P. v. Anzalone

Filed 6/12/13 (unmodified opinion attached)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S192536
v. )
) Ct.App. 6 H035123
CHRISTINA MARIE ANZALONE, )
) Santa Clara County
Defendant and Appellant. ) Super. Ct. No. CC935164
____________________________________)

ORDER MODIFYING OPINION AND
DENYING PETITION FOR REHEARING
THE COURT:
The opinion in this matter filed on April 15, 2013, and appearing at
56 Cal.4th 545, is modified as follows:
On page 561, the disposition is modified to read as follows: ―The judgment
of the Court of Appeal is reversed, and the matter is remanded to that court for
consideration of defendant‘s remaining claims.‖
The modification changes the judgment.
The petition for rehearing is denied.
Filed 4/15/13 (unmodified opinion)

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S192536
v. )
) Ct.App. 6 H035123
CHRISTINA MARIE ANZALONE, )
) Santa Clara County
Defendant and Appellant. ) Super. Ct. No. CC935164
)
)
)
____________________________________)

Penal Code section 1149 provides, ―When the jury appear they must be asked
by the Court, or Clerk, whether they have agreed upon their verdict, and if the
foreman answers in the affirmative, they must, on being required, declare the
same.‖1 Here, the court failed to follow this mandated procedure. The case turns
on whether the error is structural error, and thus reversible per se, or trial error
subject to harmless error review. For the reasons set forth below, the error was not
structural. Accordingly, we reverse the Court of Appeal‘s judgment.

1 Unless otherwise indicated, all statutory references are to the Penal Code.

1
 I. BACKGROUND
On February 22, 2009, defendant Christina Marie Anzalone went to the front
desk of a San Jose motel and asked the owner if she could speak to Leon Wallace,
the maintenance man. The owner said that Wallace was not in and refused to let
her go to Wallace‘s room. Defendant accused the owner of lying and left. She
returned a few minutes later, pushed over a computer, pulled a knife, and
threatened to kill the owner. Police were called and defendant left.
Later that day, defendant was speaking with Kimberly Malott when she saw
Kimberly‘s husband, Richard. Defendant accused Richard of abusing Kimberly,
approached him, and struck him in the chest. Richard initially walked away, but
turned around. Defendant threw a bagel and an open knife at him, hitting him in
the chest with the butt end of the weapon. He picked up the knife, then got in his
truck with Kimberly. Defendant blocked their exit and spat on the windshield. As
Richard and Kimberly tried to leave, defendant grabbed onto the truck‘s side
mirror and broke the radio antenna. Defendant was charged with making a
criminal threat against the motel owner (§ 422), and assault with a deadly weapon
on Richard (§ 245, subd. (a)(1)), with allegations that she personally used a deadly
weapon in both counts (§§ 667, 1192.7, 12022, subd. (b)(1)). She was also
charged with misdemeanors for vandalism of Richard‘s truck (§ 594,
subd. (a)(b)(2)(A)), and brandishing a weapon against the motel owner (§ 417,
subd. (a)(1)).
On October 7, 2009, after final argument and instructions, the jury
deliberated in the afternoon. The next day, after a readback of testimony, the
jurors deliberated for another six minutes before informing the bailiff they had
reached a verdict. The jury returned to the courtroom and the following
proceedings took place:

