PEOPLE v. ANZALONE

Respondent's Petition for Review

Cal.April 26, 2011

ao # Fa ee ky - 2 . . In the Supreme Court of the State of California THE: PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Case No. S v. CHRISTINA ANZALONE, amareDefendant and Appellant. COr Sixth Appellate District, Case No. H035123 = cour Santa Clara County Superior Court, Case No, CC935164.., waarEME Ron M.Del Pozzo, Judge BM eiEDae PETITION FOR REVIEW ad ‘ an\\ KAMALAD, HARRIS cenyr CE Attorney General of California myAE DANER. GILLETTE ered!eee Chief Assistant Attorney Generalecon—~sapuly GERALD A. ENGLER Senior Assistant Attorney General STAN HELFMAN Supervising Deputy Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General SHARON G., BIRENBAUM Deputy Attorney General State Bar No. 94925 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5870 Fax: (415) 703-1234 Email: Sharon.Birenbaum@doj.ca.gov Attorneysfor Respondent TABLE OF CONTENTS Page Issue Presented ........ccsssessessesesesressessees renesensussaeseneavesesseseseveceneesesesenenaseneeney 1 StateMeMnt0.esecesesessessceevessessnscsesesesesaesesesscseevecsvesscsescaevassvscsscsvevaseesearae I A. Factual summary and verdicts ........ccccsesssscscssseseseees 1 B. Statutes related to the return of verdicts ..........cce 2 C. The proceedings on the return of the verdict... 3 Dd. The court of appeal decision......cucecccsseessnssesserses 4 Reasons for Granting REViIOW .....cccccscesecsesscsssscecsevscsssesessacscsecseceaesavancaneaes 5 i, The trial court’s failure to have the jury affirm the verdicts as read in its presenceif error is not structural error but forfeitable statutory frOr.....ccccccsstssseeeeceeresseeens 6 A. The claim wasforfeited ..........cccccccsssssssescsssesesesseceees 6 B. There was substantial compliance with the statutory requirements in the return of the VETICEcee seeserseeecsessesstsnsescseesscsseessssesceesersevesaseesaes 7 C. Assuming the court erred in failing to have the Jury affirm the verdict, appellant suffered no PLOFUCICE oo. escccsececesessersssesssesessesecsscsscsuseeseveuseusaesees 8 COMCIUSION oo. ceseseceeseestesessssesssssesecscsessssesessuscevsvecsssseseusevessusevavscneeeeevaes 16 TABLE OF AUTHORITIES Page CASES Arizona y. Fulminante (1991) 499 U.S. 279. cccetscecseeetsessesesssssessssseeesesseseeseseterseseessrsrsssseeseeaens 11 Delaware v, Van Arsdall (1986) 475 U.S. 673cecesesseeeneeeeseveeseseserseseeseesevasecessenesessesaesseeseseneeres 11 _Gideon v. Wainwright (1963) 372 U.S. 335cc csnesecsessseersesscsssssscesssesssssesasesenssseersesseseesesseseestenees 10 McKaskle v. Wiggins . (1984) 465 U.S. 168... seveesecaesueevsessecaecnerseeesecsessrsasnsnessesseeaeseseasnes 10 Neder v. United States (1999) 527 U.S.Licicsesesessetssesssesseessevesseceseevscnessaseavsessseeeseeessesseeeessneveeeets 10 People v, Coddington (2000) 23 Cal.4th 5290. eesscessenecssssecseesecsevseessessecseseusessnssarsaneessessesrases 13 People v, Collins (1976) 17 Cal.3d 687 ooo. ecsscecesscsssseeesssssesecsesscseesesarsnseaseeceesesseseensas 14, 15 People v. Epps (2001) 25 Cal.4th 19oisccenecssesseeecneeseerssesseseesssseseesieecesetesdersassesaeenes 15 People y. Flood (1998) 18 Cal.4th 470ieseccscsrssssseesssssstsssessssscesseatsseesessrsssssnssssaveneenees 10 People v, Gilbert (1880) 57 Cal. 96 vee ascesseetecrereeressstersessssessesnsssseessesestessesetersnss 6, 14,15 People v. Hendricks (1987) 43 Cal.3d 584 vc ccecccsssssssersessesserssesnesscssessessesevsseeseessesserseeeatees 14 People v. Lankford (1976) 55 CalApp.3d 203 ve ciccccecessensenstssereseccsecsrcseesiesesrssesereeeceseatenses 14 People v, Lessard (1962) 58 Cal.2d 447iscsesessseecsssesscessssesssessesssssseassarssesssecessseeseeratens 13 ii People vy, Marshall (1996) 13 Cal 4th 799 ooecceceensesseneteseessesseecesssnessaeessessnseesssesssaescsesesesees 9 People v. Masajo (1996) 41 Cal.App.4th 1335 occccssseescsesssevsssecsssseeesseeecsssesessssesessses 13 People y. Mestas (1967) 253 Cal.App.2d 780 viccccesecusctettseresneseeteeseeseennesienesiesseceraeseres 15 People v. Redundo , (1872) 44 Cal. 538 vccccccescteteseetecsceenetsersseesteesersssrsssesesssssiesaensearessees 5,15 People v. Saunders (1993) 5 Cal4th 580sererseecsterseeessesesserececsrseesessesssensneersseesasaees 6, 7 People v, Smalling (1892) 94 Cal. 112iccssetesecssnssessssssteseecseteseetsesessesecsssseeveesaes 6, 14, 15 People vy. Smith (1881) 59 Cal. 601 oeceecsssenetsessecssssssereseesrssssesrsersesseseeseses..6, 14, 15 People v. Thornton (1984) 155 Cal.App.3d 845 veccccccsscccsscssssssssssecessssescessssssseesssersevensen 13, 14 People v. Traugott (2010) 184 Cal.App.4th 492 oo... ccscesecssssssssessesessssseessseesseneeeersens seseenneee 15 People v, Williams (2010) 49 Cal.4th 405 veecseessseerecsscsssassessasssssesessessecsessseessesesseetenssaes 13 People v. Wright (1990) 52 Cal.3d 367,415ci cccsssesscetcetsetecsesaceessersccessesnesesssssessneersags 13 Price v. Superior Court (2001) 25 Cal4th 1046 oocesstecscnenetensnsseacssccssssesesesessetessesstseererseees 13 Rose v. Clark (1986) 478 U.S. STO... ecccecccsssesscescsuecessusseceteuscessersevesvsssaeeevsnvneseseverstons 10, 11 Stone vy. Superior Court (1982) 31 Cal.3d 503 ve ecccsesessenscsssecssessnscseseseusesstssesersersssersseneasessvesvenes 6 Sullivan v. Louisiana (1993) 508 U.S. 275. cccccccstscccssscserscsssscesecevssevevstsesesssssessaesvaneesevacseseoersas 9,10 Tumey v. Ohio (1927) 273 US. S1Occccsceseesesetsecetesceseeressseneesetecsesessaseestseassasseressseeeegs 10 ili Vasquez v. Hillery (1986) 474 U.S. 254. ceceseseseeeesssessecssssestessessesessesesessessessesssaesaesentssaens 10 Waller v. Georgia (1984) 467 U.S. 39. iccsccsestessesseescecstesecsssssessescseceesecsterevesseeesescetsseseneaees 10 Washington vy. Recuenco (2006) 548 U.S. 212iccetecsscssserensestsessscnscersrersseeseseesaeeneusaneesestasnaeees 9, 10 STATUTES Penal Code § LASi eeccsectsseneeeseenersersececsecaesessacenenessecsssessaeesesaucsseesecenscnesseenesensvasseeetenstenss 1 