Opinion
A165248
05-22-2024
The PEOPLE, Plaintiff and Respondent, v. Omar HERRERA, Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Alice B. Lustre, Supervising Deputy Attorney General, J. Michael Chamberlain, Deputy Attorney General, for Plaintiff and Respondent. Dirck Newbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Trial Court: City and County of San Francisco Superior Court, Trial Judge: Hon. Teresa M. Caffese (San Francisco City and County Super. Ct. No. CT20004050)
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Alice B. Lustre, Supervising Deputy Attorney General, J. Michael Chamberlain, Deputy Attorney General, for Plaintiff and Respondent.
Dirck Newbury, under appointment by the Court of Appeal, for Defendant and Appellant.
Humes, P.J.
Defendant Omar Herrera was charged with murder, attempted robbery, and other crimes after he shot and killed Manuel Sac Ajtzalam. Surveillance footage showed that seconds before the shooting, 19-year-old Herrera and a juvenile, A.M., approached Sac Ajtzalam and a sex worker with whom he was talking. Although Herrera was present when A.M. stole an iPhone from someone else earlier that day, he testified that he did not know A.M. intended to rob Sac Ajtzalam, did not wish to participate in any robbery, and fired at the ground only after Sac Ajtzalam made threatening movements. The jury rejected Herrera’s version of events and convicted him of first degree murder and the other charges. The trial court reduced the murder conviction to second degree murder and sentenced him to 15 years to life in prison.
On appeal, Herrera claims that (1) insufficient evidence supports the murder and attempted-robbery convictions; (2) evidence of the iPhone theft was inadmissible; (3) a statement by the victim of the iPhone theft should have been excluded under the confrontation clause; (4) evidence from his cell phone should not have been admitted after initially being suppressed; (5) the trial court’s responses to two juror questions were inadequate; (6) the jury committed misconduct by manipulating the surveillance videos during deliberations; (7) jurors committed misconduct by considering punishment and vote-swapping; (8) cumulative error requires reversal of the murder and attempted-robbery convictions; and (9) his conviction for unlawfully possessing a firearm violates the Second Amendment. In the published portion of this opinion, we reject Herrera’s two claims of jury misconduct. His remaining claims also lack merit, and we therefore affirm.
I.
Factual and Procedural Background
A. The Shooting
The shooting occurred the night of March 18, 2020, on 21st Street in San Francisco’s Mission District. The relevant block of 21st, which runs east to west, is intersected on the east by Shotwell Street and on the west by South Van Ness Avenue.
1. Eyewitness testimony
An Uber driver testified that around 10:25 p.m. that night, he was driving east on 21st toward Shotwell. He turned left onto Shotwell, but a Chevrolet sedan was stopped in the lane, blocking him from clearing the crosswalk and continuing down that street. To his left, at the northwestern corner of 21st and Shotwell, he noticed three young men arguing. He could not hear what they were saying, but their voices were raised.
The driver testified that "suddenly," two of the men "started throwing punches" at the third, and both made contact. The third man "tried [to] punch back" but did not appear to land any punches. According to the driver, "[o]ne of the two guys pulled a gun" and shot once from his right hip at the third man. The third man then began "limping" toward the curb. The driver briefly turned his head and did not see where the victim went, but when he turned back, he saw the other two men running toward the Chevrolet. One man, whom the driver later identified as A.M., got into the driver’s seat, and the other man, whom the driver later identified as Herrera, got into the passenger’s seat. The Chevrolet then drove away down Shotwell.
At trial, the Uber driver incorrectly identified A.M. as the shooter, although he later indicated he could not remember whether the shooter got into the driver's seat or passenger’s seat.
The police did not locate and interview S.S., the sex worker with Sac Ajtzalam before the shooting, until the following fall. At trial, S.S. testified that she was familiar with the area, which was "known … for sex workers." Generally, rates started at $100, and payment was in cash.
S.S. was on the north side of 21st between Shotwell and South Van Ness when Sac Ajtzalam crossed the street to ask for a date. As they spoke, they faced the street with their backs against a wall. S.S. testified that two men "walking together" approached her and Sac Ajtzalam "really fast" and "said some things in Spanish" that she could not understand.
According to S.S., one of the men pulled out a handgun and placed it against Sac Ajtzalam’s stomach. Unlike the Uber driver, she did not see a "physical altercation" between the men. When S.S. saw the gun, she "turned around and ran" toward a liquor store on the corner of 21st and South Van Ness. As S.S. looked back to see if anyone was following her, she observed Sac Ajtzalam running toward Shot-well and the other two men following him. She turned her head forward again, at which point she heard a gunshot. She then ran into the liquor store without looking back.
A man preparing to leave for work was standing near his car on the south side of 21st when he heard "one or two gunshots." He turned and saw a man fall down near the southwest corner of 21st and Shotwell, get back up, and keep running.
Another man who lived nearby was sitting by his bay window facing Shotwell when he heard a gunshot. When he looked outside, he saw three people running at the northwest comer of 21st and Shotwell. One then ran toward the southwest comer of the intersection. That person began to slow down, "their legs kind of slipped out," and they "collapse[d] or … f[e]ll backwards" and hit the ground "hard." Meanwhile, the other two people sprinted north on Shotwell, got into a car, and departed.
