PEOPLE v. ANZALONEAppellant's Petition for ReviewCal.April 25, 2011 S1929 0¢0% IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF No. CALIFORNIA, Appellate court Plaintiff and Respondent, No. H035123 VS. County of Santa Clara CHRISTINA ANZALONE, Superior Court Defendant and Appellant. No. CC935164 Hon. Ron Del Pozzo, Judge, Presiding wnt PETITION FOR REVIEW ypnemelTEER AFTER THE DECISION BY THE COURT OF APPEAL, ¢ 10'\ SIXTH APPELLATEDISTRICT, per ® _ oer OF MARCH17, 2011 ‘ cynmicen? gare”Fre GABRIEL BASSAN-* State Bar No. 133147 520 Frederick Street, No. 26 San Francisco, California 94117 (415) 298-3178 bassanlaw@yahoo.com Seo In Association with the Sixth District Appellate Program Attorneys for Petitioner Christina Anzalone TABLE OF CONTENTS PETITION FOR REVIEW ooo cccccceeseeeeeenreceeeesnecseeesaeeseesaeeeaeeneeens I STATEMENT OF ISSUES PRESENTED 1.00... eceeeereetenteeteeteteeees 2 WHY THE PETITION SHOULD BE GRANTED...ees 3 STATEMENT OF THE CASE.00..ce ec ccceeeeceeseeeeeceeseeeeeetieeeeeenesneeneens 4 ARGUMENToooicc ccccceeeeseeseeesseneeceeeeseeeececesesauenaceaeeseeesecseseeenetenes 7 I. This Court Has Consistently Held That “a Discharge of the Entire Jury without a Verdict Is Equivalent to an Acquittal and Bars a Retrial Unless Defendant Consentedto It, or Legal Necessity Required Tt? occ cccccccccscccneceeseesesseesseceessensseeesseeenseeeseesses 7 a. This Court’s Longstanding Precedents Have Held That Retrial is Barred Wherethe Jury is Unjustifiably Discharged... 7 b. The Court of Appeal Erroneously Cited This Court’s Opinion in People v. Hernandez for the Proposition That Only Reversals Based on “Insufficiency of the Evidence” Bar Retrial. 2... ..cccccccccccccccceeccacccececcccesseseececsueseeseeeuuesecsuaueneceseunas 10 CONCLUSION oo... cecccccceecccccceseccceccececeececeeeeccceceusesutstteeececeseueeeeaansaes 13 CERTIFICATE OF WORD COUNTouoccccccceccccccececcccceeeceeeesenanes 14 TABLE OF AUTHORITIES California Cases Cardenas v. Superior Court (1961) 56 Cal.2d 273 woccccccceseseteeeeeneees 8 Carillo v. Superior Court (2006) 145 Cal.App.4th 1511]... 3,9 Curry v. Superior Court (1970) 2 Cal.3d 707 .....eee 3,7, 8, 11, 13 Jackson v. Superior Court (1937) 10 Cal.2d 350... eeeeceenseeetreeees 8 Paulson v. Superior Court (1962) 58 Cal.2d Lo. cceeeeeseeee 3,8, 11 People v. Hernandez (2003) 30 Cal.4th |oe3,9, 10, 11 People v. Traugott (2010) 184 Cal.App.4th 492 ooo. eeeceeseeceeeteees 7 Federal Cases Green v. United States (1957) 355 U.S. 184 oe eeeceeeeseeetsteeeeeies 10 State Statutes Penal Codesection 245, subdivision (a)(1)........ceccscceeseeeceeetteeeetteeens 4 Penal Code section 417 oo... cceccecceeseenecenneerentersneeesnseeneesneeesttessnatessas 4 Penal Code section 422000... cccccccceccececeeceteeeeeeeeeeetseesenteeseeeeeesnneeeeeees 4 Penal Code section 594. ccccceccecseceececsceeeseneeeseaeenseeneeeseeeenneeeseeeens 4 Penal Code Section 667 ......cccccccecsccccseecsteeeeeceeceeeeeeeeseaeeseeeseseeesteaeeetensaes 4 Penal Code section 1149...ciccecccsecectseceeeeeeeeeeeseeeeteestseeeetneecenss 5 Hl Penal Code section 1164, subdivision (b) ..........ccceceeeeessesereneesvee 13 Penal Code section 1192.7... ccc ccccccesccccssseeessceeseseecsseeesseeceeaseessseseess 4 Penal Code section 12022, subdivision (b)(1).........cecccsscesseeesseesees 4,5 California Constitution Article L, § 16 ceccccccscssssssesesssssssssssessseseesssssseesssssssssssnessssssssissssessssessnevevees 5 Rules of Court 8.500 (D(A) ccccsccscsscssecssssvecsessssvessssevsssssssecsssssessesssesecesseveeseesseeees 1,3, 13 Other Authorities 1 Witkin & Epstein, Cal. Criminal Law (3d ed., 2000) «0... eceee 7 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA PEOPLE OF THE STATE OF No. CALIFORNIA, Appellate court Plaintiff and Respondent, No. H035123 VS. County of Santa Clara CHRISTINA ANZALONE, Superior Court Defendant and Appellant. No. CC935164 Hon. Ron Del Pozzo, Judge, Presiding PETITION FOR REVIEW TO: THE HONORABLE TANI CANTIL-SAKAUYE, CHIEF JUSTICE OF CALIFORNIA, AND THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURT OF CALIFORNIA: Defendant-Petitioner Christina Anzalone, by and through counsel, hereby petitions for review, pursuant to California Rules of Court, rule 8.500, subdivision (b)(4), following the decisionof the Court of Appeal for the Sixth District filed March 17, 2011, attached to this Petition as Exhibit 1. STATEMENT OF THE ISSUE PRESENTED In this case, a unanimous Court of Appeal found that reversal was required wherethetrial court had erred by failing to obtain a valid verdict from the jury before discharging them. The question presented to this Court is, in the context of a case where the entire jury panelis