2
 ―THE COURT: We‘re in session in Docket CC 935164. Attorneys are
present, Mr. Hultgren and his client and DA Ms. Frazier.
―Jury has indicated they have a verdict. We‘ll bring them out. Thank you.
―(Jury Present)
―THE COURT: We‘re back on the record in the presence of the jury now as
well. And ladies and gentlemen, I understand you‘ve reached a verdict. Who is
the foreperson? Mr. (juror)?
―JUROR: Yes sir.
―THE COURT: Hand the verdict forms to the deputy. I‘ll hand those to the
clerk to read the verdict.‖
The verdicts were then read aloud. Defendant was acquitted of vandalism
but found guilty on the other counts. The jury also found true both allegations of
using a deadly weapon. Neither party asked the court to poll the jury. (See
§§ 1163, 1164.)
After the verdict was read and recorded, the court addressed the jurors:
―Ladies and gentlemen of the jury, you‘ve now completed your jury service in this
case and on behalf of the judges and attorneys and everyone in the court, please
accept my sincere thanks for your time and effort that you put into your verdicts in
this case.‖ The court gave jurors additional instructions with regard to
administrative matters such as accepting payment for information about the case,
communications with counsel, and the sealing of personal juror information. The
court concluded, ―Again, I can‘t thank you enough for your attention during this
trial. I never say this, I‘ll say you‘re one of the best juries I‘ve ever had as far as
being prompt, attentive to the evidence. [¶] We notice that, we all notice it here
and we talked about it and I appreciate your service. You are now excused for at
least one year and if you want to talk to the attorneys, they will be out in about
three minutes in the hall, otherwise you can leave . . . .‖ On December 4, 2009,
3
defendant was sentenced to a prison term of four years eight months. On appeal,
defendant argued that her state constitutional right to a unanimous jury verdict was
violated because the court failed to ask the jury foreperson or the jurors to affirm
their verdict as required by section 1149. The Court of Appeal agreed. It went on
to conclude the error was structural and, thus, reversible per se.
II. DISCUSSION
The Attorney General argues that defendant forfeited her claim by failing to
object to the trial court‘s alleged failure to comply with section 1149. This court
has held that the failure to object to an incomplete polling of the jury forfeits any
claim of error on appeal. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 262-
270 (Keener); see People v. Wright (1990) 52 Cal.3d 367, 415; People v. Lessard
(1962) 58 Cal.2d 447, 452 (Lessard).)
In the extensive discussion of forfeiture in Keener, we cited with approval
authorities stating that the general rule in both civil and criminal cases is that an
objection to a defective verdict must be made before the jury is discharged.
(Keener, supra, 46 Cal.4th at pp. 263-265.) ―[T]he basis for the requirement of an
objection to asserted imperfections in the polling of a jury concerning its verdict is
no different from the basis for requiring objections to other equally important
procedural matters at trial . . . . The requirement of an objection is premised upon
the idea that a party should not sit on his or her hands, but instead must speak up
and provide the court with an opportunity to address the alleged error at a time
when it might be fixed.‖ (Id. at pp. 265-266, fns. omitted.)
The trial court‘s inadvertent failure to comply with section 1149 in the
present case appears analogous to an incomplete polling of the jury, and there is
no apparent reason to apply a different forfeiture rule. After all, rather than an
appellate court reviewing a cold record, the parties are present in the courtroom to
observe the exchange between the court and the jurors, hear the court‘s comments,
4
understand what is transpiring, and seek any necessary clarification. That they
make no objection suggests they see no reason to question whether the verdict as
read accurately represents the verdict reached by the jury. The parties are in the
best position to know if there is reason to suspect any juror might not be fully
committed to the verdict. A party with concerns about the accuracy of the verdict
may test it by polling. A party that eschews the opportunity has no cause to
complain that the court failed to test the verdict‘s accuracy by requiring public
affirmation. Accordingly, a defendant who does not object to the trial court‘s
failure to comply with section 1149 forfeits the argument that the trial court erred.
However, notwithstanding defendant‘s forfeiture, we will address the
merits because the case concerns an issue of statewide importance. (People v.
Braxton (2004) 34 Cal.4th 798, 809.)
Our state Constitution provides that a defendant in a criminal case has a
fundamental right to a unanimous jury verdict. (Cal. Const., art. I, § 16.)
As noted, section 1149 also requires that when the jury returns after reaching
a verdict, the court or clerk must ask ―whether they have agreed upon their verdict,
and if the foreman answers in the affirmative, they must, on being required,
declare the same.‖ Thus, a foreperson‘s oral declaration may provide sufficient
acknowledgment of the verdict. (See People v. Wiley (1931) 111 Cal.App. 622,
625.) But, if either party so requests, the jury may be polled and each juror must
orally affirm the verdict. (§§ 1149, 1163, 1164.)
Sections 1163 and 1164 govern jury affirmation of the verdict by polling.
Under section 1163, either party may request polling before the verdict is
recorded. If any juror disagrees with the verdict, the jury must be sent out for

