Trial court properly denied a motion for new trial where the defendant failed to show that the jurors’ discussion of defendant’s decision not to testify amounted to misconduct. After a jury convicted Alaniz of assault, he filed a motion for a new trial based on juror misconduct because jurors had discussed Alaniz’s decision not to testify during deliberations. The trial court denied the motion, concluding that although jurors had committed misconduct by discussing his failure to testify, the misconduct was not prejudicial. Alaniz appealed. On appeal, it was discovered that the trial court did not instruct the jury not to consider Alaniz’s decision not to testify. Held: Affirmed. Upon request, a defendant is entitled to an instruction that the jury may not consider or discuss the defendant’s failure to testify, but the trial court has no obligation to give such an instruction sua sponte. (People v. Holt (1997) 15 Cal.4th 619, 687.) A jury that discusses the defendant’s failure to testify in violation of such an instruction commits misconduct. In this case, however, the trial court did not instruct the jury not to consider Alaniz’s decision not to testify. Although it may be possible for a juror to commit misconduct without violating any instruction, the Court of Appeal concluded there was no misconduct in this case. “In the absence of an appropriate instruction, lay jurors cannot be expected to know that although in general it is perfectly permissible for them to consider the failure of the defense to call logical witnesses to testify, it is absolutely impermissible for them to consider the defendant’s failure to testify.” This is a technical legal rule that lay jurors cannot reasonably be expected to understand and follow unless they are instructed on it. The court concluded that Alaniz had not shown that the jurors engaged in misconduct and therefore did not need to consider whether the alleged misconduct was prejudicial.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B266209.PDF