People v. Anzalone , 56 Cal. 4th 545 ( 2013 )


Menu:
  • Filed 4/15/13
    IN THE SUPREME COURT OF CALIFORNIA
    THE PEOPLE,                          )
    )
    Plaintiff and Respondent, )
    )                               S192536
    v.                        )
    )                         Ct.App. 6 H035123
    CHRISTINA MARIE ANZALONE,            )
    )                        Santa Clara County
    Defendant and Appellant.  )                      Super. Ct. No. CC935164
    )
    )
    )
    ____________________________________)
    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.
    1       Unless otherwise indicated, all statutory references are to the Penal Code.
    1
    I. BACKGROUND
    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:
    2
    ―THE COURT: We‘re in session in Docket CC 935164. Attorneys are
    present, Mr. Hultgren and his client and DA Ms. Frazier.
    ―Jury has indicated they have a verdict. We‘ll bring them out. Thank you.
    ―(Jury Present)
    ―THE COURT: 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. Who is
    the foreperson? Mr. (juror)?
    ―JUROR: Yes sir.
    ―THE COURT: Hand the verdict forms to the deputy. I‘ll hand those to the
    clerk to read the verdict.‖
    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, ―Again, I can‘t thank you enough for your attention during this
    trial. I never say this, I‘ll 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 we talked about it and I appreciate your service. You are now excused for at
    least one year and if you want to talk to the attorneys, they will be out in about
    three minutes in the hall, otherwise you can leave . . . .‖ On December 4, 2009,
    3
    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.
    II. DISCUSSION
    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 (Keener); see People v. Wright (1990) 
    52 Cal. 3d 367
    , 415; People v. Lessard
    (1962) 
    58 Cal. 2d 447
    , 452 (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.) ―[T]he basis for the requirement of an
    objection to asserted imperfections in the polling of a jury concerning its verdict is
    no different from the basis for requiring objections to other equally important
    procedural matters at trial . . . . The requirement of an objection is premised upon
    the idea that a party should not sit on his or her hands, but instead must speak up
    and provide the court with an opportunity to address the alleged error at a time
    when it might be fixed.‖ (Id. at pp. 265-266, 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,
    4
    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.)
    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.) 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
    5
    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 jury had reached a verdict. It made a
    statement to that effect.4 It then asked a particular juror if he was the foreperson.
    It was to this question that the juror replied, ―Yes, sir.‖5 It is clear that neither the
    court nor the clerk actually complied with section 1149, because neither asked the
    2      ―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.‖ (§ 1163.)
    3      ―(a) 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, subject to
    subdivision (b), be discharged from the case.‖ (§ 1164, subd. (a).)
    4      The court said, ―And . . . I understand you‘ve reached a verdict.‖
    5      By order of the trial court, jurors‘ names and other personal identifying
    information were kept confidential.
    6
    foreperson or other members of the jury whether they had agreed to the verdict or
    sought to receive the foreperson‘s affirmation. Accordingly, the trial court failed
    to follow the statutory directive.6 The defense did not object to this failure of
    procedure at the time, after the jury was discharged, or at the subsequent
    sentencing hearing. Defendant made no motion for retrial.
    The Court of Appeal held that the error violated defendant‘s state
    constitutional right to a unanimous jury verdict. It stated that ―although the jury
    deliberated and rendered a verdict, which was read in court, the lack of oral
    acknowledgement by the jurors individually or by the foreperson rendered the
    jury‘s verdict incomplete, defective, and invalid.‖ The court held the defective
    verdict invalidated the judgment. It deemed the error structural, reasoning that it
    6       The clerk‘s minutes conflict with the reporter‘s transcripts. Minute entries
    report the court did inquire and the foreperson acknowledged that the jury had
    reached a verdict.
    ―As a general rule, a record that is in conflict will be harmonized if
    possible. [Citation.] If it cannot be harmonized, whether one portion of the record
    should prevail as against contrary statements in another portion of the record will
    depend on the circumstances of each particular case.‖ (People v. Harrison (2005)
    
    35 Cal. 4th 208
    , 226.)