2. Surveillance videos
Surveillance videos of the block of 21st between Shotwell and South Van Ness were played for the jury and admitted. This evidence consisted of (1) approximately 40 clips from four security cameras; and, as discussed further below, (2) selected clips that were lightened, zoomed into, or spliced together. Three cameras were located outside a building on the south side of 21st, near the middle of the block. One pointed directly across the street toward where Sac Ajtzalam and S.S. stood; one pointed diagonally down 21st toward Shotwell; and one pointed diagonally down 21st toward South Van Ness. These cameras recorded in color and captured sound. They were motion-activated, and they generated files with timestamps accurate to the second.
The fourth camera was located outside the liquor store on the northeast corner of 21st and South Van Ness, pointing directly down 21st toward Shotwell. This camera generated a timestamp to the second, which was a few minutes off from the other three cameras. It recorded in black and white without sound, and the picture quality was worse than that of the other cameras.
The surveillance footage shows Sac Ajtzalam walking on the southern sidewalk of 21st, toward Shotwell, at 10:24 p.m. As S.S. walks by on the opposite sidewalk, Sac Ajtzalam pauses and says something to her, and she greets him. He then crosses the street and stands next to her.
A few seconds later, A.M. and Herrera approach Sac Ajtzalam and S.S. from the direction of Shotwell. A.M. is a few steps in front of Herrera, but they appear to pull nearly even with each other as they get close to Sac Ajtzalam. The recording from the camera facing across 21st cuts off at this point, but the recording from the building camera facing toward Shotwell shows A.M. and Herrera reach Sac Ajtzalam. The image is blurry, but Herrera can be identified by his light-colored pants.
A second or so after A.M. and Herrera reach Sac Ajtzalam, a loud double click can be heard, and S.S. immediately moves away from the men. Meanwhile, right after the click, Herrera appears to move to face Sac Ajtzalam. The footage from the liquor-store camera is low quality, but it seems to show Sac Ajtzalam moving abruptly back against the wall, as if shoved. S.S. then runs toward South Van Ness and into the street.
In closing, the prosecution argued that this sound was a gun being racked, having presented evidence that semiautomatic handguns like the one Herrera had "generally … make a clicking noise when you pull the slide back." The defense responded that it was not reasonable to infer that the sound was a gun racking, because the camera did not pick up any other sound from across the street except for the gunshot.
Meanwhile, footage from the building camera facing toward Shotwell shows Herrera and A.M. follow Sac Ajtzalam from a few feet behind as Sac Ajtzalam moves, possibly backing up, along the northern sidewalk of 21st toward Shotwell. The three men speed up, and almost immediately—about 10 to 12 seconds after A.M. and Herrera first reached Sac Ajtzalam—there is a flash and the sound of a gunshot. Sac Ajtzalam runs across the crosswalk from the northwest to the southwest corner of 21st, and Herrera and A.M. run around the northwest corner onto Shotwell.
3. The autopsy and other physical evidence
Around 10:30 p.m., the San Francisco police received a ShotSpotter notification of a gunshot on Shotwell. When officers arrived on the scene, they found Sac Ajtzalam lying on his back at the southwest comer of 21st and Shotwell. In his back pocket was about $100 in cash and an "electronic device" with corded earbuds attached, and in his front pocket was a wallet containing about $850 in cash.
Sac Ajtzalam was transported to the hospital but ultimately died. An autopsy showed he was killed by two through-and-through gunshot wounds, one to the left side of his chest and the other to his left forearm. The medical examiner who performed the autopsy testified that a single bullet could have caused the wounds by passing through Sac Ajtzalam’s arm and chest if he had his arm in front of his body with his elbow bent and raised.
Sac Ajtzalam had a blood-alcohol content of .08 percent, which might have been higher at the time of the shooting. He had "nondescript" scrapes on his left knee and the left side of his face, which happened around the time of death. The evidence tended to suggest he sustained these scrapes when he fell.
A nine-millimeter Luger cartridge casing was found on the northwest comer of 21st and Shotwell, and a bullet fragment was found in the eastern crosswalk of that intersection. A metal belt buckle broken into three pieces was found near the cartridge casing, and a belt was on the ground next to Sac Ajtzalam’s arm.
A defense expert testified that the condition of the belt buckle suggested it was "hit by some significant force." She also testified that the bullet’s condition showed it hit something else before striking Sac Ajtzalam’s body, since it did not hit any bone. Collectively, this evidence gave rise to "a likely hypothesis that the bullet struck the belt buckle" while Sac Ajtzalam was swinging the belt "and was deflected or ricocheted prior to striking [him]." The expert opined that the bullet could not have traveled on the "trajectory into [his] arm and across [his] torso" his wounds indicated by being fired at the ground and then ricocheting.
B. Herrera’s Arrest and the Recovery of Additional Evidence
After the Chevrolet left the scene, the Uber driver followed it. He soon spotted a police car, flagged it down, and stopped to report the shooting to the officers inside. He also gave them the Chevrolet’s licenseplate number.
The police officers quickly located the Chevrolet and attempted to conduct a traffic stop, but the car sped up instead. After a chase of several blocks, the Chevrolet reached a dead end, and both of its occupants exited. The officers then drew their guns and ordered the two people to stop. The driver, later identified as A.M., ran one way, and the passenger, later identified as Herrera, ran the other way. A.M. was quickly apprehended. After a more extensive search, Herrera was located hiding in a park and arrested without resistance. He was carrying his own cell phone and about $160 in cash.
