Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header
× You have 2 more free articles available this month. Subscribe today.

California Court of Appeal Orders New Trial Due to Jurors Considering Potential Penalty During Guilt Phase of Deliberations

by Douglas Ankney

The Court of Appeal of California, Third Appellate District, reversed a trial court’s denial of a motion for a new trial, ruling that jurors committed misconduct by considering the possible penalties during the guilt phase of Michael Anthony Flores’ trial.

Flores was tried on several charges, including murder, illegal firearm possession, and child endangerment in connection with the death of Dallas Taylor. For Count 1, the jury was instructed on first degree murder, second degree murder, and voluntary manslaughter. The trial court instructed the jury 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.”

After deliberating for a week, 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.” The following day, the jury informed the trial court that it was in an eight to four split on second degree versus voluntary manslaughter. Then at 11:20 a.m. on March 15, the jury sent a note stating “[w]e are at an impass[e]” followed by another note at 1:35 p.m. stating “[w]e have reached a verdict on Counts 1 and 2 ....” Ultimately, the jury found Flores guilty of voluntary manslaughter and guilty of the other charged offenses.

Just over 11 months later, Flores moved for a new trial, arguing juror misconduct. He presented detailed declarations from nine of the jurors that can be summed up as follows: (1) the jury had been deadlocked eight to four in favor of second degree murder versus manslaughter; (2) juror D.R. informed the other jurors that he was a correctional officer, that he knew the law, and that he knew if the jury did not convict Flores of at least manslaughter, then Flores “would walk”; (3) D.R. told the other jurors he was convinced Flores was guilty of second degree murder, but he was lowering his vote to manslaughter so that Flores “would not walk”; (4) the other jurors discussed whether Flores would walk if they did render a unanimous verdict; and (5) the other jurors who favored second degree murder agreed to change their vote to manslaughter after hearing D.R.’s pronouncements on the law and what would happen if the jury were unable to reach a unanimous decision on Count 1.

The trial court denied the motion, finding that the evidence of juror comments were “ruminations” and that the evidence was inadmissible under Evidence Code (“EC”) § 1150 as evidence of the jurors’ thought process. Flores appealed.

The Court stated that in deciding a motion for a new trial based on jury misconduct, courts must evaluate the motion in three steps: (1) decide what evidence is admissible; (2) if admissible evidence exists, determine if it establishes misconduct; and (3) if misconduct is present, determine whether it was prejudicial. Barboni v. Tuomi, 210 Cal. App. 4th 340 (2012).

As to step (1), EC § 1150(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 event occurring, either within or without the jury room, of such 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 or dissent from the verdict or concerning the mental processes by which it was determined.” Statements made by jurors during deliberations are admissible when “the very making of the statement sought to be admitted would itself constitute misconduct.” People v. Cleveland, 21 P.3d 1225 (2001).

The Court concluded that the portions of the declarations revealing that the jurors had discussed Flores’ possible punishment contained admissible evidence of misconduct because the “the mere making of such [statements] in the jury room was an overt act of misconduct and admissible under” EC § 1150. People v. Johnson, 222 Cal. App. 4th 486 (2013). However, the portions revealing how those discussions affected their decisions were not admissible, according to the Court.

Regarding step (2), the Court observed that “in cases not involving the death penalty, it is settled that punishment should not enter into the jury’s deliberations.” People v. Engelman, 49 P.3d 209 (Cal. 2002). “It is fundamental that the trier of fact … must not consider the subject of penalty or punishment in arriving at its decision of guilt or innocence.” People v. Moore, 257 Cal. App. 2d 740 (1968). The Court concluded that jurors’ consideration of Flores’ potential punishment during the guilt phase was clear evidence of jury misconduct.

Turning to step (3), the Court stated that jury misconduct “creates a presumption of prejudice that may be rebutted by a showing that no prejudice actually occurred.” People v. Williams, 148 P.3d 47 (Cal. 2006). “It is settled that unless the prosecution rebuts that presumption by proof that no prejudice actually resulted, the defendant is entitled to a new trial.” In re Stankewitz, 708 P.2d 1260 (Cal. 1985).

But to overturn a verdict where juror misconduct is based on consideration of extraneous evidence, the defendant must show either (1) the extraneous material, judged objectively, was inherently and substantially likely to have influenced the jury; or (2) whether it was substantially likely the juror or jurors were actually biased against the defendant in light of the misconduct and surrounding circumstances. Williams.

In the instant case, the Court stated that D.R.’s statements about him being a correctional officer and that Flores “would walk” if the jury were hung were extraneous evidence that had “no bearing on the actual guilt” of Flores. All discussion of regarding what would happen if the jury weren’t able to reach a unanimous decision was “wholly irrelevant to the duty to decide guilt,” according to the Court.

The Court stated that there isn’t any affirmative evidence that prejudice doesn’t exist to rebut the presumption because the trial court had ruled no misconduct occurred, so this issue was not addressed before the lower court. And the fact that eight jurors changed their vote after discussing the possible penalty is evidence the misconduct prejudiced Flores. Consequently, the People failed to rebut the presumption of prejudice, the Court determined.

The Court added that a “full review of the record further confirms that, not only is there a lack of affirmative evidence of no prejudice, but there is a reasonable probability defendant was actually harmed.”

Thus, the Court concluded that “[t]he 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 its duties justifies reversal.”

Accordingly, the Court reversed the trial court’s judgment. See: People v. Flores, 2021 Cal. App. LEXIS 837 (2021). 

As a digital subscriber to Criminal Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login



Prison Phone Justice Campaign
Advertise here
Federal Prison Handbook - Side