    When adequate, the clerk‘s minutes can be relied upon to establish an
    admission and a waiver of constitutional rights even where the reporter‘s transcript
    is silent on the subject. (People v. Malabag (1997) 
    51 Cal. App. 4th 1419
    , 1422-
    1423.) However, in Malabag, there was specific evidence that the reporter‘s
    transcript was incomplete—the transcript began in the middle of the proceedings
    and contained only sentencing orders. (Id. at p. 1422.) It was in this context that
    the court found the reporter‘s transcript was incomplete and the clerk‘s transcript
    could be used to demonstrate that certain advisements had been given. (Id. at
    pp. 1422-1423.)
    Here, there is nothing to suggest that the reporter‘s transcript is incomplete
    and the Attorney General does not argue that the transcript is inconsistent or
    incomplete. Accordingly, we presume the court reporter accurately reported the
    proceedings. (See People v. Ayala (2000) 
    23 Cal. 4th 225
    , 289 [presumption that
    an official duty has been performed applies to court reporters].)
    7
    could not apply a harmless error analysis because ―[a]lthough 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 when read, 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 have endorsed the verdict as his or her verdict.‖ The court erred in
    denoting this procedural failure as structural error.
    We have recently considered the distinction between structural error and trial
    error. ―Under article VI, section 13 of our state Constitution, trial error does not
    merit reversal of a judgment unless ‗the error complained of has resulted in a
    miscarriage of justice.‘ Typically, a defendant who has established error under
    state law must demonstrate there is a reasonable probability that in the absence of
    the error he or she would have obtained a more favorable result. (People v.
    Weaver (2001) 
    26 Cal. 4th 876
    , 968; People v. Watson (1956) 
    46 Cal. 2d 818
    , 836.)
    As we have explained, however, ‗under the California constitutional harmless-
    error provision some errors . . . are not susceptible to the ―ordinary‖ or ―generally
    applicable‖ harmless-error analysis — i.e., the Watson ―reasonably probable‖
    standard — and may require reversal of the judgment notwithstanding the strength
    of the evidence contained in the record in a particular case.‘ (People v. Cahill
    [(1993)] 5 Cal.4th [478,] 493.) ‗[T]he kinds of errors that, regardless of the
    evidence, may result in a ―miscarriage of justice‖ because they operate to deny a
    criminal defendant the constitutionally required ―orderly legal procedure‖ . . . all
    involve fundamental ―structural defects‖ in the judicial proceedings, analogous to
    those to which the United States Supreme Court referred in its [Arizona v.
    Fulminante (1991) 
    499 U.S. 279
    ] decision . . . .‘ (Cahill, at pp. 501-502.)‖
    (People v. Lightsey (2012) 
    54 Cal. 4th 668
    , 699, fn. omitted.)
    8
    ―Error that occurs during the presentation of the case to the jury is generally
    trial error; an error that erroneously adds to or subtracts from the record before the
    jury can ‗be quantitatively assessed in the context of the other evidence presented
    in order to determine whether its admission was harmless beyond a reasonable
    doubt.‘ (Arizona v. Fulminante (1991) 
    499 U.S. 279
    , 308; see also People v. Allen
    (2008) 
    44 Cal. 4th 843
    , 870–871.) A court in such circumstances can meaningfully
    ask ‗whether the guilty verdict actually rendered in this trial was surely
    unattributable to the error.‘ (Sullivan v. Louisiana (1993) 
    508 U.S. 275
    , 279.) In
    contrast, structural errors not susceptible to harmless error analysis are those that
    go to the very construction of the trial mechanism — a biased judge, total absence
    of counsel, the failure of a jury to reach any verdict on an essential element.‖
    (People v. Gamache (2010) 
    48 Cal. 4th 347
    , 396 (Gamache); see People v. Aranda
    (2012) 
    55 Cal. 4th 342
    , 363-366 [addressing federal constitutional structural
    error].) The Fulminante court described some of these errors as affecting the
    ―entire conduct of the trial from beginning to end . . . .‖ (Fulminante, at p. 309.)
