On August 26, 2015, former Santa Clara County Sheriff’s Department deputies Jereh Lubrin, Rafael Rodriguez, and Matthew Farris were assigned to the Main Jail in San Jose, California. They were performing routine cell searches when they encountered inmate Michael Tyree. About an hour after the searches, Deputy Lubrin found Mr. Tyree unresponsive during a welfare check. Despite attempts to revive him, Mr. Tyree was pronounced deceased. Initially, it appeared he had died from a medical event, but days later, the medical examiner ruled his death a homicide.

In 2017, a jury convicted Deputies Lubrin, Rodriguez, and Farris of second-degree murder, sentencing them to 15 years to life.

Effective in 2019, Senate Bill 1437 amended California Penal Code Section 188(a)(3), eliminating the “natural and probable causes” (NPC) theory of liability. Senate Bill 775 made these changes retroactive. During the 2017 trial, the prosecution argued that if one deputy was responsible for an action, then all were equally responsible, without ever proving any individual culpability. In other words, if one engaged in an action, they all did.

Based on these legal changes, Mr. Lubrin appealed his conviction. In August 2022, the California Court of Appeal, Fourth Appellate District, overturned the second-degree murder conviction. The State of California sought review from the California Supreme Court, which was already reviewing a related case, In re Lopez (2023) 14 Cal.5th 562 (Lopez). The Lopez case focused on the standard of review for “harmless error” in cases involving alternative-theory jury instruction errors.

The question for Mr. Lubrin’s appeal was whether other valid theories of murder presented during the trial could have supported the jury’s guilty verdict. If so, the conviction based on the outdated NPC theory might be considered a “harmless error,” allowing it to stand. Following the Lopez decision, the Appellate Court re-evaluated Mr. Lubrin’s case. In February 2024, it again overturned the convictions of Lubrin, Rodriguez, and Farris, citing insufficient evidence to support the idea that if one defendant committed an act, all were guilty. This decision aligned with Senate Bill 1437, which requires individual culpability for individual actions. In March 2024, the State again sought the California Supreme Court’s review of the Appellate Court’s decision. However, in April 2024, the Supreme Court denied this request. As of now, the Court of Appeals’ decision stands, and the convictions remain reversed. The case has been returned to the Santa Clara Superior Court, where the District Attorney will decide whether to retry the case.


Welfare Check
On August 26, 2015, Jereh Lubrin, Rafael Rodriguez and Matthew Farris, formerly with the Santa Clara County Sheriff’s Department, were assigned to the main jail in San Jose, California. All three were on duty, working in the capacity of correctional deputies (herein, “deputy” or “deputies”).

On this same night, consistent with their duties, the deputies conducted routine and customary cell searches. One cell that was searched was occupied by inmate Michael Tyree. Approximately one hour following the routine cell searches, Deputy Lubrin engaged in routine hourly welfare checks. When he arrived at Tyree’s cell, he was unable to observe Tyree. Deputy Lubrin called him by name several times, determined Tyree was unresponsive and initiated a call for help shortly after midnight.

Deputy Lubrin physically pulled Tyree from his cell and commenced life-saving measures while a number of correctional staff began to descend upon the location, who also assisted in life-saving efforts. Tragically, despite these efforts, Tyree never regained consciousness and was ultimately pronounced deceased while still at the location.

Criminal Investigation and Trial
Pursuant to departmental death in custody protocol, a number of agency and/or external stakeholders responded to the location, which included detectives and a county medical examiner. The investigation led to a number of witness statements being obtained from other inmates. All such statements included claims of either sounds consistent with a struggle and/or varying degrees of noise and yelling. Additionally, at least one of the witnesses indicated that none of the deputies were observed having touched Tyree during the cell search.

Notably, a number of pertinent details concerning the scene included the following: The cell walls contained several messages written in fecal matter, some indicating possible suicidal ideation; a large number of bodily fluids were located in the immediate vicinity of Tyree’s body — none of which were taken as samples for evidentiary preservation purposes; none of Tyree’s clothing was collected as evidence; and various papers and writings belonging to Tyree, and located within the cell, including papers found underneath Tyree’s body, were never read nor collected as evidence.

With the knowledge that Tyree had a history of mental illness, the earliest working theories of the investigation could not support either a suicide or homicide, as no such indicators were present. For example, related to suicide, no ligature marks were found indicative of suicide by hanging, nor were there any such instruments to suggest the same. As for homicide, none of the deputies who conducted the cell search were found to have observable blood upon them. Additionally, no blood or blood stains were observed within the cell indicative of a struggle or a beating. Rather, it appeared to those tasked with the investigation that Tyree had suffered an unknown medical event.

Nearly two days later, the same medical examiner who had responded to the location conducted the autopsy of the deceased. Qualified as an expert in the field of forensic pathology and having conducted a number of the same or similar investigations, the medical examiner determined the cause of death was, in his opinion, blunt force trauma — homicide. This, despite the medical examiner having been unaware of the suicidal writings found on Tyree’s cell wall, as the examiner had never entered the cell. Nor did the examiner know that at least one inmate had heard Tyree say that he was suicidal.

In 2017, a jury convicted Deputies Lubrin, Rodriguez and Farris (hereafter, “defendants”) of the second-degree murder of Tyree. The defendants were sentenced to an indeterminate term of 15 years to life.

