Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F07860
ROBIE, J.
Tried in front of dual juries, defendant Eric Ramsey and codefendant Candice Lewis were convicted of first degree murder, second degree robbery, attempted use of a forged access card, and four counts of using a forged access card. Lewis’s jury found the felony-murder special circumstance to be true but did not find the lying-in-wait special circumstance to be true. Defendant’s jury did not find either special circumstance to be true.
This appeal only involves defendant Ramsey.
Sentenced to state prison for 25 years to life, defendant appeals, contending the trial court erroneously instructed his jury on the failure to explain or deny adverse testimony when he did not testify (CALCRIM No. 361). We will affirm the judgment.
FACTS AND PROCEDURE
Defendant and Lewis called the 62-year-old victim and planned to meet him at a hotel near Richards Boulevard in Sacramento. On the way, Lewis hurt her ankle. She called the victim and asked him to pick them up. Lewis knew that the victim wanted to have sex with her. While they waited for the victim to arrive, defendant and Lewis decided to rob the victim. Defendant planned to hide in the bushes and when the victim picked up Lewis’s bag, defendant would knock the victim unconscious.
When the victim arrived, he tried unsuccessfully to kiss Lewis who turned her head. She asked the victim to get her bag which was located next to the bushes. The victim did so and defendant jumped out of the bushes. Defendant choked the victim until he was unconscious. In moving the victim’s car to put him in the trunk, defendant ran over the victim. He then ran over the victim a second time when he changed directions. After Lewis took the victim’s wallet, defendant put him in the trunk, drove to a remote location, and dumped the body into some bushes. Thereafter, defendant and Lewis used the victim’s credit card at various locations. They bought food, clothing, and personal items.
An autopsy of the victim revealed that the cause of death was multiple blunt force injuries. The victim’s injuries were consistent with being run over by a car traveling at a slow speed. Strangulation could not be ruled out as a cause of death.
Defendant and Lewis stayed with defendant’s brother, Lito Ramsey. They told Lito that they met “some guy” at a hotel, “knocked him out from behind,” robbed him, and hid his body in some bushes. They explained that they had planned to rob him and take his car. When officers contacted Lito about defendant’s whereabouts, Lito initially lied because defendant and Lewis had told Lito not to tell. A search of Lito’s home revealed a receipt from one of the locations where defendant and Lewis purchased clothing, as well as defendant’s identification card.
At the police station, defendant and Lewis sat in a room together and carried on a conversation they obviously thought was private. Instead, the police recorded it and the recording was played for the jury. The pair discussed the crimes and what each had told the police during questioning. Defendant told Lewis that he had admitted doing “everything.” Defendant and Lewis thereafter led the police to the crime scene and reenacted the crimes. The recording of the crime scene walk-through with defendant and Lewis was played for the jury.
Lewis testified at trial. She was 16 years of age and pregnant with defendant’s child at the time of the offenses. She met the victim on Live Links. He claimed to be 27 years old. When they met in person, he claimed he was 43 years old. They went to dinner and then to his hotel room where they had sex. He paid her $40. A week later, the victim called Lewis and wanted her to meet him again at the hotel room. She agreed. She needed money. Defendant did not approve. She hurt her ankle on the way to meet the victim and called him to pick her up. She wanted him to buy her some food. She claimed that she and defendant planned to take the victim’s car. When the victim arrived, Lewis was sitting on the curb. As the victim picked up Lewis’s bag, defendant jumped from the bushes and ran toward the car. Meanwhile, the victim had put his hand on Lewis’s shoulder and started to kiss her but she turned her head. Defendant, jealous and angry, choked the victim. Lewis tried to run away but defendant ordered her back. Defendant ran over the victim with the victim’s car and then put his body in the trunk. Defendant took the victim’s wallet. Lewis admitted that she and defendant used the victim’s credit card at several locations. Lewis told a somewhat different story to a detective during an interrogation, a recording of which was played for the jury. Defendant did not testify and called no witnesses.
