Filed 9/20/18

          CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                          DIVISION THREE


THE PEOPLE,                                B275818

     Plaintiff and Respondent,             Los Angeles County
                                           Super. Ct. No. TA138992
     v.

CHRISTOPHER BAILEY,

     Defendant and Appellant.



       APPEAL from a judgment of the Superior Court of Los
Angeles County, Laura R. Walton, Judge. Affirmed as modified in
part, reversed in part, and remanded with directions.
       Morgan H. Daly, under appointment by the Court of
Appeal, for Defendant and Appellant.
       Xavier Becerra, Attorney General, Gerald A. Engler, Chief
Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Margaret E. Maxwell, Lindsay Boyd, and
Gregory B. Wagner, Deputy Attorneys General, for Plaintiff and
Respondent.


*Pursuant to California Rules of Court, rules 8.1100, 8.1105(b), and
8.1110, this opinion is certified for publication with the exception of
part 1 of the Discussion.
                       INTRODUCTION

       Under the California Constitution, a criminal defendant
has the right to a unanimous jury verdict. The jury in this case
returned verdict forms finding defendant Christopher Bailey
guilty of driving under the influence of alcohol (count 1) and
driving with a blood alcohol content of 0.08 percent or more
(count 2)—but when the trial court polled the jury, one juror
replied that she did not find defendant guilty of count 1.
Notwithstanding the lack of a unanimous verdict on count 1, the
court recorded guilty verdicts for both counts and discharged the
jury.
       Defendant contends that the court erred by discharging the
jury without a unanimous verdict on count 1 and that the
evidence at the preliminary hearing was insufficient to hold him
to answer for count 3—driving under the combined influence of
an alcoholic beverage and a drug. We hold that defendant was
denied his constitutional right to a unanimous verdict as to count
1, no objection was required to preserve the issue, the error is
structural, and retrial of that count would violate the prohibition
against double jeopardy. We also conclude, however, that the
court properly denied defendant’s pretrial motion to dismiss
count 3.

               PROCEDURAL BACKGROUND

      By information filed April 7, 2016, defendant was charged
with driving under the influence of an alcoholic beverage (Veh.
Code, § 23152, subd. (a); count 1); driving with a blood alcohol
content (BAC) of 0.08 percent or more (Veh. Code, § 23152,
subd. (b); count 2); and driving a vehicle under the combined
influence of alcohol and a drug (Veh. Code, § 23152, subd. (f);




                                 2
count 3).1 The information alleged that defendant had previously
been convicted of driving under the influence causing bodily
injury under Vehicle Code section 23153, subdivision (a), and
that the prior conviction was a strike prior (Pen. Code,2 § 667,
subd. (d); § 1170.12, subd. (b)), a prison prior (§ 667.5, subd. (b)),
and subjected him to increased punishment under Vehicle Code
section 23550.5, subdivision (a). Defendant pled not guilty and
denied the allegations.
       Before trial, defendant moved to dismiss all counts under
section 995; the motion was denied. After the prosecution rested
at trial, defendant moved to dismiss all counts under section
1118.1. The trial court denied the section 1118.1 motion as to
counts 1 and 2 but granted it as to count 3. While the jury was
deliberating, defendant waived his right to a jury trial on the
prior-conviction allegations.
       The jury returned verdict forms finding defendant guilty of
counts 1 and 2, and defense counsel asked the court to poll the
jurors. When the clerk asked each juror if the verdict represented
his or her individual verdict, Juror No. 4 answered, “No.” The
court followed up: “Okay. It is not your—so you did not intend to
vote guilty as to count 1?” Juror No. 4 responded, “Yes.” Then the
court asked, “And guilty as to count 2?” Juror No. 4 said, “Yes.”
Finally, the court asked, “Did you intend to vote guilty as to
count 2? So those are your verdicts?” Juror No. 4 answered, “Yes.”
After the clerk polled the remaining jurors, the court thanked the


1Effective July 1, 2018, the legislature amended Vehicle Code section
23152 and redesignated subdivision (f) without substantive change as
subdivision (g). (Stats. 2016, ch. 765, § 1.)
2 All   undesignated statutory references are to the Penal Code.