SLTeecceetscnseetsesssessesseseecnevsressassaseeecsssesersessesveceserscasevsecessesseseutieeersnseasa 1 BODececetsnceteceneessecsessecsececsesessssesseesssessessessressesaesasaeesseegseeessvansueseessenera 1 § O67eee ecccceessseceeerestersevsesecssesesscessrescsessesnsseessesaseesessecstessereessseveevaesenrses 1 9 ODS. eeseesseteeeeeresssersseseseseesseesesescssssesecseesessessscersnssnsvassessueravavecseeaeasesitaees 7 SATei cccetessssssetsessessessecseecseessesscssevcatenscessensssessnseseesevseusenseassenses 2, 7; 15 § 1149.eee secsevacevecaeeneusesssesssenssausenscssecassesssessessasacscsaeseresenesas 2, 4, 5,9 BL 1G3eseseteteeseessseetecssesseeseecsessesceesessesasrsssesanseteeescavensuesrtereveusens 2, 13 § LLO4ieetecsesstsesseneesessecsseccsecsserssessessessessesseseesaeersesseventessessuususs 2,4, 7 8 GOTileeeecsesscsenscsescestevsecssesssseseesesesseuecrecssseessesasecsecateseresssssasseevenesated 1 SSBeeccesesesscsarenscsesssesssessesessasssersesesssssesesseususausessusvesseavevsessecarssars 6, 8 § AOAee eseeeceesssessesssecsecessesssessesssesseevsrsenessscsseseenessescessseussarsesevessaas 6, 8,9 8 2022.ee sesceseeneeseecesesessvsevseescsecsessaesnsenssessesaseesesessastecseveresseaseeseeeserss 1 CONSTITUTIONAL PROVISIONS California Constitution Article VI, § 13 vecccecsssssccssssscesssesesssessecsssssesessessenssvessesssssserevsscaresarsnsenaess 6,8> COURT RULES California Rules of Court TUNE 8. SOO(C)eeececcescscsesesenssessessecsrseenssassecsesscsesevasssseesseeessseessesetsesecsesenses 1 iv Respondentrespectfully petitions for review of the decision of the Court of Appeal for the Sixth Appellate District. The decision, whichis attached as Exhibit A, is unreported. The Court of Appealfiled its decision on March 17, 2011. Nopetition for rehearing was filed. This petition for review is timely. (Cal. Rules of Court, rule 8.500(e).) ISSUE PRESENTED Whenthetrial court states to the jury it understandsthe jury has reacheda verdict, asks the foreperson for the verdicts, and has the clerk read the verdicts in the presence ofall parties andall jurors, does the court’s failure to ask the jury to affirm the verdicts constitute nonforfeitable structural error? | STATEMENT A. Factual Summaryand Verdicts Appellant threatened to kill the proprietor of a hotel, displaying a knife, Later that day, she assaulted a man with a knife. (Typed opn.atpp. 2-3.) A jury found appellant guilty of assault with a deadly weapon (Pen: ' Code, §245, subd. (a)(1)), making a criminal threat (Pen. Code, §422), and misdemeanor brandishing a deadly weapon (a knife) (Pen. Code, §417, subd.(a)(1)). The jury found with respectto the assault that appellant personally used a deadly and dangerous weapon(a knife) within the meaning of Penal Codesections 667 and 1192.7, and with respect to the criminalthreat, personally used a deadly and dangerous weapon(a knife) | within the meaning of Penal Code section 12022, subdivision (b)(1). (CT 51-54, 138-142, 143-146.) B. Statutes Related To The Return of Verdicts Penal Code section 1147 provides: Whenthe jury have agreed upon their verdict, they must be conducted into the court by the officer having them in charge. Their names mustthen be called, and if all do not appear, the rest must be discharged without giving a verdict. In that case the action may be again tried. Penal Code section 1149 provides: 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. Penal Code section 1163 permits polling of the jury—upon request of a party: Whena verdict is rendered, and beforeit is recorded, the jury may be polled, at the request ofeither party, in which case they must be severally asked whetherit is their verdict, and if any one answerin the negative, the jury must be sent out for further deliberation. (Emphasis added.) Penal Code section 1164 provides: (a) Whenthe verdict given is receivable by the court, the clerk shall record it in full upon the minutes, and ifrequested by any party shall read it 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 disagreement is expressed, the verdict is complete, and the jury shall, subject to subdivision (b), be discharged fromthecase. (b) No jury shall be discharged until the court has verified on the record that the jury has either reached a verdict or has formally declaredits inability to reach a verdict on all issues before it, including, but not limited to, the degree ofthe crime or crimes charged, and the truth of any alleged prior conviction whether in the same proceedingorin a bifurcated proceeding. (Emphasis added.) C. The Proceedings on the Return of the Verdict The following proceeding occurred in open court: THE COURT: We’re in session in Docket CC935164, Attorneys are present, Mr. Hultgren andhis client and DA Ms. Frazier. Jury has indicated they have a verdict. We’\| bring them out. Thank you. (JURYPRESENT) THE COURT: We’re back on the record in the presence of the “jury now as well. And /adies and gentlemen, I understand you ‘ve reached a verdict, Whois the foreperson? Mr. (juror)? JUROR: Yessir. THE COURT: Hand the verdictforms to the deputy. I'll hand those to the clerk to read the verdict. THE CLERK: Superior Court of California Santa Clara County. People of the State of California plaintiff versus Christina Marie Anzalone defendant. Case number CC935164. The department 39. Count 1, we the jury in the aboveentitled cause find the defendant Christina Marie Anzalone guilty of a felony to wit: assault with a deadly weaponin violation of Penal Code section 245 subsection A, subsection 1, Special allegation number 1. We further find the allegationthat the said defendant personally used a dangerous or deadly weapon,a knife within the meaning of Penal Code section 667 and 1192.7 to be true. Dated and signed. Same cause, same action. Wethe jury in the above entitled cause find the defendant Christina Marie Anzalone guilty of a felony to wit: threats to commit a crime resulting in death or great bodily injury in violation of Penal Codesection 422. Special allegation number 1. We further find the allegation that the said