Paul Flores files appeal to reverse conviction for Kristin Smart’s murder. Here’s why
Paul Flores filed an appellate brief in the California Court of Appeal on Monday, alleging his 14th Amendment due process rights were violated repeatedly during his lengthy trial for the murder of Kristin Smart.
Flores was convicted of Smart’s murder Oct. 18, 2022, after jurors listened to evidence for three months.
The appeal singled out one juror in particular — Juror 273 — alleging Monterey County Superior Court Judge Jennifer O’Keefe did not remove her despite multiple signs the juror was biased.
The appeal also argued the trial court improperly allowed two women to testify Flores raped them after Smart’s murder, a ball-gag photo to be shown at the end of the trial and an alleged eyewitness to describe “roofies.” It also alleged the court misstated the criminal definition of attempted rape.
The appeal argued that while just one of these errors doesn’t rise to a violation of due process on its own, the accumulation of all the errors does and deprived Flores of a fair trial.
Flores’ murder conviction — which he is currently serving a 25-years-to-life sentence for — should be reversed or reduced to second-degree murder because of this due process violation, the appeal said.
The San Luis Obispo County District Attorney’s Office declined to comment on the appeal.
Juror who had ‘emotional outburst’ should have been disqualified, appeal argues
The appeal claimed Juror 273 should have been removed because of four specific instances.
At the beginning of the trial, Juror 273 asked to speak to the judge and told the court she was “experiencing anxiety and tension” due to the “aggressiveness” and repetitiveness of Robert Sanger’s questions of witness Steve Fleming on Aug. 2, 2022. Sanger was Flores’ defense attorney.
Fleming testified he was a former police officer, but in 1996 he was a Cal Poly student and friends with Smart. The juror said she had parents in law enforcement and denied she had any bias or concerns directed toward a specific person.
The judge found no evidence of bias, citing the jurors’ “cordial” and “pleasant” demeanor, and declined to remove her, the appeal said.
Then, about a month later, Juror 273 had “dramatic emotional outburst” that caused other jurors to console her, the appeal said.
On Sept. 1, 2022, the juror loudly sobbed at the sight of a soil stain human remains archaeologist Cindy Arrington said was the result of bodily fluids seeping out during the human decomposition process. The stain was found in what investigators said was a clandestine grave underneath the deck of Ruben Flores, Paul Flores’ father.
Three other jurors were also crying, and the court took an early lunch recess.
Juror 273 told the bailiff after the lunch break that she had been “completely neutral” until that point, saying she “felt for the first time that there could be guilt,” the appeal said.
The judge told the juror it was “not unusual” to have an emotional response to things throughout the trial and told her to “keep an open mind throughout the trial” and not be influenced by bias or sympathy, the appeal said. Juror 273 said she believed she could find a fair, impartial and unbiased verdict after hearing evidence and arguments.
The court denied Sanger’s initial request to remove the juror, stating she found the juror to be honest and trying her best “to do a good job.”
According to the appeal, that “emotional outburst” should have resulted in the juror’s disqualification.
Juror 273 then asked for a short break due to anxiety because of Sanger’s “aggressive” questioning of Jennifer Hudson on Sept. 12, the woman who testified she heard Flores admit he killed Smart.
When asked if the questioning would impact her ability to stay neutral, Juror 273 asked to think about it and then “expressed concern” about Sanger’s repetitive questions, the appeal said. She then said the incident would not impact her ability to be fair and impartial.
Despite Sanger arguing this third incident involving this juror showed a pattern of bias against the defense, the judge found no evidence the juror could not be fair and impartial.
Then, later in the trial, the judge learned Juror 273 had a Pinterest page with various home improvement tips, including testing soil pH. This incident occurred on Sept. 29, according to previous Tribune coverage of the trial.
The juror told the judge the Pinterest board had predated her being selected as a juror. The juror said she had not accessed that account since 2018 when her and her husband were doing home renovations, which included updating their septic tank and removing trees.
She denied doing online research of the case and told the judge that people she knew listened to Chris Lambert’s “Your Own Backyard” podcast, which was about the case, but knew to not tell her anything and that she never asked them anything.
The judge denied the defense’s request to remove the juror for the fourth time.
The appeal argued these four incidents showed Juror 273 could not and was not impartial during juror deliberations, and said that “if even a single juror lacks the ability to be fair and impartial, the resulting conviction violates the accused’s constitutional right to a fair jury trial” and requires a conviction reversal and new trial.
It also accused O’Keefe of abusing her discretion as a judge for denying the defense’s second, third and fourth requests to remove the juror.
The Tribune spoke with Juror 273 in April 2023, following Flores’ sentencing. In that interview, she said she was one of three jurors who were not convinced Flores should be convicted of Smart’s murder on the first day of deliberations.
She told The Tribune she remained neutral throughout the trial — even after her emotional outburst — and she and two other jurors had to make sure there was enough circumstantial evidence to outweigh not having a body.
