PEOPLE v. ANZALONEAppellant's Opening Brief on the MeritsCal.November 21, 20119192536 COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE, : Plaintiff and Respondent, v. CHRISTINA MARIE ANZALONE, Defendant and Appellant. Case No. 8192536 Sixth Appellate District, Case No. H035123 Santa Clara County Superior Court, Case No. CC935164 The Honorable Ron M.Del Pozzo, Judge APPELLANT’S OPENING BRIEF ON THE MERITS SUPREME COURT FILED NOV 21 201 J. Courtney Shevelson State Bar No. 60004 Attorney at Law PMB 187 « 316 Mid Valley Center Carmel, California 93923-8516 Telephone: (831) 625-6581 E-mail address: jcshev@pacbell.net Attorney for Appellant TABLE OF CONTENTS TABLE OF AUTHORITIES CITED SPECIFICATION OF ISSUES TO BE BRIEFED STATEMENT OF THE CASE AND FACTS ARGUMENT L. Il. Hil. THE TRIAL COURT ERRED BY FAILING TO OBTAIN THE JURY’S ORAL ASSENT TO THE VERDICT AS REQUIRED BY PENAL CODE SECTION 1149 AND THEREFORE NO VALID, TRUE VERDICT WAS EVER RETURNED A. The Trial Court Failed to Comply with Section 1149 B. The Trial Court Did Not “Substantially Comply” with Section 1149 C. Conclusion THE TRIAL COURT’S ERRORIN FAILING TO OBTAIN THE JURY’S ORAL ASSENT TO THE VERDICT IS REVERSIBLE PER SE AS STRUCTURAL ERROR DOUBLE JEOPARDY BARS RETRIAL OF APPELLANT BECAUSE HER JURY WAS DISCHARGED BEFORE THEY ORALLY STATED THEY HAD AGREED UPONA VERDICT AND RENDEREDIT IN OPEN COURT IV. APPELLANT DID NOT FORFEIT HER APPELLATE CLAIMS BY FAILING TO OBJECT TO THE TRIAL COURT’S FAILURE TO COMPLY WITH PENAL CODE SECTION 1149 CONCLUSION CERTIFICATE OF WORD COUNT il 12 15 16 23 28 34 34 TABLE OF AUTHORITIES CITED Cases Arizona v. Fulminante (1991) 499 U.S. 279 Chapmanv. California (1967) 386 U.S. 18 Chipman v. Superior Court (1982) 131 Cal.App.3d 263 Curry v. Superior Court (1970) 2 Cal.3d 707 El Monte v. Superior Court (1994) 29 Cal.App.4th 272 Green v. United States (1957) 355 U.S. 184 In re Chapman (1976) 64 Cal.App.3d 806 Jackson v. Superior Court (1937) 10 Cal.2d 350 People v. Bento (1998) 65 Cal.App.4th 179 People v. Collins (1976) 17 Cal.3d 687 People v. Galindo (2006) 142 Cal.App.4th 531 People v. Green (1995) 31 Cal.App.4th 1001 People v. Heard (2003) 31 Cal.4th 946 People v. Hendricks (1987) 43 Cal.3d 584 People v. Hernandez (2003) 30 Cal.4th 1 People v. Lankford (1976) 55 Cal.App.3d 203 People v. Lessard (1962) 58 Cal.2d 447 People v. Lewis (1983) 147 Cal.App.3d 1135 -ii- Page 19, 20 18 10 24-26, 29 30 23 10 24 27 33 33 TABLE OF AUTHORITIES CITED(cont.) Cases (cont.) Page People v. Mestas (1967) 253 Cal.App.2d 780 5 People v. Radil (1977) 76 Cal.App.3d 702 33 People v. Rodriquez (1998) 17 Cal.4th 253 30 People v. Saunders (1993) 5 Cal.4th 580 25, 31, 32 People v. Superior Court (Marks) (1991) 1 Cal.4th 56 29, 30 People v. Superior Court (Thomas) (1967) 67 Cal.2d 929 10 People v. Thornton (1984) 155 Cal.App.3d 845 5, 8, 9, 15-17, 19, 28 People v. Toro (1989) 47 Cal.3d 966 33 People v. Traugott (2010) 184 Cal.App.4th 492 5 People v. Upshaw (1974) 13 Cal.3d 29 25 People v. Webster (1991) 54 Cal.3d 411 33 People v. Wright (1990) 52 Cal.3d 367 33 Rose v. Clark (1986) 478 U.S. 570 20 Sullivan v. Louisiana (1993) 508 U.S. 275 18, 19 United States v. Gonzalez-Lopez (2006) 548 U.S. 140 21 Statutes Penal Code § 417 2 § 422 2 -Ill- TABLE OF AUTHORITIES CITED (cont.) Statutes (cont.) Page § 1140 11 § 1147 13 § 1149 passim § 1157 29 § 1164 11,24 § 1181 10 § 1258 21 § 1404 21 § 12022 2 Constitutions California Constitution Art. I, § 15 23 Art. I, § 16 7 Art. VI, § 13 21 United States Constitution, Amend. V 23 California Rules of Court rule 8.516 28 Jury Instructions CALCRIM No. 3550 1] CALJIC No. 17.40 11 Others Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2011) 25 CJER Bench Handbook: Jury Management (CJER 2011 rev.) Verdict and Discharge 6-8, 28 -iv- IN THE SUPREME COURTOFTHESTATEOF CALIFORNIA THE PEOPLE, Plaintiff and Respondent, S192536 V. Court of Appeal No. H035123 CHRISTINA MARIE ANZALONE, (Santa Clara County Super. Ct. No. CC035164) Defendants and Appellants. SPECIFICATION OF ISSUES TO BE BRIEFED The court’s order granting review specified the following issues to be briefed and argued: (1) Did thetrial court err by failing to obtain the jury’s oral assentto the verdicts, and if so, was the error structural and thus reversible per se, or subject to harmless error analysis? (2) If the latter, was the error prejudicial? (3) If the former, does double jeopardybarretrial? Appellant’s answerto the first half of the court’s first question is that the trial court did err by failing to obtain the jury’s oral assent to the verdicts whenit did notask the jury if they had agreed upontheir verdict as required by Penal Code section 1149. Appellant’s answerto the second part of the first question is that the trial court’s error was structural and reversible per se. That answer obviates the need to respondto the court’s second question. Appellant’s answerto the court’s third questionis that double jeopardy does bar appellant’s retrial. STATEMENT OF THE CASE AND FACTS Out of an incident on February 22, 2009 at the Hedding Inn motel in San Jose, appellant was convicted of exhibiting a knife in a threatening mannerand of makinga criminalthreat with a true finding on a knife use allegation. (Pen. Code,' §§ 417, subd. (a)(1), 422, and 12022,subd. (b)(1); CT’ 52-53, 140, 142.) Appellant wentto the motel looking for a friend who worked there and had hostile exchange with the clerk about going to the friend’s room. (1 RT 41-42, 60, 66.) Sheleft the lobby, returnedafter a few minutes, pushed overthe clerk’s computer monitor, and, while holding a closed knife in her hand, threatened to hurt the clerk and to come back and kill him. (1 RT 43-48, 61.) Out of another incident later the same day, appellant was convicted of assault with a deadly weapon, a knife. (§ 245, subd. (a)(1); CT 52, 138.) The victim and his wife had gone to City Team Ministries to eat. When the wife went outside, appellant started talking to her. When the victim came out and told his wife to “come on,” appellant accused him ofbeating his wife and chest butted him. He walked away, but appellant followed. When the victim turned around, she threw a bagel and an open knife at him, hitting him in the chest with the knife and leaving a red mark. (1 RT 71-72, 79, 83-84, 87-88, 96-98, 136, 139-142.) ' Statutory citations are to the Penal Code unlessotherwise stated. * “CT”refers to the single volumeofthe clerk’s transcript. The two volumesofthe reporter’s transcript will be cited as “1 RT” and “2 RT.” 2 ARGUMENT I. THE TRIAL COURT ERREDBY FAILING TO OBTAIN THE JURY’S ORAL ASSENT TO THE VERDICT AS REQUIRED BY PENAL CODE SECTION 1149 AND THEREFORE NO VALID, TRUE VERDICT WAS EVER RETURNED A. The Trial Court Failed to Comply with Section 1149 Analysis ofthe trial court’s error in failing to obtain the jury’s oral assent to the verdict must begin with the language of section 1149. The section states: MANNEROF TAKING VERDICT. Whenthe jury appear they must be asked by the Court, or Clerk, whether they have agreed upontheir verdict, and if the foreman answersin the affirmative, they must, on being required, declare the same. Section 1149 is phrased in unambiguous, mandatory language: the jury “must be asked . . . whether they have agreed upontheir verdict,” andifthe foreman’s “answer”is yes, the court goes from there to obtain the jury’s declaration of the verdict. The record here reveals that the trial court never asked whether the jury had agreed ontheir verdict, which meansthe court failed to comply with the requirements of section 1149. The record showsthe following: THE COURT: We’re back onthe record in the presenceofthe jury now as well. Andladies and gentlemen,I understand you’ve reached a verdict. Whois the foreperson? Mr.