defendant personally used a dangerous or deadly weapon, a knife within the meaning of Penal Code section 12022 subsection b, subsection 1 to be true. Dated and signed. Samecause, [S]ame action. Wethe jury in the aboveentitled cause find the defendant Christina Marie Anzalonenot guilty of a misdemeanorto wit: vandalism less than $400 in violation of Penal Code section 594 subsection a slash subsection b, subsection 2, subsection A. Dated andsigned: Same cause, same action. Count 4. Wethejury in the above entitled cause find the defendant Christina Mar[ie] Anzalone . guilty of a misdemeanorto wit: exhibiting a deadly weapon other than a firearm in violation of Penal Codesection 417, subsection a, subsection 1. Dated and signed. THE COURT: Ladies and gentlemen of the jury, you’ve now completed your jury service in this case and on behalfofthe 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. (2 RT 378-379, emphasis added; see also CT 143-145.) The verdicts were recorded. (CT 145.) The court gave predischarge instructions to the jury concerning payment, communications with the parties, and the privacy and the release of personal information about jurors. It then excused the jurors. (2 RT 379-381.) There was no objection to the court’s action, nor was there a request by either party to have the jury polled. D. The Court of Appeal Decision The Court of Appeal reversed. It found “ample if not overwhelming evidence to support the verdict reflected in the verdict forms” and “nothing in the record to suggest that the jurors did not agree with the verdict when read.” (Typed opn.at pp. 7 and 9.) It further found that appellant “was not deprived of a verdict from [her] chosen jury. Rather, that jury deliberated and rendered a verdict, which was read and entered.” (/d. at p. 9.) - The Court of Appeal heldthat the trial court’s failure to askthe jury or jury foremanto affirm the verdicts as read violated Penal Codesection 1149,(id. at pp. 7, 10), and that the error was structural. It therefore reversed without conducting harmless error analysis. (/d. at p. 7). The Court of Appeal rejected appellant’s further claim that double jeopardy precludedretrial. In that portion ofits decision, the Court of Appealasserted that the error was “‘trial error’: 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 nothing in 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 was plain reversible trial error. , (Typed opn.at pp. 9-10.) REASONS FOR GRANTING REVIEW Review is sought to secure uniformity of decision andto settle an important question of law. Alternatively, review is sought to transfer the matter back to the Court of Appeal to consider the matter in light of controlling legal principles cited in the transfer order of this Court. The Court of Appeal, without analysis, labels the statutory violation it found “structural error” and reversible per se. It then inconsistently characterizes it as “plain reversible trial error.” We are aware of no authority establishing that a procedural error underthe statutes regulating the return ofverdicts is both structural andtrial error as found bythe Sixth District Court of Appeal. The Court of Appeal’s conclusion is contrary to decisions of this Court applying harmless error to other technical violations of the statutes in receiving verdicts. (See People v. Redundo (1872) 44 Cal. 538 [failure to call namesofjurors in violation of then section 414, although an irregularity in receiving the verdict, in no way prejudiced defendant};- People vy. Gilbert (1880) 57 Cal. 96 [failure to record verdict before discharge of the jury did notaffect thevalidity of the judgment]; People v. Smith (1881) 59 Cal. 601 [same]; People v. Smalling (1892) 94 Cal. 112 [discharging jury before recording verdict in violation ofstatute harmless]; cf, Stone v. Superior Court (1982) 31 Cal.3d 503, 511 [cases finding implied verdicts in certain circumstancesrebut People’s contention that a jury verdict in a criminal case cannot be given effect unless the formal- statutory procedures under sections 1149, 1163, and 1164 are followed].) The Court of Appeal’s decision is contrary to Article VI, section 13, of the California Constitution. It provides that “[n]o judgment shall be set aside,or newtrial granted, in any cause, . . . for any error as to any matter of procedure, unless, after an examination of the entire cause .. . the court shall be of the opinion that the error complained of has resulted in a miscarriage ofjustice.” Additionally, the decision below is in conflict with Penal Code sections 1258 and 1404. I. THe TRIAL CouRT’S FAILURE TO HAVE THE JURY AFFIRM THE VERDICTS AS READIN ITS PRESENCE IF ERROR Is NOT STRUCTURAL ERROR BUT FORFEITABLE STATUTORY ERROR A. The Claim Was Forfeited Defendant’s claim oferror in the taking and recording of the verdicts on which the Court of Appeal reversed was forfeited. The defense did not request that the jury be askedif it had reacheda verdict before the verdicts were read. The defense did not request polling of the jury. Nor did the defense object to the recording of the verdicts. Finally, it did not object whenthe court discharged the jury. Ample time existed in which to object and any error would have been avoided. In People v. Saunders (1993) 5 Cal.4th 580, 591-592, this Court rejected the defendant’s claim that he was deniedhis statutory right to a determination of alleged prior convictions by the samejury that determined his guilt as provided in Penal Code sections 1025 and 1164, subdivision (b). “An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method ... The circumstances may involve such intentional acts or acquiescence as to be appropriately classified under the - headings of estoppels or waiver... . Often, however, the explanation is simply that it is unfair to the trialjudge and to the adverse party to take advantage of an error on appeal whenit could easily have been corrected at the trial.” (/d. at p. 590, emphasis in original.)