Solorio

*401 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, 181 Cal.Rptr.3d 28 , 339 P.3d 318 ( 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…