People v. Anzalone
| Citation | 155 Cal.Rptr.3d 352,298 P.3d 849,56 Cal.4th 545 |
| Decision Date | 15 April 2013 |
| Docket Number | No. S192536.,S192536. |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Christina Marie ANZALONE, Defendant and Appellant. |
| Court | United States State Supreme Court (California) |
J. Courtney Shevelson, under appointment by the Supreme Court, and Gabriel Bassan, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Stan Helfman, Laurence K. Sullivan, Sharon G. Birenbaum and Michael Chamberlain, Deputy Attorneys General, for Plaintiff and Respondent.
Penal Code section 1149 provides, "When the jury appear they must be asked by the Court, or Clerk, whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same."1 Here, the court failed to follow this mandated procedure. The case turns on whether the error is structural error, and thus reversible per se, or trial error subject to harmless error review. For the reasons set forth below, the error was not structural. Accordingly, we reverse the Court of Appeal's judgment.
On February 22, 2009, defendant Christina Marie Anzalone went to the front desk of a San Jose motel and asked the owner if she could speak to Leon Wallace, the maintenance man. The owner said that Wallace was not in and refused to let her go to Wallace's room. Defendant accused the owner of lying and left. She returned a few minutes later, pushed over a computer, pulled a knife, and threatened to kill the owner. Police were called and defendant left.
Later that day, defendant was speaking with Kimberly Malott when she saw Kimberly's husband, Richard. Defendant accused Richard of abusing Kimberly, approached him, and struck him in the chest. Richard initially walked away, but turned around. Defendant threw a bagel and an open knife at him, hitting him in the chest with the butt end of the weapon. He picked up the knife, then got in his truck with Kimberly. Defendant blocked their exit and spat on the windshield. As Richard and Kimberly tried to leave, defendant grabbed onto the truck's side mirror and broke the radio antenna. Defendant was charged with making a criminal threat against the motel owner (§ 422), and assault with a deadly weapon on Richard (§ 245, subd. (a)(1)), with allegations that she personally used a deadly weapon in both counts (§§ 667, 1192.7, 12022, subd. (b)(1)). She was also charged with misdemeanors for vandalism of Richard's truck (§ 594, subd. (a)(b)(2)(A)), and brandishing a weapon against the motel owner (§ 417, subd. (a)(1)).
On October 7, 2009, after final argument and instructions, the jury deliberated in the afternoon. The next day, after a readback of testimony, the jurors deliberated for another six minutes before informing the bailiff they had reached a verdict. The jury returned to the courtroom and the following proceedings took place:
The verdicts were then read aloud. Defendant was acquitted of vandalism but found guilty on the other counts. The jury also found true both allegations of using a deadly weapon. Neither party asked the court to poll the jury. (See §§ 1163, 1164.)
After the verdict was read and recorded, the court addressed the jurors: "Ladies and gentlemen of the jury, you've now completed your jury service in this case and on behalf of the judges and attorneys and everyone in the court, please accept my sincere thanks for your time and effort that you put into your verdicts in this case." The court gave jurors additional instructions with regard to administrative matters such as accepting payment for information about the case, communications with counsel, and the sealing of personal juror information. The court concluded, On December 4, 2009, defendant was sentenced to a prison term of four years eight months. On appeal, defendant argued that her state constitutional right to a unanimous jury verdict was violated because the court failed to ask the jury foreperson or the jurors to affirm their verdict as required by section 1149. The Court of Appeal agreed. It went on to conclude the error was structural and, thus, reversible per se.
The Attorney General argues that defendant forfeited her claim by failing to object to the trial court's alleged failure to comply with section 1149. This court has held that the failure to object to an incomplete polling of the jury forfeits any claim of error on appeal. ( Keener v. Jeld–Wen, Inc. (2009) 46 Cal.4th 247, 262–270, 92 Cal.Rptr.3d 862, 206 P.3d 403 (Keener ); see People v. Wright (1990) 52 Cal.3d 367, 415, 276 Cal.Rptr. 731, 802 P.2d 221 ; People v. Lessard (1962) 58 Cal.2d 447, 452, 25 Cal.Rptr. 78, 375 P.2d 46 (Lessard ).)