! B. There Was Substantial Compliance with the Statutory Requirements in the Return of the Verdict Thetrial court stated, “Jury has indicated they have a verdict. We’ll bring them out.” (2 RT 378.) The record showsthe jury waspresent in court. Thus, the provisions of section 1147 were met. The Court then stated, “We’re back on the record in the presence of the jury now as well. And Ladies and Gentlemen,I understand you’ve reached a verdict. Whois the foreperson? Mr, (Juror)?” A juror responded “Yes, sir” and the court directed him, “Hand the verdict formsto the deputy. Ill handthoseto the clerk to read the verdict. (2 RT 378.) Thus, addressingthe jurors, the court stated it understood they reached a verdict, and when the foreperson identified himself, had the foreperson handin the verdict formsso that the clerk could read them. We submitthat this substantially complied with the requirements of section 1149: “When thejury appear they must be asked by the Court, or Clerk, whether they have agreed upontheir verdict, and if the foreman answers in the ' By letter, respondentcited Saunders to the Court of Appeal before oral argument. (Letter filed February 15, 2011.) affirmative, they must, on being required, declare the same.” (Emphasis added.)’ : In this case, the trial court had the clerk read the verdicts in open court. Underthe controlling statutes, supra, there is no absolute requirementthat the trial court, without request, ask the jurors to affirm the verdicts read in open court as theirs, whether or not that is the usual or even the preferred practice. We submit that there was substantial compliance with the statutory requirements in receiving the verdicts here. C. Assuming the Court Erred in Failing to Have the Jury Affirm the Verdict, Appellant Suffered No Prejudice Evenif the claim was preserved and there wasstatutory error, it was neither structural error, as found by the Court of Appeal, nor prejudicial. Article VJ, section 13, of the CaliforniaConstitution provides that “[nJo judgmentshall be set aside, or new trial granted, in any cause, .. .for any error as to any matter of procedure, unless, after an examination of the entire cause... the court shall be of the opinion that the error complained of has resulted in a miscarriage ofjustice.” Penal Code section 1258 requires: “After hearing the appeal, the Court must give judgment without regard to technical errors or defects, or to exceptions, which do notaffect the substantial rights of the parties.” Penal Code section 1404 provides: “Neither a departure from the form or modeprescribed by this Code in respect to any pleading or proceeding, nor * The Court of Appealstates that respondent misread the record, asserting that the trial “court did not state that it had been informedthat the jury had reached a verdict” (although acknowledging this was a reasonable inference) but, instead, “asserted only that it understood that a verdict had been reached.” (Opinion at p. 6.) Thetrial court stated in open court that the “[j]ury has indicated they have a verdict” and in the presence of the jury the trial court stated that it “understood they reached a verdict.” (2 RT 378.) Webelieve the only reasonable inferenceis that the trial court had been informed that the jury had reached a verdict. an error or mistaketherein, rendersit invalid, unlessit has actually prejudiced the defendant, or tendedto his prejudice, in respect to a substantial right.” | Appellant framed the issue in the Court of Appeal as a violation of the due process right to a unanimousjury. But the Court of Appeal recognized 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. Rather, that jury deliberated and rendered a verdict, which was read and entered.” (Typed opn.at p. 9.) The Court further recognized that “nothing in the record suggests that all of the jurors did not agree with the verdict whenit wasread.” (/bid.) Instead, the Court of Appeal foundthe verdict defective becausethe trial court did not comply with the statutory requirement of section 1149 in receiving the verdict. (/d. at pp. 9-10.) Theerror identified by the Court of Appeal wasa statutory defect, subject to harmless error analysis. It was not “structural”error. Asthis Court has explained: A structural defect is the type of error “affecting the framework within which the trial proceeds, rather than simply an error in the trial processitself,” one that “transcends the criminal process’” and “‘def[ies] analysis by ‘harmless-error’ standards.” (Arizona v. Fulminante [1991] 499 U.S. [279] at p. 309-311.) Examples of structural defects include total deprivation of the right to counselat trial (Gideon v. Wainwright (1963) 372 US. 335); trial before a judge whois not impartial (Tumey v. Ohio (1927) 273 U.S. 510); and the giving of a constitutionally defective instruction on reasonable doubt (Sullivan v. Louisiana (1993) 508 U.S. [275,] 281-282.) (People v. Marshall (1996) 13 Cal.4th 799, 851, parallel citations omitted.) “I]t is the rare case in which [even] a constitutional violation will not be subject to harmlesserror analysis.” (Sullivan v. Louisiana, supra, 508 U.S. at p. 282 (conc. opn. of Rehnquist, C.J.).) In Washington v. Recuenco (2006) 548 US. 212, 218, the Supreme Court reiterated, “Only in rare cases ‘has this Court held that an erroris structural, and thus requires automatic reversal.” Indeed, evenif instruction on an elementofthe offenseis omitted or erroneous,it is still subject to harmless error analysis. (Nederv. United States (1999) 527 U.S. 1, 8-15, 19; People v. Flood (1998) 18 Cal.4th 470, 502-503, 506.) | The Supreme Court has addressed the basic underpinning of the harmless error doctrine as applied to constitutional error in these terms: In Chapmanv. California, 386 U.S. 18 (1967), this Court rejected the argumentthat errors of constitutional dimension necessarily require reversal of criminal convictions. And since Chapman,“we have repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harniless beyond a reasonable doubt.” That principle has been applied to a wide variety of constitutional errors. Our