Filed 10/10/17
                 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                       DIVISION SEVEN


THE PEOPLE,                           B266209

       Plaintiff and Respondent,      (Los Angeles County
                                      Super. Ct. No. BA413158)
       v.

RAMON ALANIZ,

       Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Leslie A. Swain, Judge. Affirmed.
      Jeffrey J. Douglas, under appointment by the Court of
Appeal, for Defendant and Appellant.
      Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Kenneth C. Byrne, Andrew S. Pruitt and
William Shim, Deputy Attorneys General, for Plaintiff and
Respondent.

                      _____________________
       A jury convicted Ramon Alaniz on one count of assault
likely to produce great bodily injury (Pen. Code, § 245,
subd. (a)(4)).1 Alaniz moved for a new trial based on juror
misconduct. The trial court denied the motion, concluding that
although jurors had committed misconduct by discussing Alaniz’s
failure to testify, the misconduct was not prejudicial. We
conclude that because the trial court did not instruct the jury not
to consider Alaniz’s decision not to testify, no misconduct
occurred. We accordingly affirm.

        FACTUAL AND PROCEDURAL BACKGROUND

A.    Prosecution’s Case
      This case has been tried twice. The first trial ended in a
mistrial because the jury was unable to reach a unanimous
verdict. At that trial, the court gave the jury CALCRIM No. 355,
which instructs the jury that it cannot consider the fact that the
defendant did not testify.2
      At the second trial, Linda Ryan testified that she and
Alaniz had a romantic relationship 20 years ago. Beginning in



1       All undesignated statutory references are to the Penal
Code.
2      CALCRIM No. 355 provides: “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 the defendant did not testify. Do not
discuss that fact during your deliberations or let it influence your
decision in any way.”




                                  2
2012 they lived together in the home of Alaniz’s parents.3 Ryan
testified that she and Alaniz shared the same bedroom, but he
was “just a friend” and was not her boyfriend. In the early
morning hours of July 2, 2013, after a full day of drinking with
friends in the courtyard outside the house, Alaniz entered the
bedroom and asked where his cigarettes and vodka were. Ryan
said that she did not know and began searching for them.
       Alaniz yelled at Ryan and hit her in the head three times
with a closed fist. Ryan ran into the hallway; Alaniz followed and
grabbed her by the throat. Ryan struggled free and ran outside;
Alaniz again followed, grabbed her by the arm, picked her up,
and threw her onto a brick patio. Ryan landed on something
sharp, cutting her leg.
       Ryan called 911. At trial, Ryan could not recall whether
she made the call before or after Alaniz threw her suitcases out
toward the street. The police arrived at 2:40 a.m. Ryan appeared
distraught. Officer Gilbert Pedregon observed marks on Ryan’s
throat, scratches and bruising on her left arm, and a bloody cut
on her right shin.

B.    Defense Case
      When he was called to testify for the defense, Officer
Pedregon stated that Ryan told him that Alaniz had hit her with
a closed fist throughout her body, but she did not say that Alaniz
had picked her up and thrown her.
      Alaniz did not testify.

3     Ryan testified on direct examination that she moved in
with Alaniz in 2013. On cross-examination she corrected herself
by stating that she moved in with him about one year before the
incident, in 2012.




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C.     Jury Verdict
       The trial court instructed the jury on a single count of
assault likely to produce great bodily injury (§ 245, subd. (a)(4))
and on the lesser included offense of simple assault (§ 240).
Unlike at the first trial, however, the court did not instruct the
jury that it could not consider the fact that the defendant did not
testify. The omission of the instruction appears to have been
inadvertent. The court and counsel’s discussion of jury
instructions occupies less than one page of the reporter’s
transcript, and no issues were raised.
       On January 15, 2014, the jury found Alaniz guilty of one
count of assault likely to produce great bodily injury. The trial
court found that Alaniz had suffered a prior conviction of a
serious and/or violent felony under section 245, subdivision (c).