A semiautomatic handgun with an extended magazine containing 19 rounds of nine-millimeter Luger ammunition was recovered from the Chevrolet’s front passenger’s seat. Forensic testing showed that the gun, which did not have a serial number, was used to shoot the cartridge case and bullet recovered at the scene. A bag of marijuana with Herrera’s DNA on it was in the front passenger’s-side door.
C. Herrera’s Out-of-court Statements
1. Police interrogation
A video recording of Herrera’s interrogation the morning after his arrest was played for the jury. Herrera stated he was in the Chevrolet’s passenger’s seat during the car chase, and he readily admitted the gun left there was his and he had been carrying it most of the day.
Herrera initially denied knowing A.M.’s name, claiming he had just met A.M. through another friend. After the police sergeant questioning him alluded to the shooting, Herrera said he and A.M. were walking to the store when they encoun- tered Sac Ajtzalam. Herrera did not "know how it started" or what A.M. and Sac Ajtzalam said to each other, but Sac Ajtzalam reached for his waist. Herrera, who was about four feet away from Sac Ajtzalam, then pulled out his gun and pointed it at the ground. Herrera thought this would get Sac Ajtzalam to "leave [him] alone," since "most people … when they see a gun[,] they’ll … start automatically running." But Sac Ajtzalam "rush[ed]" him, so Herrera shot at the ground once, not intending to hurt the other man.
The sergeant told Herrera there was a witness "who saw three people fighting" and asked whether Herrera threw any punches. Herrera said he did not, but A.M. "tried to do something first" and Herrera then "tried to back [A.M.] up" and "have [Sac Ajtzalam] run off" and "leave [them] alone." After Herrera stated that Sac Ajtzalam was "small as shit," the sergeant asked whether it would "make sense for a small guy to start … talking trash to two guys." Herrera said he "wasn’t there at first" and indicated the initial confrontation was between A.M. and Sac Ajtzalam only.
Sac Ajtzalam was five feet, four inches tall. Herrera testified that he himself was an inch taller than that and weighed about 135 pounds at the time of the murder.
Herrera reacted with surprise when the sergeant told him he "hit the guy out on Shotwell Street and he died." Herrera then admitted he had known A.M. "for a while" and they were friends. According to Herrera, before the shooting he and A.M. dropped off another friend and headed to the McDonald’s at 16th Street and Potrero Avenue. A.M. was driving, and Herrera was in the back seat. On the way, they stopped at Herrera’s home so Herrera could use the bathroom, and they then proceeded toward the McDonald’s.
According to Herrera, A.M. double-parked the car on Shotwell and left the engine running. Herrera initially claimed they both got out to go to the liquor store at 21st and South Van Ness, but he could not explain why A.M. would have parked a block away from it. Under further pressing, Herrera indicated that A.M. was high on Xanax and Percocet and his behavior could not be explained.
Herrera then lamented he was "going to be stuck in this bitch for life" because A.M. "wanted money for his birthday[,] that’s the only reason." Herrera explained that A.M. was turning 18 years old in a few days and had said he just lost some money. But Herrera denied knowing whether A.M. intended to commit a robbery or " ‘what [A.M.] was trying to do" at all. Herrera also flatly denied intending to rob anyone himself, stating he was "scared" when Sac Ajtzalam "tried to come at [him]" and was "just trying to defend [him-]self." He also denied that either he or A.M. tried to take any property from Sac Ajtzalam.
The sergeant then revealed that A.M. claimed he did not know Herrera and Herrera appeared out of nowhere while Sac Ajtzalam was trying to rob AM. According to the sergeant, A.M. said Herrera shot Sac Ajtzalam and then forced A.M. at gunpoint to drive away from the scene. The sergeant said A.M. was afraid Herrera was going to shoot him and "was crying to his mommy."
The sergeant was apparently describing information he gleaned from a phone call A.M. made to his mother after being arrested, which the sergeant observed. Our record indicates that A.M. served less than a year for his involvement in Sac Ajtzalam's death.
Herrera stated, "No, no. [A.M.] was not crying. He knew exactly what he was doing." When the sergeant asked what A.M. was doing, Herrera said, "[H]e wanted to go rob that dude." (Italics added.) The sergeant repeated, "He wanted to go rob him?," and Herrera responded, "Yes bro, I tried to tell him no hella times, bro. I tried to tell him no bro, I don’t wanna do it bro. I’m just trying to go get some fucking McDonald’s bro. This nigga gets out of the car bro, and he … still tries to do it bro, and … I see this guy as my fucking like little brother bro, and you feel me if somebody tries to hurt him bro of course I’m going to get offended bro because I knew him for so long bro."
Herrera clearly emphasizes the word "he" in this portion of the interrogation recording.
Herrera then elaborated on the events leading up to the shooting. He claimed that as they were driving, A.M. said, "[T]here’s hoes over here, bro," and parked the car. Herrera told A.M. he did not "give a fuck" and told him to go to McDonald’s, but A.M. exited the car. A.M. then "walked up on" Sac Ajtzalam and S.S. and punched Sac Ajtzalam. Sac Ajtzalam "reached for something," at which point Herrera "just shot once" to get him to go away, and Sac Ajtzalam ran off while Herrera and A.M. ran back to the car. Herrera denied either that he punched Sac Ajtzalam or that Sac Ajtzalam punched A.M.