5
further deliberations.2 Section 1164 provides that after the verdict is recorded,
either party may request that the clerk read the verdict as recorded. If a juror
dissents to the recorded verdict, the jury is sent out for further deliberations.3
Here, the Attorney General argues that the foreperson‘s statement, ―Yes, sir,‖
was an oral acknowledgement that the jury had reached a verdict. (§ 1149.) The
Attorney General claims that ―the combination of the court‘s stating its
understanding the jury reached a verdict, its asking the foreperson to identify
himself, the foreperson‘s complying, the court‘s asking the foreperson to hand the
verdict forms to the bailiff, the foreperson‘s complying again without further
qualification or comment, and the clerk‘s reading the verdict in the presence of the
jury and the parties amounted to substantial compliance with section 1149‘s
requirement of an acknowledgement by the foreperson that the jury had reached its
verdict.‖
The court did not ask whether the jury had reached a verdict. It made a
statement to that effect.4 It then asked a particular juror if he was the foreperson.
It was to this question that the juror replied, ―Yes, sir.‖5 It is clear that neither the
court nor the clerk actually complied with section 1149, because neither asked the

2 ―When a verdict is rendered, and before it is recorded, the jury may be
polled, at the request of either party, in which case they must be severally asked
whether it is their verdict, and if any one answer in the negative, the jury must be
sent out for further deliberation.‖ (§ 1163.)
3 ―(a) When the verdict given is receivable by the court, the clerk shall
record it in full upon the minutes, and if requested by any party shall read it to the
jury, and inquire of them whether it is their verdict. If any juror disagrees, the fact
shall be entered upon the minutes and the jury again sent out; but if no
disagreement is expressed, the verdict is complete, and the jury shall, subject to
subdivision (b), be discharged from the case.‖ (§ 1164, subd. (a).)
4 The court said, ―And . . . I understand you‘ve reached a verdict.‖
5 By order of the trial court, jurors‘ names and other personal identifying
information were kept confidential.

6
foreperson or other members of the jury whether they had agreed to the verdict or
sought to receive the foreperson‘s affirmation. Accordingly, the trial court failed
to follow the statutory directive.6 The defense did not object to this failure of
procedure at the time, after the jury was discharged, or at the subsequent
sentencing hearing. Defendant made no motion for retrial.
The Court of Appeal held that the error violated defendant‘s state
constitutional right to a unanimous jury verdict. It stated that ―although the jury
deliberated and rendered a verdict, which was read in court, the lack of oral
acknowledgement by the jurors individually or by the foreperson rendered the
jury‘s verdict incomplete, defective, and invalid.‖ The court held the defective
verdict invalidated the judgment. It deemed the error structural, reasoning that it

6 The clerk‘s minutes conflict with the reporter‘s transcripts. Minute entries
report the court did inquire and the foreperson acknowledged that the jury had
reached a verdict.
―As a general rule, a record that is in conflict will be harmonized if
possible. [Citation.] If it cannot be harmonized, whether one portion of the record
should prevail as against contrary statements in another portion of the record will
depend on the circumstances of each particular case.‖ (People v. Harrison (2005)
35 Cal.4th 208, 226.)
When adequate, the clerk‘s minutes can be relied upon to establish an
admission and a waiver of constitutional rights even where the reporter‘s transcript
is silent on the subject. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1422-
1423.) However, in Malabag, there was specific evidence that the reporter‘s
transcript was incomplete—the transcript began in the middle of the proceedings
and contained only sentencing orders. (Id. at p. 1422.) It was in this context that
the court found the reporter‘s transcript was incomplete and the clerk‘s transcript
could be used to demonstrate that certain advisements had been given. (Id. at
pp. 1422-1423.)
Here, there is nothing to suggest that the reporter‘s transcript is incomplete
and the Attorney General does not argue that the transcript is inconsistent or
incomplete. Accordingly, we presume the court reporter accurately reported the
proceedings. (See People v. Ayala (2000) 23 Cal.4th 225, 289 [presumption that
an official duty has been performed applies to court reporters].)

