People v. Flores

70 Cal.App.5th 100

285 Cal.Rptr.3d 162

The PEOPLE, Plaintiff and Respondent,

v.Michael Anthony FLORES, Defendant and Appellant.

C089569

Court of Appeal, Third District, California.

Filed October 8, 2021

Gillian Black, under appointment by the Court of Appeal, Sacramento, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and John Merritt, Deputy Attorneys General, for Plaintiff and Respondent.

Robie, J. Defendant Michael Anthony Flores was found guilty of voluntary manslaughter, among other crimes, after the jury initially declared it was unable to reach a unanimous verdict. Defendant moved for a new trial based on evidence the jury considered defendant's sentence in determining the verdict. The jurors’ declarations in support of the new trial motion showed the jury was at an impasse between second degree murder and voluntary manslaughter and shortly after discussing the possibility defendant would "walk" if it were to hang, the jury found defendant guilty of voluntary manslaughter. The trial court denied defendant's new trial motion, finding inadmissible any evidence of the jury's deliberations regarding punishment and that discussing punishment during deliberations is not misconduct.

We reverse because: (1) the trial court erred in finding inadmissible the entire contents of the jurors’ declarations submitted in support of the new trial motion; (2) consideration of the admissible portions of the jurors’ declarations establish misconduct occurred, raising a rebuttable presumption of prejudice; and (3) the People failed to rebut the presumption of prejudice.

FACTUAL AND PROCEDURAL BACKGROUND

A

The Charges And Trial¹

On December 29, 2016, defendant was living at his girlfriend's (Jessica T.) mom's house. That night, his girlfriend's sister (Cheyenne T.) and her boyfriend (Dallas Taylor), who both also lived at that house, got into an argument and Taylor decided to move out. As Taylor was packing his belongings in the room he shared with Cheyenne T., an argument erupted between the house's residents, Taylor, and Taylor's family who had come to help him move out. Jessica T. entered the room and started struggling with Taylor; she was knocked to the ground. Defendant entered the room at some point during this struggle and shot Taylor. Taylor died at the scene from a gunshot wound. Defendant fled the house and turned himself in to the police the following day.

Defendant was charged with murder -- with associated enhancements that defendant had personally and intentionally discharged a firearm causing death and had personally used a firearm -- illegal firearm possession, and child endangerment -- with an associated enhancement that defendant had personally used a firearm.

Defendant's trial began on January 23, 2018, and the jury began deliberations on March 6, 2018.² For count 1, the murder charge, the jury was instructed on first degree murder, second degree murder, and voluntary manslaughter. The jury was also instructed on its duty to decide "what happened, based only on the evidence that has been presented to you in this trial" and that it had to reach a verdict "without any consideration of punishment."

On March 13, the jury sent a note asking: "Can we determine count 2 or 3 without a consensus on count 1. We all agree there is a crime of murder, but we cannot reach a decision on 2nd/vs. manslaughter." On March 14, the trial court reconvened the jury and the foreperson informed the court the jury was in an eight-to-four split on the murder count between second degree murder and voluntary manslaughter. The court then dismissed a juror for misconduct (which has no bearing on this appeal), seated a new juror, D. R., and instructed the jury to restart deliberations.

On March 15, the jury sent three more notes: the first was sent at 11:20 a.m. stating, "[w]e are at an impass[e]"; the second at 1:35 p.m. stating, "[w]e have reached a verdict on Counts 1 and 2; however we need some time to ponder Count 3"; and finally at 2:05 p.m. stating it had reached verdicts on all counts. Later that day, the jury found defendant not guilty of first and second degree murder, guilty of voluntary manslaughter, illegal firearm possession, and child endangerment, and found true the two personal use of a firearm enhancements as to the murder and child endangerment charges.

B

The Motion For A New Trial

On February 19, 2019, defendant moved for a new trial. Defendant argued, in part, that there was prejudicial jury misconduct deriving from the consideration of his potential sentence and his alleged criminal gang affiliation.

