Is a defendant entitled to an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct on the grounds that two jurors discussed their personal experiences with drugs and the future of the death penalty?

personal experiences with drugs and the future of the death penalty. "The trial court has the discretion to conduct an evidentiary hearing to determine the truth or falsity of allegations of jury misconduct, and to permit the parties to call jurors to testify at such a hearing. [Citation.] Defendant is not, however, entitled to an evidentiary hearing as a matter of right. Such a hearing should be held only when the court concludes an evidentiary hearing is necessary to resolve material, disputed issues of fact. [Citation.] The hearing should not be used as a "fishing expedition" to search for possible misconduct, but 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. " (People v. Avila (2006) 38 Cal.4th 491, 604, 43 Cal.Rptr.3d 1, 133 P.3d 1076.) "The trial court's decision whether to conduct an evidentiary hearing on the issue of juror misconduct will be reversed only if the defendant can demonstrate an abuse of discretion." (People v. Dykes (2009) 46 Cal.4th 731, 810, 95 Cal.Rptr.3d 78, 209 P.3d 1.)

To the extent that the jurors' statements concerned how they were affected by what other jurors said about their personal experiences with drugs or the future of the death penalty, they are inadmissible under Evidence Code section 1150, subdivision (a), as indications of juror mental processes. To the extent that defendant alleges juror misconduct on the grounds that both topics were mentioned, we have previously held that discussion of this sort, grounded in the common knowledge or experience of laypersons, is "an inevitable feature of the jury system" (People v. Dykes, supra, 46 Cal.4th at p. 812, 95 Cal.Rptr.3d 78, 209 P.3d 1 ). Specifically, we have held that statements of jurors regarding their estimation of the probability of an execution "come within the ambit of knowledge and

[198 Cal.Rptr.3d 422]