Near the end of the interrogation, when asked whether A.M. had any money on him, Herrera stated that A.M. had $300 he got when he "took [a phone] from a fucking lady." Herrera said he was nearby when A.M. stole an iPhone earlier that day from a woman at 24th Street and Potrero Avenue. A.M. then sold the phone to a man at the Daly City BART station. Herrera reported that afterward, A.M. took out the cash "and counted it in [Herrera’s] face." The sergeant asked whether Herrera was "with [A.M.] when he was doing any other robberies or any other licks or anything." Herrera responded, "No. Just the one with him today bro but I shoulda never went with him bro."
The sergeant testified that doing a "lick" is slang for committing "a robbery or a theft."
2. Herrera’s communications with his girlfriend
A few hours after being interrogated, Herrera spoke to his girlfriend from jail. A recording of the call was played for the jury. During the call, Herrera admitted he had had "a weapon on [him]." He told his girlfriend, "[Y]ou know what’s crazy? I didn’t even want to do it. I just wanted to go get some McDonald’s." Herrera stated that while A.M. promised to drive him to McDonald’s, "[t]his nigga did not take me to fuckin’ McDonald’s. This nigga took me to go hit a lick. This nigga tried to hit the lick, bruh."
When Herrera’s girlfriend asked what time this occurred, Herrera responded, "Last night. Right after I told you we’re gonna go make money. I was—I was just supposed to go home after we smoked, too. I don’t know why the fuck I let this … little bitch-ass nigga just fuck with my life bruh." Herrera’s statement about what he had "told" her apparently referred to a text message he sent her about 30 minutes before the murder. After she texted, "But oh wait u the one who’s out," Herrera responded, "Makin money."
D. The iPhone Theft
The police were not aware that the iPhone theft was connected to Herrera and A.M. until Herrera mentioned it during his interrogation. Around 4:30 p.m. on the day of the murder, the police responded to 24th and Potrero based on a report of a stolen iPhone. A woman, S.N., told a police officer she was on the phone when a young male approached and grabbed it from her hand. He hit her face at the same time he grabbed the phone, causing numbness in her lip and nose area.
As discussed further below, S.N. did not testify at trial, and her statement was introduced through the officer's testimony.
Surveillance footage from a Muni bus showing the theft was played for the jury. The video shows S.N. standing at the corner of 24th and Potrero talking on a phone. From a distance, after the bus has traveled away from her on Potrero and stopped partway down the block, its rear camera video shows A.M. run by her. He then runs down Potrero, past the bus, with Herrera running about 10 feet behind him. S.N., farther behind, runs after them yelling. The bus’s front camera shows A.M. and Herrera run toward a light-colored sedan, which has just double-parked farther down Potrero. The two then enter the car on the passenger’s side, and the car drives away before S.N. can reach it.
E. Herrera's Testimony
Herrera was raised by his grandmother after he went into foster care around the age of two. At the time of the murder, he lived with her and worked as a security guard. He also received $1,000 a month "[f]rom being in foster care." He claimed he had about $4,000 saved and was not concerned about money.
Herrera testified that around 4:00 p.m. on the day of the murder, A.M. and two other acquaintances, C. and A., picked him up from his home. Herrera also made money by selling marijuana to friends and acquaintances, and he had arranged to sell some to the others and smoke with them. Herrera had known A.M. for about five years but hung out with him only occasionally.
Herrera had his gun, which he told the others so they would "know not to do anything dumb, to drive normal." Herrera testified that he bought the gun on the street about six months before the murder to protect himself. He described numerous incidents during which he was hurt or threatened by strangers, including being shot at and beat up. The defense produced medical records corroborating some of these events, including a September 2019 incident that he claimed prompted him to buy the gun.
On the way to smoke marijuana with A.M. and the others, Herrera asked to stop at a corner store at 24th and Potrero to buy something "for when [he] got high." C., who was driving his own car, pulled over and let Herrera and A.M. out of the car. They went into the store, and Herrera bought a bottle of water. They then waited outside for C. "to come back around" to pick them up.
C. "pulled up around the corner," and Herrera and A.M. began walking toward the car. A.M. was a few steps ahead of Herrera. "[O]ut of the corner of [his] eye," Herrera saw A.M. "do something" and start running. Herrera heard a woman yelling and started running himself, "out of instinct." He and A.M. ran to the car, and C. drove them away.
Herrera testified that he did not know A.M. planned to steal the iPhone and had no intent to help A.M. do so. Herrera felt badly for S.N. because she was "an older lady," and he got "angry" at A.M. for stealing from her. In particular, Herrera was worried about getting in trouble himself, and he told A.M., "Don’t do nothing with me there."
A.M. arranged to sell the iPhone, and C. drove the group to the Daly City BART station so A.M. could do so. On the way, A.M. said he was mad because he had lost $900. After he returned to the car, A.M. displayed three hundred-dollar bills. The group then drove to Bayview-Hunter’s Point and smoked marijuana in the car for a few hours. Herrera did not do any other drugs, but others in the group also took Xanax and Percocet.
C. began "acting weird," so A.M. drove the car to C.’s house to drop him off. Herrera, A.M., and A. then left in A.M.’s car, which A.M. had parked there earlier. Herrera asked A.M. to take him to McDonald’s because he had not eaten all day, but they stopped at Herrera’s home first so he could use the bathroom. When Herrera returned to the car, A. asked to be dropped off at his sister’s house.