The Appeal
It should be noted that at the trial court, the people argued three theories of murder:

  1. First-degree murder under the felony murder rule, alleging the defendants committed burglary by way of entering the jail cell with the intent to commit a felony therein — roundly rejected by the jury
  2. Implied malice murder where each defendant acted with malice aforethought in causing the death (Penal Code Section 187; see CALCRIM No. 520)
  3. Second-degree murder based on assault under the color of authority, arguing that by virtue of the defendant’s custodial officer position, they knew or should have known that death would be a “natural and probable consequence” of any underlying assault (Penal Code Section 245(a)(1); Section 149; see CALCRIM No. 520)

1. The Invalid Theory
Signed by Governor Jerry Brown on September 30, 2018, and effective January 1, 2019, Senate Bill 1437, as codified in California Penal Code Section 188(a)(3), provides (emphasis added) “Except as stated in subdivision (e) of Section 189, in order to be convicted of murder, a principal in a crime shall act with malice aforethought. Malice shall not be imputed to a person based solely on his or her participation in a crime.” Additionally, Senate Bill 775, effective January 1, 2022, provides relief to people convicted under the natural and probable consequences doctrine by way of ensuring appeals from such prior convictions are retroactive.

SB 1437 and 775, as applied in this case, are noteworthy because in the trial court, both jury instructions and closing arguments provided by the prosecution included that the jury need not determine whether an individual defendant is an aider and abettor or a direct perpetrator, so long as each juror was convinced of guilt. The jurors were instructed that they did not have to know beyond a reasonable doubt that any one of the three defendants was the one who caused the death of Tyree. Rather, the jury must simply understand that if one caused it, then they all did. This allowed for the prosecution to never have to identify malice for any defendant. In turn, the jury never had to consider malice for any defendant.

This disregard of the burden meant there was no need to identify if any defendant caused any blow, fatal or otherwise — let alone any physical contact of any kind perpetrated by any defendant to Tyree. Rather, it was to be understood that the three defendants entered a cell to conduct a search, something must have occurred in the cell, and one of the three must have inflicted harm upon Tyree. As such, if any one of the three defendants did a thing, then they all equally possessed malice and are equally guilty — precisely what SB 1437 sought to cure.

2. Remaining Valid Theory and Harmless Error
On the appeal, in this case, we argued that the now-invalid theory left the jury with one remaining legally valid theory for murder. As presented, that theory bequeathed to the jury an impossible — nevertheless easy — decision to make. Impossible, as the jury was instructed that it need not know who among the three defendants was the primary aggressor. This was also based on a whim of the assumption that an unproven assault ever occurred.

Easy, in that all that was needed to know was that three defendants entered a cell, harm must have been inflicted upon an inmate, and three defendants exited.

Based on the undisputed fact that the natural and probable consequences theory is no longer valid, for the defendant’s convictions to survive, it needed to be established that the jury did, or could have, deliberated and decided under the implied murder malice theory. Taking the thought experiment that the jury did so decide requires one to peek through the same lens made available to the jury — a perspective that provides the following: A thing must have happened; it cannot be known what happened, but someone must have done this thing; we need not know who it was that did this thing; this lack of knowing is not harmful, however, because if someone did this thing, then they all did. This does not amount to harmless error. Indeed, on August 1, 2022, the California Court of Appeal, Fourth Appellate District, reversed the judgments of the trial court.

More to Come …
On October 12, 2022, at the request of the state, the California Supreme Court granted a review of the Court of Appeal’s decision in this case. The review was granted but has been deferred (delayed) pending the California Supreme Court’s decision in In re Lopez, S258912, or pending further order of the Court.

In In re Lopez, the defendants had been charged with murder under three different theories. One of the theories was invalid, while the other two were valid. The defendants were convicted of murder, but the jury verdict did not reveal which theory formed the basis for the conviction. Lopez filed a petition for a writ of habeas corpus, arguing that he was improperly convicted on an invalid theory. The trial court granted the writ, ordering a retrial or acceptance of conviction for a lesser crime. The state appealed to the Court of Appeal.

On appeal, the First District Court of Appeal explained, “The reviewing court must reverse the conviction unless, after examining the entire cause, including the evidence and considering all relevant circumstances, it determines the error was harmless beyond a reasonable doubt.” (Citing People v. Aledamat [August 26, 2019, S248105] ___ Cal.5th ___ [p. 17].) The Court then held that the error in the Lopez case was harmless beyond a reasonable doubt because the jury had also found the defendants were guilty of the gang special circumstance, which required a separate finding of the necessary mental state for murder. The Court of Appeal held that the conviction should not be reversed and that a retrial was not warranted.

The California Supreme Court has granted a review of the Court of Appeal’s decision in the Lopez case. Pertinent among the issues to be reviewed is to what extent or in what manner, if any, may a reviewing court consider the evidence in favor of a legally valid theory in assessing whether it is clear beyond a reasonable doubt that the jury based its verdict on the valid theory when the record contains indications that the jury considered the invalid theory?

As for this present appeal, although it is entirely unknown what effect the Supreme Court’s review of Lopez will render, the law offices of Goyette, Ruano & Thompson (GRT) will continue its diligent client advocacy until such review and disposition.