16 Cal. App. 5th 1
Cal. Ct. App. 5th2017Background
- Defendant Ramon Alaniz was convicted of assault likely to produce great bodily injury after a second trial; he did not testify at that trial.
- At the first trial the jury had been given CALCRIM No. 355 (instruction not to consider defendant's failure to testify); at the second trial that instruction was omitted (apparently inadvertently) and the jury was not told not to consider his silence.
- A juror (Juror No. 8) submitted a declaration stating jurors discussed Alaniz's failure to testify and suggested it could indicate prior offenses; defendant moved for a new trial for juror misconduct based on that declaration.
- The trial court admitted the juror declaration, concluded jurors had violated an instruction (mistakenly believing CALCRIM No. 355 had been given), but found the misconduct not prejudicial and denied the new trial.
- On appeal the People pointed out the jury had not been instructed not to consider defendant's silence; Alaniz conceded the instruction was not given but argued juror comments still violated other CALCRIM instructions and constituted misconduct.
- The Court of Appeal affirmed, holding no juror misconduct occurred because without the missing instruction jurors did not violate any instruction by discussing the defendant’s failure to testify.
Issues
| Issue | Plaintiff's Argument (Alaniz) | Defendant's Argument (People) | Held |
|---|---|---|---|
| Whether juror discussion of defendant's failure to testify in deliberations constituted juror misconduct | Jurors improperly discussed and drew adverse inferences from his silence, violating his right and requiring a new trial | No misconduct because the jury was not instructed not to consider defendant's silence; discussion of absence of testimony is generally permissible absent that instruction | No misconduct: because CALCRIM No. 355 was not given, jurors did not violate any instruction by discussing his failure to testify |
| Whether discussion of defendant's silence violated other CALCRIM instructions (evidence-only, no independent investigation) | Such discussion breaches CALCRIM Nos. 200, 201, 222 and thus is misconduct | Consideration of missing evidence (including failure to call logical witnesses) is consistent with those instructions; discussing defendant’s silence did not amount to independent investigation or shifting burden | Rejected Alaniz’s argument; jurors may consider absence of evidence/logical witnesses and that did not violate the cited CALCRIM instructions |
| Whether the trial court had a sua sponte duty to instruct jurors not to consider defendant's silence | (Implied) Trial court should protect right by giving instruction without request | No sua sponte duty; instruction is required only upon defendant's request and may be tactically declined by defense | Court reaffirmed no duty to give CALCRIM No. 355 sua sponte; defense tactical choice controls whether instruction is given |
| Whether defendant's failure to request the instruction precludes relief now | Failure to request was inadvertent but defendant still entitled to new trial due to juror discussion | Defendant cannot complain after forgoing the requested instruction; having not requested it, he cannot claim juror misconduct for violating a non-given instruction | Defendant’s failure to request the instruction bars complaining that jurors violated it; relief denied |
Key Cases Cited
- People v. Leonard, 40 Cal.4th 1370 (discusses right not to testify and instruction not to consider silence)
- People v. Lavender, 60 Cal.4th 679 (juror discussion of defendant silence as misconduct when an instruction forbids it)
- People v. Holt, 15 Cal.4th 619 (no sua sponte duty to instruct on defendant's silence)
- Carter v. Kentucky, 450 U.S. 288 (defendant entitled to jury instruction upon request regarding adverse inferences)
- People v. Gardner, 71 Cal.2d 843 (instruction may draw jurors' attention to defendant's silence; tactical considerations)
- People v. Collins, 49 Cal.4th 175 (distinguishes admissible objective juror misconduct evidence from inadmissible inquiry into juror mental processes)