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Name: People v. Lavender
Case #: S209975
Court: CA Supreme Court
District CalSup
Opinion Date: 12/08/2014

The presumption of prejudice that arises when jurors commit misconduct by discussing whether a defendant’s failure to testify is probative of his guilt may be rebutted. After a jury found Lavender and Gaines guilty of first degree murder (Pen. Code, § 187, subd. (a)), they filed a new trial motion arguing that the jurors had improperly discussed whether their guilt could be inferred from their failure to testify. Each side submitted juror declarations about what happened during deliberations. The trial court admitted only limited portions of the defense’s declarations and denied the new trial motion. Although the court concluded that misconduct occurred, it found that the presumption of prejudice had been rebutted because the foreperson had immediately admonished the jurors that they could not consider the defendants’ decisions not to testify as evidence of their guilt. Gaines and Lavender appealed and the Court of Appeal reversed. The People sought review. Held: Reversed and remanded. It was undisputed that one or more jurors committed misconduct by discussing defendants’ decisions not to testify in violation of the court’s instructions, and that this misconduct gave rise to a presumption of prejudice. Although comments drawing adverse inferences from a defendant’s decision not to testify may pose an increased chance of prejudice, the Court of Appeal erred when it held that the presumption of prejudice could not be rebutted in these circumstances. If the foreperson reminded the jury “that the decision not to testify could not be held against defendants, then (in the absence of objective evidence to the contrary) that reminder would constitute strong evidence to rebut the presumption of prejudice.” Because the Court of Appeal concluded that the trial court erred in excluding portions of the defense’s declarations, there are unresolved conflicts in the evidence related to the extent of the misconduct and whether there was any reminder of the court’s instructions. The case was remanded to the trial court to resolve these factual disputes and address whether a reminder would have been ineffective.