Without objection, the trial court instructed the jury in the language of CALCRIM No. 361 as follows:
“If the defendant failed in his or her testimony to explain or deny evidence against him or her, and if he or she could reasonably be expected to have done so based on what he or she knew, you may consider his or her failure to explain or deny in evaluating that evidence. Any such failure is not enough by itself to prove guilt. The People must still prove each element of the crime beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
Because his jury was instructed that all instructions applied to both defendants unless told otherwise (CALCRIM No. 203), defendant argues that the combination of the instructions permitted the jury to consider any failure of Lewis to explain or deny prosecution evidence as evidence of his guilt or it permitted the jury to consider his failure to testify in violation of his Fifth Amendment right not to testify. He also claims that Lewis’s testimony did not support the giving of CALCRIM No. 361. In the event an objection or request to restrict the application of CALCRIM No. 361 to Lewis was required, defendant asserts counsel rendered ineffective assistance of counsel. Finally, he claims CALCRIM No. 361 was prejudicial. The People concede that the instruction should not have been given to defendant’s jury since he did not testify but claim that any error was harmless.
DISCUSSION
CALJIC No. 2.62, which incorporates the same principles as CALCRIM No. 361, was analyzed by this court in People v. Mask (1986) 188 Cal.App.3d 450, 454-455. We concluded that “The pertinence of CALJIC No. 2.62 depends upon the facts of the case. [Citation.] If the defendant has not been asked a question calling for an explanation or a denial, as a matter of law the instruction may not be given. [Citation.]” (Mask,at p. 455.)
The People properly concede that CALCRIM No. 361 should not have been given to defendant’s jury since defendant did not testify.
The instructional error was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Saddler (1979) 24 Cal.3d 671, 683.) “[R]eversal is required only when it is reasonably probable a more favorable result would have been reached had the instruction been omitted.” (People v. Kondor (1988) 200 Cal.App.3d 52, 57.)
Defendant overlooks the fact that by its terms, as with CALJIC No. 2.62, CALCRIM No. 361 “does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt).” (People v. Ballard (1991) 1 Cal.App.4th 752, 756, italics added; see People v. Lamer (2003) 110 Cal.App.4th 1463, 1472.)
Even though the court instructed that all instructions given applied to each defendant (CALCRIM No. 203), the court also instructed in the following pertinent language from CALCRIM No. 200: “Some of these instructions may not apply, depending on your findings about the facts of the case. Do not assume just because I give a particular instruction that I am suggesting anything about the facts. After you have decided what the facts are, follow the instructions that do apply to the facts as you find them.” CALCRIM No. 200 “mitigat[ed] any prejudicial effect related to the improper giving of [CALCRIM No. 361].” (People v. Lamer, supra, 110 Cal.App.4th at p. 1472.)
Further, even though the court instructed the jury with CALCRIM No. 361, the court also instructed in the language of CALCRIM No. 355: “A defendant has an absolute constitutional right not to testify. He or she may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Do not consider, for any reason at all, the fact that a defendant did not testify. Do not discuss that fact during your deliberations or let it influence your decision in any way.”
The jury does not check its commonsense at the door; we presume that jurors are intelligent people. (People v. Laws (1993) 12 Cal.App.4th 786, 796.) While CALCRIM No. 355 was not limited to defendant, the jury would have recognized that CALCRIM No. 355 applied to defendant, who did not testify. And the jury would have recognized that CALCRIM No. 361 applied to Lewis, who did testify.
Moreover, the evidence against defendant was overwhelming. He confessed to committing the crimes and had previously told his brother about committing the crimes. Besides Lewis’s confession to a detective, defendant and Lewis discussed the crimes when they thought they were alone at the police station. They also led the detectives on a crime scene walk-through, reenacting the crimes. Receipts and eyewitnesses to defendant’s and Lewis’s use of the victim’s credit card added corroboration. There was no reasonable probability that the jury would have returned a more favorable verdict had the court not given CALCRIM No. 361. The error was harmless. Thus, defendant was not prejudiced by defense counsel’s failure to object to the instruction. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 691-692 [80 L.Ed.2d 674, 693, 696]; People v. Ledesma (1987) 43 Cal.3d 171, 216-218.)
DISPOSITION
The judgment is affirmed.
We concur: SCOTLAND, P. J., HULL, J.