application of harmless-error analysis _ in these cases has not reflected a denigration of the constitutional rights involved. (Rose v. Clark (1986) 478 U.S. 570, 576-577, citations omitted.) The Supreme Court does recognize that “someerrors necessarily rendera trial fundamentally unfair. The state of course mustprovidea trial before an impartial judge, with counsel to help theaccused defend against the State’s charge. Without these basic protections, a criminaltrial cannot reliably serve its function as a vehicle for determination ofguilt or innocence, and no criminal punishment may be regarded as fundamentally * In a footnote, it cited these rare instances — Gideon v. Wainwright (1963) 372 U.S. 335 (complete denial of counsel); Tumey v. Ohio (1927) 273 U.S. 510 (biased trial judge); Vasquez v. Hillery (1986) 474 U.S. 254 (racial discrimination in selection of grand jury); McKaskle v. Wiggins (1984) 465 U.S. 168 (denial of self-representationat trial); Waller v. Georgia (1984) 467 U.S. 39 (denial of public trial); and Sullivan v. Louisiana (1993) 508 U.S. 275 (defective reasonable doubtinstruction). (Washington v. Recuenco, 548 U.S.at p. 218, fn. 2.) 10 fair.” (Rose v. Clark, supra, 478 U.S. at pp. 577-578, citations omitted.) However, the errors to which harmless error analysis does not apply are the exception and notthe rule. [Citation.] Accordingly,if the defendant had counsel and wastried by an impartial adjudicator, there is a strong presumption that any othererrors that may have occurred are subject to harmless-error analysis. The thrust of the manyconstitutional rules governing the conduct of criminaltrials is to ensure that those trials lead to fair and correct judgments, Where a reviewing court can find that the record developedat trial establishes guilt beyond a reasonable doubt, the interest in fairness has been satisfied and the judgment should be affirmed. As we have repeatedly stated, “the Constitution entitles a criminal defendantto a fair trial, not a perfect one.” (id. at pp. 578-579.) “The harmless error doctrine recognizes the principle that the central purposeof a criminaltrial is to decide the factual question of the | defendant’s guilt or innocence [citation], and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error. Cf. R. Traynor, The Riddle ofHarmless Error 50 (1970) (‘Reversal forerror, regardless ofits effect on the judgment, encourageslitigants to abuse the judicial process and bestirs the public to ridicule it’).” (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681; accord, Arizona v, Fulminante (1991) 499 U.S. 279, 308; Rose v. Clark, supra, 478 U.S.at p. 577.) In this case, thetrial court stated it understood the jury reached a verdict and asked the foreman to give the verdict formsto the bailiff. The verdicts were then read in open court in the presenceofall the jurors, None of the jurors indicated at any time they had not reached a verdict or that the verdicts read in court were not their verdicts, and there was nothing in the record to show that the verdicts were incomplete, inconsistent, or defective. 1] Under such circumstances anyviolation of the statute wasstatetrial error, subject to harmlesserror analysis, not structural error. The Court of Appeal found that it could not determineif the error was harmless because“it is not possible for us to know whether the foreperson would have acknowledged the verdict; and if sO, whether defendant would have requested that jurors be individually polled; and if polled, whetherall of the jurors would have endorsed the verdict as his or her verdict.” (Typed opn. at p. 7.) The Court’s analysis is based on conjecture and speculation, not a reasonable examination of the record. After the jury indicated it had a verdict and the court hadit brought into the courtroom, the court specifically addressedthe jurors,stating it understood they reached a verdict, asked for the foreperson, then had the foreperson handthe verdicts to the bailiff, so that the verdicts could be handedto the clerk to read. The - clerk read those verdicts, in the presence ofall the jurors,including the foreperson, and all parties. The Court of Appeal acknowledges that “there is nothing in the record to suggest that the jurors did not agree with the verdict when read... .” (Typed opn.at p. 7.)* Hence,there is no. reasonable basis to suggest that the foreperson would not have acknowledged the verdicts. While polling the jurors is a prophylactic protection of the constitutional right to a unanimous verdict, polling itself is a statutory right and only operative upon request of a party. Nothing in the statutes requires the court to ask the parties, on the record, if they wish the jury to be polled. “The polling of the jury is a right available only upon the request of either party... A failure to make a proper request imposes no burden upon the * The jury had been instructedthatits “verdict on each count and any special findings, that’s the allegations, must be unanimous. This means that, to return a verdict, all of you must agreeto it.” (2 RT 278.) 12 court to poll the jury, nor in the absence of such a request does a failure to so poll constitute a denial of a constitutional right.” (People v. Lessard (1962) 58 Cal.2d 447, 452; see People v. Masajo (1996) 41 Cal.App.4th 1335, 1340 [even underfederal law, the right to poll the jury is not of constitutional dimension, finding harmless the failure of the court to individually poll the jurors]; see also Pen. Code,§1 163 [“When a verdictis rendered, and beforeit is recorded, the jury may be polled,at the request of eitherparty... ,” emphasis added.) Indeed, even when jury is incompletely polled and defense counsel makes no objection, the claim of © error may be found to be forfeited on appeal. (See People v. Wright (1990) 52 Cal.3d 367,415, disapproved on another ground in People v. Williams (2010) 49 Cal.4th 405, 458-459 [issue of failure to individually poll one of the 12 jurors waived byfailure to object].) Further, failure to request individual polling would not support a claim ofineffective assistance of counsel in the absence of a showing of prejudice. (People v. Coddington’ (2000) 23 Cal.4th 529, 656, disapproved on other groundsin Pricev. