Opinion
E052818
11-09-2011
THE PEOPLE, Plaintiff and Respondent, v. SERGIO PENA ACEVEDO, Defendant and Appellant.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Niki K. Shaffer and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or 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 This opinion has not been certified for publication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 purposes of rule 8.1115.
(Super.Ct.No. INF067289)
OPINION
APPEAL from the Superior Court of Riverside County. Arjuna (Vic) Saraydarian, Judge. (Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Jerry D. Whatley, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Niki K. Shaffer and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Sergio Pena Acevedo guilty of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a); count 1) and ammunition (Pen. Code, § 12316, subd. (b); count 2). In a bifurcated proceeding, the trial court found true that defendant had suffered four prior prison terms (Pen. Code, § 667.5, subd. (b)) and two prior serious and violent felony convictions (Pen. Code, §§ 667, subds. (c), (e)(2)A), 1170.12, subd. (c)(2)(A)). As a result, defendant was sentenced to an indeterminate term of 25 years to life, plus a determinate term of four years with credit for time served; 180 days of county jail custody was also imposed for each of the Vehicle Code violations. Defendant's sole contention on appeal is that his convictions on counts 1 and 2 must be reversed because he was deprived the opportunity to test the verdicts of guilt in violation of his constitutional rights. We reject this contention and affirm the judgment.
Following opening statements, defendant pled guilty to the misdemeanor charges of driving a vehicle while under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 4); driving a vehicle with a blood alcohol level of .08 or greater (Veh. Code, § 23152, subd. (b); count 5); and driving while having a suspended license (Veh. Code, § 14601.1, subd. (a); count 6). In addition, during the course of trial, the People's motion to dismiss count 3 (resisting and delaying arrest by a peace officer) (Pen. Code, § 148, subd. (a)) was granted by the trial court.
I
FACTUAL BACKGROUND
On November 24, 2009, California Highway Patrol Officer William Strom was on routine patrol on Interstate Highway 10 when he observed a vehicle drifting or weaving between lanes and driving at varying speeds. Officer Strom activated his patrol car's emergency lights and stopped the vehicle. Defendant was the driver and sole occupant of the vehicle.
After Officer Strom administered field sobriety tests on defendant, defendant was arrested for driving while under the influence of alcohol or drugs. During an inventory search prior to towing defendant's vehicle, the officer found a loaded .38-caliber revolver stuffed between the driver's seat and the vehicle's center console.
II
DISCUSSION
Defendant contends he was denied the opportunity to meaningfully test the verdicts of guilt in violation of his due process rights, because the jury was discharged from its duties before he could question them about a signed "not guilty" verdict form that was later found in the jury deliberation room.
A. Additional Background
Prior to deliberations, the trial court instructed the jury about recording its decision on the verdict forms it was being provided. The jury was told that it was being given two verdict forms, a guilty form and a not guilty form, for each charge. The jury was cautioned to sign and return only one form for each of the charges. The jury thereafter retired to deliberate at 4:04 p.m. At 4:45 p.m., the jury returned to the courtroom. They were informed that the court intended to release them for the evening. However, one juror stated that they were close to a verdict, and the court allowed the jury to resume deliberations. Within about 10 minutes, the jury returned to the courtroom with verdicts.
Prior to the court announcing the jury's verdicts, the jury foreperson told the court in the presence of all parties, including defendant, that the foreperson had mistakenly signed a verdict form and folded that form. Specifically, the jury foreperson stated, "There was one I did sign inaccurately and I folded it up 'cause I did exactly what you said happens." The court then handed the envelope containing the verdict forms to its clerk, and the clerk noted that the envelope did not contain a folded form. The court responded, "They could be out there on the table." The court then read the jury's verdicts in open court, finding defendant guilty on both counts.
After the verdicts were read by the clerk, defendant requested the jurors be polled as to those verdicts. The court thereafter informed the jurors, "[M]y clerk is [going to] call you one by one, like Juror No. 1, is that your true and correct verdict as to Count 1? As to Count 2? And then just respond to her. Okay. And then she's going to go down the line to all 12 of you." The clerk thereafter asked each juror, "Are these your verdicts?" Each juror responded in the affirmative. After each juror was polled, the court asked defense counsel if counsel had any other requests pertaining to the jury verdicts. Defense counsel responded in the negative. The court thereafter released the jury.
On January 13, 2011, the time set for defendant's sentencing, defense counsel requested that the matter be continued so that defendant could file a motion for new trial based on the bailiff having found a folded signed jury verdict form finding defendant not guilty as to count 1 in the jury deliberation room and the court's failure to review that verdict form. The form that stated "not guilty" for count 2 was left blank.