On the drive to A.’s sister’s house, Herrera sold A. some marijuana. Herrera testified that his girlfriend was often worried about what he was doing, and when he texted her that he was "Makin money," he meant the sale he had just made to A. Herrera admitted the marijuana found in the Chevrolet was his, and some of the money he had when arrested was from "[selling] weed to people in the car."
After dropping off A., A.M. and Herrera headed to the McDonald’s at 16th and Potrero, which was the nearest one still open. Herrera was "tired from all the weed [they] were smoking, so [he] kept like dozing off and waking back up at random parts." As they neared the intersection of 21st and Shotwell, A.M. stopped at a stop sign and said, "There’s some hoes over there."
A.M. then traveled through the intersection and double-parked on Shotwell. Telling Herrera to "hold on" and leaving the engine running, A.M. got out of the car and walked back toward the corner. Herrera testified that he did not know why A.M. got out of the car but saw him walk back to the comer and start looking at his phone, making Herrera think he was waiting for someone.
Once A.M. reached the comer, Herrera exited the car as well, with his gun in the front pocket of his hoodie. Herrera testified that he did not feel comfortable waiting in the car by himself at night in that area. As he approached A.M., A.M. "walked off" in the street down the north side of 21st, next "to the driver’s side" of parked cars. Herrera followed "a few steps" behind him. He admitted that contrary to what he said during his interrogation, the two were not intending to go to the liquor store.
Herrera saw a man standing across 21st smile at them, and he thought A.M. was going to cross the street "to go see that guy." Instead, A.M. cut between two parked cars onto 21st’s northern sidewalk and approached "a lady and a guy," S.S. and Sac Ajtzalam. Herrera was "[r]ight … behind" A.M. As A.M. got close to Sac Ajtzalam, A.M. "said something" in Spanish to him, but Herrera could not hear what it was. Sac Ajtzalam said something back, and then he and A.M. started fighting near the wall.
According to Herrera, A.M. punched Sac Ajtzalam first, and Sac Ajtzalam swung back at him. Herrera "kept backing up" toward the parked cars, so he could not tell whether Sac Ajtzalam landed any punches. Meanwhile, S.S. "started backing up" when A.M. and Herrera approached, and she ran away screaming "as soon as … the first word was said." Contrary to S.S.’s testimony, Herrera denied taking his gun out before she ran away or pushing it into Sac Ajtzalam’s stomach. And contrary to the Uber driver’s testimony, Herrera claimed he never hit or touched Sac Ajtzalam himself.
During the fight, Sac Ajtzalam "slipped" when he tried to dodge one of A.M.'s punches. Sac Ajtzalam stood back up and "grabbed for his waist." He appeared to be holding "something silver," which Herrera thought was a gun. Feeling "scared," Herrera took his own gun out, hoping Sac Ajtzalam would run away. Instead, Sac Ajtzalam "rushed" Herrera. Herrera shot his gun "at the floor," intending to scare the other man but not hit him. Sac Ajtzalam started running away, across the street. He appeared "perfectly fine," and Herrera did not realize he had been hit.
Herrera testified that he did not want to rob Sac Ajtzalam and did not know A.M. intended to do so. He denied "hav[ing] any idea why [A.M.] walked up to [Sac Ajtzalam] that night." Explaining why he stated during the interrogation that A.M. "wanted to go rob that dude," Herrera said he was responding to A.M.’s false story as relayed by the sergeant: "I just took what [A.M.] said, I don’t know. He said [Sac Ajtzalam] was trying to rob him. There’s only one reason he would say that[: ¶] … [¶] If [A.M.] was trying to rob [Sac Ajtzalam]." Herrera also claimed that when he said he "tried to tell [A.M.] no hella times" in response to the sergeant’s question about A.M.’s wanting to rob Sac Ajtzalam, he was referring to his statements to A.M. after A.M. stole the iPhone, not anything involving the charged crimes. Finally, Herrera claimed he told his girlfriend during the jailhouse call that A.M. "took [him] to go hit a lick" because the sergeant used that term, not because he knew A.M. intended to rob someone.
F. Procedural History
The operative information charged Herrera with felony counts of murder, attempted second degree robbery, and unlawfully carrying a loaded, unregistered firearm, and a misdemeanor count of resisting a peace officer. As to the murder and attempted-robbery counts, it was alleged that Herrera personally used a firearm and personally and intentionally discharged a firearm causing death.
The charges were brought under Penal Code sections 187, subdivision (a) (murder), 211 and 664 (attempted robbery), 25850, subdivisions (a) and (c)(6) (carrying loaded, unregistered firearm), and 148, subdivision (a)(1) (resisting peace officer). All further statutory references are to the Penal Code unless otherwise noted.
The firearm allegations were made under sections 12022.5, subdivision (a) (personal use), and 12022.53, subdivision (d) (personal and intentional discharge causing death). The information also alleged that Herrera personally used a firearm under section 12022.53, subdivision (a), but the correct subdivision is subdivision (b) (which appeared on the verdict forms).
