California Court of Appeals, Fourth District, First Division
from a judgment of the Superior Court of Imperial County, No.
JCF30660 L. Brooks Anderholdt, Judge. Reversed.
Badillo Law Firm and Jose Garza Badillo for Defendant and
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.
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.
AND PROCEDURAL BACKGROUND
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.
and Ramos lived on same side of the same block in Brawley,
California. Their residences were separated by two houses.
Tamara R. 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."
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.
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.
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.
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.
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.
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
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).)
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. In support of his
motion Solorio attached a declaration by Juror 11, the
foreperson, that stated:
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."
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.
People opposed Solorio's motion on grounds the proffered
declarations were inadmissible under Evidence Code section
1150, subdivision (a). 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].)
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. 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.
court found all of the jurors to be credible and rejected
Solorio's attempt to impeach the credibility of Juror 9