Ct.App. 6 H035123 Super. Ct. No. CC935164 Court: Superior County: Santa Clara Judge: Ron M. Del Pozzo
The opinion of the court was delivered by: Corrigan, J.
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."*fn1 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.
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:
"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.
"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)?
"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, 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.
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 ...