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People v. Solorio

California Court of Appeals, Fourth District, First Division

November 16, 2017

THE PEOPLE, Plaintiff and Respondent,
v.
FRANCISCO JAVIER SOLORIO, Defendant and Appellant.

         APPEAL from a judgment of the Superior Court of Imperial County, No. JCF30660 L. Brooks Anderholdt, Judge. Reversed.

          The Badillo Law Firm and Jose Garza Badillo for Defendant and Appellant.

          Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Collette C. Cavalier and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

          DATO, J.

         Francisco Javier Solorio appeals his conviction for first degree murder (Pen. Code, § 187, subd. (a)), arguing that the trial court erred in denying his motion for a new trial on grounds of jury misconduct. Although it denied his motion, the court made a factual finding that the jury discussed Solorio's decision not to testify "several times" despite repeated admonitions not to consider that topic. Prejudice from this type of misconduct is presumed, and on this record we cannot conclude the presumption of prejudice was rebutted. (People v. Lavender (2014) 60 Cal.4th 679, 692 (Lavender).) Accordingly, we reverse and remand the matter for a new trial.

         FACTUAL AND PROCEDURAL BACKGROUND

         A jury convicted Francisco Javier Solorio of the first degree premeditated murder of his neighbor, Albert Ramos. (Pen. Code, § 187, subd. (a).) The prosecution presented evidence that Solorio, motivated by revenge, killed Ramos four months after Ramos stabbed Solorio's brother, Rudy.

         Solorio and Ramos lived on same side of the same block in Brawley, California. Their residences were separated by two houses. Tamara R.[1] and her daughter Sara J. lived across the street and were friends with both Solorio and Ramos. After Rudy was stabbed, Solorio told them he would handle matters on his own rather than approach law enforcement. Solorio told Sara he planned to "cap" Ramos, "blast him, " and "kill him" for stabbing Rudy. When someone burned Ramos's car afterwards, Solorio told Tamara that things "would only get worse."

         In March 2013 Tamara and Sara had just returned from a one-hour shopping trip with Ramos. Both had a clear line of sight and saw the incident unfold as Ramos walked from their parked car toward his house across the street. As Ramos was walking, Solorio stepped outside his property, walked toward Ramos, pointed a gun wrapped in a bandana at him, and said, "remember what you did to my brother?" Ramos said, "Fuck you" and threw a plastic cup he was holding at Solorio. Solorio grabbed Ramos around the neck, and shot him three times in the arm, head, and chest, killing him.

         At trial, Tamara and Sara testified that Ramos was not armed, did not threaten Solorio, and did not approach, confront, or hit Solorio at any point during the incident. Sara recalled saying, "Don't do it" loud enough for Solorio to hear when she saw him pull out the gun.

         Tamara immediately called 911. Solorio could be heard in the background exclaiming, "He had a knife!" Tamara could be heard saying, "That's bullshit Javier. That's bullshit. I saw it." A knife was recovered at the scene, and Solorio had a superficial knife wound on his arm. The prints on the knife did not match Ramos or Solorio and instead were a possible match for Solorio's brother, Steven. Steven told the responding police officer Brian Smith that upon arriving home, he saw someone on top of his brother and heard three shots fired.

         Solorio did not testify at trial, but his counsel argued the killing was in self-defense. In a taped police interview played for the jury, Solorio told officers about Ramos's drug use, assaultive behavior, and stabbing of Rudy four months earlier. Solorio stated that Ramos had repeatedly punched him and made him fear for his life. At trial, police officers testified that there were no signs of trauma or swelling on Solorio's face or bruises or scrapes on Ramos's hands to support the theory that Ramos attacked Solorio.

         Solorio's brothers Rudy and Victor testified about Ramos's unprovoked stabbing of Rudy and threatening statements to Victor. A neighbor named Ofelia testified that Ramos was scaring her children, engaging in unusual behavior, and had attacked two of her uncles. One of those uncles testified about the attack, and a father and son in the neighborhood described Ramos's threatening behavior in the four months before his death. Ramos's toxicology results indicated that at the time of his death, he had methamphetamine and amphetamine in his bloodstream.

         After the verdict, Solorio filed a motion for a new trial on grounds of jury misconduct, arguing that the jurors repeatedly discussed Solorio's decision not to testify during deliberations. The court held an evidentiary hearing and determined that although misconduct occurred, it was not prejudicial. On that basis it denied the motion for a new trial.

         Solorio was sentenced to serve 50 years to life in prison, consisting of 25 years to life for first-degree murder, plus 25 years to life for the firearm enhancement. (Pen. Code, § 12022.53, subd. (d).)

         DISCUSSION

         Additional Background

         Solorio filed a new trial motion on the ground of juror misconduct. (Pen. Code, § 1181, subd. (3) [allowing a new trial for jury "misconduct by which a fair and due consideration of the case has been prevented"].) He argued that jurors violated the court's instruction not to consider Solorio's decision not to testify.[2] In support of his motion Solorio attached a declaration by Juror 11, the foreperson, that stated:

         "During the deliberations, the entire jury brought up and discussed the fact that the defendant Francisco Solorio did not testify in his own behalf. Some jurors were asking why the defendant did not testify. Some jurors thought that the defendant Solorio felt guilty and he knew he 'did it' and that is why he did not testify."

         Solorio also submitted declarations by defense investigators, Juror 6, and (an unsigned declaration by) Juror 9 suggesting the jury had discussed "at length" that Solorio did not take the stand because he had something to hide.

         The People opposed Solorio's motion on grounds the proffered declarations were inadmissible under Evidence Code section 1150, subdivision (a).[3] In the alternative, the People urged the court to hold an evidentiary hearing to resolve disputed factual issues. (People v. Hedgecock (1990) 51 Cal.3d 395, 415 [trial court may conduct an evidentiary hearing (a Hedgecock hearing) to resolve conflicting allegations of juror misconduct].)

         The court determined that the quoted portion of Juror 11's declaration above was admissible, whereas declarations of Juror 9 and defense investigators were inadmissible. (§ 1150, subd. (a).) It found a material factual dispute between Juror 11's declaration and Juror 6's declaration and decided to hold a Hedgecock hearing.[4] The court subpoenaed all 12 jurors to testify and followed a script, asking jurors if they recalled whether the topic came up, if they participated and how many participated in those discussions, how long the discussions were, and whether jurors were admonished.

         The court found all of the jurors to be credible and rejected Solorio's attempt to impeach the credibility of Juror 9 ...


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