    In short, trial errors can be fairly examined in the context of the entire record
    and are amenable to harmless error review. Structural errors, on the other hand,
    go to the very reliability of a criminal trial as a vehicle for determining guilt or
    innocence and are reversible per se. (See Gamache, supra, 48 Cal.4th at p. 396;
    In re James F. (2008) 
    42 Cal. 4th 901
    , 914 (James F.).) A structural error requires
    per se reversal because it cannot be fairly determined how a trial would have been
    resolved if the grave error had not occurred. For example, it would be impossible
    to divine how a trial would have proceeded if a defendant had been allowed
    counsel or the trial judge not been biased. There is a strong presumption that any
    error falls within the trial error category, and it will be the rare case where a
    constitutional violation will not be subject to harmless error analysis. (People v.
    Marshall (1996) 
    13 Cal. 4th 799
    , 851 (Marshall).)
    9
    To our knowledge, the United States Supreme Court has never suggested that
    the lack of an oral acknowledgement of the verdict in open court is a structural
    defect. As noted, reversal for structural error has been limited to instances such as
    adjudication by a biased judge (Tumey v. Ohio (1927) 
    273 U.S. 510
    ), the complete
    deprivation of counsel (Gideon v. Wainwright (1963) 
    372 U.S. 335
    ), the unlawful
    exclusion of grand jurors based on race (Vasquez v. Hillery (1986) 
    474 U.S. 254
    ),
    the infringement on the right to self-representation (McKaskle v. Wiggins (1984)
    
    465 U.S. 168
    ), the denial of a public trial (Waller v. Georgia (1984) 
    467 U.S. 39
    ),
    and the giving of a constitutionally deficient instruction on the reasonable doubt
    standard (Sullivan v. Louisiana, supra, 
    508 U.S. 275
    ). (See Washington v.
    Recuenco (2006) 
    548 U.S. 212
    , 218, fn. 2 [listing structural errors]; United States
    v. Gonzalez-Lopez (2006) 
    548 U.S. 140
    , 148-149 [same]; Neder v. United States
    (1999) 
    527 U.S. 1
    , 8 [same].) Such errors clearly affect the ―the framework within
    which the trial proceeds . . . .‖ (Arizona v. Fulminante, supra, 499 U.S. at p. 310.)
    Consistent with the limited nature of structural error, we have held that in the
    absence of a request, there is no denial of a constitutional right when the court fails
    to poll the jury. (Lessard, supra, 58 Cal.2d at p. 452.)
    Certainly, the safeguard of a unanimous jury verdict is a core constitutional
    right. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16; see People v. Russo
    (2001) 
    25 Cal. 4th 1124
    , 1132.) Here, there is no indication that the jury was not
    unanimous. It was clearly instructed on the requirement of unanimity and it
    deliberated for just over three hours before it notified the bailiff that it had reached
    a verdict. The court stated in the jury‘s presence that it understood the jury had
    reached a verdict. The foreperson returned signed verdict forms. The jury
    convicted on some counts, but also acquitted on one. No juror objected when the
    10
    verdicts were read.7 Neither party requested polling. Indeed, the Court of Appeal
    acknowledged the complete absence from the record of any apparent jury
    disagreement and the presence of ample, if not overwhelming, evidence of guilt.
    Of course, trial judges are charged with knowing what the statutes require
    and with following their dictates. However, as our state Constitution makes clear,
    a judgment cannot be reversed for state law error unless there has been a
    miscarriage of justice. (Cal. Const., art. VI, § 13; People v. Watson, supra, 46
    Cal.2d at p. 836.) In the absence of structural error, the Watson standard for
    demonstrating prejudice controls. Sections 1149, 1163, and 1164 are procedural
    provisions designed to protect the right to a unanimous verdict. (See Thornton,
    supra, 155 Cal.App.3d at p. 859.) Many statutes, however, set out procedures
    designed to protect constitutional principles. Broadly construed, many of these
    procedural statutes may be said to protect due process and other constitutional
    safeguards. Nevertheless, most procedural shortcomings constitute trial error.
