Page 3
Court of Appeal:
Jury’s Consideration of Penalty Was Harmless Misconduct
Humes Says There Was No Prejudice in Jury Submitting Note With Verdict Forms Asking for Leniency
By a MetNews Staff Writer
An agreement among jurors in a murder case under which they would each sign and submit with the verdict a note pleading for leniency, doing so in exchange for one viewing member of the jury voting guilty, amounted to misconduct as it entailed a consideration of punishment during deliberations, but was not prejudicial under the circumstances, Div. One of the First District Court of Appeal held yesterday.
The panel member in question affirmed that in the end, she was persuaded as to the defendant’s guilt and affirmed her verdict when polled, the opinion explains.
The court also found that the jury’s use of a computer to slow down and light up the footage of the shooting, and watching certain clips simultaneously or back-to-back did not constitute impermissible juror experimentation or manipulation of evidence.
Presiding Justice Jim Humes wrote the opinion, certified for partial publication, affirming the judgment of conviction by San Francisco Superior Court Judge Teresa Caffese. The contentions of juror misconduct are addressed in published portions of the opinion.
Justices Kathleen M. Banke and Monique Langhorne Wilson joined in the opinion.
2020 Murder
Appealing his conviction was Omar Herrera, who had been found guilty of the March 18, 2020 murders of Manuel Sac Ajtzalam. Herrera, 19, and his companion A.M., 17, approached Sac Ajtzalam while the victim was talking with a prostitute on 21st Street in the Mission District area of San Francisco.
Video surveillance from three separate cameras was recovered and captured a burst of light and a loud double-click consistent with a gunshot while the three men were standing together. Herrera and A.M. are seen running away from the scene.
Sac Ajtzalam later died from gunshot wounds at the hospital.
Herrera and A.M. were stopped by San Francisco police officers while driving a Chevrolet, having been followed by an Uber driver who witnessed the shooting. A semiautomatic handgun was recovered from the front passenger seat where Herrera had been sitting before he jumped out of the car and ran from police.
Forensics tests confirmed that the firearm matched the bullet and casing found at the scene.
The jury convicted Herrera of first-degree murder, but Caffese reduced the conviction to second-degree murder and sentenced him to 15 years to life in prison. When returning the verdict, the jury also delivered a handwritten note signed by eight jurors that said, “We urge leniency.”
Trading Votes
Herrera argued the jury committed prejudicial misconduct by considering punishment and by trading votes.
Juror S.C. admitted that she “expected [her] verdict to be not guilty before watching the videos…during deliberations” but said that she was the last juror to vote guilty and “refused to do so unless the other jurors agreed we could sign a ‘we urge leniency’ note, which we ultimately did.”
Humes noted that “the Attorney General does not dispute that the evidence shows ‘jury misconduct in the form of impermissible consideration of punishment while deliberating on guilt.” Agreeing, the jurist said that S.C.’s statements and the leniency note “leave no doubt that jurors improperly considered punishment during deliberations.”
However, Humes rejected the assertion that the leniency note agreement constituted improper vote trading, reasoning:
“S.C.’s statement that she expected to vote not guilty before the jury closely reviewed the videos…is reasonably interpreted to mean that once she rewatched the videos, she decided that Herrera was guilty. As the Attorney General argues, ‘[h]ad it been otherwise, no request for leniency would have been necessary because . . . a hung jury would have resulted. It was only because the jury convicted based on the strength of the People’s evidence that the leniency note served a purpose.’ ”
He continued:
“The jurors’ affirmance of the verdicts when polled further supports the conclusion that the verdicts were unanimous. Thus, while S.C.’s refusal to vote guilty unless other jurors signed the leniency note was improper to the extent it involved consideration of punishment, Herrera fails to demonstrate that it constituted misconduct for any other reason.”
No Prejudice
Herrera cited the 2021 Third District case of People v. Flores which found prejudicial misconduct where a jury overcame a juror impasse between murder and voluntary manslaughter charges after discussing the possibility that the defendant would go free if they could not return a verdict. The justice distinguished the case, saying:
“Here…the jury’s concern was that Herrera not be punished too harshly, not that he might escape punishment. But despite this mitigating concern, the jury chose to convict him….Clearly, the leniency note itself did not harm Herrera.”
He acknowledged that “the only possible theory” for how Herrera could have obtained a better result if the jury had not discussed punishment was if S.C. voted to acquit because the other jurors did not agree to send the note, but dismissed this possibility, saying:
“[I]n light of the fact that S.C. believed Herrera was guilty based on the evidence, it is speculative to conclude that she would have nonetheless voted to acquit had punishment not been discussed. And as the Attorney General points out, if the jury hung because S.C. voted to acquit despite her view of the evidence, that outcome would also be the product of misconduct. In short, there is no reasonable probability that the jury misconduct harmed Herrera.”
Video Evidence
Humes pointed out that a new trial may be granted based on misconduct where the jury conducts experimentation during deliberations which results in new evidence, but said that it is not misconduct to perform a more critical examination of the evidence properly admitted.
He said:
“[V]iewing the videos in slow motion allowed the jurors to better ‘scrutinize’ them…, but it did not alter the evidence. Herrera does not argue otherwise. Rather, he concentrates on the jurors’ descriptions of watching videos ‘after they had been overlaid, sequenced, and looped.’”
Finding no impermissible experimentation, he declared:
“Although it appears they viewed multiple clips simultaneously or back-to-back, there is no suggestion those clips were altered in any way. Indeed, one juror stated that the jury did not perform any ‘editing or splicing.’ Herrera fails to explain what evidence outside the record could have been created by playing the videos at different speeds or in conjunction with one another.”
The case is People v. Herrera, 2024 S.O.S 1688.
Copyright 2024, Metropolitan News Company