discharged without a verdict, without legal necessity, and without consent of the defendant, can that defendant be retried on the same case without offending longstanding double-jeopardy considerations? i ) WHY THE PETITION SHOULD BE GRANTED Pursuant to Rule 8.500, subdivision (b)(4), petitioner requests that this Court remand the matter to the Court of Appeal with instructions to implement the remedy this Court has consistently announcedfor cases wherean entire jury panelis discharged, without a verdict, without legal necessity, and without consent of the defendant. See People v. Hernandez (2003) 30 Cal.4th 1, 5: “a discharge ofthe entirejury without a verdict is equivalent to an acquittal and bars a retrial unless defendant consentedto it, or legal necessity required it.” (Citing Curry v. Superior Court (1970) 2 Cal.3d 707, 717-718; Paulson v. Superior Court (1962) 58 Cal.2d 1,9; italics in original.) See also, Carillo v. Superior Court (2006) 145 Cal.App.4th 1511, 1524: “Once a defendantis placed ontrial in a court of competent jurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn, a discharge ofthat jury without a verdict is equivalent in law to an acquittal and bars a retrial, unless the defendant consents to the discharge or legal necessity requires it.” (Citing Curry, 2 Cal.3d at 712.) In the alternative, should this Court find that its precedents noted above(as well as the additional authorities cited in Section I(a) of this brief) do not clearly compel a prohibition ofretrial in this case, petitioner requests that this Court grant review pursuant to Rule 8.500, subdivision (b)(1), for the purpose of clarifying whetherretrial is barred whena trial court discharges a jury without first obtaining a verdict. STATEMENTOF THE CASE AND FACTS! On June 1, 2009, appellant was arraigned on a four-count information, charging (1) a felony violation of Penal Codesection 245, subdivision (a)(1), including an allegation of personal use of a deadly weapon within the meaning of sections 667 and 1192.7, (2) a felony violation of section 422, including an enhancementfor personal use of a deadly weapon within the meaning ofsection 12022, subdivision (b)(1), (3) a misdemeanorviolation of section 594, and (4) a violation of section 417, subdivision (a)(1).” (CT 52-55.) Jury trial began on September 30, 2009. Argument and instruction took place on October 7, 2009, and the jury returned with verdict forms on October 8, 2009, finding appellant guilty of the felony charges in Counts (1) and (2), and the misdemeanorin count (4). (CT 138-145.) In addition, the jury verdict forms found both allegations true. (/bid.) ' A “Statement of Facts” regarding the incidents that underlie petitioner’s convictions is omitted as the petition is concerned solely with the ramifications of the trial court’s failure to obtain a verdict. For the purposeofthis petition, petitioner adopts the statementoffacts as set forth in the Court of Appeal’s opinion. (Op.at 2-3.) > All statutory references are to the Penal Code. 5 At the time that the jury returned with its verdict forms,thetrial . court indicated its belief that the jury has reached a verdict, asked the foreperson to give the verdict forms to the court, and asked the clerk to read them. (RT 378.) After the clerk read the verdict forms, the court thanked the jurors for their service and excused them. (RT 379-381.) Thetrial court never made any inquiry of any kind to the jury before discharging them. (/bid.) Nor did the court ever suggest to the jury that it was appropriate for them to address the court before they were discharged. (/bid.) Similarly, the court made no inquiry of counsel before discharging the jury. (/bid.) At no time did the prosecutor make any objection to the trial court’s actions. (/bid.) Most significantly, at no time did the trial court require the jury orits foreperson to give or confirm its verdict orally in open court.” On December4, 2009, the trial court sentenced appellant as follows: three years on count (1), eight months, to be served consecutively, on count (2) and an additional year, consecutive, for the > Such anoral declaration of the verdict is required by section 1149 of the Penal Code and the California Constitution, article 1, § 16. Section 1149 reads: “Whenthe jury appear they must be asked by the court, or clerk, whether they agreed upona verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same.” (Italics added.) 