    Indeed, most constitutional violations themselves are subject to harmless error
    review, particularly if, as here, a defendant had counsel and was tried by an
    impartial adjudicator.8 (People v. Mil (2012) 
    53 Cal. 4th 400
    , 410 (Mil).) As we
    7      In People v. Thornton (1984) 
    155 Cal. App. 3d 845
    , 852 (Thornton), the
    court observed that it may be unreasonable to expect that an average juror will
    understand that he or she could object in such circumstances. While that may be
    so, and thus it should not be required that an objection be made in order to find a
    lack of unanimity, the absence of any juror objection is a legitimate factor, among
    others, that can be considered in determining whether there is any real question as
    to unanimity.
    8      For example, in Arizona v. Fulminante, supra, 499 U.S. at pages 306-307,
    the high court set out numerous instances of constitutional error properly reviewed
    for harmless error. They included: (1) overbroad jury instructions at the
    sentencing stage in a capital case (Clemons v. Mississippi (1990) 
    494 U.S. 738
    ,
    752–754); (2) jury instruction containing an erroneous conclusive presumption
    (Carella v. California (1989) 
    491 U.S. 263
    , 266-267); (3) the erroneous admission
    (footnote continued on next page)
    11
    have previously noted, a defendant is entitled to a fair trial, not a perfect one. (See
    People v. McDowell (2012) 
    54 Cal. 4th 395
    , 442.) Despite the trial court‘s error
    here, nothing in the record indicates that defendant‘s trial was in any way unfair.
    In addition, any number of cases of venerable vintage have subjected
    technical violations of the statutory requirements for receiving jury verdicts to
    harmless error analysis. (See, e.g., People v. Rodundo (1872) 
    44 Cal. 538
    , 541
    [failure to call names of jurors before receiving verdict forms when all jurors were
    present]; People v. Gilbert (1880) 
    57 Cal. 96
    , 97-98 [failure to record verdict
    before discharge of jury]; People v. Smith (1881) 
    59 Cal. 601
    , 603-604 [same];
    People v. Smalling (1892) 
    94 Cal. 112
    , 118-119 [verdict recorded, but not
    (footnote continued from previous page)
    of evidence in violation of the Sixth Amendment counsel clause during the
    sentencing stage in a capital case (Satterwhite v. Texas (1988) 
    486 U.S. 249
    , 257-
    258); (4) jury instruction misstating an element of the offense (Pope v. Illinois
    (1987) 
    481 U.S. 497
    , 501-504); (5) jury instruction on an erroneous rebuttable
    presumption (Rose v. Clark (1986) 
    478 U.S. 570
    , 579-580); (6) the erroneous
    exclusion of the defendant's testimony regarding his confession (Crane v.
    Kentucky (1986) 
    476 U.S. 683
    , 691); (7) restricting a defendant's right to cross-
    examine a witness for bias (Delaware v. Van Arsdall (1986) 
    475 U.S. 673
    , 681);
    (8) denying a defendant's right to be present at trial (Rushen v. Spain (1983) 
    464 U.S. 114
    , 117-118, and fn. 2); (9) improper comment on the defendant‘s silence at
    trial (United States v. Hasting (1983) 
    461 U.S. 499
    , 509); (10) failure to instruct
    on a lesser included offense in a capital case (Hopper v. Evans (1982) 
    456 U.S. 605
    , 613-614); (11) failure to instruct on the defendant‘s presumption of
    innocence (Kentucky v. Whorton (1979) 
    441 U.S. 786
    , 788); (12) admitting
    improper identification evidence in violation of the Sixth Amendment (Moore v.
    Illinois (1977) 
    434 U.S. 220
    , 232); (13) admitting the out-of-court statement of a
    nontestifying codefendant (Brown v. United States (1973) 
    411 U.S. 223
    , 231–
    232); (14) admitting a postindictment, pretrial confession obtained by a police
    officer posing as a fellow prisoner (Milton v. Wainwright (1972) 
    407 U.S. 371
    ,
    372); (15) admitting evidence obtained in violation of the Fourth Amendment
    (Chambers v. Maroney (1970) 
    399 U.S. 42
    , 52–53); (16) denial of counsel at a
    preliminary hearing (Coleman v. Alabama (1970) 
    399 U.S. 1
    , 10–11).