The jury found Herrera guilty of first degree murder and convicted him of the remaining charges and enhancements. Relying on section 1385 and People v. Dillon (1983) 34 Cal.3d 441, 194 Cal.Rptr. 390, 668 P.2d 697, the trial court reduced the murder conviction to second degree murder. It then sentenced Herrera to 15 years to life in prison for the murder and a concurrent term of one year for resisting a peace officer. Terms on the firearm enhancements accompanying the murder conviction and on the remaining convictions and enhancements were stayed.
II.
Discussion
See footnote *, ante.
F. The Manner in Which the Jury Viewed the Surveillance Videos During Deliberations Was Not Misconduct.
Herrera claims he is entitled to a new trial because the jury used a computer to "manipulate" the surveillance videos, "essentially creating new evidence" that he was unable to address. The claim fails.
1. Additional facts
When the surveillance footage from the liquor store at 21st and South Van Ness was played for the jury, the prosecution sought to have the police officer who downloaded it "zoom in on an area." Herrera’s objection to this was overruled, but the officer was unable to make the zoom function work.
Subsequently, the trial court asked what other video manipulations the People intended to offer. The prosecutor responded that they wanted "to have a witness come in and demonstrate for the jury how to use the players …, not only to zoom in to a particular portion of what’s being displayed on the screen, but also to adjust the lighting of the images in order to increase the details."
Herrera’s trial counsel responded that no such witness had been disclosed, at which point the trial court indicated it did not believe expert testimony was required "to show the jury how to use the functions." Counsel then argued that the defense had no notice the prosecution was going to "manipulate these videos in all sorts of ways" and that zooming in on or lightening the video footage "does change the image." Counsel stated that although a layperson might be able to perform these functions, an expert was required to establish whether they changed the evidence. If the parties did not know whether the evidence was being "distort[ed] in some way," then allowing the jury to manipulate the videos was "inviting a lot of trouble."
The prosecutor argued that allowing the jury to zoom in on or lighten the videos on the laptop it would have during deliberations would do nothing to alter the digital files. She also noted the jury would not be given any "new image[s]," such as a permanently lightened still. The trial court agreed that zooming or lightening did not distort the videos, although Herrera could call a witness to establish otherwise if he wished.
Defense counsel then argued that even if the prosecution could zoom in on or lighten the videos while they were played in court, the jury "should not be given the ability to manipulate [them]" during deliberations. Counsel was concerned that jury might manipulate the videos in other ways the parties did not contemplate, given the jurors’ potential "technological expertise." The prosecutor agreed that any functions other than what was presented in court "should be turned off" if possible. The trial court reserved ruling on the issue.
Subsequently, an IT specialist with the District Attorney’s Office testified about four video clips that he zoomed into and/or lightened. He also copied three of the clips, shrunk them, and spliced them together in a new file so they could be viewed at the same time. The jury was shown the original clips, four zoomed-in clips, three lightened clips, three zoomed-and-lightened clips, and the spliced file.
While discussing these exhibits’ admission, Herrera’s trial counsel reiterated her understanding that "the surveillance videos … [would be] submitted in a format [in which] they could not be manipulated in the jury room." The prosecutor responded that "that is a player issue, not a file issue," and she had "already instructed IT" to remove a second video player from the jury’s laptop that gave other "options" for manipulation. Before deliberations, the jury was instructed under CALCRIM No. 200 that it had "to decide what happened, based only on the evidence that has been presented," and under CALCRIM No. 201 that it could not "conduct any tests or experiments."
After the verdicts, Herrera moved for a new trial on several grounds, including jury misconduct based on "manipulat[ing] video to create new evidence." He submitted declarations from five jurors that described how they watched the 21st Street surveillance videos. One juror, S.C., stated that "[t]he jury watched these videos at least 50 times during deliberations, in regular speed and … a few times in slow motion." Another juror, C.S., stated that the jurors watched the videos "ad nauseum." According to her, the jury was initially "not able to watch the videos in slow motion, but then one of the jurors figured out how to do so."
Juror J.T. stated that the jury "watched these videos repeatedly, after overlaying and sequencing them together so that they played in a loop." According to juror M.H., "[o]ne juror was able to set up a few of the videos to play chronologically, in succession, without stopping in between. To [his] knowledge and recollection, each video was played in its entirety, without editing or splicing." S.C. also said the jury "watched the videos looped together," although she was unsure whether another juror "looped them together or they … already [were] like that."
All but one of these five jurors stated that the surveillance videos "were critical to the verdicts." S.C. declared that when viewed during deliberations, the videos showed something "completely different than what [the jury] saw in the court-room." She stated that before watching the videos, she had "expected [her] verdict to be not guilty."
The prosecution did not submit any evidence in opposing the motion for a new trial, and no live testimony was presented at the hearing on the motion. At that hearing, Herrera’s trial counsel argued that the jury’s manner of watching the surveillance videos amounted to "chang[ing] the character of the exhibit," and "[t]his ‘completely different’ evidence necessarily went unconfronted" by the defense. The prosecutor responded that neither slowing down the videos nor looping them amounted to altering the evidence, as the exhibits remained "exactly the same." The jurors were able to see the videos better during deliberations than during trial because they could get closer to the screen, but that was "fair."
The trial court denied the motion for a new trial. The court determined that "the looping and slowing down of the videos" did not amount to "an illicit experiment which created new evidence." Rather, the jury "examined … the evidence in a detail[ed] and rigorous manner" and did not "[go] beyond the evidence admitted."