(Juror)? JUROR: Yes,sir. THE COURT: Handthe verdict formsto the deputy. I'll hand those to the clerk to read the verdict. (2 RT 378.) The clerk then read the verdict with no interruptions to inquire whether the jury had, in fact, agreed on what was read from the verdict forms. (2 RT 378-379.) Whentheclerk finished reading, neither the court nor the clerk asked if the jurors had agreed on what wasread, andthe court did notask if either party wished to have the jurors polled. Instead, the court immediately told the jurors: “Ladies and gentlemenofthe jury, you’ve now completed your jury service in this case and on behalf of the judges and attorneys and everyonein the court, please accept my sincere thanks for your time and effort that you put into yourverdicts in this case.” (2 RT 379.) The court then instructed the jurors on the 90-day waiting period before they could negotiate or agree to accept paymentfor information about the case, told them they could now speakto the attorneys if they chose, directed them to report any unreasonable contact by the attorneys or anyone else, explained they wouldbe given notice of any effort to obtain their personal identifying information and could opposerelease of the information, thanked them again, excused them from jury service for at least a year and dismissed them from the courtroom. (2 RT 379-381.) This recordleaves clear that there was no compliance with the mandate of section 1149. Neither the court northe clerk ever asked the jury whether they had agreedontheir verdict. The court merely declaredit understood the jury had reached a verdict without askingif they had agreed, and the clerk merely read the written verdict as directed by the court withoutever asking if the jurors had agreed on what was read. The jury wasthen discharged without orally assenting to the verdict. As the Court of Appeal observed,after the trial court madethe affirmative statementthat it understood the jury had reached a verdict, the only questionsit asked were whothe foreperson was and whether it wasa particular juror, which prompted the foreperson to answer, “Yes, sir.” (Court of Appealslip opn. [“Slip. opn.”], p. 6; 2 RT 378.) These questions could not and did not substitute for what section 1149 requires courts to do: ask the jury whether they have agreed. For manyyears, California case law hasheld thatit is the jury’s oral assentto the result of their deliberations that constitutes the true verdict: ““the oral declaration by thejurors unanimously endorsing a given resultis the true “return ofthe verdict” prior to the recording thereof.” (Peoplev. Thornton (1984) 155 Cal.App.3d 845, 858 (orig.italics), quoting Peoplev. Mestas (1967) 253 Cal.App.2d 780, 786; see also People v. Hendricks (1987) 43 Cal.3d 584, 597 [a “complete”verdictis “a verdict that has been received and read bythe clerk, acknowledgedby thejury, and recorded” (italics added)]; People v. Traugott (2010) 184 Cal.App.4th 492, 500; People v. Green (1995) 31 Cal.App.4th 1001, 1009 [“there is no verdict absent unanimity in the oral declaration”].) While the use of verdict forms is the established custom,“[t]he oral declaration of the jurors endorsing the result is the true return of the verdict” and “[t]here is no requirement that the verdict be in written form.” (People v. Lankford (1976) 55 Cal.App.3d 203, 211, disapproved on other grounds in People v. Collins (1976) 17 5 Cal.3d 687, 694,fn. 4.) What is required to obtain a true verdict is set out in section 1149: the court or the clerk mustelicit the jury’s oral acknowledgmentthat they have agreed upontheir verdict. If the jury orally indicates it has, then the jury must declare the verdict when the court asks them to. The commonpractice for accomplishingthis is to have the clerk read the written verdict forms and then for the court to ask if whatthe clerk hasreadis the jury’s verdict. The duties that section 1149 imposes ontrial courts are not arcane or esoteric. They describe what everyone expects to happen when the jury tells the bailiff and the bailiff tells the court, either directly or through the clerk, that the jury has a verdict. Chapter four of the CJER Bench Handbook on Jury Managementhas scripted the procedure for California trial courts to use in receiving verdicts in civil and criminal cases. Section 4.2 of the handbook addresses receiving the verdict and polling the jury in criminal cases. It directs trial courts as follows: After the jury has agreed on a verdict, it must be conducted into the courtroom bythe bailiff. Pen C §1147. You must call the roll, which is a statementreflecting the presence of the defendant, both counsel, andall the jurors. See Pen C §§1147-1148. Youthen ask the foreperson or presiding juror whether the jury has arrived at a verdict. Pen C §1149. Ifthe foreperson says “yes,” you ask the foreperson to hand the verdictto the bailiff, who in turn handsit to you. See Pen C §1149. You should examine the verdict and ascertain whetherit is signed and in proper form. See Pen C §§ 1151-1154. Ifthe verdict is in proper form, you give the verdict to the clerk, whothen readsit. If the verdict is not in proper form, you give it back to the foreperson for correction. See Pen C §1156. . After a “TIP” box that warnscourts to makesure the verdict addresses degree findings in cases involving a crime divided into degrees, the jury management handbook continues: You then ask both counsel, or a defendant in pro per, if they wish to have the jury polled. Ifso, you may poll the jury or ask the clerk to poll the jury. Pen C §1163. If the verdict is unanimous, you direct the clerk to record the verdict. Pen C§§689, 1164. Ifnot, you send the jurors back to the jury room for further deliberation. Pen C §1163. If during polling any juror answersthat the verdict is not his or her verdict, you must order further deliberations. (CJER Bench Handbook: Jury Management (CJER 2011 rev.) Verdict and Discharge, § 4.2, p. 109; see People v. Heard (2003) 31 Cal.4th 946, 966, fn. 9 [remindingtrial courts that using CJER publications can help them avoid reversible error].) The CJERscript for taking a criminal verdict does not perfectly comply with section 1149. It directs trial courts to “ask the foreperson or presiding juror whetherthe jury has arrived at a verdict” whenthe actual question section 1149 requires courts to ask is whether the jury “have agreed upontheir verdict.” The use of the word “agreed”in section 1149is important because it focuses the question on whether the jury has acted in accordance with the criminal defendant’s right to a unanimousverdict under Article I, section 16 of the California Constitution. To help guaranteetrial court compliance with section 1149, CJER’sscript for receiving criminal verdicts could also benefit by incorporating part of the script for taking civil verdicts. The civil case script directs courts that “[a]fter the verdictis read, the judge (or clerk) should ask the jurorsif this is their verdict” and,if three-fourths agree that it is and no one requests polling, should seek counsel’s stipulation to have the verdict recorded as read, enter the verdict and discharge the jury. (CJER Bench Handbook: Jury Management (CJER 2011 rev.) Verdict and Discharge, § 4.1, p. 107.) Given section 1149’s mandate that the court obtain the