7
could not apply a harmless error analysis because ―[a]lthough there is ample if not
overwhelming evidence to support the verdict reflected in the verdict forms, and
although there is nothing in the record to suggest that the jurors did not agree with
the verdict when read, it is not possible for us to know whether the foreperson
would have acknowledged the verdict; and if so, whether defendant would have
requested that jurors be individually polled; and if polled, whether all of the jurors
would have endorsed the verdict as his or her verdict.‖ The court erred in
denoting this procedural failure as structural error.
We have recently considered the distinction between structural error and trial
error. ―Under article VI, section 13 of our state Constitution, trial error does not
merit reversal of a judgment unless ‗the error complained of has resulted in a
miscarriage of justice.‘ Typically, a defendant who has established error under
state law must demonstrate there is a reasonable probability that in the absence of
the error he or she would have obtained a more favorable result. (People v.
Weaver (2001) 26 Cal.4th 876, 968; People v. Watson (1956) 46 Cal.2d 818, 836.)
As we have explained, however, ‗under the California constitutional harmless-
error provision some errors . . . are not susceptible to the ―ordinary‖ or ―generally
applicable‖ harmless-error analysis — i.e., the Watson ―reasonably probable‖
standard — and may require reversal of the judgment notwithstanding the strength
of the evidence contained in the record in a particular case.‘ (People v. Cahill
[(1993)] 5 Cal.4th [478,] 493.) ‗[T]he kinds of errors that, regardless of the
evidence, may result in a ―miscarriage of justice‖ because they operate to deny a
criminal defendant the constitutionally required ―orderly legal procedure‖ . . . all
involve fundamental ―structural defects‖ in the judicial proceedings, analogous to
those to which the United States Supreme Court referred in its [Arizona v.
Fulminante (1991) 499 U.S. 279] decision . . . .‘ (Cahill, at pp. 501-502.)‖
(People v. Lightsey (2012) 54 Cal.4th 668, 699, fn. omitted.)
8
 ―Error that occurs during the presentation of the case to the jury is generally
trial error; an error that erroneously adds to or subtracts from the record before the
jury can ‗be quantitatively assessed in the context of the other evidence presented
in order to determine whether its admission was harmless beyond a reasonable
doubt.‘ (Arizona v. Fulminante (1991) 499 U.S. 279, 308; see also People v. Allen
(2008) 44 Cal.4th 843, 870–871.) A court in such circumstances can meaningfully
ask ‗whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.‘ (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) In
contrast, structural errors not susceptible to harmless error analysis are those that
go to the very construction of the trial mechanism — a biased judge, total absence
of counsel, the failure of a jury to reach any verdict on an essential element.‖
(People v. Gamache (2010) 48 Cal.4th 347, 396 (Gamache); see People v. Aranda
(2012) 55 Cal.4th 342, 363-366 [addressing federal constitutional structural
error].) The Fulminante court described some of these errors as affecting the
―entire conduct of the trial from beginning to end . . . .‖ (Fulminante, at p. 309.)
In short, trial errors can be fairly examined in the context of the entire record
and are amenable to harmless error review. Structural errors, on the other hand,
go to the very reliability of a criminal trial as a vehicle for determining guilt or
innocence and are reversible per se. (See Gamache, supra, 48 Cal.4th at p. 396;
In re James F. (2008) 42 Cal.4th 901, 914 (James F.).) A structural error requires
per se reversal because it cannot be fairly determined how a trial would have been
resolved if the grave error had not occurred. For example, it would be impossible
to divine how a trial would have proceeded if a defendant had been allowed
counsel or the trial judge not been biased. There is a strong presumption that any
error falls within the trial error category, and it will be the rare case where a
constitutional violation will not be subject to harmless error analysis. (People v.
Marshall (1996) 13 Cal.4th 799, 851 (Marshall).)
9
 To our knowledge, the United States Supreme Court has never suggested that
the lack of an oral acknowledgement of the verdict in open court is a structural
defect. As noted, reversal for structural error has been limited to instances such as
adjudication by a biased judge (Tumey v. Ohio (1927) 273 U.S. 510), the complete
deprivation of counsel (Gideon v. Wainwright (1963) 372 U.S. 335), the unlawful
exclusion of grand jurors based on race (Vasquez v. Hillery (1986) 474 U.S. 254),
the infringement on the right to self-representation (McKaskle v. Wiggins (1984)
465 U.S. 168), the denial of a public trial (Waller v. Georgia (1984) 467 U.S. 39),
and the giving of a constitutionally deficient instruction on the reasonable doubt
standard (Sullivan v. Louisiana, supra, 508 U.S. 275). (See Washington v.
Recuenco (2006) 548 U.S. 212, 218, fn. 2 [listing structural errors]; United States
v. Gonzalez-Lopez (2006) 548 U.S. 140, 148-149 [same]; Neder v. United States
(1999) 527 U.S. 1, 8 [same].) Such errors clearly affect the ―the framework within
which the trial proceeds . . . .‖ (Arizona v. Fulminante, supra, 499 U.S. at p. 310.)
Consistent with the limited nature of structural error, we have held that in the
absence of a request, there is no denial of a constitutional right when the court fails
to poll the jury. (Lessard, supra, 58 Cal.2d at p. 452.)
Certainly, the safeguard of a unanimous jury verdict is a core constitutional
right. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; see People v. Russo
(2001) 25 Cal.4th 1124, 1132.) Here, there is no indication that the jury was not
unanimous. It was clearly instructed on the requirement of unanimity and it
deliberated for just over three hours before it notified the bailiff that it had reached
a verdict. The court stated in the jury‘s presence that it understood the jury had
reached a verdict. The foreperson returned signed verdict forms. The jury
convicted on some counts, but also acquitted on one. No juror objected when the

