Filed 10/22/15 P. v. Egal CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

. B2 5 6245
(Los Angeles County Super. Ct. No. B A 41 7163 )

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.

___________________________________2

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 cont ends 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 th at 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 ma king 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 mis sing 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 fee t from the curb. Defendant smelled strongly of alcohol and walked with an unsteady ga i t, 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 medica l 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 defenda nt ’ s blood alcohol content was .15 percent. A jury found defendant guilty of driving unde r 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 c ausing injury within the prior 10 years ( i bi d

. ; Veh. Code, § 23550.5, subd. (a)). It was further found defendant had3

served three prior prison terms and suffered a prior strike conviction. (Pen. Code, §§ 667.5, subds. (b)

- (j), 1170.12.)
After the verd icts, 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 detr imental to his case, becau s e 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 ther e 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 funda mental 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 cons ideration 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 ar e admissible. [Citation.] If the evidence is admissible, the court4

must then consider whether the facts establish misconduct. [Citation.] Finally, assuming misconduct, the court must determine whether the misconduct was prejudicial. [Citations.] A tr ial 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 otherwis e 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, misconduc t 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 concernin g 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.)
I t is well established that “‘ a jury verdict may not be impeached by hearsay
affidavits. ’” ( People v. Williams (198 8) 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 ” ].) H earsay 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 not5

sufficient to trigger the court ’ s duty to make further inquiries i nto a claim of juror
misconduct ’” ] ; P eople 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 offer s 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 dec larations or requested a continuance to secure them

. D efendant 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 objection s to unsworn juror statements and
, r e lying on th ose 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 too k 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
, sta t ing that on remand, the trial court should not simply assume misconduct6

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 i n each case encouraged to some extent the parties ’ failure to develop the record fully, Bryant by suggest ing that the parties waive their objections to unsworn juror statements and Perez by implicitly (and erroneously) suggesting evidence of an improper di scussion in the jury room would be inadmissible. Here, in contrast, nothing suggests defendant was lulled into foregoing the gathering of admissible support for h is motion for new trial. In any event, “ a trial court does not abuse its discretion in declin ing 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 evidentia ry 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 de fendant ’s counsel ’s state ment 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 test ify, 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 jur y discussion took place about defendant’s failure to testify

— failed to demonstrat e “ a strong possibility that prejudicial misconduct has occurred .” ( People v.7

Dykes
, supra , 46 Cal.4th at p. 80 9 .) Therefore, no evidentiary hearing was necessary and
the tr ial 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:

RO TH SCHILD, P. J.

JOHNSON , J.