People v. Aguillon CA3

DISCUSSION

Defendant contends prejudicial constitutional error occurred because the jury was not instructed with CALCRIM No. 355, which states: “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.” (CALCRIM No. 355 (2014) p. 119.) He also contends his trial counsel was ineffective in failing to request the instruction at trial. We reject both contentions. Background Defense counsel asked the trial court in limine to “advise [the jury] concerning a defendant’s right not to testify.” The trial court answered: “I do that in voir dire.” Counsel replied: “Thank you.” During voir dire, the trial court stated to the prospective jurors:

3 “I’m going to read you an instruction. I do this at the beginning of every trial or in every jury selection and I don’t know whether [defendant]’s going to testify or not. I don’t care. But I want to be sure that you understand and…