Filed 10/22/15 P. v. Egal CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ALI O. EGAL,

Defendant and Appellant.

 B256245

 (Los Angeles County

 Super. Ct. No. BA417163)

APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E. 

Veals, Judge. Affirmed.

Rachel Varnell, 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, Steven D. Matthews and Roberta 

L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________
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Ali O. Egal appeals from a judgment convicting him of driving under the influence 

(DUI), arguing the trial court erred in denying his motion for a new trial based upon jury 

misconduct. Defendant contends hearsay evidence that a juror had stated defendant’s 

failure to testify at trial was detrimental to his case obligated the trial court to hold an 

evidentiary hearing as to whether misconduct had occurred and whether it was 

prejudicial. We conclude that hearsay evidence of juror misconduct gives rise to no duty 

for the court to conduct further inquiries. We therefore affirm.

Background

On the morning of September 15, 2013, defendant attempted to avoid a driver 

sobriety checkpoint in Los Angeles by making an illegal turn. When instructed by a 

police officer to pull over to the curb, defendant at first stopped in the middle of the 

street, waited a while, staring at the officer, then abruptly turned his car to the curb at a 

45-degree angle, narrowly missing a power pole, and left the car in drive. When police 

instructed him to put the car in park, defendant instead shifted into reverse, backed into 

the street, then with some difficulty made several attempts to parallel park, eventually 

stopping five feet from the curb. Defendant smelled strongly of alcohol and walked with 

an unsteady gait, and his eyes were bloodshot and his clothing disheveled. He denied 

having consumed any alcohol or medication that day or suffering from any physical 

defect or medical condition. Police then administered five field sobriety tests, each of 

which defendant failed. At the police station, defendant failed eight times to complete a 

breathalyzer test, appearing purposefully to blow onto the machine rather than into it, and

was placed in a cell, where he urinated on the floor and defecated in his pants. 

Approximately an hour and 45 minutes after the arrest, a blood test showed defendant’s 

blood alcohol content was .15 percent. 

A jury found defendant guilty of driving under the influence of alcohol and 

driving with a blood alcohol level of .08 percent or more (Veh. Code, § 23152, subds. (a) 

& (b)), and it was determined he had suffered a prior felony DUI or vehicular 

manslaughter conviction and a conviction for felony DUI causing injury within the prior 

10 years (ibid.; Veh. Code, § 23550.5, subd. (a)). It was further found defendant had 
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served three prior prison terms and suffered a prior strike conviction. (Pen. Code, §§ 

667.5, subds. (b)-(j), 1170.12.) 

After the verdicts, defendant moved for a new trial on the ground of juror 

misconduct. In support of the motion, defense counsel declared he spoke with a group of 

four jurors after deliberations, and the jury foreperson told him defendant’s failure to 

testify “was detrimental to his case, because the jury ‘never got to hear his side of the 

story.’” Counsel further declared that when he asked the foreperson if the jury had 

discussed defendant’s failure to testify during deliberations, the foreperson responded, 

“‘No. A little bit, but not really.’”

The trial court denied defendant’s motion, finding he failed to establish prejudice. 

“[M]aybe one or two or a few of the jurors opined that it would have been nice to have 

heard from” defendant, the court observed, but there was no “suggestion that they held 

this against him in any way,” and the prosecution evidence was “very strong” and 

“compelling.”

Defendant was sentenced to eight years in prison. He timely appealed. 

DISCUSSION

Defendant contends his trial attorney’s representation that juror misconduct 

occurred obligated the trial court to authorize further inquiries rather than simply deny his 

motion. He further contends the trial court applied an incorrect standard of prejudice.

A criminal defendant has the fundamental right “to trial by a jury that considers 

only the evidence admitted in court.” (People v. Stanley (1995) 10 Cal.4th 764, 836

(Stanely).) A new trial may be granted when “the jury has . . . been guilty of any 

misconduct by which a fair and due consideration of the case has been prevented.” (Pen. 

Code, § 1181, subd. (3).) It is misconduct for a jury to violate a court’s instruction not to 

discuss a defendant’s failure to testify. (People v. Lavender (2014) 60 Cal.4th 679, 687.) 

The defense bears the burden of establishing misconduct. (Stanley, supra, at p. 836.) 

“When a party seeks a new trial based upon jury misconduct, a court must 

undertake a three-step inquiry. The court must first determine whether the affidavits 

supporting the motion are admissible. [Citation.] If the evidence is admissible, the court 
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must then consider whether the facts establish misconduct. [Citation.] Finally, assuming 

misconduct, the court must determine whether the misconduct was prejudicial. 

[Citations.] A trial court has broad discretion in ruling on each of these questions and its 

rulings will not be disturbed absent a clear abuse of discretion.” (People v. Perez (1992) 

4 Cal.App.4th 893, 906.)

“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence 

may be received as to statements made, or conduct, conditions, or events occurring, either 

within or without the jury room, of such a character as is likely to have influenced the 

verdict improperly.” (Evid. Code, § 1150, subd. (a).) “Admission of jurors’ affidavits 

within the limits set by [Evidence Code] section 1150 protects the stability of verdicts, 

and allows proof by the best evidence of misconduct on the part of either jurors or third 

parties that should be exposed, misconduct upon which no verdict should be based.” 

“Admission of this best evidence of misconduct or improper influence at a motion for 

new trial . . . would not present a breach in the post verdict privacy of jury deliberations.” 

(People v. Hutchinson (1969) 71 Cal.2d 342, 350.)