jury’s oral assent to the verdict, it would make sensein criminal cases to ask the jury after the verdict is read if the reading stated their verdict. That did not happen at appellant’s trial. Putting aside any imperfections in the CJER script for receiving criminal verdicts, the script makesclearit is the trial court’s responsibility to comply with section 1149, not the responsibility of the parties or the Jurors. People v. Thornton, supra, 155 Cal.App.3d 845 (“Thornton”) made this point explicit. There, the trial court failed to notice that the three verdict forms the jury handedin includeda signed guilty verdict on a lesser included offense and not just the signed not-guilty verdict on the charged greater offense. The court asked the foreperson if the jury had reached a verdict, received a “yes” as the oral response, had the clerk read the not- guilty verdict, asked the jurors collectively if that was their verdict, “so say you one, so say youall,” received their collective answer in the affirmative and then discharged them after confirming there was no requestto poll the jury. Ud, at p. 849.) None ofthe jurors said anything to alert the court they had also agreed on a guilty verdict, and neither the court nor the parties asked any questions about the two other verdict forms. Thornton stated: Before reviewing the cases that do offer some guidance, we must note that we are not dealing here with juror error. Jurors are not technicians in the law. Here, they performedall that was required of them by deliberating, submitting to the court the three verdict forms they had been given, and answeringall inquiries directed to them. The proper implementation ofthe verdict reading and recording pursuant to the requirements of Penal Codesection 1164 and 1149is the exclusive provinceofthe trial court, not the jury. In what sometimes appears as a sterile atmospherein the courtroom, it would be too much to require the jury to know if and when they should speak up. Forall appellant’s jury knew,the reading of but one verdict form wasall that was necessary. (People v. Thornton, supra, 155 Cal.App.3d at p. 852.) The duties that section 1149 imposesontrial courts are not mere formalities. This is shownfirst by the statute’s unambiguously mandatory language. The statutory commandthatthe jury “must be asked by the Court, or the clerk, whether they have agreed upontheir verdict” leaves no room to argue that this is a meaningless optional step. The Legislature clearly intended courts to follow the procedurein every case. The importance of this procedureto the protection and enforcement of the California defendant’s constitutional right to a unanimousverdict also shows why the requirements of section 1149 cannot be dismissed as dispensable. As Justice Premo observed in his concurring opinion,a trial court’s failure to ask the section 1149 question “deprives any equivocating juror of the opportunity to expresshis or her reservations.” (Slip. opn., conc. opn.) The question presents the only occasion for jurors to express reservationsif the jury is not polled. (See People v. Bento (1998) 65 Cal.App.4th 179.) Section 1149, in other words, is the only mandated mechanism by whicha trial court elicits the foreperson’soral assertion that the jury has unanimously agreed so as to transform the written verdict signed by only the forepersoninto a valid, true verdict, andit is the sole mandated mechanism by whichall the jurors will hear the foreperson’s assertion they have reached agreement, an assertion that gives notice to any juror who disagrees that the time is at hand to express that disagreement. Case law demonstrates the importance of giving equivocating jurors an opportunity to react to the foreperson’s claim that the jury has agreed. A verdict is not complete unless jurors have been given the opportunity to dissent either by the court’s compliance with section 1149 orby polling done undersection 1163 at the request of either party. (People v. Green, supra, 31 Cal.App.4th at p. 1010 [“verdict is not ‘complete’ if any juror dissents from the verdict as rendered”].) And dissent does occur. (/d., at p. 1008 [in response to being asked during polling if verdicts read were her verdicts, juror said she really did not know]; Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 265 [juror “wasn’t sure in the jury room,” but voted yes, then said “no”to court during polling]; In re Chapman (1976) 64 Cal.App.3d 806, 809-812 [jury foreman said they had reached verdict, but revealed that all 12 had not agreed on the not-guilty verdict]; People v. Superior Court (Thomas) (1967) 67 Cal.2d 929, 930-931 [juror balked whenasked if verdict read washis verdict, then said that he “went with the majority,” signaling he did not give his individual decision].) A trial court’s compliance with the mandate of section 1149 also is important because it creates an opportunity to uncover whethera verdict wasreached by actual agreement amongthe jurors and not by an improper, alternative route. (See Pen. Code, § 1181, subd. 4 [a court may grant a new 10 trial “[w]hen the verdict has been decided by lot, or by any meansother than a fair expression of opinion onthepart ofall the jurors”]; CALCRIM No. 3550 [admonishing jurors not to decide caseby the flip of a coin]; CALJIC No. 17.40 [admonishing jurors not to decide by theflip of a coin or any other chance determination].) Compliance with section 1149 gives jurors an opportunity to dissent from the foreperson’soral assertion that they have agreed on a verdict, and asking the question may promptdisclosurethat the case was decided by using a chance determination to resolve differences rather that by actual agreement through legitimate deliberations. A court’s compliance with section 1149 through asking the question it mandates also guaranteesthattrial courts will not violate the prohibition against discharging the jury after the cause is submitted to them before the jurors have agreed on their verdict. This prohibition is foundin sections 1140 and 1164, subdivision (b). Section 1140 states: “Except as provided by law,the jury cannot be discharged after the cause is submitted to them until they have agreed upontheir verdict and renderedit in open court, unless by consent ofboth parties, entered upon the minutes, or unless, at the expiration of such time as the court may deem proper,it satisfactorily appears that there is no reasonable probability that the jury can agree.” Asking the jurors if they have agreed in compliance with section 1149 and obtaining an affirmative response assures the court that a subsequent discharge ofthe jury will be lawful. In similar terms to section 1140, subdivision (b) of section 1164 states: “No jury shall be discharged until the court has verified on the record that the jury haseither reached a verdict or has formally declaredits 11 inability to reach a verdict on all issues beforeit, including, but not limited to, the degree of the crime or crimes charged, andthetruth of any alleged prior conviction whether in the same proceedingorin a bifurcated proceeding.” Again, asking the jurorsif they have agreed in compliance with section 1149 and obtaining an affirmative response assures the court that the subsequentdischargeof the jury will be lawful. B. The Trial Court Did Not “Substantially Comply” with Section 1149 Respondent’s opening brief on the merits ((ROBOM”) contends there was no error becausethetrial court “substantially complied” with section 1149. (ROBOM,pp. 11-15.) But the record showsthatneither