“We all wanted to make sure that whatever decision we came to, we all agreed on,” she said at the time. “We all did it personally on our own.”
Women who said Flores raped them should not have testified, appeal argues
The appeal also argued O’Keefe abused her discretion by allowing two women to testify that Flores raped them despite there being no evidence of Flores sexually assaulting Smart — another 14th Amendment due process violation.
The three jurors The Tribune spoke with in April 2023 said the women’s testimonies were important in their deliberations as it established a pattern and made them believe Flores attempted to rape or raped Smart before her death.
The appeal noted that San Luis Obispo Superior Court Judge Craig van Rooyen denied the San Luis Obispo County District Attorney’s Office motion to add in two counts or rape by use of drugs to Flores’ charges during the preliminary hearing on Aug. 20, 2021, finding the rape incidents to be “extremely inflammatory” and not cross-admissible on the murder count.
But during the pretrial motions in June 2022, O’Keefe allowed three of nine proposed sexual assault victims to testify, the appeal said.
O’Keefe said the circumstances in those three cases — being around Flores’ age, telling police Flores isolated them at a bar, and claiming to have been drugged and then raped — were similar to the theory the prosecution intended to introduce at trial: that Flores drugged Smart and intended to rape or did rape her before her death.
The appeal argued O’Keefe allowing the women to testify despite van Rooyen’s ruling during the preliminary hearing caused the jury to hear prejudicial evidence that was not related to the murder charge and created an unfair trial for Flores. It reiterated that the alleged sexual assaults were not relevant to murder charge and should not have been admitted at all.
The San Luis Obispo County District Attorney’s Office initially charged Flores with murder in the commission of a rape or attempted rape.
The appeal claimed the District Attorney’s Office made a “bare allegation” of rape in order to get the sexual assault evidence into trial and reiterated there was no evidence to suggest Smart had been a victim of rape or attempted rape.
The appeal further argued that the sexual assault evidence impacted the jury’s view of felony murder in a prejudicial way, so if a conviction reversal was not appropriate, Flores’ crime should be reduced to second-degree murder.
The appeal argued further improper evidence included Trevor Boelter’s testimony on Aug. 3, 2022, about Smart’s behavior the night of the party she was last seen at, and how it resembled his behavior when he was “roofied” years later.
The appeal argued Boetler did not explain how he knew he had been drugged and that his testimony “injected a strong inference that (Flores) did this exact same this to Smart.” The appeal said that “inference became even more powerful after the court erroneously allowed testimony that the school newspaper had reported on the common phenomenon of female students being roofied.”
This was prejudicial and requires reversal of Flores’ conviction, the appeal argued, because Boelter had not laid foundation as to why he could accurately testify about being roofied and its affects. It also claimed that testifying about a school newspaper article was hearsay.
Appeal: Prosecutor misused ball-gag photo during rebuttal argument
A ball-gag photo former San Luis Obispo County Deputy District Attorney Chris Peurvrelle used on the final day of the prosecution’s case was “misused” and should not have been admitted, the appeal argued.
The photo was a sexually explicit screenshot from a video found on Flores computer showing a young woman with a red ball gag in her mouth. The woman, who had her eyes closed in the screenshot, appeared to be on Flores’ bed in his San Pedro home.
The photo was admitted to solely corroborate the claims from the two women who testified they were raped by Flores, saying he used a similar ball gag on them.
The appeal argued Peuvrelle used the photo for “improper character purposes and to inflame the juror’s passions,” calling his actions “prejudicial misconduct.”
In his closing arguments on Oct. 3, 2022, Peuvrelle said the photo was “critical corroboration between two women who don’t know each other.”
According to the appeal, O’Keefe chose the photo she felt was the least inflammatory and allowed the photo to corroborate the statements of the two women despite defense offering to stipulate, or agree to the fact, that police found a red ball gag at Flores’ home.
The appeal claimed Peuvrelle then further misused the red ball gag photo, stating in his rebuttal, “Did it look like the woman with the ball gag in her mouth was having fun in this conspiracy theory?”
Sanger objected, but it was overruled. During the next break, Sanger motioned for another mistrial, alleging Peuvrelle misused the photo, but O’Keefe denied the motion.
The appeal claimed Peuvrelle used the photo in his rebuttal arguments to inflame the jury — outside of its limited purpose to corroborate statements from the two women who said they were assaulted. Because of this alleged misconduct, Flores’ conviction should be reversed or reduced, the appeal said.
The appeal further argued there was not enough evidence to support a first-degree murder conviction and said O’Keefe misstated the criminal intent element of attempted rape of an intoxicated person.
This precluded jurors from considering whether Flores’ own intoxication led him to misjudge Smart’s ability to consent, it said.
The San Luis Obispo County District Attorney’s Office is required to respond to the appeal within 20 days of its filing.
