People v. Alaniz, B266209

Background

Defendant Ramon Alaniz was convicted by a jury of assault likely to produce great bodily injury (§ 245(a)(4)) after a second trial; he did not testify at trial.
At the first trial the jury had been given CALCRIM No. 355 (instruction that jurors must not consider defendant’s failure to testify); at the second trial the court inadvertently omitted that instruction.
After conviction Alaniz moved for a new trial alleging juror misconduct based on a declaration from Juror No. 8 stating jurors discussed Alaniz’s failure to testify and speculated about prior offenses.
The trial court found the juror declaration admissible, treated the discussion as misconduct (apparently believing the non-testimony instruction had been given), but concluded the misconduct was not prejudicial and denied the motion.
On appeal the People argued no misconduct occurred because no instruction had been given forbidding consideration of defendant’s silence; Alaniz conceded the instruction was not given but argued jurors still violated other instructions by discussing his silence and drawing adverse inferences.
The Court of Appeal affirmed, holding that absent a jury instruction prohibiting consideration of a defendant’s failure to testify, discussion of that fact does not constitute juror misconduct; defendant had the right to request the instruction and did not do so.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether jurors’ discussion of defendant’s failure to testify during deliberations was juror misconduct	No misconduct because no instruction was given barring consideration of defendant’s silence; jurors may consider absence of evidence	Jurors’ discussion violated instructions to decide only on evidence and not to conduct independent investigation and thus was misconduct	No misconduct: without an instruction forbidding consideration of silence, discussing defendant’s non-testimony is not misconduct
Whether discussing defendant’s failure to testify can impermissibly shift burden of proof	Considering absence of testimony here was permissible because jurors considered evidence that defendant did not testify	Discussing silence necessarily drew adverse inference and shifted burden	Held that considering failure to call a logical witness (including defendant) is generally permissible and did not shift burden here
Whether trial court had sua sponte duty to give non-testimony instruction (CALCRIM No. 355)	Not applicable (People rely on defense election)	Argued court should have given instruction sua sponte to protect Fifth Amendment rights	No sua sponte duty; instruction is required only upon defendant’s request
Whether juror statements warranted a new trial on due process grounds absent statutory misconduct ground	N/A	Even if instruction not given, extended discussion of silence could violate due process and warrant new trial if shown to have likely affected verdict	Court did not reach prejudice in detail but noted due process could require new trial in extreme cases; here defendant failed to show such prejudice

Key Cases Cited

People v. Leonard, 40 Cal.4th 1370 (defendant entitled to instruction on non-testimony upon request)
People v. Lavender, 60 Cal.4th 679 (jury discussion in violation of non-testimony instruction is misconduct)
People v. Holt, 15 Cal.4th 619 (trial court has no sua sponte duty to give non-testimony instruction)
Carter v. Kentucky, 450 U.S. 288 (upon request, jury must be instructed not to infer guilt from defendant’s silence)
People v. Thomas, 54 Cal.4th 908 (parties may argue from absence of evidence in appropriate circumstances)
People v. Vargas, 9 Cal.3d 470 (failure to call logical witnesses can be commented on by jury)
People v. Gardner, 71 Cal.2d 843 (instruction calling attention to defendant’s silence may be disadvantageous; tactical choice by defense)