2. Analysis
Herrera claims the jury’s viewing of the surveillance videos constituted "improper experimentation," requiring a new trial. We disagree.
[1] In a criminal case, a new trial may be granted on the grounds that "the jury has received any evidence out of court, other than that resulting from a view of the premises, or of personal property," or that the jury engaged in "misconduct by which a fair and due consideration of the case has been prevented." (§ 1181, subds. (2) & (3).) It is jury misconduct to perform "an experiment that results in the acquisition of new evidence," but it is not misconduct to perform "a ‘more critical examination’ of the evidence admitted." (People v. Collins (2010) 49 Cal.4th 175, 244, 110 Cal.Rptr.3d 384, 232 P.3d 32 (Collins).)
[2–4] We review de novo the denial of a motion for a new trial based on jury misconduct. (People v. Gamache (2010) 48 Cal.4th 347, 396, 106 Cal.Rptr.3d 771, 227 P.3d 342.) In doing so, we " ‘ "accept the trial court’s credibility determinations and findings on questions of historical fact if supported by substantial evidence." ’ " (Ibid.) The question whether "those facts constitute misconduct … [is] a legal question we review independently." (Collins, supra, 49 Cal.4th at p. 242, 110 Cal. Rptr.3d 384, 232 P.3d 32.)
[5] "Courts evaluate a motion for a new trial based on jury misconduct in three steps: (1) determine what evidence is admissible; (2) if there is admissible evidence, decide if it establishes misconduct; and (3) if there is misconduct, determine whether it was prejudicial." (People v. Flores (2021) 70 Cal.App.5th 100, 107, 285 Cal.Rptr.3d 162 (Flores).) Here, we need not address the parties’ dispute about which portions of the juror declarations were admissible under Evidence Code section 1150, which bars evidence of a juror’s reasoning process. The trial court did not clearly exclude any statements under this statute, and Herrera’s claim fails even if we assume that the declarations were admissible in whole.
[6–8] As our state Supreme Court has explained, "Not every jury experiment constitutes misconduct. Improper experiments are those that allow the jury to discover new evidence by delving into areas not examined at trial." (Collins, supra, 49 Cal.4th at p. 249, 110 Cal.Rptr.3d 384, 232 P.3d 32.) The jury may, however, "weigh and evaluate the evidence it has received. It is entitled to scrutinize that evidence, subjecting it to careful consideration by testing all reasonable inferences. It may reexamine the evidence in a slightly different context as long as that evaluation is within the ' "scope and purview of the evidence." ’ [Citation.] What the jury cannot do is conduct a new investigation going beyond the evidence admitted." (Ibid.)
In Collins, a juror "used his computer to create a model that allowed him to determine, under his interpretation of the evidence, the relative positions of the shooter and the [murder] victim." (Collins, supra, 49 Cal.4th at p. 252, 110 Cal.Rptr.3d 384, 232 P.3d 32.) The manner in which the victim was shot was relevant to determining whether the defendant should receive the death penalty. (Id. at p. 251, 110 Cal. Rptr.3d 384, 232 P.3d 32.) The Supreme Court held that the juror had not committed misconduct because the diagram he created reflected evidence from the trial, including the victim’s height, the defendant’s height, and the angle of the bullet’s trajectory to which an expert had testified. (Id. at pp. 252–253, 110 Cal.Rptr.3d 384, 232 P.3d 32.) Thus, the diagram "did not interject any information outside the record." (Id. at p. 253, 110 Cal.Rptr.3d 384, 232 P.3d 32.) Nor was there any "showing that the computer or its software performed any analytical function or provided any outside information," meaning the juror could have created a similar diagram by hand. (Id. at p. 255, 110 Cal.Rptr.3d 384, 232 P.3d 32.) Thus, the computer "was simply the device that allowed [him] to draw his diagram with ease and accuracy in order to visualize the evidence." (Ibid.)
Collins "caution[ed] that a computer may be misused to investigate the evidence," citing numerous cases in which jurors searched the Internet for information. (Collins, supra, 49 Cal.4th at pp. 255–256, 110 Cal.Rptr.3d 384, 232 P.3d 32.) The Supreme Court also observed that if a juror performed an investigation "rel[ying] on software that manipulates the data, subjecting it to presumptions written into the program, such use would likely constitute an improper experiment." (Id. at p. 256, 110 Cal.Rptr.3d 384, 232 P.3d 32.) This would be akin to other situations in which jurors improperly used tools, such as binoculars, to "create[ ] extraneous evidence not admitted at trial." (Ibid.; see People v. Castro (1986) 184 Cal.App.3d 849, 852, 229 Cal.Rptr. 280.)
Herrera argues that this case presents an example of the type of computer misuse Collins warned against. He claims the jury used "software that manipulated the data[,] rais[ing] questions about that software’s presumptions." But the jurors’ declarations do not describe any use of the computer that "manipulated the data" or otherwise injected new evidence into the proceedings.
[9] To begin with, viewing the videos in slow motion allowed the jurors to better "scrutinize" them (Collins, supra, 49 Cal.4th at p. 249, 110 Cal.Rptr.3d 384, 232 P.3d 32), 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." (Boldface and italics omitted.) But it is unclear from these descriptions what the jurors actually did. 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. He has not demonstrated jury misconduct.
G. Herrera's Claim of Jury Misconduct Based on the Leniency Note Lacks Merit
Herrera claims the jury also committed prejudicial misconduct by considering punishment and trading votes. We are not persuaded.
