The trial of a 70-year-old Garden Grove man, who while out on an afternoon jog filmed himself shooting and killing a homeless man, ended in a mistrial after an Orange County Superior Court jury was unable to reach a verdict.
A day after beginning deliberations, jurors tasked with deciding the fate of Craig Sumner Elliott announced that they were hopelessly deadlocked 11 to 1 on Wednesday, Dec. 3. The holdout juror would not change their mind, according to court records. It was unclear whether the majority backed conviction or not.
Orange County Superior Court Judge Kimberly Menninger agreed that the jury had reached an impasse and declared a mistrial.
Elliott said he acted in self-defense when fatally shooting Antonio Garcia Avalos after the 30-year-old transient threw a shoe at him.
The deadly confrontation took place around 3 p.m. on Sept. 28, 2023, when Elliott was jogging with a pushcart and his two dogs and encountered Avalos sleeping on a sidewalk in the 10400 block of Katella Avenue.
Unable to maneuver around Avalos due to vegetation along the sidewalk, Elliott used his pushcart to nudge Avalos, according to a prosecution trial brief. Avalos awoke and told Elliott to get away from him, the prosecutor wrote.
Elliott tried to explain that he was just trying to get around Avalos, the prosecutor wrote, as a “visibly irritated” Avalos stood up. At some point, Elliott began filming the encounter and apparently grabbed a gun from his pushcart.
Avalos threw a shoe at Elliott, the prosecutor wrote. Elliott ducked and then immediately fired four gunshots, the prosecutor added, that struck Avalos.
Elliott — who had a permit that legally allowed him to carry the firearm — called 911 and was cooperative with police, the prosecutor wrote. Elliott allegedly told police that Avalos “rushed” him after throwing the shoe, forcing him to open fire.
But after viewing the video provided by Elliott, detectives determined that Avalos never tried to run at Elliott. Avalos was around 10 feet away, the prosecutor wrote, had nothing in his hands, was standing still and had the pushcart and dogs between him and Elliott, who never warned Avalos that he had a gun.
In a second interview with detectives, Elliott once again told them that Avalos tried to rush at him, the prosecutor wrote, adding that he wouldn’t have shot him otherwise. Elliott also told police that Avalos continued coming toward him even after being struck by the first shot, something the prosecutor wrote that the video does not show.
Elliott’s attorney, in his own trial brief, argued that Elliott was in the middle of a “flight-or-fight” response, which is why his memory didn’t match up to what the video shows. The shooting occurred within seconds, the defense attorney wrote, and Elliott may not have even perceived in the moment that the object thrown at him was a shoe.
Elliott is scheduled to return to court on Dec. 10, when the judge and the attorneys will discuss how to proceed in the case. A potential retrial has not been scheduled.