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13 [to establish prejudice record mustreflect dangers polling seeks to avoid actually occurred].) Neither counsel requested that the jury be polled. The record shows no inadequacy of counselas there was nothing to suggest any juror would have disavowed the verdict. Indeed, the Court of Appeal recognized that the evidence supporting the verdicts here were “ample if not overwhelming.” (Typed opn.at p. 7.) The decisions cited by the Court of Appeal as support for its decision are distinguishable. Each involved defects, mistakes, or inconsistencies with respect to the verdicts themselves, or the absence ofa jurororparty. In People v. Thornton (1984) 155 Cal.App.3d 845, the clerk read the verdict form finding defendant not guilty of the charged offense, and after the jury affirmedthis as its verdict, the verdict was recorded, and the jury 13 was excused. It was later discovered that the jury had signed a second verdict form finding defendant guilty of the lesser included offense. However, there was no reading, acknowledgement, or recordation of this verdict. Thetrial court reconvened the excused jury the next day to read and record the verdict. Thorntonheld it beyond the court’s powerto reconvenethe discharged jury, and, hence. the only verdict was the one . rendered before the discharge of the jury. Thornton acknowledgedthis Court’s holdings that nonprejudicial departures from statutory procedures do not require the rejection of a defective verdict. (See People v. Gilbert (1880) 57 Cal. 96, People v. Smith (1 881) 59 Cal. 601, People v. Smalling (1892) 94 Cal. 112). Thornton distinguished those decisions because the verdicts in those cases were read, recorded, and acknowledged. (Thornton, supra, 155 Cal.App.3dat p. 857.) In People v. Hendricks (1987) 43 Cal.3d 584, a special circumstance murder case in which defendant pleadednot guilty by reason of insanity, the jury found defendant guiltyas charged, and set the penalty at death, On the day for sentencing, the parties reminded the court that a sanity hearing had not been conducted after the guilt phase, as required by statute. Over defendant’s objection, the court reconvened a new jury to decide sanity. | That jury deadlocked and a mistrial was declared, Thetrial court, over defendant’s objection, then reconvenedthe original jurors who had been discharged five months earlier for a new sanity hearing. This Court reversed on the ground that “once the court loses control overthe jurors, it is without jurisdiction to call them together again.” (/d. at p. 597.) In People v. Lankford (1976) 55 Cal.App.3d 203 (disapproved on another ground in People v. Collins (1976) 17 Cal.3d 687, 694), the verdict wassigned and dated before one ofthe original jurors had been replaced by an alternate. However,the verdict was orally acknowledgedin court by the eleven original jurors and the alternate. In that context, the Court of Appeal 14 stated that the “oral declaration of the jurors endorsingthe result is the true return of the verdict.” (/d. at p. 211.) In People v. Mestas (1967) 253 Cal.App.2d 780, the jury’s signed and dated verdict forms purported to find the defendant both guilty and not guilty of the offense. The Mestas court foundthetrial court did not err in immediately sending the jury back for further deliberations, and allowing them to return and acknowledge only the guilty verdict. It was in this context that the Mestas court stated that the oral declaration by the jurors unanimously endorsing a given result is the true return of the verdict. (/d. at p. 786.) In People v. Traugott (2010) 184 Cal.App.4th 492, 500, one ofthe 12 jurors was absent whenthe verdicts were read, Penal Code section 1147 specifically providesthatif all jurors do not appear in court afterthe jury agrees on a verdict, “the rest must be discharged without giving a verdict” and the action may be againtried. No such deficiency as occurred in those cases is present here. Instead, there was at most a technical violation of a state statute, which was not prejudicial, like the failure to call juror names in People v. Redundo, supra, 44 Cal. 538 and the discharge of the jury before recording the verdicts in People v. Gilbert, supra, 57 Cal. 96; People v. Smith, supra, 59 Cal. 601, and People v. Smalling, supra, 94 Cal. 112. (See People v. Epps (2001) 25 Cal.4th 19, 29 [court need not consider the dual federal harmless error standards because the right to jury trial on prior conviction allegations is purely a creature ofstate statutory law; because the error was purely one of state law, the state harmless error test applies],) Under the circumstancesofthe instant case, where the court addressed the jury, stating it understood they reached a verdict, asked the foreperson to hand in the verdicts, and had those verdicts read in open court in the presenceofall jurors and parties, any error by the court in not asking the 45 foreman orjury after the verdicts were read to affirm it was their verdict was harmless. CONCLUSION Accordingly, respondent respectfully requests that review be granted. Dated: April 26, 2011 SF2010400126 2044121 1.doc Respectfully submitted, KAMALA D. HARRIS | Attorney General of California DANER. GILLETTE Chief Assistant Attorney General ‘GERALD A, ENGLER Senior Assistant Attorney General STAN HELFMAN Supervising Deputy Attorney General LAURENCEK. SULLIVAN Supervising Deputy Attorney General SHARONG. BIRENBAUM Deputy Attorney General Attorneysfor Respondent 16 CERTIFICATE OF COMPLIANCE I certify that the attached PETITION FOR REVIEWuses a 13 point Times New Romanfont and contains 4,960 words. Dated: April 26, 2011 KAMALA D, HARRIS Attorney General of California Deputy Atterney General Attorneysfor Respondent EXHIBIT A SEE CONCURRING OPINION NOT TO BE PUBLISHEDIN OFFICIAL