Paul Flores’ attempt to overturn or reduce his conviction for the murder of Cal Poly freshman Kristin Smart is full of “meritless claims,” the California Attorney General’s Office argued in a new court filing.

Flores filed his appellate brief in October — two years after his conviction for the 1996 murder. He argued that Monterey County Superior Court Judge Jennifer O’Keefe abused her discretion in multiple instances, including not excusing a juror that he argued showed signs of bias, allowing women to testify that Flores raped them and permitting a ball-gag photo to be shown at the end of the trial.

His appeal argued that while just one of th0se supposed errors doesn’t rise to a violation of due process on its own, the accumulation of all the errors did and deprived Flores of a fair trial. He argued the conviction — for which he is currently serving a 25-years-to-life sentence — should be overturned or reduced to second-degree murder.

The Attorney’s General Office, however, argued in a briefing filed Monday that not only did none of the supposed errors occur, but even if they did, they did not affect Flores’ right to a fair trial or warrant that his conviction be overturned or modified.

AG Argues Judge Was Correct in Not Excusing Juror

Juror 273 was not removed from the jury, despite several attempts by the defense to remove her throughout the trial.

Flores claims the juror showed several signs of bias throughout the trial, including telling the judge that the defense’s aggressive questioning made her anxious and having a “dramatic emotional outburst” in reaction to a photo of what prosecution witness and 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.

In all instances, the juror told the judge she could remain neutral and keep an open mind throughout the trial, and O’Keefe agreed that the juror did not show any indication of bias toward Flores.

The Attorney General’s Office argued that California case law supports O’Keefe’s decision to keep Juror 273 on the jury.

In one 1999 case, the California Supreme Court found that because the jury is a “fundamentally human” institution, the system cannot function unless the courts “tolerate a certain amount of imperfection short of actual bias,” the brief said.

Trial courts are also not required to discharge a juror who expresses belief in their own ability to serve merely because that juror has previously shown emotion or reported being stressed, expresses frustration with defense counsel or expresses some belief that the defendant might be guilty, the agency argued.

In particular, the attorney general cited a 1990 case in which it was found a judge properly used discretion when a juror was not discharged after calling a defense attorney a “son of a b—-” — a situation that “pales in comparison” to Juror 273 expressing that defense questioning was making her anxious, the agency said.

The Tribune spoke with Juror 273 in April 2023, following Flores’ sentencing. In that interview, she said she was one of three jurors who, on the first day of deliberations, were not convinced Flores should be convicted of Smart’s murder.

AG Argues If Errors Exist — Which They Don’t — They Were ‘Harmless’

The Attorney General’s Office also argued that the testimony from the two women who claimed Flores raped them, a witness who testified about his experience with “roofies,” and the ball-gag photo were properly admitted into the court.

Flores argued that the evidence code that allows other uncharged sexual offenses to be admitted in court did not apply to his case — a claim that the attorney general said “lacks merit.”

Flores was charged with murder in the commission of a rape or attempted rape — a qualifying sex crime that allowed the women’s testimony to be admitted, the agency claimed.

The attorney general further argued that a defendant does not need to be directly charged with a sex offense in order for that kind of evidence to be admitted.

Flores also argued that the code did not apply because the prosecution did not show evidence that he had raped or attempted to rape Smart. The attorney general, however, argued that evidence of Flores pursuing Smart the night she was killed in 1996 was shown to the jury by multiple witnesses.

“Moreover, any error in admitting the evidence was harmless because it is not reasonably probable that (Flores) would have obtained a better result absent evidence of the two uncharged rapes,” the agency argued.

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.

Trevor Boelter’s testimony did lay the proper foundation for him to testify that he thought Smart’s behavior the evening of her death was similar to how he felt when his friend gave him a “roofie,” the agency said, adding that Flores’ claim that it was hearsay for Boelter to testify that he read stories in the school newspaper was meritless.

The agency also “forfeited the right” to argue those claims because it did not object to Boelter when he first said he thought Smart may have been roofied. If an error did occur in Boelter’s testimony, it was harmless to the end result of the trial.

For the ball-gag photo, the AG’s Office claimed the prosecution did not ask the jury to draw an improper inference but rather only admitted the photo as evidence to show Flores owned a ball gag that matched the description of the ball gag in the testimony of one of the women who said she’d been raped by Flores.

The agency claimed that former San Luis Obispo County Deputy District Attorney Chris Peuvrelle’s statement to the jury during closing arguments, in which he asked the jury, “Did it look like the woman with the ball gag in her mouth was having fun in this conspiracy theory?” was in response to the defense’s argument that said the case amounted to nothing more than a “fun” conspiracy.

Flores’ attorney, Robert 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.

Peuvrelle’s comment “was a reasonable inference to be drawn from the photograph of a woman who had her eyes closed and was likely unconscious,” adding that he made a similar comment about five other witnesses.

The agency further argued that even if the comment was improper, it was harmless to the case. The agency also argued the judge did properly instruct the jury on the laws applicable to the case and said there was substantial evidence that supported a guilty verdict for first-degree murder.

Flores is expected to respond to the attorney general’s brief by May 5, according to the court schedule.