10
verdicts were read.7 Neither party requested polling. Indeed, the Court of Appeal
acknowledged the complete absence from the record of any apparent jury
disagreement and the presence of ample, if not overwhelming, evidence of guilt.
Of course, trial judges are charged with knowing what the statutes require
and with following their dictates. However, as our state Constitution makes clear,
a judgment cannot be reversed for state law error unless there has been a
miscarriage of justice. (Cal. Const., art. VI, § 13; People v. Watson, supra, 46
Cal.2d at p. 836.) In the absence of structural error, the Watson standard for
demonstrating prejudice controls. Sections 1149, 1163, and 1164 are procedural
provisions designed to protect the right to a unanimous verdict. (See Thornton,
supra, 155 Cal.App.3d at p. 859.) Many statutes, however, set out procedures
designed to protect constitutional principles. Broadly construed, many of these
procedural statutes may be said to protect due process and other constitutional
safeguards. Nevertheless, most procedural shortcomings constitute trial error.
Indeed, most constitutional violations themselves are subject to harmless error
review, particularly if, as here, a defendant had counsel and was tried by an
impartial adjudicator.8 (People v. Mil (2012) 53 Cal.4th 400, 410 (Mil).) As we

7 In People v. Thornton (1984) 155 Cal.App.3d 845, 852 (Thornton), the
court observed that it may be unreasonable to expect that an average juror will
understand that he or she could object in such circumstances. While that may be
so, and thus it should not be required that an objection be made in order to find a
lack of unanimity, the absence of any juror objection is a legitimate factor, among
others, that can be considered in determining whether there is any real question as
to unanimity.
8 For example, in Arizona v. Fulminante, supra, 499 U.S. at pages 306-307,
the high court set out numerous instances of constitutional error properly reviewed
for harmless error. They included: (1) overbroad jury instructions at the
sentencing stage in a capital case (Clemons v. Mississippi (1990) 494 U.S. 738,
752–754); (2) jury instruction containing an erroneous conclusive presumption
(Carella v. California (1989) 491 U.S. 263, 266-267); (3) the erroneous admission
(footnote continued on next page)

11
have previously noted, a defendant is entitled to a fair trial, not a perfect one. (See
People v. McDowell (2012) 54 Cal.4th 395, 442.) Despite the trial court‘s error
here, nothing in the record indicates that defendant‘s trial was in any way unfair.
In addition, any number of cases of venerable vintage have subjected
technical violations of the statutory requirements for receiving jury verdicts to
harmless error analysis. (See, e.g., People v. Rodundo (1872) 44 Cal. 538, 541
[failure to call names of jurors before receiving verdict forms when all jurors were
present]; People v. Gilbert (1880) 57 Cal. 96, 97-98 [failure to record verdict
before discharge of jury]; People v. Smith (1881) 59 Cal. 601, 603-604 [same];
People v. Smalling (1892) 94 Cal. 112, 118-119 [verdict recorded, but not