the court nor the clerk asked the assembled jury the simple question that section 1149 mandates: “whether they have agreed upontheir verdict.” The result wasthat no oneorally assentedto the verdict: not the foreman,not the jury collectively, and not any other individual juror. Respondent’s effort to read the record to show substantial compliance fails because no compliance with section 1149 cannot constitute substantial compliance with the section. In arguing substantial compliance, respondent cites the Court of Appeal’s analysis that the trial court “did not state that it had been informed that the jury had reacheda verdict,” and that, even thoughthat was “a reasonable inference,”all the trial court said was that it understood a verdict had been reached without explaining how it had cometo that understanding. (Slip. opn., p. 6.) Respondentargues that the record actually does show how the court cameto that understanding because, before the jurors were brought into the courtroom,the court said, “Jury has indicated they have a 12 verdict.” (ROBOM,p. 12.) The defect in respondent’s analysis is that what the court said outside the jury’s presence did not establish that the jury itself | had somehoworally communicated with the court that it had agreed upon a verdict. Unless the court engaged in improper off-the-record communications with the jury in the absence of counsel and the defendant, its statement that the jury had indicated it had a verdict must have come from the bailiff sworn to take custody of the jury. That, in fact, is exactly whatis shown by the minute order for the proceedings of October 8, 2009. (1 CT 143 [“The jury advisesthe bailiff that they have a verdict”].) The key point here is that no communication betweenthe jury andthebailiff, or betweenthe bailiff and the clerk, or between thebailiff and the court, that does not occurin open court in the presence of counsel, the defendant and all 12 jurors, can substitute for what section 1149 requires: that, after the entire jury is conducted into open court in compliance with section 1147, the court or the clerk must ask the jury on the record “whether they have agreed upontheir verdict.” Unless that question is asked and the foreperson affirms on the record that the jury has agreed, there is no compliance with section 1149, there is no oral assent to the verdict, and there is no valid, true verdict. In claiming there was substantial compliance with section 1149, respondentalso argues the record does not support the Court of Appeal’s analysis that “contrary to the Attorney General’s reading, the foreperson did not expressly acknowledgethe verdict in open court; nor was the foreperson asked to do so.” (ROBOM,pp. 12-14; Slip opn., p. 6.) It is importantto emphasize here that the Court of Appeal saidthis in relation to whether the court complied with the statutory mandate of section 1149 that the jury 13 “must be asked . . . whether they have agreed upontheir verdict.” The opinion wenton to correctly observethat the trial court’s assertion about the verdict — “ladies and gentlemen, I understand you’ve reached a verdict”— was “an affirmative statement”rather than a question, and that the only questions the court asked were whothe foreperson was and whether it was a particular juror. The Court of Appeal then logically interpreted the foreperson’s “yes” uttered in response to these questions as an affirmation that he was the foreperson since that was all he was asked. (Slip opn., p. 6.) It was based on this commonsensereading ofthe record that the Court of Appeal rejected as unreasonable respondent’s contentionthat the foreman’s “yes” answerconstituted oral acknowledgment in compliance with section 1149 that the jury had agreed upontheirverdict, a question the foreperson was never asked. Against the Court of Appeal’s logic, respondent arguesthat the foreperson’s “yes” response to the question whether he wasthe foreperson “wasoral assent ofthe foreperson that the jury reacheda verdict asthetrial court stated,” and that what followed — the foreman’sdelivery of the verdict formsto the bailiff and the reading of the formsby the clerk — constituted substantial compliance with the requirements of section 1149 becauseit “reveals an acknowledgment, in substance, that the jury had reached a verdict.” (ROBOM,pp. 12-14; italics added.) What this argument ignores is that the focus of section 1149’s mandatory question is on whether the jury has agreed on a verdict. The phrasing of the question is designed to protect the California criminal defendant’s constitutional right to the jury’s unanimous agreement on the resolution of the charges. Section 1149’s point in seeking the jury’s oral assentthat they have agreed on a verdictis 14 to establish there is a true verdict by testing whether the wrritten assertion of agreementin the verdict formsis bonafide by giving any doubting or wavering juror, including the foreperson, an opportunity to express his or her doubts or reservations in response to hearing the court ask whether they have agreed on their verdict. Respondent’s substantial compliance argument approachessection 1149 as if all it requires is for the jury foreperson to hand in verdict forms. To read the statute that way would be contrary to the clear statutory language and would disregard the statute’s purpose. Respondent’s substantial compliance argument should therefore be rejected. Cc, Conclusion Thetrial court erred by failing to obtain the jury’s oral assent to the verdict as required by section 1149. Respondent’s “substantial compliance” argument has no merit because the record shows there was no compliance at all. The consequenceofthe court’s error was that the jury was discharged without rendering true verdict, i.e. a verdict backed by an oral affirmation stating the jury had agreed. As the Court ofAppeal held, whatthetrial court accepted as the verdict based on the clerk’s mere reading ofthe verdict forms constituted an “incomplete, defective, and invalid” verdict, [aJnd, withouta valid verdict, there can be no valid judgment.” (Slip opn., p. 7; see People v. Thornton, supra, 155 Cal.App.3d at p. 858 [merely turningin the verdict form of guilty on the lesser offense could not support a judgmentof guilt without the jury’s oral assent that they agreed onit].) 15 I. THE TRIAL COURT’S ERRORIN FAILING TO OBTAIN THE JURY’S ORAL ASSENT TO THE VERDICT IS REVERSIBLE PER SE AS STRUCTURAL ERROR After concluding that what the trial court accepted as the verdict was invalid and resulted in an invalid judgment, the Court of Appealheld that the error in failing to comply with section 1149 was reversible per se. It stated: Furthermore, this defect is structural and not subject to harmless-error analysis. Althoughthere is ample if not overwhelming evidence to support the verdict reflected in the verdict forms, and although thereis nothingin the record to suggest that the jurors did not agree with the verdict when read,it is not possible for us to know whetherthe foreperson would have acknowledgedthe 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. (Slip opn., p. 7.) In support of this holding, the Court of Appeal relied on the prejudice analysis in People v. Thornton, supra, 155 Cal.App.3d 845 which held that the trial court’s error in failing to obtain the jury’s oral assent to the verdict form on the lesser included offense was reversibleperse: In numerousothercases, the processes of requiring the jury to orally acknowledgetheir verdict and express individual assents