    12
    transcribed into bound minutes and order book before the jury was discharged].)
    Thus, there is clear precedent for considering some failures to follow statutory
    procedure as ordinary trial error.
    Our decision in People v. Nichols (1881) 
    62 Cal. 518
     (Nichols) is particularly
    instructive. There, the jury indicated it had reached a verdict and returned to the
    courtroom. The court asked the jury if it had reached a verdict. The foreperson
    indicated that it had done so, and handed the verdict to the judge. The judge
    handed the clerk the verdict form and directed the clerk to record the verdict. The
    defendant asked that the verdict be read before it was recorded, but the court
    refused. After the clerk copied the verdict into the court‘s minutes, he read it to
    the jurors and asked them if this was their verdict. Some answered yes, while
    others did not voice any dissent. The jury was then polled and each member
    affirmed the verdict. The jury was discharged. (Id. at p. 519.) On appeal, the
    defendant claimed the trial court erred by denying his request that the verdict be
    read before being recorded or declared as required by the procedures set forth in
    the Penal Code. (Nichols, at p. 520.)
    We held that the trial court committed a ―palpable irregularity‖ by recording
    the verdict before it was read. (Nichols, supra, 62 Cal. at p. 520.) However, we
    concluded that the error did not prejudice the defendant in any substantial way.
    (Ibid.) Here, the trial court‘s procedural error is similar to the ―palpable
    irregularity‖ in Nichols. The technical error here did not affect the essential
    framework within which defendant‘s trial was conducted. (See Marshall, supra,
    13 Cal.4th at p. 851.)
    The jury was instructed that unanimity was required. In the absence of some
    indication to the contrary, it is presumed the jury followed the instructions. (See
    People v. Harris (1994) 
    9 Cal. 4th 407
    , 426.) Defendant makes no claim that the
    jury ignored the court‘s instructions, nor did the court give any instruction that
    13
    undermined the unanimity mandate. To call what transpired here structural error
    would be to expand that notion beyond any example articulated by the United
    States Supreme Court, and elevate form over substance.
    A number of cases have considered the significance of a juror affirmation
    when a court attempts to reconvene a jury (Thornton, supra, 155 Cal.App.3d at p.
    856; People v. Hendricks (1987) 
    43 Cal. 3d 584
    , 597), or to substitute a juror
    (People v. Green (1995) 
    31 Cal. App. 4th 1001
    , 1009; People v. Lankford (1976) 
    55 Cal. App. 3d 203
    , 211). Cases also have examined juror affirmation when a juror
    equivocates (Chipman v. Superior Court (1982) 
    131 Cal. App. 3d 263
    , 266; People
    v. Superior Court (1967) 
    67 Cal. 2d 929
    , 932-933), when a jury returns
    inconsistent verdicts (People v. Mestas (1967) 
    253 Cal. App. 2d 780
    , 786), when
    the court erroneously declares a mistrial (Stalcup v. Superior Court (1972) 
    24 Cal. App. 3d 932
    , 936), and when the verdict forms on guilt and sanity are not
    signed by the same foreperson (People v. Wiley, supra, 111 Cal.App. at p. 624).
    No case, however, has squarely considered whether a failure to comply with
    section 1149, standing alone, must always render a verdict defective. We hold
    that, under the circumstances of this case, where the verdict was read and recorded
    in the presence of all 12 jurors, the verdict was not rendered invalid.9
    In defending its conclusion of structural error the Court of Appeal leaned
    heavily on Thornton, supra, 
    155 Cal. App. 3d 845
    . It reads Thornton too broadly
    and thus its reliance on it is misplaced. Thornton was charged with possession of
    a drug for sale. The jury acquitted him of that charge but apparently agreed to
    convict him of simple possession, as a lesser included offense. When the jury was
    9      In addition, we note the following. The guilty verdicts that were signed by
    the foreperson all read, ―We, the Jury, in the above entitled cause find the
    defendant . . . [guilty of] . . . .‖ (Italics added.)