(footnote continued from previous page)

of evidence in violation of the Sixth Amendment counsel clause during the
sentencing stage in a capital case (Satterwhite v. Texas (1988) 486 U.S. 249, 257-
258); (4) jury instruction misstating an element of the offense (Pope v. Illinois
(1987) 481 U.S. 497, 501-504); (5) jury instruction on an erroneous rebuttable
presumption (Rose v. Clark (1986) 478 U.S. 570, 579-580); (6) the erroneous
exclusion of the defendant's testimony regarding his confession (Crane v.
Kentucky (1986) 476 U.S. 683, 691); (7) restricting a defendant's right to cross-
examine a witness for bias (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681);
(8) denying a defendant's right to be present at trial (Rushen v. Spain (1983) 464
U.S. 114, 117-118, and fn. 2); (9) improper comment on the defendant‘s silence at
trial (United States v. Hasting (1983) 461 U.S. 499, 509); (10) failure to instruct
on a lesser included offense in a capital case (Hopper v. Evans (1982) 456 U.S.
605, 613-614); (11) failure to instruct on the defendant‘s presumption of
innocence (Kentucky v. Whorton (1979) 441 U.S. 786, 788); (12) admitting
improper identification evidence in violation of the Sixth Amendment (Moore v.
Illinois (1977) 434 U.S. 220, 232); (13) admitting the out-of-court statement of a
nontestifying codefendant (Brown v. United States (1973) 411 U.S. 223, 231–
232); (14) admitting a postindictment, pretrial confession obtained by a police
officer posing as a fellow prisoner (Milton v. Wainwright (1972) 407 U.S. 371,
372); (15) admitting evidence obtained in violation of the Fourth Amendment
(Chambers v. Maroney (1970) 399 U.S. 42, 52–53); (16) denial of counsel at a
preliminary hearing (Coleman v. Alabama (1970) 399 U.S. 1, 10–11).

12
transcribed into bound minutes and order book before the jury was discharged].)
Thus, there is clear precedent for considering some failures to follow statutory
procedure as ordinary trial error.
Our decision in People v. Nichols (1881) 62 Cal. 518 (Nichols) is particularly
instructive. There, the jury indicated it had reached a verdict and returned to the
courtroom. The court asked the jury if it had reached a verdict. The foreperson
indicated that it had done so, and handed the verdict to the judge. The judge
handed the clerk the verdict form and directed the clerk to record the verdict. The
defendant asked that the verdict be read before it was recorded, but the court
refused. After the clerk copied the verdict into the court‘s minutes, he read it to
the jurors and asked them if this was their verdict. Some answered yes, while
others did not voice any dissent. The jury was then polled and each member
affirmed the verdict. The jury was discharged. (Id. at p. 519.) On appeal, the
defendant claimed the trial court erred by denying his request that the verdict be
read before being recorded or declared as required by the procedures set forth in
the Penal Code. (Nichols, at p. 520.)
We held that the trial court committed a ―palpable irregularity‖ by recording
the verdict before it was read. (Nichols, supra, 62 Cal. at p. 520.) However, we
concluded that the error did not prejudice the defendant in any substantial way.
(Ibid.) Here, the trial court‘s procedural error is similar to the ―palpable
irregularity‖ in Nichols. The technical error here did not affect the essential
framework within which defendant‘s trial was conducted. (See Marshall, supra,
13 Cal.4th at p. 851.)
The jury was instructed that unanimity was required. In the absence of some
indication to the contrary, it is presumed the jury followed the instructions. (See
People v. Harris (1994) 9 Cal.4th 407, 426.) Defendant makes no claim that the
jury ignored the court‘s instructions, nor did the court give any instruction that
13
undermined the unanimity mandate. To call what transpired here structural error
would be to expand that notion beyond any example articulated by the United
States Supreme Court, and elevate form over substance.
A number of cases have considered the significance of a juror affirmation
when a court attempts to reconvene a jury (Thornton, supra, 155 Cal.App.3d at p.
856; People v. Hendricks (1987) 43 Cal.3d 584, 597), or to substitute a juror
(People v. Green (1995) 31 Cal.App.4th 1001, 1009; People v. Lankford (1976) 55
Cal.App.3d 203, 211). Cases also have examined juror affirmation when a juror
equivocates (Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266; People
v. Superior Court (1967) 67 Cal.2d 929, 932-933), when a jury returns
inconsistent verdicts (People v. Mestas (1967) 253 Cal.App.2d 780, 786), when
the court erroneously declares a mistrial (Stalcup v. Superior Court (1972) 24
Cal.App.3d 932, 936), and when the verdict forms on guilt and sanity are not
signed by the same foreperson (People v. Wiley, supra, 111 Cal.App. at p. 624).
No case, however, has squarely considered whether a failure to comply with
section 1149, standing alone, must always render a verdict defective. We hold
that, under the circumstances of this case, where the verdict was read and recorded
in the presence of all 12 jurors, the verdict was not rendered invalid.9
In defending its conclusion of structural error the Court of Appeal leaned
heavily on Thornton, supra, 155 Cal.App.3d 845. It reads Thornton too broadly
and thus its reliance on it is misplaced. Thornton was charged with possession of
a drug for sale. The jury acquitted him of that charge but apparently agreed to
convict him of simple possession, as a lesser included offense. When the jury was