Defense counsel argued that he required time to research the issue and present an argument that if the "not guilty" verdict form was the jury's true verdict as to count 1, then defendant's conviction for count 2 should be reversed as an inconsistent verdict. Defense counsel, however, acknowledged that "obviously there's an argument that the issue regarding Count 1 was simply a mistake by the jury . . . [¶] . . . and it may be, in fact, that this simply was a mistake and the jury just didn't listen to the Court's explicit instructions to give back everything . . . ." Defense counsel nonetheless maintained that "there still could be an issue as to whether even at the time of polling the jurors, if they were not paying attention to what was read, thinking that there was . . . a different verdict as to Count 1, simply acknowledged that that was there verdict." Defense counsel further noted that defendant's case was subject to the three strikes law sentencing scheme and, until the court determined that the "not guilty" verdict form was a mistake versus being the jury's true verdict, defendant was prejudiced due to his exposure to an indeterminate like sentence under the three strikes law. The prosecutor responded that the jury's oral affirmation of its count 1 guilty verdict was consistent with it finding defendant guilty of unlawful possession of ammunition in count 2, thereby superseding any ambiguity of the jury's guilty verdict as to count 1.
Following argument, the trial court denied defense counsel's request for a continuance, noting that the foreperson had handed the jury's guilty verdicts to the court, the guilty verdicts were read in open court, each juror had been polled about the guilty verdicts, and each juror had affirmed the guilty verdicts. The court also concluded that based on the circumstances of this case, the "not guilty" verdict form for count 1 was signed by the foreperson by mistake, folded it, and left it in the jury deliberation room "and didn't want to bring it back until it was asked by the Court." The court also pointed out that the jury's guilty verdict on count 2 (felon in possession of ammunition) was consistent with the jury finding defendant guilty of unlawfully possessing a firearm as alleged in count 1. The court further found it significant that no evidence, such as juror affidavits, had been presented to establish a doubt about the jury's intent in finding defendant guilty on count 1.
B. Applicable Statues and Legal Principles
Under the California Constitution, a defendant in a criminal case has a fundamental right to a unanimous jury verdict. (People v. Collins (2001) 26 Cal.4th 297, 304; People v. Russo (2001) 25 Cal.4th 1124, 1132; see Cal. Const., art. I, § 16.)
Article I, section 16 of the California Constitution provides, in relevant part, "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. . . ."
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."
Penal Code section 1163 provides: "When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation."
Penal Code section 1164, subdivision (a), provides in relevant part, "When the verdict given is receivable by the court, the clerk shall record it in full upon the minutes, and if requested by any party shall read it to the jury, and inquire of them whether 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 disagreement is 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 acknowledgement of the verdict reflected in the verdict forms in open court that constitutes a complete verdict. (People v. Traugott (2010) 184 Cal.App.4th 492, 500 [Fourth Dist., Div. Two] (Traugott); People v. Green (1995) 31 Cal.App.4th 1001, 1009; 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, at p. 501; see also Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266; see, e.g., Green, at p. 1008 [although jury announced it had reached a verdict, in court one juror equivocated, and jury sent back for further deliberations]; People v. Superior Court (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, at p. 500; People v. Thornton (1984) 155 Cal.App.3d 845, 858.)
However, the requirement of an oral acknowledgement does not mean that the court must poll each juror. Rather, the foreperson of the jury may speak collectively for the jury and provide the requisite oral acknowledgement. (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; People v. Wiley (1931) 111 Cal.App. 622, 625.) 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 Pen. Code, §§ 1163, 1164.) However, "[t]he polling of the jury is a right available only upon the request of either party. [Citation.] A failure to make a proper request imposes no burden upon the 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.) Whereas the complete failure to orally acknowledge a written verdict in open court would normally invalidate the verdict (People v. Thornton, supra, 155 Cal.App.3d at pp. 856-860), individual polling errors do not require reversal in the absence of a showing of prejudice. (People v. Masajo (1996) 41 Cal.App.4th 1335, 1339-1340.)
C. Analysis
Defendant argues that his conviction on count 1 must be reversed because the trial court did not review the signed folded verdict form, and that failure led to defendant "not having a meaningful opportunity to tests the guilty verdict." He further asserts that a "'not guilty' verdict on count 1 amounted to an implied acquittal of count 2, as well," because a finding that defendant "was not in possession of a firearm would logically preclude a valid finding that he possessed the ammunition in the weapon." Assuming, without deciding, defendant did not waive the issue of having a meaningful opportunity to tests the guilty verdicts on appeal by failing to raise the claim in the court below, we find the contention unpersuasive.