6 allegation attached to count (2) pursuant to section 12022, subdivision (b)(1), for a total of four years, eight months. (CT 188-189.) Appeal On March 17, 2011, a unanimous Court of Appeal for the Sixth District ruled that the trial court had failed to obtain a verdict before discharging the jury. (Op. at 7.) Shortly before oral argument, the Court asked the parties to be prepared to argue the question: “Tsretrial barred by the constitutional protection against double jeopardy?” (Letter of the Clerk of Court to counsel dated January 26, 2011.) Inits opinion, the Court ofAppeal answered that question in the negative and ruled that retrial was not barred. (Op. at 9-10.) Based onits finding that the trial court had erred in failing to obtain a valid verdict, the Court of Appeal “consider[ed] it unnecessary to address defendant’s other claims of error.” (Op. at 10, fn.4.) /| /| ARGUMENT I. This Court Has Consistently Held That “a Dischargeof the Entire Jury without a Verdict Is Equivalent to an Acquittal and Bars a Retrial Unless Defendant Consentedto It, or Legal Necessity Required It.” a. This Court’s Longstanding Precedents Have Held That Retrial is Barred Where the Jury is Unjustifiably Discharged. “Once jeopardy has attached, any unjustified discharge of the jury before it reaches a verdict gives rise to the defense of double jeopardy. A discharge is unjustified unless it is with the defendant’s consent or for recognized reasonsofstrict necessity.” (Op.at 8, citing Curry v. Superior Court (1970) 2 Cal.3d 707, and 1 Witkin & Epstein, Cal. Criminal Law (3d ed., 2000), Defenses, sec. 119, p. 464.) In this case, the very essenceofthe trial court’s error was distilled by the Court of Appeal below as follows: “without an oral acknowledgement of unanimity, there is simply no verdict.” (Op.at 5, citing People v. Traugott (2010) 184 Cal.App.4th 492, 500.) Thus, this case falls squarely within the rule quoted from Curry — “there is simplyno verdict,” and it 1s uncontested that there was no consent from the defense, and no legal necessity. This Court has acknowledged this simple, clear rule, repeatedly. See, e.g., Jackson v. Superior Court (1937) 10 Cal.2d 350, 359: where a mistrial was granted before a valid verdict was reached, and without defendant’s consent, this Court wrote, “underthe rules prevailing in California jeopardy attached when the jury was sworn andthat respondents havelost jurisdiction to try them again for the offenses of which they, in the eyes of the law, have been acquitted.” Seealso, Paulson v. Superior Court (1962) 58 Cal.2d 1, 9, where the judge improvidently discharged a jury which he erroneously believed to be deadlocked: “Once the jury is impaneled and sworn, the defendant1s in jeopardy. He cannot be deprived of any benefit to be derived from that jeopardyandis entitled to have the jury render a verdict, when, as in this case, he has not consented to the discharge of the jury and thereis no legal necessity for such discharge.” Similarly, in Curry v.Superior Court (1970) 2 Cal.3d 707, this Court wrote: the “discharge of the Jury without a verdict is equivalent in law to an acquittal and barsa retrial, unless the defendant consented thereto or legal necessity requiredit.” See also, Cardenas v. Superior Court (1961) 56 Cal.2d 273, 275, to the same effect. 9 Morerecent decisions by this Court have not varied from the above principle. See, e.g., Carillo v. Superior Court (2006) 145 Cal.App.4th 1511, 1524: “Once a defendant is placed ontrial in a court of competentjurisdiction, on a valid accusatory pleading, before a jury duly impaneled and sworn,a discharge of that jury without a verdictis equivalent in law to an acquittal and bars retrial, unless the defendant consents to the discharge or legal necessity requires it.” Another recent opinion of this Court is instructive, Peoplev. Hernandez (2003) 30 Cal.4th 1. There, this Court found that the improper replacementof a single juror with a qualified alternate required reversal. However, because the jury was not discharged, and because a valid verdict was reached, this Court ruled that retrial was not barred. In doing so, this Court emphasized that 1t was not in any way rethinking the rule set forth in its numerous precedents noted above: “The appellate court correctly observed that a discharge ofthe entire jury without a verdict is equivalent to an acquittal and barsa retrial unless defendant consentedto it, or legal necessity required it.” (/d., at 5, italics in original.) Finally, it should be notedthat the rule in federal courts is the same. See, e.g., Green v. United States (1957) 355 U.S. 184, 191: “For here, the jury was dismissed without returning any express verdict on that charge and without Green's consent. Yet it was given a full opportunity to return a verdict and no extraordinary circumstances appeared which prevented it from doing so. Therefore it seemsclear, underestablished principles of