9 In addition, we note the following. The guilty verdicts that were signed by
the foreperson all read, ―We, the Jury, in the above entitled cause find the
defendant . . . [guilty of] . . . .‖ (Italics added.)

14
brought to the courtroom, the clerk read the not guilty verdict form returned on the
charged offense. The jury collectively affirmed that verdict. (Id. at pp. 848-851.)
The court asked both advocates whether there was ― ‗[a]ny matter to come before
the court before the jury is discharged.‘ ‖ (Id. at p. 849.) Both counsel replied in
the negative and the jury was discharged. (Ibid.) Later in the day, the clerk noted
that a second verdict form, delivered by the jury but evidently overlooked by the
court and the clerk, indicated a guilty finding on the lesser offense. (Id. at pp. 850-
851.)
The court notified counsel and, over defense objection, ―reassemble[d]‖ the
jury the next day. (Thornton, supra, 155 Cal.App.3d at p. 850.) At that time the
court explained the inadvertent failure to read the second verdict form. The court
ordered both verdicts recorded, and both the guilty and not guilty verdicts were
read as recorded. The jury collectively acknowledged both verdicts. The jury was
polled as to both verdicts and each juror, individually, affirmed both verdicts. (Id.
at pp. 850-851.) The Thornton court framed the issue as ―whether the court erred
in reconvening the jury the day after it was discharged, and if so, whether the
signed and dated verdict form as to the lesser included offense can be accorded
any legal effect.‖ (Id. at p. 851.)
The Thornton court held that the trial court erred by reconvening the
discharged jury, and as a result, the only true verdict was the one the jury rendered
before its discharge. (Thornton, supra, 155 Cal.App.3d at p. 858.) As the facts
make plain, the failure in Thornton has nothing to do with a failure to affirm.
Instead, the failure was that, after the first verdict was read, the court discharged
the jury. (Ibid.) No other verdict was mentioned, read, recorded, or affirmed.
―The conclusion is inescapable that a discharge accompanied by loss of control of
the jury divests the court of jurisdiction to reconvene them whether or not a

15
complete verdict was rendered and whether or not any error occurred at all.‖ (Id.
at p. 856, italics added.)
Here, the Court of Appeal quoted from Thornton as to the inability of the
court to evaluate the impact of the error. The quoted language focused on the
inability to determine whether any jury taint may have taken place after the jury
was discharged, but before it was ―reassemble[d].‖ Unlike Thornton, our case
involves no loss of jurisdiction, improper recalling of the jury, or any possibility of
juror taint.
The Court of Appeal‘s reliance on People v. Traugott (2010) 184
Cal.App.4th 492 (Traugott) was similarly misplaced. Traugott was tried by a 12-
person jury, which returned verdict forms indicating findings that she possessed
methamphetamine for sale and had suffered a prior conviction. The jury reported
about 3:30 p.m. that it had reached a verdict. (Id. at p. 496.) The defendant
mistakenly left the court environs during deliberations. (Id. at pp. 497-498.) The
court began the process of bringing all necessary participants together to receive
the verdict. Ultimately the defense agreed the verdict could be taken in the
defendant‘s absence. (Id. at pp. 497-498.)
The court convened with ― ‗stand-in‘ ‖ counsel for both the prosecution and
the defense. (Traugott, supra, 184 Cal.App.4th at p. 498.) By that time, Juror No.
4 had left to go to a job interview.10 (Ibid.) The court indicated it would take the
verdicts in the absence of Juror No. 4 unless there was an objection. Substitute
defense counsel initially declined to agree to this procedure, saying she was not
authorized to do so. (Ibid.) The court responded that she was standing in as
attorney of record, had ― ‗all authorization and all power to do it,‘ ‖ and, ― ‗If not,