to it have revealedthat the entire jury was mistaken in signing a particular verdict form, or that one or more jurors acceded to a verdictin the jury room but was 16 unwilling to stand by it in open court. [Citations.] Thus, these processes are far from empty formalities of the type that, under [People v.] Gilbert [(1880) 57 Cal. 96] and [People v.] Smith [(1881) 59 Cal. 601], might be deemed inconsequential to the defendant’s constitutional rights. It is these procedures that allow the defendant to “test” whether the verdict form that was signedin the privacy of the jury room represents the “true verdict,” i.e., the verdict that each and every juroris willing to hold to under the eyes of the world, or whetherit is a product of mistake or unduly precipitous judgment. More- over, the acknowledgmentand polling procedures represent the defendant’s only opportunity to test the verdict as represented on the verdict form, since after the jury has been discharged,the verdict, with few exceptions not applicable here, cannot be impeached. [Citations.] Underthese circumstances,failure to allow a defendantto test a verdict in open court must be deemed prejudicial per se. In the instant case, in order to conclude that defendant wasnot prejudiced, we would haveto rely on juror statements (those made upon reconvening) that are (1) irrelevant to this appeal in that we must view the caseasit existed at the time ofthe initial discharge [citations], (2) noncognizable in any event as a belated impeachmentofthe completed not guilty verdict [citation], and (3) made after the Jurors were subject to the type ofinfluences that might naturally cause them to stand by a signature on a verdict form that one or more of them otherwise might have repudiated. In effect, we are faced with error of constitutional proportions whoseactual prejudicial effect is insusceptible of calculation. There is no false humility in recognizing that we lack the omniscience that would enableus to say that no juror in this case would have impeachedthe guilty verdict form had defendant been afforded his right to timely test each jurorin open court. We cannotsay that they were not influenced by outside forces encountered after discharge. We, therefore, have no choice butto find the errors prejudicial perse. (People v. Thornton, supra, 155 Cal.App.3d at pp. 859-860.) 17 The prejudice analysis of the Court of Appeal here and in Thornton is supported by the United States Supreme Court’s conclusion in Sullivan v. Louisiana (1993) 508 U.S. 275 (“Sullivan’’) that it was structural error and reversible per se to deliver an instruction that defined in constitutionally deficient terms the beyond a reasonable doubt standard ofproof. The Supreme Court first noted that the interrelationship of“the Fifth Amend- ment requirement of proof beyond a reasonable doubt and the Sixth Amend- ment requirement ofa jury verdict” meansthat “the jury verdict required by the Sixth Amendmentis a jury verdict of guilty beyond a reasonable doubt.” (/d., at p. 278.) Next, in analyzing whetherthe instructional error was subject to harmlesserror analysis under Chapman v. California (1967) 386 U.S. 18, the court observed that the question Chapmaninstructs reviewing courts to consider“is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had uponthe guilty verdict in the case at hand,”i.e. “the guilty verdict actually rendered.” (Sullivan, supra, 386 U.S. at p. 279.) Then the court went on to reject harmless-error review on the following reasoning: Oncethe proper role of an appellate court engaged in the Chapmaninquiry is understood, the illogic of harmless- error review in the present case becomesevident. Since, for the reasons described above, there has been nojury verdict within the meaning of the Sixth Amendment, the entire premise of Chapmanreview is simply absent. There being no jury verdict of guilty-beyond-a-reasonable-doubt, the question whether the same verdict of guilty-beyond-a-reasonable-doubt would have been rendered absent the constitutional erroris utterly meaningless. There is no object, so to speak, upon which harmless-error scrutiny can operate. (/d., at p. 280.) 18 Under California Jaw, a written verdict form that is not orally acknowledged by the jury as what has been agreed uponassection 1149 requires is an invalid verdict. As Thornton teaches, a verdict form signed by the foreperson does not becomea valid, true verdict just because the jury handedit in. The jury mustorally acknowledge they have agreed upon whatthe verdict form says. It is that oral acknowledgmentthat provides the guarantee that the verdict represents the unanimous agreementofthe jury required under the California Constitution and that transformsit into a true verdict. The absenceof a true verdict dueto the trial court’s failure to comply with section 1149 erects the samebarrier to harmless-error review as did the absence ofany jury verdict of guilty-beyond-a-reasonable-doubt in Sullivan. Whenthere is no true verdict under California law,it is meaningless to ask whether the same verdict would have been rendered absentthe error becausethere is no valid verdict and no valid judgment “upon which harmless-error scrutiny can operate.” (Sudlivan, supra, 508 U.S.at p. 280.) The Court of Appeal’s conclusion thatthetrial court’s failure to comply with section 1149 wasstructural error and per se reversible is also supported by the distinction the United States Supreme Court has drawn betweenstructural error and “trial errors” that do not automatically require reversal of a conviction. Arizona v. Fulminante (1991) 499 U.S. 279 (“Fulminante”) held that the erroneous admission of a coerced confession in violation of the Fifth and Fourteenth Amendments can be harmlesserror. Fulminante notedthat “the Court has applied harmless-error analysis to a wide range oferrors and has recognized that most constitutional errors can be harmless,” then cited to a long list of cases supporting this point. (/d., at 19 pp. 306-307.) The court then summarizedthis case law as follows: “The common thread connecting these cases is that each involved ‘trial error’ — error which occurred during the presentation of the caseto the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” (/d., at pp. 307-308.) Fulminante then went on to contrast such “trial error” with the types of constitutional deprivations that are not subject to harmless-error analysis, each of which involves “a similar structural defect affecting the framework within which the trial proceeds, rather than simply anerrorin thetrial processitself’ and 4a basic protection without which “‘a criminal trial cannotreliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’” (/d., at p. 310, citing Rose v. Clark (1986) 478 U.S. 570, 577-578.) Here,the trial court’s error in failing to comply with the mandate of section 1149 was not merely “trial error” because it did not occur during the presentation of the case to the jury and cannot be quantitatively assessed in the context of the trial evidence. The error occurred in the process by which California law requirestrial courts to determine whetherthe jury has agreed upona verdict in accordance with the California Constitution’s mandate that verdicts in criminal cases must be unanimous. Expressedin the terms used in Fulminante, section 1149 protects a key part of the frameworkwithin which a California criminal trial proceeds and without whichthetrial cannotreliably serve its function as a vehicle for the determination of guilt or innocence by