former jeopardy, that Green's jeopardy for first degree murder came to an end whenthe jury was discharged so that he could not be retried for that offense.” b. The Court of Appeal Erroneously Cited This Court’s Opinion in People v. Hernandez for the Proposition That Only Reversals Based on “Insufficiency of the Evidence” Bar Retrial. The lowercourt ruled thatretrial was not barred because this was “plain reversible trial error.” (Op. at 10.) This finding, which is inconsistent with the above precedents, is based on the language of one cited case, People v. Hernandez (2003) 30 Cal.4th |: “it is well settled that ‘if the defendant obtains reversal of a conviction on appeal based on trial errors other than insufficiency of the evidence,[the defendant] is subject to retrial.’” (Op. at 9, quoting Hernandez at p. 6.) 1] This quote is taken out of context. First, it should be noted that the above language in Hernandezis prefaced by the phrase, “As a generalrule, itis well settled .. .” (Hernandez, 30 Cal.4th at 6, italics added.) That qualifier is critical, because as the Hernandez opinion makesclearitself, there are at least two exceptionsto the general rule — where there is insufficient evidence to support the conviction, and where there is a discharge of an entire jury panel without a valid verdict. Indeed, this Court madethat explicit almost immediately prior to the language quoted by the Court of Appeal in that case. This Court wrote, “a discharge of the entire jury without a verdictis equivalent to an acquittal and bars a retrial unless defendant consented to it, or legal necessity required it. (/d., at 5, citing Curry v. Superior Court (1970) 2 Cal.3d 707, 717-718; Paulson v. Superior Court (1962) 58 Cal.2d 1,9.) In short, neither in its facts, nor in its language, does the Hernandez case stand for the proposition that the longstanding principle enunciated by Paulson, Curry and the other precedents listed ‘This clarification is critical, of course, because, as noted in section I(a) above, the Court of Appeal explicitly found in this case that, because of the trial court’s failure, “there is simply no verdict.” (Op.at 5, citing People v. Traugott (2010) 184 Cal.App.4th 492, 500.) |? a in subsection (a), above, has been abrogated. Indeed, as indicated here, its language shows unwavering support for the continuing vitality of the principle that where an entire jury is discharged withouta valid verdict, retrial of the defendant is barred unless he consented to the discharge or legal necessity requiredit. // // 4 CONCLUSION On the above grounds, petitioner requests that this Court grant review pursuant to Rule 8.500, subdivision (b)(4), and remand the matter back to the Court of Appeal with instructions to reconsiderits findingthatretrial is not barred in light of this Court’s prior holdings in Curry v. Superior Court (1970) 2 Cal.3d 707, et al. In the alternative, should this Court find that its precedents noted in Section I(a) of this brief do not clearly compela prohibitionofretrial in this case, petitioner requests that this Court grant review pursuant to Rule 8.500, subdivision (b)(1), for the purpose of clarifying whether retrial is barred whena trial court discharges a jury withoutfirst obtaining a verdict. Dated: April LS 2011. Respectfully submitted: Lahfoie Gabriel Bassan Attorney for Petitioner Anzalone CERTIFICATE OF WORD COUNT [, the undersigned, herebycertify that the within Petition for Review,including Tables of Contents and Authorities, contains 2749 words. This certification is based on the word count produced by the word-processing software used to create this petition. Dated: April C4 2011, Respectfully submitted: Abdfico “Gabriel Bassan’ Declarant PROOF OF SERVICE I, the undersigned say: I am over eighteen years of age and not a party to the aboveaction. Mybusiness address is 520 Frederick St., No. 26, San Francisco, Ca., 94117. On April ZS , 2011, I personally caused the attached Petition for Review to be served on the following, by hand or by U.S. mail, postage prepaid: by email: OFFICE OF THE ATTORNEY GENERAL 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 Attn: S. Birenbaum Clerk of Court COURT OF APPEAL, SIXTH DISTRICT 333 West Santa Clara Street, Ste. 1060 San Jose, CA 95113 SUPERIOR COURT, SANTA CLARA COUNTY Hall of Justice 191 N.First Street San Jose, CA 95113 Attn: Judge Del Pozzo OFFICE OF THE DISTRICT ATTORNEY 70 W. Hedding Street, West Wing San Jose CA 95110 Christina ANZALONE,Defendantand Petitioner SIXTH DISTRICT APPELLATE PROGRAM I declare under penalty of perjury that the foregoing is true and correct. Executed on April Z 5 2011, at Sa rancisco, California. CcTH, 7 Gabriel Bassan.1€clarant