Jury misconduct to consider the sentence to break a deadlock

THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANTHONY FLORES, Defendant and Appellant. (Cal. Ct. App., Oct. 8, 2021, No. C089569) 2021 WL 4698468, at *1–2

Summary: Flores was found guilty of voluntary manslaughter after the jury initially declared it was unable to reach a unanimous verdict. Flores moved for a new trial based on evidence the jury considered his sentence in determining the verdict. The jurors’ declarations in support of the new trial motion showed the jury was deadlocked between second degree murder and voluntary manslaughter. After discussing the possibility that Flores would “walk” if it were to hang, the jury found him 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.

The court of appeal reversed, finding: (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.

Background: Flores was charged with shooting a man during an argument at the home of his girlfriend’s mom, where he was living. The man died died  from a gunshot wound. Flores  fled the house and turned himself in to the police the following day.

Flores was charged with murder with enhancements. 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.”

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 jury found Flores 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.

The Motion For A New Trial

Flores moved for a new trial because there was prejudicial jury misconduct from the jury consideration of his potential sentence and his alleged criminal gang affiliation.

All 12 jurors provided declarations that showed they began discussing the possible consequences if the jury were to hang on the murder count. The jurors speculated that the prosecution would not retry the case and defendant could “walk” and avoid all responsibility for the death of the victim.

The trial court erred in finding the entirety of the jurors’ declarations were inadmissible

Evidence Code section 1150, subdivision (a), provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.” “ ‘This statute distinguishes “between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved.” ’ ” (People v. Gonzales (2012) 54 Cal.4th 1234, 1281.) Juror’s statements “ ‘must be admitted with caution,’ because ‘[s]tatements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors.’ [Citation.] But statements made by jurors during deliberations are admissible under Evidence Code section 1150 when ‘the very making of the statement sought to be admitted would itself constitute misconduct.’ ” (People v. Cleveland (2001) 25 Cal.4th 466, 484.)

 The court of appeal reviewed the trial court’s determination for abuse of discretion. (Barboni v. Tuomi, supra, 210 Cal.App.4th at p. 345.) and found that the statements indicating that sentencing discussions took place among the jurors during deliberations, including how punishment should factor into the verdict for the murder charge, are admissible.

The jurors’ declarations as to the statements made during deliberations regarding punishment are also admissible because “the mere making of such a statement in the jury room was an overt act of misconduct and admissible as such under Evidence Code section 1150.” (People v. Johnson (2013) 222 Cal.App.4th 486, 495.) And this evidence is necessary to establish this type of misconduct. Without evidence of what the jury did or did not consider as a group, a verdict could never be challenged on the basis the jury considered impermissible factors in reaching the verdict. (See People v. Avila (2009) 46 Cal.4th 680, 726-727 [analyzing comments made during deliberation indicating jury may have discussed defendant’s decision not to testify].)

The trial court therefore abused its discretion in finding the entire contents of the jurors’ declarations constituted inadmissible evidence and could not establish misconduct occurred as to the discussions of punishment.

Jury Misconduct Occurred

“[I]n cases not involving the death penalty, it is settled that punishment should not enter into the jury’s deliberations.” (People v. Engelman (2002) 28 Cal.4th 436, 442; Bench Notes to CALCRIM No. 101 (Apr. 2020 ed.) p. 7 [“You must reach your verdict without any consideration of punishment”].) “It is fundamental that the trier of fact, be it court or jury, must not consider the subject of penalty or punishment in arriving at its decision of guilt or innocence.” (People v. Moore (1968) 257 Cal.App.2d 740, 750.) Sentencing ramifications are “irrelevant to the jury’s factfinding function” in a noncapital case. (People v. Ruiloba (2005) 131 Cal.App.4th 674, 692.) That is because “knowledge of the permitted or statutorily required punishment may cause or influence the jury to return a verdict designed to result in a particular penalty, rather than one based on the facts and applicable law of a case.” (People v. Moore (1985) 166 Cal.App.3d 540, 551.)

“On review from a trial court’s ‘determin[ation of] whether misconduct occurred, “[w]e accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence.” ’ ” (Barboni v. Tuomi, supra, 210 Cal.App.4th at p. 345.)

The consideration of  potential punishment during the guilt phase was misconduct. The jury here was  responsible for rendering a verdict based on the evidence presented at trial. Consideration of punishment, cost of retrying the case and prosecutorial strategy are irrelevant. and It was misconduct for the jury to consider potential punishment in reaching its verdict.

Misconduct was prejudicial

 Jury misconduct “ ‘creates a presumption of prejudice that may be rebutted by a showing that no prejudice actually occurred.’ ” (People v. Williams (2006) 40 Cal.4th 287, 333; People v. Lavender, supra, 60 Cal.4th at p. 687.) The presumption can be rebutted “by an affirmative evidentiary showing that prejudice does not exist or by a reviewing court’s examination of the entire record to determine whether there is a reasonable probability of actual harm resulting from the misconduct.” (Lavender, at p. 687.) To avoid reversal in this case, the presumption of prejudice must be rebutted either by evidence showing that prejudice does not exist or by examination of the entire record to determine whether there is a reasonable probability of actual harm resulting from the misconduct. If either of these is not satisfied, the court must reverse.

Here, the evidence of misconduct was strong and the people have failed to dispel the presumption of prejudice from jury misconduct because there is more than a reasonable probability defendant was actually harmed by the misconduct. The possibility the jury rendered its verdict not because of defendant’s actual guilt of voluntary manslaughter but because of secondary considerations beyond the scope of the its duty justifies reversal.

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