Is a jury's discussion of defendant's failure to testify relevant to their penalty determination?

California, United States of America

The following excerpt is from People v. Brooks, 2 Cal.5th 674, 216 Cal.Rptr.3d 528, 393 P.3d 1 (Cal. 2017):

the jury responded soon afterward on the following morning. Any discussion of defendant's failure to testify was likely to have been brief and innocuous. (Cf. People v. Loker (2008) 44 Cal.4th 691, 749, 80 Cal.Rptr.3d 630, 188 P.3d 580 [jurors' comments on defendant's failure to testify were brief and had no impact on their penalty determination].)

Pointing to what he describes as "substantial factors in mitigation," defendant argues that the jurors' improper consideration of his

[393 P.3d 69]

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Is a jury's discussion of defendant's failure to testify relevant to their penalty determination?

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