Can a jury commit misconduct when it discusses a defendant's failure to testify?

A jury commits misconduct when it violates the court's instruction not to discuss a defendant's failure to testify. (People v. Leonard (2007) 40 Cal.4th 1370, 1425 (Leonard).) "This misconduct gives rise to a presumption of prejudice, which 'may be rebutted . . . by a reviewing court's determination, upon examining the entire record, that there is no substantial likelihood that the complaining party suffered actual harm.'" (Ibid.) In denying the motion for a new trial, the trial court here appeared to assume admissible evidence demonstrated misconduct when the jurors mentioned appellant's failure to testify, but concluded appellant was not prejudiced by the misconduct. We, too, focus on the prejudice requirement.⁷ We review de novo whether the defendant was prejudiced by the jurors' comments on his failure to testify. (Ibid.)

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