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California Court of Appeal: Prejudice “Presumed” Where Jury Discussed Defendant’s Decision Not to Testify

by Dale Chappell

A jury’s multiple discussions about why a defendant chose not to testify, despite the court’s warnings not to consider them, were sufficient misconduct to presume prejudice, the Court of Appeal of California for the Fourth Appellate District held November 16, 2017.

Francisco Solorio was charged with first degree murder after he allegedly sought revenge for his brother’s stabbing by shooting his brother’s attacker. During Solorio’s trial, several of the jurors questioned why Solorio would not testify on his own behalf. Some jurors reportedly stated he would not testify because he was guilty.

Although the trial judge and the jury foreperson admonished the jurors not to discuss Solorio’s decision to invoke his Fifth Amendment right to not testify, the subject was discussed repeatedly among some jurors. A declaration by the foreperson stated, “Some jurors thought that the defendant Solorio felt guilty and he knew he ‘did it’ and that is why he did not testify.”

The trial court held a hearing on the jury misconduct and concluded, “Was there misconduct in this case? Yes, it’s obvious.” However, the court found that Solorio was not prejudiced by the misconduct because every time the topic of him not testifying came up, the jury was “properly admonished,” and they stopped talking about it.

The jury was instructed under California Criminal Rule 355 not to “consider, for any reason at all, the fact that the defendant did not testify,” the Court of Appeal found. But, “when the record shows there was misconduct, the defendant is afforded the benefit of a rebuttal presumption of prejudice.” As such, the prosecution had the burden of rebutting the presumption of prejudice.

The issue is about Solorio’s “constitutional right against self-incrimination,” the Court said, not merely about “juror bias.” “The purpose of the rule prohibiting jury discussion of a defendant’s failure to testify is to prevent the jury from drawing adverse inferences against the defendant, in violation of the constitutional right not to incriminate oneself.” A defendant’s Fifth Amendment right to remain silent “would be meaningless if jurors could draw adverse inferences from his or her choice” not to testify, the Court explained.

In People v. Lavender, 339 P.3d 318 (Cal. 2014), the California Supreme Court laid out three “rebuttal factors” as to whether a defendant is prejudiced by a jury’s consideration of his decision not to testify.

The first factor is whether jurors draw adverse inferences of guilt from the decision. In this case, the Court found that the foreperson’s declaration made it clear that jurors drew adverse inferences of Solorio’s guilt by his refusal to testify. Second, the length of the discussion matters. The Solorio Court found the issue was raised “several times” during deliberations, enough to raise concern. The third factor is whether the jurors were reminded not to consider the defendant’s decision not to testify. In the present case, the jurors “repeatedly discussed” Solorio’s decision, despite admonition, the Court determined.

After applying each Lavender factor to Solorio, the Court determined that the prosecution failed to rebut the presumption of prejudice with evidence that no prejudice actually resulted. The prosecution argued that it satisfied its burden by pointing out the numerous admonitions from the court and jury foreman not to consider the defendant’s decision not to testify. The Court, however, found that fact actually indicated that the admonitions were ineffective in keeping the jurors from discussing the topic. Accordingly, the Court concluded “we find no basis to find that the prosecution rebutted the presumption of prejudice.”

The Court of Appeal reversed Solorio’s conviction and remanded the matter for a new trial.

See: People v. Solorio, 17 Cal. App. 5th 398 (2017). 

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People v. Solorio



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