10 The opinion does not explain whether the juror was formally released and,
if so, by whom.

16
you shouldn‘t be here.‘ ‖ (Ibid.) Told, ― ‗You have to make a decision,
Counsel,‘ ‖ defense counsel replied, without conferring with her absent client,
― ‗We can proceed, Your Honor. No objection.‘ ‖ (Id. at p. 499.)
The remaining 11 jurors returned to the courtroom, the clerk read the verdict,
and the foreperson acknowledged it as correct. (Traugott, supra, 184 Cal.App.4th
at p. 499.) Defendant‘s counsel asked the court to poll the jury. The court
responded: ― ‗I can‘t poll [Juror] No. 4.‘ ‖ (Ibid.) Defense counsel replied,
― ‗Yes, I understand.‘ ‖ The remaining jurors were polled and affirmed the
verdict. (Ibid.)
The Court of Appeal reversed. It noted that while a defendant‘s state
constitutional right to a unanimous 12-person jury is fundamental, a defendant can
waive it. (Traugott, supra, 184 Cal.App.4th at pp. 500-501.) The problem was
that the defendant did not expressly waive this right and counsel‘s consent was
insufficient. (Id. at p. 502.) As a result, the court held that the defendant‘s
conviction could not stand because she did not receive a unanimous verdict of 12
jurors. (Ibid.) The court stated that ―the right to an oral affirmation of the verdicts
by the jurors is not a mere procedural formality,‖ because jurors ―may equivocate
or change their vote when called upon in open court.‖ (Id. at p. 501.) If an
equivocating juror is not present in open court to be polled, the court and counsel
cannot be confident that the verdict is unanimous. (Id. at pp. 501-502.)
Traugott is readily distinguishable from our case. Here, all 12 jurors were
present when the verdict was read and none expressed dissent when the verdict
was read in open court. Neither party objected to the court‘s actions in receiving
the verdict nor requested a poll of the jury.
The court‘s failure to follow section 1149‘s requirement did not deprive
defendant of her constitutional right to a unanimous jury verdict. The error did not
render the trial fundamentally unfair and its effect may be assessed in the context
17
of the entire proceedings. (See Gamache, supra, 48 Cal.4th 347, 396; James F.,
supra, 42 Cal.4th at p. 914.) As we recently observed, ―Plainly, not every
violation of the state and federal right to a jury trial is a structural defect requiring
reversal without regard to whether the defendant suffered actual prejudice.‖ (Mil,
supra, 53 Cal.4th at p. 411.) Accordingly, we conclude that here noncompliance
with section 1149 is procedural error, subject to harmless error review. (People v.
Watson, supra, 46 Cal.2d at p. 836.)11 For the reasons set out above, the error was
plainly harmless.
III. DISPOSITION
We reverse the Court of Appeal‘s judgment, and affirm the judgment of the
trial court.
CORRIGAN, J.

WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
LIU, J.

11 Because we hold that reversal was unwarranted, we need not address
defendant‘s claim that double jeopardy bars a retrial.

18
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Anzalone
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 3/17/11 – 6th Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S192536
Date Filed: April 15, 2013
__________________________________________________________________________________

Court: Superior
County: Santa Clara
Judge: Ron M. Del Pozzo

__________________________________________________________________________________

Counsel:

J. Courtney Shevelson, under appointment by the Supreme Court, and Gabriel Bassan, under appointment
by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Laurence K. Sullivan,
Sharon G. Birenbaum and Michael Chamberlain, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

J. Courtney Shevelson
PMB 187
316 Mid Valley Center
Carmel, CA 93923-8516
(831) 625-6581

Michael Chamberlain
Deputy Attorney General
455 Golden gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5870