EXHIBIT 1 EXHIBIT 1 COPY SEE CONCURRING OPINION NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citingor relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposesof rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT THE PEOPLE, | 1035123 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC935164) “ Court of Ronee - Seth App Dis CHRISTINA MARIE ANZALONE, E Eos . MAR Gf 201 Defendant and Appellant. MICHAEL J. YERLY, Cler c BY eee ee e I. STATEMENT OF THE CASE A jury convicted defendant Christina Marie Anzalone of assault with a deadly weapon, making a criminal threat, and brandishing a deadly weapon andfurther found that she personally used a knife in committing the assault and making the threat. (Pen. Code, §§ 245, subd. (a)(1), 422, 417, subd. (a)(1), 667, 1192.7, 12022, subd. (b)(1).)! The court sentenced her to a term of 4 years 8 months. On appeal from the judgment, defendant claims she was denied herright to a complete, valid, and unanimous verdict. She claims the court erred in admitting a prior assault for purposes of impeachment,failing to sanitize it, and providing inadequate instructions on its consideration by the jury. Last, she claims the court erred in imposing " The jury acquitted defendant of misdemeanor vandalism. (Pen. Code, § 594, subd. (a)(b)(2)(A).) All unspecified statutory references are to the Penal Code. a full term enhancementonthe threat conviction and failing to stay the term for brandishing. We concludethat there was no valid verdict in this case and reverse the judgment. II. FACTS | On February 22, 2009, around 5:00 p.m., Atul Patel, who ran the Hedding Inn motel in San Jose, was at his desk when defendant came in and asked to speak to Leon Wallace, wholived there. Patel said he wasnot there. She then asked to go to his room, but Patel said she was not allowed there. Defendant accused him oflying and left. A few minutes later, she returned, pushed Patel’s computer over, and threatened to “hurt” and “kill” him. She was holding a knife, and Patel was afraid that she would use it because she appeared to have been drinking. He called 911, and sheleft. Later that day, defendant encountered Richard Malott and his wife Kimberly at the City Team Ministries. The Malotts had gonethere to eat, but Kimberly left after a short time. Outside, defendantstarted talking to her. When Richard cameout, he told Kimberly to cometo their truck to leave. Defendantsaid she wasnotfinished talking to her, she started swearing at him, accused him of abusing Kimberly, and then “chest butt[ed]” him. He started walking away and then turned around. Defendant threw a bagel and an open knife at him. The knife hit him in the chest. He pickedup the knife and went to his truck. Kimberly joined him secondslater. Asthey tried to leave, defendant blocked their way and then grabbed the antennae, which broke off as Richard drove away. A police officer was across the street during the incident. Hetestified that, immediately after the incident, defendant was too angry and drunk to beinterviewed. The Defense Defendanttestified that she was intoxicated when she went to the Hedding Inn motel. She said that she pushed over Patel’s computer becausehe had lied to her and had falsely told police that she was breaking into a room. She said she mayhave threatened to return but did not threaten to hurt or kill him. She denied taking her knife from its clip on her sweatshirt or openingit. Defendantsaid she went to the City Team Ministries to get some food from people she knew whowereleaving because she wasnot allowed inside. She started talking to Kimberly. Richard came out and verbally abused Kimberly. Defendant then started yelling at him andtrying to provokea fight. Her knife was clipped to her sweatshirt, and as she railed against him and waivedher arms,the knife flew off and skidded to the ground. Richard thenpicked it up and wentto his truck. She followed and demanded that he return it. III. UNANIMOUS VERDICT Defendant contends she wasdenied the right to complete, valid, and unanimous verdict because the court discharged the jury without an oral endorsement in open court that it had reached a unanimousverdict. Background On October 7, 2009, after final argumentand instructions, the jury retired to deliberate. On October8, the jury reported that it had reached a verdict. After the jurors returned to the courtroom, the court stated, “I understand you’ve reached a verdict” and then asked, “Whois the foreperson? Mr. (Juror)?” That juror responded, “Yes.” The court received the verdict forms from the foreperson and handed themto the clerk, who read them. Whenthe clerk finished, the court stated, “Ladies and gentlemen