All 12 jurors provided declarations. On the issue of impasse, the declarations generally showed the jurors were becoming frustrated as to the eight-to-four split regarding the degree of the murder charge and began discussing the possible consequences if the jury were to hang on that count. This included speculation that the prosecution would not retry the case and defendant could "walk" and avoid all responsibility for killing Taylor. Jurors made statements to the entire group that " ‘maybe he won't get retried. Maybe it would be too much. How much will they pay on this case?’ "

Some jurors declared the discussion regarding sentencing occurred up to lunch on March 15, and that after lunch the eight jurors who were voting for second degree murder switched to voluntary manslaughter to avoid a hung jury. Juror G. H. declared she was "the only juror who did not want to drop her vote and she was upset at the thought of this compromise," but after lunch she "told the rest of the jury that she agreed with their [sic ] thinking and changed her vote to voluntary manslaughter in order to avoid a hung jury."

Juror C. K. declared she suspected some of the jurors did outside research regarding sentencing for voluntary manslaughter but that "discussion got shut down by the Foreman who reminded them that they could not discuss or consider sentencing." C. K.’s declaration did not state when this admonition was given.

Jurors D. D. and M. S. declared the newly seated juror D. R., who was a correctional officer, was particularly vocal on the need for agreement. They further declared another juror, R. N., had said if the jury was "unable to reach a unanimous verdict then no one would be held accountable." D. D. declared D. R. agreed with R. N., saying, "based on his experience as a correctional officer, he knows [defendant] ‘will do it again’ and ... confirmed [R. N.’s] statement that, based on his experience, if there was a hung jury then no one would be held accountable. [D. R.] explained that he was willing to compromise at manslaughter in order to avoid a hung jury." D. R. also allegedly explained the minimum and maximum sentences for manslaughter. M. S.’s declaration was largely consistent with D. D.’s declaration regarding D. R.’s statements.

D. R.’s own declaration provided that, based "on his experience and knowledge of being a Lieutenant for the California Department of Corrections and Rehabilitation, [he] knew the law and in his mind [defendant] was guilty of second degree murder." He detailed his conversation with another juror who would not budge from voluntary manslaughter, during which he tried to give the other juror "examples, threat assessments, and scenarios of similar circumstances, but [the other juror] just would not agree with him and this frustrated [D. R.] because [D. R.] knew the law." D. R. also declared that before lunch on March 15, D. D. said he was going to vote not guilty, so the foreperson would declare a hung jury. D. R. declared he told the other jurors "he would hate to have a hung jury or have to retry the case" but he was "willing to drop down to voluntary manslaughter, even though he did not agree, because in his heart and based on what he believed the law to be, [defendant] should be convicted of second degree murder." D. R. explained he was concerned about defendant "walking" because "he did not know the law completely in that aspect." He, however, could not recall whether the concern that the district attorney would not retry defendant was said out loud. He further declared everyone agreed on voluntary manslaughter after lunch, though "[t]wo female jurors that [sic ] were in favor of second degree murder began crying and took the longest to drop down to voluntary manslaughter."

As to the gang affiliation enhancement, the jurors declared there was a discussion about whether defendant's tattoo and the color of the shirt he wore during the incident indicated he was a gang member. Several jurors declared that D. R. said the tattoo and shirt color were gang related, with D. D. declaring, "[t]he correctional officer stated that he had personal knowledge that the tattoo was gang related and that there was even a song about it." One juror declared this issue was quickly dropped "because there was no information that was brought up at trial about any of them being involved in gangs." And the jury foreperson said he reminded the group that defendant's "gang membership was irrelevant." Several of the jurors declared they did not take this evidence into account.

The prosecution's opposition to the new trial motion was supported by evidence that juror M. S. was biased toward defendant. Telephone transcripts from jail after trial showed M. S. called defendant to tell him she was "truly, truly, falling in love with [him]." She also said she could not show any emotions toward him in court "because then the [prosecutor] would say oh she's got to go" and that "would be a tremendous loss for you on the trial a fact that you know I was one (unintelligible) going for self[-]defense."

On May 20, 2019, the trial court denied defendant's new trial motion. The trial court found the "few brief comments about the future of the case, what would happen if it's a hung juror [sic ], what would the punishment be" ...