REPORTS California-Rujes 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 3.1115(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, _ | | H035123 | (Santa Clara County Plaintiff and Respondent, Super. Ct. No. CC935164) Vv. cam las MAR i7 2011 MICHAEL J. YERLY, Glerk CHRISTINA MARIE ANZALONE; Defendant and Appellant. By DEPUTY J. STATEMENTOF THE CASE Ajury convicted defendant ChristinaMarie Anzalone of assault with a deadly weapon, making a criminal threat, and brandishing a deadly weapon and further found that shepersonally used a knife in committing the assault and makingthe 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 her right to a complete, valid, and unanimousverdict. She claims the court erred in admitting a prior assault for purposes of impeachment,failing to sanitize it, and providing inadequate instructionson its consideration by the jury. Last, she claimsthe 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 enhancementon the 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, wasat his desk when defendant camein and asked to speak to Leon Wallace, wholived there. Patel said he was not there. She then askedto go to his room, | but Patel said she was not allowed there. Defendant accused him of lying and left. A few minutes later, she returned, pushedPatel’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. Defendant said she wasnot finished talking to her, she started swearing at him, accused him of abusing Kimberly, anid 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 picked up the knife and wentto his truck. Kimberly joined him secondslater. As they 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 be interviewed. The Defense Defendanttestified that she was intoxicated when she went to the Hedding Inn motel. She said that she pushed over Patel’s computer because he had lied to her and had: falsely told police that she was breaking into a room. She said she may havethreatened 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 who were leaving becauseshe was not allowed inside. Shestarted talking to Kimberly. Richard came out and verbally abused Kimberly. Defendant then started yelling at him andtrying to provoke a fight. Her knife was clipped to her sweatshirt, and _as she railed against him and waived her arms, the knife flew off and skiddedto the ground. Richard then pickedit up and went to his truck. She followed and demanded that he returnit. | IH. UNANIMOUS VERDICT Defendant contends she was denied the right to complete, valid, and unanimous verdict because the court discharged the jury without an oral endorsement in open court that it had reacheda unanimousverdict. Background On October 7, 2009, after final argument and instructions, the jury retired to deliberate. On October8, the jury reportedthatit 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 them to the clerk, who read them, Whentheclerk finished, the court stated, “Ladies. and gentlemen of the jury, you’ve now completed your jury service in this case and on behalfofthe judges and attorneys and everyonein the court, please acceptmy 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 yourattention duringthis trial. I never say this, I'll say you’re one | ofthe bestjuries I’ve ever had as far as being prompt, attentive to the evidence. [{] We | notice that, weall notice it here and we talked aboutit and I appreciate your service. You are now excusedforat 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 Under the California Constitution, a defendant in a criminal case has a fundamental right to a unanimousjury verdict. (People vy. 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. I, § 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 answers in 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 maybepolled, 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) provides in relevant part, “Whenthe verdict given is receivable by the court, the clerk shall record it in full upon the minutes, and ifrequested by any party shall readit to the jury, and inquire of themwhether it is their verdict. If any juror disagrees, the fact shall be entered upon the minutes and the jury again sent out; but if no 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 I, section 16 of the California Constitution provides, in relevantpart, “Trial by jury is an inviolate right and shall be secured to all, but in a civil cause three- fourths of the jury may render a verdict.... [{]...[] In criminal actions in which a felony is charged, the jury shall consist of 12 persons....” — 4 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 ve Green (1995) 31 Cal.App.4th 1001, 1009 (Green); People v. Lankford (1976) 55 Cal.App.3d 203, 211, disapproved on other groundsin 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 ofthe jurors voted to convict a defendant during deliberations, jurors may | equivocate or change their vote when called upon ih 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 reacheda 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 about verdict].) Thus, without an oral acknowledgement of 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 requirementof an oral acknowledgement does not meanthat the courtmust poll each juror. Rather, the foreperson ofthe 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, “It]he polling of the jury isa right available only upon'the request ofeither 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 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 was a sufficient collective acknowledgementof the verdict. According to the Attorney General, the trial court “stated it had been informed the jury reached a verdict, and asked for the foreman who acknowledged they reached a verdic .’ 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 not sit there in silence if in fact that was not their verdict.” Thus, she argues that if - defendant had doubts about whether the verdict was unanimous, it was incumbent on her to request individual polling, which she did not do. The Attorney General misreads the record. The court did not state 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 beenreached. 