D.     New Trial Motion
       Alaniz filed a motion for new trial on grounds of jury
misconduct (§ 1181, subd. 3), arguing that the jurors had
improperly discussed his failure to testify. In support of the
motion, Alaniz submitted a declaration by Juror No. 8, which
included the following statements: “During jury deliberations,
Mr. Alaniz’s failure to testify was discussed by several jurors.
[¶] During jury deliberations, I expressed concerns about the
reliability and validity of Linda Ryan’s testimony. [¶] After I
expressed my concerns, a fellow juror responded that the
defendant did not even give a story. [¶] Another juror said that
‘if someone won’t tell their story, it could be they have prior
offenses.’” Alaniz did not request an evidentiary hearing. He
also did not mention that, unlike at the first trial, the jury that




                                 4
convicted him was not instructed not to consider the fact that he
did not testify.
      The prosecution argued in opposition that there was no
indication that the jury had disregarded the instruction not to
consider Alaniz’s failure to testify, and any jury misconduct was
not prejudicial. Like Alaniz, the prosecution did not mention that
the jury was not instructed that it could not consider the fact that
Alaniz did not testify.
      The trial court found that the juror’s declaration was
admissible.4 Like Alaniz and the People, the court did not
mention that the jury was not instructed that it could not
consider the fact that Alaniz did not testify. Apparently under
the misimpression that the jury had been so instructed, the court
found that the jurors’ discussion of Alaniz’s failure to testify
violated that instruction and therefore was misconduct.
Regarding prejudice, the court stated that the juror’s comment
that Alaniz might have prior offenses was “slightly more
troubling” than the comment that Alaniz did not even give a
story. However, the court stated that the comments described in


4     Evidence Code section 1150, subdivision (a), states that
evidence of “statements made, or conduct, conditions, or events
occurring” that are “likely to have influenced the verdict
improperly” are admissible, but “[n]o evidence is admissible to
show the effect of such statement, conduct, condition, or event
upon a juror either in influencing him to assent to or dissent from
the verdict or concerning the mental processes by which it was
determined.” This means that evidence of “‘“overt acts,
objectively ascertainable”’” is admissible, but evidence of “‘“the
subjective reasoning processes of the individual juror, which can
be neither corroborated nor disproved,”’” is inadmissible. (People
v. Collins (2010) 49 Cal.4th 175, 249.)




                                 5
the juror’s declaration did not “suggest that any juror actually
considered any of these issues in their deliberations. . . . And I do
not believe that based upon this declaration standing alone that
there is sufficient evidence to believe that the defendant suffered
any prejudice from this comment . . . .” The court therefore
denied the new trial motion.

E.    Sentencing
      On June 26, 2015, the trial court sentenced Alaniz to six
years in prison, consisting of the middle term of three years
doubled pursuant to the three strikes law (§§ 667, subds. (b)-(i),
1170.12).

                          DISCUSSION

       A defendant in a criminal trial has a right established by
the Fifth Amendment to the United States Constitution not to
testify. (People v. Leonard (2007) 40 Cal.4th 1370, 1424.) Upon
request, a defendant is entitled to an instruction that the jury
may not consider or discuss the defendant’s failure to testify (id.
at pp. 1424-1425), but the trial court has no obligation to give
such an instruction sua sponte (People v. Holt (1997) 15 Cal.4th
619, 687; see also Carter v. Kentucky (1981) 450 U.S. 288, 300
[101 S.Ct. 1112, 67 L.Ed.2d 241]). “[T]he purpose of the rule
prohibiting jury discussion of a defendant’s failure to testify is to
prevent the jury from drawing adverse inferences against the
defendant, in violation of the constitutional right not to
incriminate oneself.” (Leonard, at p. 1425.) A jury that discusses
the defendant’s failure to testify in violation of such an