The People argue defendant waived this issue because defendant did not request a continuance to raise the claim that he was denied the opportunity to test the jury's count 1 guilty verdict, but instead sought a continuance to file a motion for new trial.
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The record is clear that the jury orally declared its guilty verdict as to counts 1 and 2; the verdict was read into the record in the jury's presence; and the jurors, upon defendant's request, were individually polled about the verdict, and each affirmatively responded the verdict was that juror's true decision. Moreover, in regard to the folded verdict form, the foreperson clearly stated, "There was one I did sign inaccurately and I folded it up 'cause I did exactly what you said happens." Neither defendant not his counsel requested the court to question the foreperson about that mistakenly signed form. Additionally, after the jurors were polled to ensure their verdict, defense counsel declined the court's offer to ask the jurors additional questions about the accuracy of the verdict. There is no evidence in the record to suggest that defendant did not have a meaningful opportunity to test the guilty verdict.
People v. Bento (1998) 65 Cal.App.4th 179 is illustrative. In that case, defendants Bento and Johnson were charged with various crimes arising out of a gang shooting. (Id. at p. 182.) After four days of deliberations, the jury announced that it had reached a verdict on each count against Johnson, but only on counts 3 through 5 against Bento. The jury's verdicts concerning Johnson were read in court. The jurors were polled and unanimously affirmed that the verdicts read were his or her own. The same was done for the verdicts on counts 3 through 5 against Bento. Minutes later, Juror No. 7 requested a conference with the trial court and disclosed that she was not sure beyond a reasonable doubt on counts 1 and 2 against Johnson. She stated she had been "'going back and forth'" during polling and that she had thought the polling was on the verdicts against Bento. The trial court declined to reconvene the jury. (Id. at p. 187.)
On appeal, defendant Johnson argued that the verdicts were not complete because the jury was still obligated to resolve the remaining charges as to Bento. The appellate court first discussed whether the verdicts as to Johnson were complete under the meaning of Penal Code section 1164. The court found that "[h]ere, the verdicts resolved all requisite matters concerning Johnson, the jurors collectively and individually affirmed the verdicts in open court, and the trial court verified the verdicts and directed the clerk to record them. Throughout this sequence of events, the requirements of Penal Code sections 1163 and 1164 were followed in every detail, and the verdicts were free from procedural irregularities when recorded. The verdicts were therefore complete under section 1164." (People v. Bento, supra, 65 Cal.App.4th at p. 188.)
Noting that the trial court retained jurisdiction of the jury because it had not been discharged, the Bento court concluded that the trial court had the authority to reconvene the jury if it had chosen to do so. The question remained as to whether the trial court was required to reconvene the jury. (People v. Bento, supra, 65 Cal.App.4th at p. 189.) This depended on whether the "'last moment' for a juror to express dissent expires when the verdict is complete, rather than when the trial court discharges the jury or otherwise loses its ability to shield the jury from outside influences." (Id. at pp. 189-190.) Relying on federal cases and cases from other states, as well as the express language of Penal Code sections 1163 and 1164, the court concluded that "when, as here, the verdicts have been collectively and individually confirmed in open court pursuant to these sections and are complete in every detail, jurors are no longer empowered to dissent from the verdicts, and the trial court may not reconvene the jury for further deliberations on the basis of such dissent. . . . In this respect, [Penal Code] sections 1163 and 1164 define the final moment of the jury's deliberative process." (Bento, at p. 191.)
Here, the guilty verdict against defendant was read in open court, confirmed by all the jurors, and recorded before the folded "not guilty" verdict form was discovered. Thus, the guilty verdict was complete pursuant to Penal Code sections 1163 and 1164, and the moment for the jury to allegedly alter its verdict had passed by the time the court reviewed the folded "not guilty" verdict form. Moreover, as the trial court observed, the form was obviously the one the foreperson said was folded because it had been signed in error. Defendant did not present any evidence refuting the trial court's reasonable inference. Defendant did not submit any declarations or affidavits or other evidence to suggest the guilty verdicts as to counts 1 and 2 were inaccurate.
In sum, we conclude that the jury deliberated and rendered a verdict, which was read in court and orally acknowledgement by the jurors individually. Defendant has not presented any evidence to undermine the accuracy of the jury's guilty verdict.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
Acting P.J.
We concur:
KING
J.
MILLER
J.