Late one night in March 2020, Omar Herrera, 19, and a 17-year-old juvenile friend, identified as A.M., approached Manuel Sac Ajtzalam and a prostitute in the Mission District of San Francisco. Intending to rob them, the defendants got into an argument where punches were exchanged. Herrera was found guilty of first-degree murder and several lesser charges including possession of a firearm and attempted robbery.

San Francisco Superior Court Judge Teresa Caffese, the trial judge, reduced his convictions to second-degree murder, attempted robbery and possession of a firearm. He was sentenced to 15 years to life in prison. During jury deliberations, however, one jury member (the holdout juror) only agreed to a guilty verdict after the other jurors agreed to submit their decision to the judge if it was accompanied by a note that said, “We urge leniency.”

After the trial, the holdout juror said, “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.”

During the trial, the jury also saw approximately 40 video clips from surveillance tapes that showed the various events of the day, including footage of an iPhone robbery by the defendants that took place earlier and in a different location. The tapes showed the “burst of light” from the gun and two gunshots were captured with audio. Herrera and A.M. were stopped by the police after an Uber driver, who was an eyewitness to the shooting, “flagged down a police car and followed the Chevy that Herrera and A.M. used to escape. Bullet casings near Ajtzalam’s body matched the gun found in Herrera’s car.

Herrera had testified that he was raised by this grandmother and in foster homes. He said that he did not know anything about the robbery that A.M. planned, he was high on marijuana during the robbery, and he thought they were just going to McDonald’s. His account of some of the events that occurred during the robbery was contradicted by the eyewitness Uber driver.

Herrera argued that the jury committed misconduct when they used a computer to “slow down and light up the footage of the shooting,” and when they simultaneously watched clips of events that took place at different times. He said the jury had “committed prejudicial misconduct” when it traded guilty votes for a note about punishment. He said the “cumulative errors” of juror misconduct required reversal of the murder and attempted robbery conviction. He also appealed his conviction for firearm possession on Second Amendment grounds, which the district court found unpersuasive.

The appeal was heard by a three-justice panel from Division One of California’s First District Court of Appeal, where a unanimous panel affirmed all of Caffese’s ruling on May 22. The opinion was authored by Presiding Justice Jim Humes, with concurrences by Justices Kathleen M. Banke and Monique Langhorne Wilson. Their discussion of juror misconduct is the published portion of the decision.

After recounting all the facts of events that occurred on the day of the robbery and murder, Humes began his discussion by saying the district court was “not persuaded” that there was insufficient evidence to support the attempted robbery and felony murder convictions. He wrote that there was “substantial evidence” that A.M. intended to commit the crimes and that Herrera was “aware of that intent” and “intended to aid him.” The district court also agreed that evidence of the earlier iPhone theft was admissible because it was sufficiently “similar to the charged conduct to be admissible to prove intent and was unduly prejudicial,” according to the California Evidence Code. The same ruling was made about permitting the iPhone robbery victim to testify. Her testimony was not found to be hearsay.

Humes then addressed the question of whether allowing the jury to watch the surveillance videos after “using a computer to manipulate them,” thus creating new evidence, was also rejected. He wrote that the jurors’ zooming in to see better and lightening certain shots “did not distort the videos” and “did nothing to alter the digital files.” Despite Herrera’s arguments that the videos that were looped and slowed down, the computer-based videos “did not amount to an illicit experiment which created new evidence…and did not (go) beyond the evidence admitted.”

The final argument on appeal, and the one that earned headlines in legal newspapers, was about the jury’s trade of a guilty verdict for a note to the trial judge that urged leniency. Humes told the jury that Caffese’s instruction to them was in line with California Criminal Jury Instructions (CALCRIM No. 3550) that said it “must reach verdict without any consideration of punishment.” The trial judge polled the jury and all members said they agreed with the verdict.

Applying the legal standard of review that should be used to establish whether the jury engaged in “prejudicial misconduct,” the opinion agreed that violating CALCRIM No. 3550 with the leniency “note itself leave no doubt that jurors improperly considered punishment during deliberations.” However, the opinion reasoned that the juror would not have asked for leniency had she not already decided that Herrera was guilty.

That reasoning led to the final question: Was the juror’s consideration of punishment prejudicial? Humes wrote that “the jury’s concern was that Herrera not be punished too harshly, not that he might escape punishment.” He pointed out that the jury still chose to convict him on all charges, thus the note did not harm Herrera. The opinion concluded “…it is speculative to conclude that (the holdout juror) would have nonetheless voted to acquit had punishment not been discussed. “ Humes concluded, “…the prejudice resulting from these errors does not require reversal under any standard.”

Finding the leniency to be non-prejudicial misconduct, the trial judge’s ruling and sentence were both affirmed.