ofthe 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 your verdicts in this case.” The court gave jurors additional instructions concerning payment, communications with the parties, and the privacy and the release of personal information about jurors. The court concluded, “Again, I can’t thank you enoughfor your attention during this trial. I never say this, P'Il 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 wetalked about it and I appreciate your service. You are now excusedfor at least one year and if you wantto talk to the attorneys, they will be out in about three minutes in the hall, otherwise you can leave...” Applicable Statutes and Legal Principles Underthe California Constitution, a defendant in a criminal case has a fundamental right to a unanimousjury verdict. (People v. Collins (2001) 26 Cal.4th 297, 304; People v. Russo (2001) 25 Cal.4th 1124, 1132; People v. Jones (1990) 51 Cal.3d 294, 305; see Cal. Const., art. J, § 16.) Section 1149 provides: “When the 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.” (Italics added.) Section 1163 provides: “When a verdict is rendered, and beforeit is recorded, the jury may be polled, at the request ofeither party, in which case they mustbe severally asked whetherit is their verdict, and if any one answersin the negative, the jury must be sent out for further deliberation.” (Italics added.) Section 1164, subdivision (a) providesin relevantpart, “When the verdict given is receivable by the court, the clerk shall recordit in full upon the minutes, and ifrequested by any party shall readit to the jury, and inquire of them whetherit is their verdict. If any juror disagrees, the fact shall be entered upon the minutes and the jury again sent out; but if no disagreementis expressed, the verdict is complete, and the jury shall. . . be discharged from the case.” (Italics added.) It is settled that the written verdict forms do not by themselves constitute the verdict; rather, it is the oral acknowledgementofthe verdict reflected in the verdict forms ? Article J, section 16 of the California Constitution provides, in relevantpart, “Trial by jury is an inviolate right and shall be securedto all, but in a civil cause three- fourths of the jury mayrender a verdict... . [§]... [§] In criminal actions in which a felony is charged, the jury shall consist of 12 persons. .. .” in open court that constitutes a complete verdict. (People v. Hendricks (1987) 43 Cal.3d 584, 597; People v. Traugott (2010) 184 Cal.App.4th 492, 500 (Traugott); People v. Green (1995) 31 Cal.App.4th 1001, 1009 (Green); People v. Lankford (1976) 55 Cal.App.3d 203, 211, disapproved on other grounds in People v. Collins (1976) 17 Cal.3d 687, 694, fn. 4; People v. Mestas (1967) 253 Cal.App.2d 780, 786.) “{T]he right to an oral affirmation of the verdicts by the jurors is not a mere procedural formality. Even if each of the jurors voted to convict a defendant during deliberations, jurors may equivocate or change their vote when called upon in open court.” (Traugott, supra, 184 Cal.App.4th at p. 501; Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266; e.g., Green, supra, 31 Cal.App.4th 1001 [although jury announcedit had reached a verdict,in court one juror equivocated, and jury sent back for further deliberations]; People v. Superior Court (Thomas) (1967) 67 Cal.2d 929 [mistrial upheld after one juror equivocated when asked aboutverdict].) Thus, without an oral acknowledgementof unanimity, there is simply no verdict. (Traugott, supra, 184 Cal.App.4th 492, 500; People v. Thornton (1984) 155 Cal.App.3d 845, 858 (Thornton); see 6 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Criminal Judgment, § 44, p. 71.) However, the requirement of an oral acknowledgement does not meanthat the court must poll each juror. Rather, the foreperson of the jury may speak collectively for the jury and provide the requisite oral acknowledgement. (Peoplev. | Wiley (1931) 111 Cal.App. 622, 625; Stalcup v. Superior Court (1972) 24 Cal.App.3d 932, 936, disapproved on other grounds in People v. Dixon (1979) 24 Cal.3d 43, 53.) If the foreperson does so and a party questions whether the verdict was unanimous, then that party may request that the jurors be individually polled. (See §§ 1163, 1164.) However, “(t]he polling of the juryis a right available only upon the request of either party. [Citation.] A failure to make a proper request imposes no burden uponthe court to poll the jury, nor in the absence of such a request doesa failure to so poll constitute a denial of a constitutional right.”” (People v. Lessard (1962) 58 Cal.2d 447, 452.) Whereas the A complete failure to orally acknowledge a written verdict in open court