unanimous agreementofthe jury. Underthe analysis used in Fudminante, thetrial court’s error in failing to 20 comply with section 1149 was not merelytrial error. It was structural error and therefore reversible perse. Finally, the Courts of Appeal here and in Thornton were onsolid legal footingin finding structural error based on the impossibility of assessing the effect of the error. In United States v. Gonzalez-Lopez (2006) 548 U.S. 140, the Supreme Court held that the denial of the Sixth Amendmentright to counsel ofchoiceis structural error and prejudicial per se because ofthe “difficulty of assessing the effect of the error” in that the consequencesofthe deprivation were ““‘unquantifiable and indeterminate.’” (/d., at p. 149, fn. 4, and p. 150.) The court found it “impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome ofthe proceedings,” and concluded that “[h]armless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.” (/d., at p. 150.) A “speculative inquiry into what might have occurredin an alternate universe” is exactly what the Court of Appeal properly refused to conductin holdingthatthe trial court’s failure to comply with section 1149 wasstructural error and reversible perse. Respondentrelies on Article VI, section 13, of the California Constitution and sections 1258 and 1404 as barriers to the reversal of a conviction for errors that do not result in a miscarriage ofjustice and do not affect the defendant’s substantial rights. (ROBOM,pp. 17-18.) But the trial court’s failure to comply with the mandate of section 1149 denied appellant the guarantee the section afforded her that the jury’s verdict would reflect unanimousjury agreementas the California Constitution 21 requires. Imposition ofjudgmentin the absenceofthat guarantee, and therefore in the absence ofa valid, true verdict, constitutes a miscarriage of justice andanerror that affected appellant’s substantial rights. This is especially true given the impossibility of knowing what would have transpired if the court had complied with section 1149’s demands. 22 HI. DOUBLE JEOPARDY BARS RETRIAL OF APPELLANT BECAUSE HER JURY WAS DISCHARGED BEFORE THEY ORALLY STATED THEY HAD AGREED UPON A VERDICT AND RENDEREDIT IN OPEN COURT The appellate record discloses that the trial court discharged the jury before they reacheda valid, true verdict. By discharging the jury without complying with section 1149’s mandate, the court did what section 1140 forbids: it discharged the jury after the cause was submitted to them but before they “agreed upontheir verdict and renderedit in open court.” The trial court’s failure to comply with section 1149 meansthat written verdict forms wereall the jury rendered, forms that no memberofthe jury ever orally acknowledged as accurately stating what they had agreed upon. The third question this court posed for briefing and argumentis whether double jeopardy bars appellant’s retrial. The Court of Appeal rejected appellant’s argumentthatretrial was barred. (Slip opn., pp. 8-10.) In doing so, the court correctly summarized the fundamental principles underlying the constitutional prohibition against placing a defendant twice in jeopardy. But in applyingthoseprinciples, the court reached the wrong conclusion. The Court of Appealfirst observed that the Fifth Amendmentofthe United States Constitution and Article I, section 15 of the California Consti- tution both “prohibit placing a person in jeopardy more than onceforthe same offense.” (Slip opn., p. 8.) It then explained the theory underlyingthe double jeopardy protection with a quote from Green v. United States (1957) 23 355 U.S. 184, 187-188: “The underlying idea, one that is deeply ingrained in at least the Anglo-American system ofjurisprudence,is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individualfor an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be foundguilty.” (Slip opn., p. 8.) The Court of Appeal also explained how appellant was placed once in jeopardy by being “placed ontrial for an offense; on a valid indictment or information or other accusatory pleading; before a competentcourt; and with a competent jury, duly impaneled, sworn, and charged with the case.” (Slip opn., p. 8, citing Jackson v. Superior Court (1937) 10 Cal.2d 350, 352, 355; see also Curry v. Superior Court (1970) 2 Cal.3d 707, 712 (“Curry”).) In reliance on Curry, the Court ofAppealthenstated, “[o]nce jeopardy has attached, any unjustified discharge of the jury before it reaches a verdict gives rise to the defense of double jeopardy,” and defined an unjustified discharge as one done without the defendant’s consent and not for “recognized reasonsofstrict necessity.” (Slip opn., p. 8.) As Curry explained this principle, “a discharge of [a duly impaneled and sworn] jury without a verdict is equivalent in law to an acquittal andbarsa retrial, unless the defendant consented thereto or legal necessity requiredit.” (Curry, supra, 2 Cal.3d at p. 712.) Curry cited section 1140 in support of this principle in recognition that the section enforces double jeopardy protections by prohibiting trial courts from discharging the jury “until they have agreed upontheir verdict and rendered it in open court.” (See also § 1164, subd.(b).) 24 The Court of Appeal correctly concluded that thetrial court’s failure to comply with section 1149 meansthe jury never rendered a valid, true verdict, with the result that there was no valid judgment against appellant. Where the Court of Appeal went wrong wasin failing to recognize thatthis meant the jury’s discharge without reaching a valid verdict was unjustified because it was not done with appellant’s consent and it was not done for reasonsoflegal necessity. It was done becausethetrial court failed to perform its mandated duty under section 1149. That error is fully comparable to a court granting a mistrial without the defendant’s consent and withoutlegal necessity, the situation that Curry addressed. As to the defendants’ lack of consent, Curry stated: At no time did petitioners, in person or through counsel, expressly consent to the granting of the mistrial or the discharge of the jury. The People maintain that petitioners impliedly gave such consent, but the contention does not withstand analysis. Whena trial court proposesto discharge a jury without legal necessity therefor, the defendant is under no duty to object in order to claim the protection of the constitutional guarantee, and his mere silence in the face of an ensuing discharge cannot be deemed a waiver. (Curry, supra, 2 Cal.3d at p. 713; see also People v. Saunders (1993) 5 Cal.4th 580, 592; People v. Upshaw (1974) 13 Cal.3d 29, 34; Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2011), § 26.27, p. 761.) Asto the absence of legal necessity, Curry stated: Secondly, there was no ‘legal necessity’ ~ as that concepthas been limited in our decisions — for the court to 25 declare a mistrial and discharge the jury without petitioners’ consent. In California, legal necessity for a mistrial typically arises from an inability of the jury to agree [citations] or from physical causes. beyondthe control of the court [citations], such as the death, illness, or absence ofjudge or juror [citations] or of the defendant[citations]. A mere error of law or procedure, however, does not constitute legal necessity. (Curry, supra, 2 Cal. 3d at pp. 713-714.) Here, in addressingthe trial court’s failure to comply with section 1149, the Court of Appeal correctly concluded that “the lack oforal acknowledgmentbythe jurors individually