                                  6
instruction commits misconduct. (People v. Lavender (2014) 60
Cal.4th 679, 686-687; Leonard, at p. 1425.)
       In his opening brief on appeal, Alaniz assumes, as he did in
his new trial motion, that the trial court instructed the jury not
to consider his failure to testify. The People point out that the
assumption is false and argue that because the jury was not
instructed not to consider Alaniz’s failure to testify, the jurors’
discussion of that issue did not constitute misconduct. In his
reply brief, Alaniz concedes that the instruction was not given
but argues that (1) the jurors’ discussion violated CALCRIM
Nos. 200, 201, and 222, which instructed the jurors to base their
decision on the evidence and not to conduct their own
investigation of the facts or the law, and (2) the People’s position
“is not defensible” because it would mean that whenever defense
counsel makes a tactical decision not to have the jury instructed
with CALCRIM No. 355, “it is proper for the jury to discuss the
lack of testimony by the defendant and draw adverse
consequences therefrom.”
       Alaniz’s first argument lacks merit. It is firmly established
that in general both the defense and, in appropriate
circumstances, the prosecution may make arguments to the jury
based on the failure of the opposing party to present evidence.
(See People v. Thomas (2012) 54 Cal.4th 908, 945; People v. Brady
(2010) 50 Cal.4th 547, 565-566; People v. Lewis (2009) 46 Cal.4th
1255, 1304; People v. Brown (2003) 31 Cal.4th 518, 554; People v.
Hughes (2002) 27 Cal.4th 287, 372; People v. Bradford (1997) 15
Cal.4th 1229, 1340; People v. Miller (1990) 50 Cal.3d 954, 996;
People v. Vargas (1973) 9 Cal.3d 470, 475-476 [“It is now well
established that although Griffin[ v. California (1965) 380 U.S.
609 (85 S.Ct. 1229, 14 L.Ed.2d 106)] prohibits reference to a




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defendant’s failure to take the stand in his own defense, that rule
‘does not extend to comments on the state of the evidence or on
the failure of the defense to introduce material evidence or to call
logical witnesses’”]; People v. Gaulden (1974) 36 Cal.App.3d 942,
954.) The jury’s consideration of the absence of evidence,
including the failure to call logical witnesses, is consistent with
the jury instruction to consider only the evidence introduced at
trial (CALCRIM Nos. 200, 222), the instruction not to conduct an
independent investigation of the facts (CALCRIM No. 201), and
the instruction on the presumption of innocence and the burden
of proof (CALCRIM No. 220). (See People v. Garelick (2008) 161
Cal.App.4th 1107, 1117-1119; People v. Campos (2007) 156
Cal.App.4th 1228, 1237-1240; People v. Guerrero (2007) 155
Cal.App.4th 1264, 1268-1269.)
       Here, the jurors’ comments concerning Alaniz’s decision not
to testify do not show that the jurors conducted their own
investigation or based their decision on anything other than the
evidence introduced at trial. The evidence reflected that Alaniz
did not testify, and that is what the jurors discussed. And given
that, in general, a jury’s consideration of the defense’s failure to
call logical witnesses is proper and does not impermissibly shift
the burden of proof, the jury’s consideration of Alaniz’s failure to
testify likewise cannot have impermissibly shifted the burden of
proof—he was a logical witness, so the same rule should apply.
His right to hold the prosecution to its burden of proving him
guilty beyond a reasonable doubt was not violated.
       Alaniz’s second argument lacks merit as well, because the
People’s position is defensible. Alaniz had the right to have the
jury instructed, upon his request, not to consider his decision not
to testify. He made no such request (apparently through