Although evidence of statements made in the jury room are admissible, “‘[n]o 

evidence is admissible to show the effect of such statement[s] . . . 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.’ [Citation.] Thus, jurors may testify to ‘overt 

acts’—that is, such statements, conduct, conditions, or events as are ‘open to sight, 

hearing, and the other senses and thus subject to corroboration’—but may not testify to 

‘the subjective reasoning processes of the individual juror . . . .’” (In re Stankewitz

(1985) 40 Cal.3d 391, 397-398.)

It is well established that “‘a jury verdict may not be impeached by hearsay 

affidavits.’” (People v. Williams (1988) 45 Cal.3d 1268, 1318 [“sole evidence of the 

alleged misconduct was the declaration of a defense investigator that purports to relate a 

conversation with [a] juror”].) Hearsay evidence neither establishes jury misconduct nor 

obligates the trial court to conduct an evidentiary hearing on the issue. (People v. Dykes

(2009) 46 Cal.4th 731, 810; People v. Avila (2006) 38 Cal.4th 491, 605 [“‘hearsay is not 
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sufficient to trigger the court’s duty to make further inquiries into a claim of juror 

misconduct’”]; People v. Hayes (1999) 21 Cal.4th 1211, 1256 [same]; People v. Cox

(1991) 53 Cal.3d 618, 697 [same; overruled on another ground by People v. Doolin

(2009) 45 Cal.4th 390, 421]; see People v. Williams, supra, 45 Cal.3d at p. 1319, fn. 5 

[defendant’s failure to “obtain and present the declaration of the juror herself” does not 

obligate the court to conduct an evidentiary inquiry into jury misconduct].)

Defendant offers no reason to deviate from the well established rule governing 

unsworn hearsay as a basis for a motion for new trial or for a request to hold an 

evidentiary hearing, and we discern none. Defense counsel evidently had access to at 

least four jurors, and nothing suggested, and defendant does not claim, that counsel could 

not have obtained juror declarations or requested a continuance to secure them.

Defendant argues the trial court should have conducted an evidentiary hearing 

because the appellate courts in People v. Bryant (2011) 191 Cal.App.4th 1457 (Bryant) 

and People v. Perez, supra, 4 Cal.App.4th 893 (Perez) remanded for such a hearing even 

though the only evidence of juror misconduct in those cases was hearsay. We are 

unpersuaded. In Bryant, the trial court suggested that the parties waive their objections to 

unsworn juror statements and, relying on those statements, found that misconduct 

occurred but was nonprejudicial. (Bryant, at p. 1466.) The appellate court held it was 

error to reach the merits of the misconduct issue based on unsworn statements, and stated 

that “[b]ecause the parties waived any objection to the unsworn statements at the 

suggestion of the trial court, the appropriate remedy [was] to return the matter to the trial 

court for a full and complete hearing with competent evidence.” (Id. at p. 1471.) In 

Perez, the defendant moved for a new trial based on jury misconduct, stating one juror 

had told defense counsel that several others had mentioned during deliberations that 

defendant failed to testify. The trial court assumed for the sake of argument that such a 

discussion took place, but stated evidence of juror thought processes would be 

inadmissible. It denied defendant’s motion without further explanation. (Perez, supra, 4 

Cal.App.4th at pp. 905-906.) The appellate court reversed and remanded for further 

proceedings, stating that on remand, the trial court should not simply assume misconduct 
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occurred, but should follow the procedure required by law, i.e., require that juror 

declarations be obtained. (Id. at p. 909.)

Neither Bryant nor Perez espoused the proposition that a trial court abuses its 

discretion when it denies a motion for new trial supported only by unsworn hearsay. We 

think it more probable the courts remanded for further proceedings because the 

circumstances were somewhat unusual, in that the trial courts in each case encouraged to 

some extent the parties’ failure to develop the record fully, Bryant by suggesting that the 

parties waive their objections to unsworn juror statements and Perez by implicitly (and 

erroneously) suggesting evidence of an improper discussion in the jury room would be 

inadmissible. Here, in contrast, nothing suggests defendant was lulled into foregoing the 

gathering of admissible support for his motion for new trial.

In any event, “a trial court does not abuse its discretion in declining to conduct an 

evidentiary hearing on the issue of juror misconduct when the evidence proffered in 

support constitutes hearsay.” (People v. Dykes, supra, 46 Cal.4th at p. 810.) “‘Such a 

hearing should be held only when the court concludes an evidentiary hearing is 

“necessary to resolve material, disputed issues of fact.” [Citation.] “The hearing . . . 

should be held only when the defense has come forward with evidence demonstrating a 

strong possibility that prejudicial misconduct has occurred. Even upon such a showing, 

an evidentiary hearing will generally be unnecessary unless the parties’ evidence presents 

a material conflict that can only be resolved at such a hearing.” [Citations.]’” (Id. at pp. 

809-810, fn. omitted.)

Here, the only evidence of misconduct was defendant’s counsel’s statement that 

one juror told him defendant’s failure to testify was discussed by the jury “[a] little bit, 

but not really.” But “‘[t]ransitory comments of wonderment and curiosity’ about a 

defendant’s failure to testify, although technically misconduct, ‘are normally innocuous, 

particularly when a comment stands alone without any further discussion.’” (People v. 

Avila (2009) 46 Cal.4th 680, 727.) Defendant’s counsel’s representation—that a minimal 

and transitory jury discussion took place about defendant’s failure to testify—failed to 

demonstrate “a strong possibility that prejudicial misconduct has occurred.” (People v. 
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Dykes, supra, 46 Cal.4th at p. 809.) Therefore, no evidentiary hearing was necessary and 

the trial court was within its discretion to deny defendant’s motion for new trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

ROTHSCHILD, P. J.

JOHNSON, J.