would normally invalidate the verdict (Thornton, supra, 155 Cal.App.3d at pp. 856-860), individual polling errors do not require reversal in the absence of a showing ofprejudice. (People v. Masajo (1996) 41 Cal.App.4th 1335, 1339-1340.) Discussion Attorney General argues that there wasa sufficient collective acknowledgement of the verdict. According to the Attorney General, the trial court “stated it had been informed the jury reacheda verdict, and asked for the foreman who acknowledgedthey reached a verdict.” She refines this rather awkward description of what happened, alternatively stating that “[u]pon being asked, the jurors collectively affirmed this was their verdict.” The Attorney General opinesthat it is reasonable to assumethat “jurors would notsit there in silenceif in fact that was not their verdict.” Thus, she arguesthat if defendant had doubts about whether the verdict was unanimous, it was incumbent on her to requestindividual polling, which she did not do. The Attorney General misreads the record. The court did notstate that it had been informedthat the jury had reached a verdict. Although that is a reasonable inference, the court asserted only that it understood that a verdict had been reached. The record does not suggest how the court came byits understanding. Moreover, and 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. As quoted above,the court’s assertion about the verdict was not a question but an affirmative statement. The only question the court asked was who the foreperson was, and whetherit wasa particular juror. The person the court referred to answeredthat question, saying “Yes, sir.” The Attorney General reads the foreperson’s “yes”as the requisite oral acknowledgement. However, wefind this reading to be unreasonable, and wereject it. Wenotethat after the juror acknowledge beingthe foreperson, the court moved on to other matters, and although the clerk read the written verdict forms, the court did not then ask the foreperson to acknowledge the verdict. The court simply advised jurors about other matters and discharged them.> In sum, we concludethat although the jury deliberated and rendered a verdict, which wasread in court, the lack of oral acknowledgementby the jurors individually or by the foreperson rendered the jury’s verdict incomplete, defective, and invalid. And, without a valid verdict, there can be no valid judgment. Furthermore,this defectis structural and not subject to harmless-error analysis. Although 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 whenread,it is not possible for us to know whether the foreperson would have acknowledgedthe verdict; and if so, whether defendant would have requestedthat jurors be individually polled; and if polled, whetherall of the surors would have endorsed the verdict as his or her verdict. The court in Thornton, supra, 155 Cal.App.3d at page 860 expressed oursituation this way: “{W]e are faced with error of constitutional proportions whose actual prejudicial effect is insusceptible of calculation. There is no false humility in recognizing that we lack the omniscience that would enable us to say that no juror in this case would have impeachedthe guilty verdict form had defendant been afforded his right to timely test each juror in open court. We cannotsay that they were not influenced by outside > At oral argument, the Attorney General argued that taken together, (1) the court’s understanding that a verdict had been reached, (2) its receipt of the verdict forms from the foreperson, and (3) the reading of the verdict by the clerk on the record constitutes substantial compliance with section 1149. We disagree and fail to see how they represent the functional equivalent of an oral acknowledgement or substantial compliance with section 1149. forces encountered after discharge. We, therefore, have no choice butto find the errors prejudicial per se.” IV. DOUBLE JEOPARDY Weaskedthe parties to consider whethera retrial would be barred by constitutional protections against double jeopardy if the judgment were reversed, an issue not raised by defendant. Atoral argument, the parties disagreed. Defendant argued that retrial would be barred because the court dismissed the jury without a verdict and without necessity or consent. The Attorney Generalargued that retrial would not be barred because the court’s failure to secure an oral acknowledgmentofthe verdict simply constitutes reversible trial error. We agree with the Attorney General. The state and federal constitutions prohibit placing a person in jeopardy more than once for the same offense. (U.S. Const., 5th Amend.; Cal. Const. art. I, § 15.) “The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and