    14
    brought to the courtroom, the clerk read the not guilty verdict form returned on the
    charged offense. The jury collectively affirmed that verdict. (Id. at pp. 848-851.)
    The court asked both advocates whether there was ― ‗[a]ny matter to come before
    the court before the jury is discharged.‘ ‖ (Id. at p. 849.) Both counsel replied in
    the negative and the jury was discharged. (Ibid.) Later in the day, the clerk noted
    that a second verdict form, delivered by the jury but evidently overlooked by the
    court and the clerk, indicated a guilty finding on the lesser offense. (Id. at pp. 850-
    851.)
    The court notified counsel and, over defense objection, ―reassemble[d]‖ the
    jury the next day. (Thornton, supra, 155 Cal.App.3d at p. 850.) At that time the
    court explained the inadvertent failure to read the second verdict form. The court
    ordered both verdicts recorded, and both the guilty and not guilty verdicts were
    read as recorded. The jury collectively acknowledged both verdicts. The jury was
    polled as to both verdicts and each juror, individually, affirmed both verdicts. (Id.
    at pp. 850-851.) The Thornton court framed the issue as ―whether the court erred
    in reconvening the jury the day after it was discharged, and if so, whether the
    signed and dated verdict form as to the lesser included offense can be accorded
    any legal effect.‖ (Id. at p. 851.)
    The Thornton court held that the trial court erred by reconvening the
    discharged jury, and as a result, the only true verdict was the one the jury rendered
    before its discharge. (Thornton, supra, 155 Cal.App.3d at p. 858.) As the facts
    make plain, the failure in Thornton has nothing to do with a failure to affirm.
    Instead, the failure was that, after the first verdict was read, the court discharged
    the jury. (Ibid.) No other verdict was mentioned, read, recorded, or affirmed.
    ―The conclusion is inescapable that a discharge accompanied by loss of control of
    the jury divests the court of jurisdiction to reconvene them whether or not a
    15
    complete verdict was rendered and whether or not any error occurred at all.‖ (Id.
    at p. 856, italics added.)
    Here, the Court of Appeal quoted from Thornton as to the inability of the
    court to evaluate the impact of the error. The quoted language focused on the
    inability to determine whether any jury taint may have taken place after the jury
    was discharged, but before it was ―reassemble[d].‖ Unlike Thornton, our case
    involves no loss of jurisdiction, improper recalling of the jury, or any possibility of
    juror taint.
    The Court of Appeal‘s reliance on People v. Traugott (2010) 
    184 Cal. App. 4th 492
     (Traugott) was similarly misplaced. Traugott was tried by a 12-
    person jury, which returned verdict forms indicating findings that she possessed
    methamphetamine for sale and had suffered a prior conviction. The jury reported
    about 3:30 p.m. that it had reached a verdict. (Id. at p. 496.) The defendant
    mistakenly left the court environs during deliberations. (Id. at pp. 497-498.) The
    court began the process of bringing all necessary participants together to receive
    the verdict. Ultimately the defense agreed the verdict could be taken in the
    defendant‘s absence. (Id. at pp. 497-498.)
    The court convened with ― ‗stand-in‘ ‖ counsel for both the prosecution and
    the defense. (Traugott, supra, 184 Cal.App.4th at p. 498.) By that time, Juror No.
    4 had left to go to a job interview.10 (Ibid.) The court indicated it would take the
    verdicts in the absence of Juror No. 4 unless there was an objection. Substitute
    defense counsel initially declined to agree to this procedure, saying she was not
    authorized to do so. (Ibid.) The court responded that she was standing in as
    attorney of record, had ― ‗all authorization and all power to do it,‘ ‖ and, ― ‗If not,
    10      The opinion does not explain whether the juror was formally released and,
    if so, by whom.
    16
    you shouldn‘t be here.‘ ‖ (Ibid.) Told, ― ‗You have to make a decision,
    Counsel,‘ ‖ defense counsel replied, without conferring with her absent client,
    ― ‗We can proceed, Your Honor. No objection.‘ ‖ (Id. at p. 499.)