In the extensive discussion of forfeiture in Keener, we cited with approval authorities stating that the general rule in both civil and criminal cases is that an objection to a defective verdict must be made before the jury is discharged. ( Keener, supra, 46 Cal.4th at pp. 263–265, 92 Cal.Rptr.3d 862, 206 P.3d 403.) ( Id. at pp. 265–266, 92 Cal.Rptr.3d 862, 206 P.3d 403, fns. omitted.)
The trial court's inadvertent failure to comply with section 1149 in the present case appears analogous to an incomplete polling of the jury, and there is no apparent reason to apply a different forfeiture rule. After all, rather than an appellate court reviewing a cold record, the parties are present in the courtroom to observe the exchange between the court and the jurors, hear the court's comments, understand what is transpiring, and seek any necessary clarification. That they make no objection suggests they see no reason to question whether the verdict as read accurately represents the verdict reached by the jury. The parties are in the best position to know if there is reason to suspect any juror might not be fully committed to the verdict. A party with concerns about the accuracy of the verdict may test it by polling. A party that eschews the opportunity has no cause to complain that the court failed to test the verdict's accuracy by requiring public affirmation. Accordingly, a defendant who does not object to the trial court's failure to comply with section 1149 forfeits the argument that the trial court erred.
However, notwithstanding defendant's forfeiture, we will address the merits because the case concerns an issue of statewide importance. ( People v. Braxton (2004) 34 Cal.4th 798, 809, 22 Cal.Rptr.3d 46, 101 P.3d 994.)
Our state Constitution provides that a defendant in a criminal case has a fundamental right to a unanimous jury verdict. ( Cal. Const., art. I, § 16.)
As noted, section 1149 also requires that when the jury returns after reaching a verdict, the court or clerk must ask "whether they have agreed upon their verdict, and if the foreman answers in the affirmative, they must, on being required, declare the same." Thus, a foreperson's oral declaration may provide sufficient acknowledgment of the verdict. (See People v. Wiley (1931) 111 Cal.App. 622, 625, 295 P. 1075.) But, if either party so requests, the jury may be polled and each juror must orally affirm the verdict. ( §§ 1149, 1163, 1164.)
Sections 1163 and 1164 govern jury affirmation of the verdict by polling. Under section 1163, either party may request polling before the verdict is recorded. If any juror disagrees with the verdict, the jury must be sent out for further deliberations.2 Section 1164 provides that after the verdict is recorded, either party may request that the clerk read the verdict as recorded. If a juror dissents to the recorded verdict, the jury is sent out for further deliberations.3
Here, the Attorney General argues that the foreperson's statement, "Yes, sir," was an oral acknowledgement that the jury had reached a verdict. ( § 1149.) The Attorney General claims that "the combination of the court's stating its understanding the jury reached a verdict, its asking the foreperson to identify himself, the foreperson's complying, the court's asking the foreperson to hand the verdict forms to the bailiff, the foreperson's complying again without further qualification or comment, and the clerk's reading the verdict in the presence of the jury and the parties amounted to substantial compliance with section 1149's requirement of an acknowledgement by the foreperson that the jury had reached its verdict."
The court did not ask whether the...
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M.H. v. Superior Court of Contra Costa Cnty.
......, accompanied by Child, had arrived late for an appointment at a county welfare office, argued rudely with staff and other clients, called people names, and then yelled and pounded on a door after leaving her purse in an interview room, until a sheriff's deputy escorted her from the building. ...' " ( People v . Anzalone (2013) 56 Cal.4th 545, 552, fn. 6.) This is easily done here, particularly when we consider a case that Parents themselves cite, M . V ., supra , ......