or by the foreperson rendered the jury’s verdict incomplete, defective, and invalid,” and with no valid verdict, “there can be no valid judgment.” (Slip opn., p. 7.) Then, in addressing appellant’s argumentthat retrial was barred on double jeopardy grounds, the court reversed field to incorrectly assert that the trial court “did not discharge the jury before it reached a verdict, and defendant was not deprived of a verdict from his chosen jury” because “that jury deliberated and rendered a verdict, which was read and entered.” (Slip opn., p. 9.) But whatthe jury rendered before they were discharged, and what was read by the clerk, were merely verdictforms, not a valid, true verdict. To become a true verdict, the jury had to orally acknowledge they had agreed. In the absenceofthis oral acknowledgment, appellant was deprived of a verdict from her chosen jury, even though the jury deliberated and handed in verdict forms, because the jury was discharged in violation of section 1140 before “they agreed upontheir verdict and rendered it in open court”in compliance with section 1149. The jury was therefore discharged without appellant’s consent and without legal necessity due to an error of law and 26 procedure such that double jeopardybarsretrial. The Court of Appeal relied on People v. Hernandez (2003) 30 Cal.4th 1 (“Hernandez”) in reaching its conclusion that double jeopardy did notbar retrial for appellant. But Hernandez did not address situation in whichthe entire jury was discharged before agreeing on their verdict and rendering it in open court by orally acknowledging their agreement under section 1149. All the trial court did wrong in Hernandez was to excuse a single juror without good cause and to replace that juror with an alternate whohad been chosenaspart of the jury during the regular voir dire process. This court rejected the defendant’s contention that the improper dismissal of a single juror deprived him ofhis “chosen jury” because “defendant’s chosen jury was not discharged but instead, with the substitution of a preselected alternate juror, remained intact until a verdict was rendered.” (d., at pp. 8-9.) Hernandez provides no guidancein the circumstancesin appellant’s case where her chosen jury was discharged before it rendered a valid, true verdict. Thetrial court’s error in failing to comply with section 1149 led to the discharge of the jury without a true verdict. The discharge was without appellant’s consent and without legal necessity, which means double jeopardy bars appellant’s retrial. 27 IV. APPELLANT DID NOT FORFEIT HER APPELLATE CLAIMSBY FAILING TO OBJECT TO THE TRIAL COURT’S FAILURE TO COMPLY WITH PENAL CODE SECTION1149 Respondent’s opening brief on the merits contends that appellant forfeited her right to raise her appellate claims becauseshe did not request that the court comply with its duty undersection 1149 to ask the jury if they had agreed on a verdict, and because shedid not request polling and did not object to recording the verdicts or discharging the jury. (ROBOM,pp. 16- 17.) This court’s order granting review does not specify forfeiture as an issue to be briefed and argued. While the issue wasraised in respondent’s petition for review,it was not previously raised in the Court of Appeal, which explains why the Court of Appeal opiniondid not discuss it. Thus, as a preliminary matter, the court must decide whether to address respond- ent’s forfeiture argumentor adhereto its generalrule that it does not addressissuesraised for the first time in the petition for review. In addi- tion, since the court did not specify forfeiture as an issue to be briefed and argued, it must also decide whetherit is an issue fairly included within the issues the court did specify. (Calif. Rules of Ct., rule 8.516, subd. (a)(1).) Assuming arguendothat respondent’s forfeiture claim is properly before the court, the claim should be rejected. First, as both Thornton and CJER have recognized, properly receiving the verdict under section 1149 is the exclusive provinceofthe trial court. (People v. Thornton, supra, 155 Cal.App.3d at p. 852; CJER Bench Handbook: Jury Management (CJER 2011 rev.) Verdict and Discharge, § 4.2, p. 109.) Section 1149’s statutory 28 language does not permit any other reading; it mandates that “[w]hen the jury appear they must be asked by the Court, or Clerk, whether they have agreed upontheir verdict.” The statute does not require any request from defense counselto trigger the court’s sua sponte duty to ask this question. The second reasonthere is no forfeiture here is that the trial court’s failure to comply with section 1149 wasto appellant’s advantage becauseit created the prospect that the court’s error would result in a double jeopardy barto retrial based on the argument raised in this appeal. Underthese cir- cumstances, appellant had no obligation to bringto the trial court’s attention its error under section 1149 so that the proceedings would result in a true verdict of conviction, a result manifestly against her interests. Appellant’s situation is identical to that of the defendant in People v. Superior Court (Marks) (1991) 1 Cal.4th 56 (“Marks”) wherethe jury’s verdict convicting him of murder did not specify the degree of the murder, with the result that it had to be deemed murderin thesecond degree undersection 1157. This court determinedthat the defendant had noobligation to bring the omission of the degree finding to the trial court’s attention, just as a defendant has no obligation to object “[w]hen trial court proposes to discharge a jury withoutlegal necessity”in order to preserve a double jeopardy claim for appeal. (d., at p. 77, fn. 20, citing Curry, supra, 2 Cal.3d at p. 713.) Marks further held that the prosecution had to bearat least partial responsibility (along with the trial court) for the absence ofany finding of degree in the jury’s verdict on the murder charge, and therefore there was no unfairness to the People in holding that double jeopardy barred the defendant’s retrial on first degree murder. Marks stated: 29 The consequencesofan irregular verdict are well settled, and nothing precludes the prosecution from calling the deficiency to the court’s attention before it discharges the panel. [Fn. 2 lomitted; citations.] Since any failure to do so results from neglect rather than lack of notice and opportunity to be heard, the People’s right to due process is accordingly not offended.” (Marks, supra, | Cal.4th at p. 77.) Respondent’s forfeiture contention is also rebutted by the rule that a defendantin a criminal case is not obliged to object to the prosecution’s failure to present sufficient evidence to support the verdict in order to raise an insufficiency ofthe evidence claim on appeal. (People v. Rodriquez (1998) 17 Cal.4th 253, 262; People v. Galindo (2006) 142 Cal.App.4th 531, 538.) Even in a civil trial context, the defendant has no obligation to object to the plaintiffs failure ofproof on a matter at issue. In E/ Monte v. Superior Court (1994) 29 Cal.App.4th 272 (“El Monte”), the plaintiffs were entitled to punitive damages but allowedthe jury to be discharged without presenting evidence on that issue. The Court of Appealheldtheplaintiffs forfeited the right to present such evidence and werenotentitled to have a second jury impaneled to allow them to doit. In holding that defense counsel was blameless in the discharge ofthe jury, E/ Monte stated: In our adversary system, defense counsel had no obligation to help try plaintiffs’ case by pointing out evidence which had been omitted. Nor do webelieve that defense counsel was required to advise the court of this deficiencyin plaintiffs’ case. In fact, defense counsel would haveviolated his obligation to his clients had he doneso. (d., at p. 277.) 