Ault

In People v. Nesler (1997) 16 Cal.4th 561 [ 66 Cal.Rptr.2d 454 , 941 P.2d 87 ] (Nesler), a plurality of this court concluded that when a criminal defendant appeals the denial of his or her motion for a new trial on grounds of juror misconduct, the appellate court must independently review, as a mixed question of law and fact, the trial court’s conclusion that no prejudice arose from the misconduct. (Id. at p. 582, fn. 5 (lead opn. of George, C. J.).) We granted review in this case to determine the proper standard of review when the trial court granted a criminal defendant’s motion for a new trial on grounds of prejudicial juror misconduct, and the People appeal, disputing only the trial court’s determination that the misconduct was prejudicial.

The Court of Appeal majority determined that, in such circumstances, the trial court’s order is reviewed for abuse of discretion, with deference to its assessment of prejudice. Applying that standard, the Court of Appeal affirmed the order granting a new trial. The standard of review adopted by the Court of Appeal comports with the long-standing principle that an order granting, as opposed to denying, a new trial is reviewed…

I am not persuaded that the standard of review for prejudice resulting from juror misconduct should be different when the *1273 motion for new trial is granted than when the motion is denied. I therefore respectfully dissent.

Let us review the circumstances under which the majority opinion does not apply. It does not apply to a defendant, only to the People. (Maj. opn., ante, at pp. 1255-1256.) It does not apply to error, as opposed to prejudice resulting from that error. (Id. at p. 1267, fn. 9 [“we need not and do not consider whether a more stringent standard of review might apply to a trial court’s determination of error leading to its decision to grant a new trial, where the claim of error involved a mixed law and fact issue”].) It does not apply to a People’s appeal of an order vacating a judgment on habeas corpus on the ground of juror misconduct. (Id. at p. 1268.) Rather, in apparently all of these situations, independent review will routinely apply.

Suppose the question here involved a defendant’s confession, and the trial court granted a new trial on the ground the confession was involuntary and its admission prejudicial. The People appeal the order granting the new…