Filed 6/12/13 (unmodified opinion attached)
Santa Clara County, Super. Ct. No. CC935164, Ct.App. 6 H035123, Ron M. Del Pozzo, Judge
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, Michael Chamberlain Deputy Attorney General
ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING
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.
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.” 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 ...