    The remaining 11 jurors returned to the courtroom, the clerk read the verdict,
    and the foreperson acknowledged it as correct. (Traugott, supra, 184 Cal.App.4th
    at p. 499.) Defendant‘s counsel asked the court to poll the jury. The court
    responded: ― ‗I can‘t poll [Juror] No. 4.‘ ‖ (Ibid.) Defense counsel replied,
    ― ‗Yes, I understand.‘ ‖ The remaining jurors were polled and affirmed the
    verdict. (Ibid.)
    The Court of Appeal reversed. It noted that while a defendant‘s state
    constitutional right to a unanimous 12-person jury is fundamental, a defendant can
    waive it. (Traugott, supra, 184 Cal.App.4th at pp. 500-501.) The problem was
    that the defendant did not expressly waive this right and counsel‘s consent was
    insufficient. (Id. at p. 502.) As a result, the court held that the defendant‘s
    conviction could not stand because she did not receive a unanimous verdict of 12
    jurors. (Ibid.) The court stated that ―the right to an oral affirmation of the verdicts
    by the jurors is not a mere procedural formality,‖ because jurors ―may equivocate
    or change their vote when called upon in open court.‖ (Id. at p. 501.) If an
    equivocating juror is not present in open court to be polled, the court and counsel
    cannot be confident that the verdict is unanimous. (Id. at pp. 501-502.)
    Traugott is readily distinguishable from our case. Here, all 12 jurors were
    present when the verdict was read and none expressed dissent when the verdict
    was read in open court. Neither party objected to the court‘s actions in receiving
    the verdict nor requested a poll of the jury.
    The court‘s failure to follow section 1149‘s requirement did not deprive
    defendant of her constitutional right to a unanimous jury verdict. The error did not
    render the trial fundamentally unfair and its effect may be assessed in the context
    17
    of the entire proceedings. (See Gamache, supra, 
    48 Cal. 4th 347
    , 396; James F.,
    supra, 42 Cal.4th at p. 914.) As we recently observed, ―Plainly, not every
    violation of the state and federal right to a jury trial is a structural defect requiring
    reversal without regard to whether the defendant suffered actual prejudice.‖ (Mil,
    supra, 53 Cal.4th at p. 411.) Accordingly, we conclude that here noncompliance
    with section 1149 is procedural error, subject to harmless error review. (People v.
    Watson, supra, 46 Cal.2d at p. 836.)11 For the reasons set out above, the error was
    plainly harmless.
    III. DISPOSITION
    We reverse the Court of Appeal‘s judgment, and affirm the judgment of the
    trial court.
    CORRIGAN, J.
    WE CONCUR:
    CANTIL-SAKAUYE, C. J.
    KENNARD, J.
    BAXTER, J.
    WERDEGAR, J.
    CHIN, J.
    LIU, J.
    11    Because we hold that reversal was unwarranted, we need not address
    defendant‘s claim that double jeopardy bars a retrial.
    18
    See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
    Name of Opinion People v. Anzalone
    __________________________________________________________________________________
    Unpublished Opinion XXX NP opn. filed 3/17/11 – 6th Dist.
    Original Appeal
    Original Proceeding
    Review Granted
    Rehearing Granted
    __________________________________________________________________________________
    Opinion No. S192536
    Date Filed: April 15, 2013
    __________________________________________________________________________________
    Court: Superior
    County: Santa Clara
    Judge: Ron M. Del Pozzo
    __________________________________________________________________________________
    Counsel:
    J. Courtney Shevelson, under appointment by the Supreme Court, and Gabriel Bassan, 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.
    Counsel who argued in Supreme Court (not intended for publication with opinion):
    J. Courtney Shevelson
    PMB 187
    316 Mid Valley Center
    Carmel, CA 93923-8516
    (831) 625-6581
    Michael Chamberlain
    Deputy Attorney General
    455 Golden gate Avenue, Suite 11000
    San Francisco, CA 94102-7004
    (415) 703-5870