What is the test for a motion for a new trial based on juror misconduct?

A trial court's decision whether to grant or deny a new trial motion is discretionary and " ' "will not be disturbed [on appeal] unless a manifest and unmistakable abuse of discretion clearly appears." ' [Citations.]" (People v. Delgado (1993) 5 Cal.4th 312, 328.) "When a party seeks a new trial based on juror misconduct, the trial court must determine from admissible evidence whether misconduct occurred and, if it did, whether the misconduct was prejudicial. [Citation.] Prejudice is presumed where there is misconduct. This presumption can be rebutted by a showing no prejudice actually occurred or by a reviewing court's examination of the entire record to determine whether there is a reasonable probability of actual harm to the complaining party. [Citation.]" (People v. Loot (1998) 63 Cal.App.4th 694, 697.)

Newly discovered evidence and juror misconduct are grounds for a new trial. ( 1181, subds. (3), (8).) Although defendant presented the contention under the rubric of newly discovered evidence, he argued to the trial court that the foreperson's misconduct entitled him to a new trial and presented testimony in support of this theory. Since defendant's claim relates to factual matters distinct from the crime, his motion is better treated as based on juror misconduct rather than newly discovered evidence. (See People v. Posey (2004) 32 Cal.4th 193, 207 [distinguishing new trial motions based on facts overlapping the crime like insufficient and newly discovered evidence from those relying factual determinations distinct from the crime like juror misconduct].)