30 Here, defense counsel would have violated his obligation to his client if he had helped the prosecution obtain true verdicts against appellant by objecting to the trial court’s failure to comply with section 1149. Compliance with section 1149 was within thetrial court’s exclusive province, but if anyone should bear responsibility for failing to object to the error andto thetrial court’s discharge of the jury before it rendered a true verdict, it is the People. An objection by the prosecutor was the route by which the People could have protected their interests and turned the potential results reflected in the verdict formsinto a true verdict that would have been insulated against the appellate claimsraised here. The cases respondentcites in support offinding forfeiture address claimsoferrorentirely distinguishable from appellant’s claim that thetrial court failed to comply with the duties section 1149 imposed on it. In the case on which respondentprimarily relies, People v. Saunders, supra, 5 Cal.4th 580 (“Saunders”), the defendant sought and was granted a bifurcatedtrial on his prior convictions, but during the trial defense counsel told the court off the record that her client would waive his right to a jury trial on the priors. The court discharged the jury after taking their verdict without any objection from the defense. The next day, defense counsel confirmed that her client would waive his right to a jury trial on the priors, and he did so. The prosecution presented certified records to prove the priors, and the matter was put over to the next day. When the case resumed, defense counsel asserted she was unawarethe jury had been discharged (a colleague had stood in for her the day the verdict was returned) and would not have hadherclient waivehis right to a jury trial if she had known. The trial court allowed the defendant to withdraw his jury waiver but denied the 31 defense motion to dismiss the priors on double jeopardy grounds based on the theory that the jury was discharged before it had rendered a verdict on the priors. Instead, a new jury was selected andthe prior conviction allegations were tried to that jury and found true. (/d., at pp. 586-587.) This court held that “the trial court violated sections 1025 and 1164 by discharging the jury before the jury had determined the truth ofthe alleged prior convictions,” but that defense counsel’s failure to object to the jury’s discharge precluded appellate relief based on the statutory error. (Saunders, supra, 5 Cal.4th at p. 589.) The court stated: Thus, although sections 1025 and 1164 prohibit trial court from discharging a jury until it has determinedthe truth of any alleged prior convictions, a defendant may not complain on appeal of a departure from this procedural requirement unless the error has been broughtto the attention of the trial court by meansof a timely and specific objection. Wedo notbelieve that the Legislature, in enacting sections 1025 and 1164, intended to create a proceduraltrap that would enable defense counsel to ambushthetrial judge and deprive the People of their statutory right to prove one or more alleged prior convictions for the purpose of enhancing the punishmentofthe repeat offender. Nor should the law place a defense attomey in the untenable position of having to choose between honoring counsel’s commitmentto the court (that jury trial on the prior conviction allegation would be waived) and counsel’s duty to his or herclient (to offerall available defenses to the charges and allegations contained in the accusatory pleading). (id., at pp. 590-591.) Saunders does not support respondent’s argumentthat appellant 32 forfeited her claimsthatthetrial court erred in failing to comply with the mandate of section 1149 and that double jeopardy bars retrial. Defense counsel did not “ambush”thetrial judge into failing to comply with section 1149, and the court’s erroris in no wayattributable to the defense. Nothing defense counsel did deprived the People oftheir right to prove their case or denied them their opportunity to protect their interest in obtaining a true verdict by bringingto the trial court’s attentionits failure to comply with section 1149. Thetrial court’s error wasall its own; it was notin any way provoked or manipulated into makingthe error by defense counsel. The other cases respondentrelies on to argue forfeiture involved appellate claimsreadily distinguishable from appellant’s claims. This case does not involveany appellate claim that the polling of the jury was incomplete. (See People v. Lessard (1962) 58 Cal.2d 447, 452; People v. Wright (1990) 52 Cal.3d 367, 415.) Nor doesit involve a claim that a verdict form was defective in some respect. (See People v. Webster (1991) 54 Cal.3d 411, 446; People v. Toro (1989) 47 Cal.3d 966, 976-977; People v. Lewis (1983) 147 Cal.App.3d 1135, 1142; People v. Radil (1977) 76 Cal.App.3d 702, 710.) The claims here are that section 1149 imposed a duty on thetrial court to ask the jury if they had agreed ona verdict, that the court’s failure to comply with that duty is prejudicial per se, that the court’s error led to the discharge ofthe jury before they had rendered a true verdict, and that double jeopardy barsretrial because the jury’s discharge was done without appellant’s consent and withoutlegal necessity. 33 CONCLUSION Forall the reasons stated, appellant respectfully requests this court to affirm the Court of Appeal’s decision that the trial court’s failure to obtain the jury’s oral assentto the verdict wasstructural error that is reversible per se, and to hold that double jeopardy bars appellant’s retrial and reverse the Court of Appeal’s contrary holding on that issue. Respectfully submitted, lypredoen Attorney for Appellant CERTIFICATE OF COMPLIANCE Counsel of record hereby certifies pursuant to rule 8.520(c)(1) of the California Rules of Court that this opening brief on the merits contains approximately 9,441 words based on the word count of the computer program usedto prepareit. [¥COURTNEYSHEVELSON 34 DECLARATION OF SERVICE BY MAIL I, J. Courtney Shevelson, declare: I am overeighteen (18) years of age and nota party to the within cause; my business address is PMB 187, 316 Mid Valley Center, Carmel, California 93923; I served a copy of the APPELLANT’S OPENING BRIEF ON THE MERITS on each ofthe following, by placing same in an envelope or envelopes addressed as follows: Attorney General Clerk of the Court 455 Golden Gate Avenue, Suite 11000 Sixth Appellate District San Francisco, CA 94102-3664 333 W. Santa Clara Street, Suite 1060 Attn: Sharon G. Birenbaum San Jose, CA 95113 Dolores Carr, Dist. Atty. Clerk of the Superior Court 70 West Hedding Street 191 North First Street San Jose, CA 95110 San Jose, CA 95110 Attn: Leigh Frazier Attn: Hon. Ron M.Del Pozzo Sixth District Appellate Program Christina M. Anzalone 100 N. Winchester Blvd., Suite 310 4205 Ohio Street, # 201 Santa Clara, CA 95050 San Diego, CA 92104 Each said envelope was then, on November 18, 2011, sealed and deposited in the United States mail at Monterey, California, the county in which I am employed, with postage fully prepaid. I declare underpenalty of perjury that the foregoingis true and correct. Executed on November18, 2011, at Monterey, California. (foursAbversox
