fall bleeding to the ground. Defendant and Morgan left in the Mazda, and Algere drove off in the Thunderbird. Defendant and Morgan were later arrested. Defendant had Kelly’s driver’s license in his pocket. In defendant’s car police found a handgun, a 12-gauge shotgun with a pistol grip, two.38 cartridges and two live shotgun shells.
DISCUSSION
Defendant contends the trial court committed prejudicial error when it informed the “the separate juries” that some of the defendants had incriminated the others. The basis for the contention is the following explanation given by the court during jury voir dire regarding the need for separate juries:
“Because of certain legal issues in the case we’ve been dealing with the last few days, this case came up last week. We had a lot of motions and a hearing, we have to have three separate trials. I shouldn’t say separate trials. Three separate juries because most of you know you have a constitutional right not to be compelled to testify.
You can’t force the defendant to testify. It’s a constitutional right to remain silent. The district attorney has to prove the case against you beyond a reasonable doubt.
“When you have that constitutional right and you have three different defendants and detectives talk to each one of the defendants or take statements from them, obviously, one defendant can’t cross-examine the other defendant because he has a right to remain silent. We have to have three separate juries, three separate. [¶]... [¶]
“I tried to avoid that, I tried to do it with dual juries, two juries, but there are too many problems when you are giving statements from different people. Legal items, legal issues arise, and you can’t have certain things coming in against one defendant that can come in against another defendant.
“Again, it all ties into constitutional rights to remain silent and not have anyone -- not have to testify if you don’t want to.
“You have a right to cross-examine your accusers. So, obviously, if one defendant is saying something against another defendant, he has a right to cross-examine that other defendant. But that defendant has a right to remain silent and not take the stand. So we have this issue when we have two and three-type cases....” (Italics are defendant’s.)
Defendant moved for mistrial, stating that the court had told the jury that “the other defendant ratted out Mr. Antonucci; therefore there must be a greater presumption of guilt.” The court denied the motion, observing that it had previously denied the same motion as to the other defendants.
Defendant’s argument on appeal is basically the same as that raised in the trial court: “The trial court essentially informed the jury that the other defendants had incriminated Antonucci, but that it would not hear the evidence. Such a comment was extremely improper because it had the effect of lowering the prosecution’s burden of proof. It informed the jury that there was additional evidence of Antonucci’s guilt.” (Italics are defendant’s.) That this was the jury’s understanding, defendant continues, is bolstered by Detective Craig Tsumara’s testimony that during an interview with defendant, defendant neither admitted any personal wrongdoing nor incriminated anyone else in the crimes.
The People counter that because there was nothing in the court’s comment informing defendant’s jury that the other juries would be hearing evidence that incriminated him, defendant’s reasoning is “entirely speculative.” We think defendant has the better argument, but nevertheless, the error was not prejudicial.
Here, rather than simply informing the jury that legal problems necessitated the need for separate juries, the court made abundantly clear to the jurors that each defendant had the right not to testify and the right to cross-examine any witness who testified against him; that the detectives had spoken with and/or taken statements from each defendant; that there were statements from different people; that you “can’t have certain things coming in against one defendant that can come in against another defendant”; and legal issues had arisen where one defendant had said something against another defendant.
Given that jurors are presumed to be reasonable and intelligent people (People v. Adams (2009) 176 Cal.App.4th 946, 954), defendant’s jury could easily infer that separate juries were required because nontestifying witnesses, likely the two codefendants, had given statements to the detectives incriminating defendant. In other words, the jury would quickly deduce that if there were no statements made by nontestifying codefendants incriminating defendant, there would be no need to exclude defendant from any of the testimony. Consequently, we conclude that the court erred in providing too much explanation to the jury.
Nevertheless, the error was harmless. Where a jury receives information from an extraneous source, “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 [a] juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely [a] 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.)
Objectively viewed, the court’s error could not have had any appreciable effect on any juror. First, at the very least, it can come as no surprise that one defendant would attempt to further his or her own position by incriminating a codefendant or anyone else. But more importantly, the evidence against defendant was overwhelming. Morgan, Kelly, Webb and Hudson all described the robbery/assaults as occurring in a similar manner. Morgan and Hudson identified defendant as the driver, Kelly said the driver was Algere, and Webb did not identify either defendant or Algere as one of the assailants. When defendant was arrested, he was in possession of Kelly’s identification card, and a handgun, a rifle with a pistol grip, two shotgun shells and two silver.38-caliber cartridges were in the trunk of his white Mazda. Text messages between Morgan and defendant showed the two were in contact just before the vehicles pulled over. On such a record, there can be no doubt, let alone a reasonable one, that defendant was one of the assailants/robbers. Consequently, the court’s error was harmless under any standard.
II
In accordance with defendant’s request, we have reviewed the sealed records of Ashley Morgan and have determined they contain no information which would be of benefit to him.
DISPOSITION
The judgment is affirmed.
We concur: SIMS, Acting P. J. HULL, J.