powershould notbe allowedto makerepeated attempts to convict an individual for 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 found guilty.” (Green v. United States (1957) 355 U.S. 184, 187- 188.) The defendantis in jeopardy where,as here, he or sheis placed ontrial for an offense; on a valid indictment or information or other accusatory pleading; before a competent court; and with a competent jury, duly impaneled, sworn, and charged with the case. (See Jackson v. Superior Court (1937) 10 Cal.2d 350, 352, 355.) Once jeopardy has attached, any unjustified discharge of the jury before it reaches a verdict givesrise to the defense of double jeopardy. A discharge is unjustified unlessit is with the defendant’s consent or for recognized reasonsofstrict necessity. (Curry v. Superior Court (1970) 2 Cal.3d 707; see | Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Defenses, § 119, p. 464; Pen. Code, § 1141.) This rule “prevents a prosecutor or judge from subjecting a defendant to a second prosecution by discontinuingthetrial whenit appears that the jury might not convict.” (Green v. United States, supra, 355 U.S. at p. 188; e.g., Jackson v. Superior Court, supra, 10 Cal.2d at p. 357 [mistrial for error or misconduct over defendant’s objection]; People v. Arnett (1900) 129 C. 306 [defective verdict accepted by the court]; Paulson v. Superior Court (1962) 58 Cal.2d 1 . [premature discharge due to apparent jury deadlock].) Thus, the “discharge of the jury without a verdict is equivalent in law to an acquittal and bars retrial, unless the defendant consented thereto or legal necessity requiredit.” (Curry v. Superior Court, supra, 2 Cal.3d at p. 712.) Onthe other hand,it is well settled that “if the defendant obtains reversal of a conviction on appeal based ontrial errors other than insufficiency of the evidence,[the defendant] is subject to retrial.” (People v. Hernandez (2003) 30 Cal.4th 1, 6 (Hernandez).) In Hernandez, supra,30 Cal4th 1, the court evaluated the rule precluding retrial after an unnecessary mistrial is declared and the defendantis deprived of a verdict from his or her chosen jury. The court concludedthat this rule is inapplicable when a juror is improperly discharged and a reconstituted jury renders a verdict. (/d. at pp. 8-9.) Although the verdict could not stand because of the improper discharge ofthe juror, the court reasoned that the double jeopardy bar was not applicable because the “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 p. 9.) Weconcludethat retrial is not barred in this case. The court did not discharge the jury before it reached a verdict, and defendant was not deprived of a verdict from his chosen jury. Rather, that jury deliberated and rendered a verdict, which was read and entered. Although nothingin the record suggests that all of the jurors did not agree with the verdict when it was read, that verdict was defective because the court failed to comply with section 1149 and havethe jury orally acknowledge it in open court before being discharged. This wasplain reversible trial error. In our view,the circumstances here are more akin to those in Hernandez than to the unjustified discharge of the jury before it has reached and delivered a verdict. Accordingly, we find applicable the general rule that reversal on appeal fortrial error, other than for insufficiency of the evidence, does not barretrial. IV. Disposition‘ The judgmentis reversed. 4 . . oe . . Given our disposition, we consider it unnecessary to address defendant’s other claimsoferror. 10 RUSHING,P.J. I CONCUR: ELIA,J. People v. Anzalone H035123 PREMO,J., Concurring I concur. I write separately only to express my disappointmentat having to reverse the judgment over such an elementary issue. “[I]t is a matter of regret that occasion for it should ever have arisen.” (People v. Smalling (1892) 94 Cal. 112, 117.) It is a simple enough matter to ask the question, “Is that your verdict.” While it seems a small thing, the failure to ask the question deprives any equivocating juror of the opportunity to express his or her reservations. Norisit appropriate to interpret the jury’s silence as assent since there was no question to whichthe jury could have assented, silently or otherwise. “The record clearly showsthat irregularities existed in the manner in which [the verdict was] returned into court; irregularities occasioned without necessity, and which could have been easily avoided. In cases of felony ... the only correct procedure is to adhere strictly to the statute. Any other course is a dangerous innovation, which generally results in a miscarriage ofjustice.” (/d. at p. 120.) Premo,J. People v. Anzalone HO035123