                                 8
inadvertence), and the jury was not so instructed. Having failed
to exercise his right to such an instruction, he cannot now
complain of the jury’s failure to follow it.
       We have found no authority for the proposition that
conduct by a juror that does not violate any of the instructions
that were given may nonetheless constitute misconduct. There
are cases that discuss misconduct without specifically identifying
a relevant instruction, but they all appear to involve conduct that
is prohibited by various mandatory instructions. (See, e.g.,
People v. Brooks (2017) 3 Cal.5th 1, 97-100 [juror was exposed to
outside information]; People v. Tafoya (2007) 42 Cal.4th 147, 190-
193 [juror conversed with a priest]; People v. Williams (2006) 40
Cal.4th 287, 330-336 [juror read aloud from the Bible]; Lankster
v. Alpha Beta Co. (1993) 15 Cal.App.4th 678, 682-684 [juror
discussed outside information].)
       Despite the lack of authority, however, we find it
reasonable to assume that it is in principle possible for a juror to
commit misconduct without violating any instruction. A juror
who physically assaults other jurors who disagree with him, for
example, is presumably guilty of misconduct even if no
instruction expressly or implicitly prohibits such conduct. Any
lay juror should know that violence is not an acceptable method
of conducting jury deliberations, regardless of whether there is an
instruction on point.
       But the assumption that it is in principle possible for a
juror to commit misconduct without violating an instruction is of
no aid to Alaniz. 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




                                 9
impermissible for them to consider the defendant’s failure to
testify. That is the kind of technical legal rule that lay jurors
cannot reasonably be expected to understand and follow unless
they are instructed on it.
       For all of these reasons, we must reject Alaniz’s argument
that the People’s position “is not defensible.” Under existing law,
it is not only defensible but correct.
       Again, the trial court has no sua sponte duty to instruct the
jury that it cannot consider the defendant’s failure to testify. The
case law indicates that the reason for that rule is that the defense
may prefer to forgo such an instruction in order to avoid drawing
the jury’s attention to the defendant’s failure to testify. (See, e.g.,
People v. Gardner (1969) 71 Cal.2d 843, 854 [the instruction
“point[s] up to the jury the defendant’s failure to testify”]; People
v. Horrigan (1967) 253 Cal.App.2d 519, 522 [when the instruction
is given, “[t]he jury, not otherwise focused [on the defendant’s
failure to testify], is so directed to it by the instruction”].) On
that basis, the Supreme Court has observed that “[w]hether or
not it is to the defendant’s advantage to have the instruction
given manifestly is debatable.” (Gardner, at p. 854.)
       We agree that such considerations weigh in favor of
allowing the defense the tactical flexibility to accept or reject the
instruction. But that does not settle the question of what the
default rule should be in the absence of any express election by
the defense. That is, should the instruction be mandatory only
upon request by the defense, or should it be mandatory absent
objection by the defense? We have found no discussion of this
issue in the case law and no scholarly commentary on it. The
latter approach—that the instruction be mandatory unless the
defense objects—would seem to provide more robust protection of




                                  10
defendants’ Fifth Amendment rights. But at present it is not the
law.
      Because we conclude that Alaniz has not shown that the
jurors engaged in misconduct, we need not consider whether the
alleged misconduct was prejudicial. The trial court did not err in
denying the motion for new trial.5




5      Here, defendant moved for a new trial solely on the ground
of juror misconduct. As discussed, there was none. Nonetheless,
the trial court’s constitutional duty to ensure that defendants are
accorded due process of law provides the court with the authority
to grant a new trial when the defendant did not receive a fair
trial even though the cause of that unfairness is not expressly
recognized as a ground for granting a new trial under section
1181. (See People v. Fosselman (1983) 33 Cal.3d 572, 582-583
[ineffective assistance of defense counsel]; People v. Drake (1992)
6 Cal.App.4th 92, 97-98 [prosecution withheld identity of a
favorable defense witness].) Accordingly, even though lay jurors
may not know it is impermissible to consider the defendant’s
failure to testify in the absence of an appropriate instruction,
when a proper motion has been made, a defendant may be
entitled to a new trial if he or she can establish by admissible
evidence that an extended discussion of the defendant’s decision
not to testify occurred during deliberations and likely affected the
verdict. What constitutes such a significant discussion of a
defendant’s silence as to violate the defendant’s due process right
to a fair trial must be considered on a case-by-case basis.




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                         DISPOSITION

      The judgment is affirmed.


                                           MENETREZ, J.*


We concur:



             PERLUSS, P. J.



             ZELON, J.




*     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




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