After finding there was jury misconduct where jurors discussed the defendant’s decision not to testify several times despite repeated admonitions not to consider that topic, trial court erred by concluding the misconduct was not prejudicial. Solorio was convicted of first degree murder after a jury trial in which he did not testify. The jury was instructed not to consider the fact that he did not testify. After the verdict, Solorio moved for a new trial based on information from the jury foreperson that the jurors had discussed Solorio’s decision not to testify several times during deliberations and inferred that he had something to hide. The trial court held an evidentiary hearing and received conflicting information from many of the jurors as to the extent of the conversations. The foreperson testified that six or seven jurors repeatedly discussed Solorio’s decision not to testify and were admonished each time not to discuss it. The court denied the motion, finding that there was misconduct but no substantial likelihood of bias because the jurors “were promptly admonished” and “ceased discussion.” On appeal, the parties agreed that jury misconduct occurred but disagreed whether it was prejudicial. Held: Reversed and remanded for a new trial. When the record shows there was jury misconduct, the defendant is afforded the benefit of a rebuttable presumption of prejudice. The Court of Appeal noted that the law concerning prejudice in the context of jury misconduct is not clear and followed the approach in People v. Lavender (2014) 60 Cal.4th 679, which involved the same type of jury misconduct. Applying each of the rebuttal factors laid out in Lavender, the court concluded that the prosecution had fallen short of rebutting the presumption of prejudice. The jury drew adverse inferences from Solorio’s failure to testify, the subject was brought up several times, and jurors continued to discuss the subject after repeated reminders that it should not be considered.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D070794.PDF