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 acknowledge the verdict in open court; nor was the forepersonasked 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 whether it was a particular juror. The person the court referred to answered that - question, saying “Yes,sir.” The Attorney General reads the foreperson’s “yes”as the requisite oral acknowledgement. However, we findthis reading to be unreasonable, and we reject it. Wenotethat after the juror acknowledge being the foreperson,the court moved on to other matters, and althoughthe 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 was read 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 defect is 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 acknowledged the verdict; and if so, whether defendant would have requested that jurors be individually polled; and if polled, whether all of the jurors would haveendorsed the verdict as his or her verdict. | The court in Thornton, supra, 155 Cal.App.3d at page 860 expressed our situation 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 impeached the guilty verdict form had defendant been afforded his right to timely test each juror in open court. We cannot say 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 andfail to see how they represent the functional equivalent of an oral acknowledgementor 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 whether a retrial would be barredby constitutional protections against double jeopardy if the judgment were reversed, an issue not raised by defendant. At oral argument, the parties disagreed. Defendant arguedthat retrial would be barred because the court dismissed the jury without a verdict and without necessity or consent. The Attorney General argued that retrial would not be barred because the court’s failure to secure an oral acknowledgment of the 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. 1, § 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 allowed to make repeated 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 she is placed on trial for an offense; on a valid indictment or information or other accusatorypleading; 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 beforeit 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 (Gd ed. 2000) Defenses, § 119, p. 464; Pen. Code, § 1141.) This rule “prevents aprosecutor or judge from subjecting a defendant to a second prosecution by discontinuing thetrial when it appearsthat 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 theretoor legal necessity required it.” (Curry v. Superior Court, supra, 2 Cal.3d at p. 712.) Onthe other hand,it is well settled that “if the defendantobtainsreversal 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 defendant is deprived of a verdict from his or her chosen jury. The court concluded thatthis rule is inapplicable when a juroris improperly discharged anda reconstituted jury renders a verdict. (Id. at pp. 8-9.) Although the verdict could not stand because of the improper.discharge of the juror, the court reasoned that the double jeopardy bar was not applicable becausethe “defendant’s chosen jury was not discharged but instead, with the substitution ofa preselected alternate juror, remained intact until a verdict was rendered.” (Id. at p. 9.) Weconcludethatretrial is not barred in this case. The court did not discharge the jurybefore 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 wasread, that verdict was defective because the court failed to comply - with section 1149 and havethe jury orally acknowledgeit in open court before being discharged. This wasplain reversibletrial 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 generalrule that reversal on appealfortrial error, other than for insufficiency of the evidence, does not barretrial. IV. Disposir10n* The judgmentis reversed. 4 Given ourdisposition, we considerit 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. “[T]t is a matter of regret that occasionforit should ever have arisen.” (People v. Smalling (1892) 94 Cal. 112, 117.) It is a simple enough matter to ask the question, “Is that yout 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 assentsince there was no question to which the 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 procedureis to adhere strictly tothe statute. Any other course is a dangerousinnovation, which generally myhh fésults in eipiscarriage ofjustice.” (Id. at p. 120.) Qe gq wtics witg OG ~ a Premo, J. People v. Anzalone H035123 DECLARATION OF SERVICE BY U.S. MAIL Case Name: People v. Anzalone No. S I declare: I am employed in the Office of the Attorney General, which is the office of a memberof the California State Bar, at which member's direction this service is made. Iam 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplacedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service that same dayin the ordinary courseof business. On April 26, 2011, I served the attached PETITION FOR REVIEW byplacing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: Gabriel Bassan Sixth District Appellate Program Attorney at Law Attn: Executive Director 520 Frederick Street, No. 26 100 North Winchester Blvd., Suite 310 San Francisco, CA 94117 Santa Clara, CA 95050 County of Santa Clara The Honorable Jeffrey F. Rosen Superior Court of California District Attorney Hall of Justice Santa Clara County District Attorney's Attention: Criminal Clerk's Office Office 191 North First Street 70 W. Hedding Street San Jose, CA 95113-1090 San Jose, CA 95110 Michael J. Yerly Clerk of the Court Court of Appeal of the State of California Sixth Appellate District 333 West Santa Clara Street, #1060 San Jose, CA 95113-1717 I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct and that this declaration was executed on April 26, 2011, at San Francisco, California. fon | M.Argarin MGKO Declarant f JSignature SF2010400126 / 20441250.doc