1. Additional facts
The jury was instructed under CALCRIM No. 3550 that it "must reach [its] verdict without any consideration of punishment." Nonetheless, when returning the verdicts, the jury also delivered a handwritten note signed by eight jurors that stated, "We urge leniency." When the jury was polled, each juror affirmed the verdicts.
Herrera’s motion for a new trial also relied on jury misconduct involving the leniency note. As noted above, juror S.C. averred that she "expected [her] verdict to be not guilty before watching the videos … during deliberations." She continued, "I was the last juror to vote guilty. I refused to do so unless the other jurors agreed we could sign a ‘we urge leniency’ note, which we ultimately did. I told the other jurors this was the only way I could vote guilty." And juror C.S. stated in her declaration that "[t]he topic of various sentences carried by differen[t] charges (e.g. manslaughter) was discussed during jury deliberations, in relation to defendant Omar Herrera’s age, and that he would spend his adult years in prison."
At the hearing on the new-trial motion, the parties’ arguments about the leniency note focused on Flores, supra, 70 Cal. App.5th 100, 285 Cal.Rptr.3d 162, in which the Third District Court of Appeal reversed based on jury misconduct in discussing punishment. Rejecting Herrera’s claim of jury misconduct based on the note, the trial court observed that "the objective of the misconduct" in Flores was to punish the defendant, whereas the jurors here wanted "to make sure that Mr. Herrera was not punished too much." The court found this to be "a crucial distinction for inquiry into whether Mr. Herrera was prejudiced." After stating that S.C.’s "deliberative process" was not a "proper con- sideration," the court opined that "[t]he real question" was "whether [S.C.] based her vote on the evidence." The court determined that "she did[,] according to her declaration, and … certainly the record substantiates that was, in fact the case." Finally, the court found that "the record [did not] suggest[ ] any vote trading."
2. Analysis
We apply the same independent standard of review to this claim of jury misconduct as we did to the claim involving manipulation of the video evidence. As with the prior claim, we need not address the parties’ disputes involving Evidence Code section 1150. Even if we assume that S.C.’s and C.S.’s declarations are admissible in full, the record fails to establish the jury engaged in prejudicial misconduct.
[10, 11] To begin with, the Attorney General does not dispute that the evidence shows "jury misconduct in the form of impermissible consideration of punishment while deliberating on guilt." "[I]t is settled that punishment should not enter into the jury’s deliberations" in non-capital cases. (People v. Engelman (2002) 28 Cal.4th 436, 442, 121 Cal.Rptr.2d 862, 49 P.3d 209.) The rationale for this rule is that " ‘knowledge of the permitted or statutorily required punishment may cause or influence the jury to return a verdict designed to result in particular penalty, rather than one based on the facts and applicable law of a case.’ " (Flores, supra, 70 Cal.App.5th at p. 110, 285 Cal.Rptr.3d 162.) Violating a trial court’s instructions also constitutes misconduct. (People v. Lavender (2014) 60 Cal.4th 679, 687, 181 Cal.Rptr.3d 28, 339 P.3d 318.) Here, S.C.’s and C.S.’s declarations and the leniency note itself leave no doubt that jurors improperly considered punishment during deliberations.
[12] Herrera claims that jury misconduct also occurred in that S.C. "traded her vote for a note requesting leniency," violating his right to a unanimous jury. But the trial court found that S.C. "based her vote on the evidence," and we conclude that substantial evidence supports this finding. S.C.’s statement that she expected to vote not guilty before the jury closely reviewed the videos—which, as we discussed above, was not misconduct—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." 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.
[13] We therefore turn to whether the jurors’ consideration of punishment was prejudicial. (See Flores, supra, 70 Cal. App.5th at p. 107, 285 Cal.Rptr.3d 162.) When jury misconduct is established, it creates "a presumption of prejudice, which may 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." (People v. Lavender, supra, 60 Cal.4th at p. 687, 181 Cal.Rptr.3d 28, 339 P.3d 318.)
In arguing that the misconduct was prejudicial, Herrera attempts to analogize this case to Flores. There, the jury was at an impasse between murder and voluntary manslaughter until jurors discussed the possibility that the defendant would go free if they could not return a verdict. (Flores, supra, 70 CalA.pp.5th at p. 103, 285 Cal.Rptr.3d 162.) Shortly after this discussion, the jury found the defendant guilty of voluntary manslaughter. (Ibid.) Flores held that the jury’s discussion of punishment was sufficiently prejudicial. (Id. at p. 114, 285 Cal.Rptr.3d 162.) Even though the jury convicted the defendant of the lesser crime, " ‘in the context of prejudice, a mistrial is a better outcome than a conviction.’ " (Ibid.) Given that the jury was unable to agree on a verdict until it considered punishment, there was a reasonable probability that the misconduct actually harmed the defendant. (Ibid.)
[14] Here, in contrast, 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 of all the charged counts and enhancements. Clearly, the leniency note itself did not harm Herrera. Thus, the only possible theory for how Herrera could have obtained a better result had the jury not discussed punishment was if S.C. voted to acquit because she did not obtain other jurors’ agreement to send the note. But in 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.
See footnote *, ante.
III.
Disposition
The judgment is affirmed.
WE CONCUR:
Banke, J.
Langhorne-Wilson, J.