                                     3
jurors for their service and excused them. Once the jury left the
courtroom, defense counsel objected to the court’s acceptance of
the verdict. Neither the court nor the prosecutor responded.
      Defendant waived his right to a court trial on the prior-
conviction allegations and admitted them. The court then
sentenced defendant to an aggregate prison term of five years.
The court selected count 1 as the base term and sentenced
defendant to five years—the middle term of two years, doubled
for the strike prior (§ 667, subd. (d); § 1170.12, subd. (b)), plus one
year for the prison prior (§ 667.5, subd. (b)). The court imposed an
identical sentence for count 2 and stayed the sentence under
section 654.
      Defendant filed a timely notice of appeal.

                   FACTUAL BACKGROUND

       According to the evidence presented at the preliminary
hearing,3 on October 16, 2015, California Highway Patrol Officer
James Tettleton saw three Chevrolet Camaros speeding down the
freeway. Tettleton followed the cars as they exited the freeway
and noticed they were parked under a sign that read “No
Stopping Anytime,” and each car had tinted front windows.
Tettleton pulled up behind the group, turned on his lights, and
told the drivers to remain parked.
       Tettleton walked to the front car. Defendant was in the
driver’s seat. As he approached, Tettleton smelled “the strong


3When reviewing the denial of a section 995 motion, we “ ‘directly
review[ ] the determination of the magistrate holding the defendant to
answer.’ [Citations.]” (Lexin v. Superior Court (2010) 47 Cal.4th 1050,
1071–1072.) Accordingly, we limit our discussion to the evidence
presented at the preliminary hearing.




                                   4
odor of burnt cannabis” and alcohol coming from inside
defendant’s Camaro. Tettleton asked defendant when he had last
smoked marijuana and how much alcohol he had had to drink.
Defendant replied that he had smoked marijuana 30 minutes
earlier and consumed one Corona beer. Tettleton told defendant
to get out of the car, then escorted defendant to the patrol car. As
he passed the other two cars, Tettleton told the drivers, “you guys
can both go about your day.” In response to additional questions,
defendant revealed that he had actually smoked marijuana five
minutes before he was pulled over.
       Tettleton administered four field sobriety tests. The
horizontal gaze nystagmus test indicated defendant “could be
potentially under the influence of alcohol and marijuana.”
Defendant’s performance on the one leg stand “could indicate
impairment” and his performance on the walk and turn
“contribute[s] to impairment, as well.” Tettleton then
administered a blood alcohol test using a preliminary alcohol
screening device, which returned readings of 0.107 percent BAC
at 11:10 p.m. and 0.106 percent BAC at 11:13 p.m. Tettleton
arrested defendant. He later administered a BAC breath test
using a Datamaster device, which generated results of 0.09
percent at 12:00 a.m. and 0.09 percent at 12:03 a.m. Tettleton
testified that he had successfully completed the requisite training
certified by the Commission on Peace Officer Standards and
Training to qualify him to testify at preliminary hearings.

                          DISCUSSION

1.    The Section 995 Motion
      Defendant contends the trial court erroneously denied his
section 995 motion as to count 3, which led to the admission of




                                 5
irrelevant, prejudicial evidence about his marijuana use. We
disagree.
      1.1.   Legal Principles and Standard of Review
       A preliminary hearing is an evidentiary hearing that
follows the filing of a felony complaint. (§ 859b.) At the hearing,
the prosecution must present evidence that demonstrates “a state
of facts as would lead a man of ordinary caution or prudence to
believe and conscientiously entertain a strong suspicion of the
guilt of the accused.” (People v. Uhlemann (1973) 9 Cal.3d 662,
667.)
       During the preliminary hearing, the judge sits as a
magistrate whose role is limited by statute to determining
whether there is “sufficient cause” to believe the defendant is
guilty of a public offense. (People v. Slaughter (1984) 35 Cal.3d
629; see §§ 871, 872.) “The term ‘sufficient cause’ is generally
equivalent to ‘reasonable and probable cause,’ that is, such a
state of facts as would lead a person of ordinary caution or
prudence to believe and conscientiously entertain a strong
suspicion of the guilt of the accused.” (People v. Uhlemann, supra,
9 Cal.3d at p. 667.) If the prosecution proves there is sufficient
cause to believe the defendant is guilty of a public offense, the
magistrate must hold the defendant to answer for the offense.
(Slaughter, at pp. 636–637; § 872.)
       The magistrate may “ ‘weigh the evidence, resolve conflicts,
and give or withhold credence to particular witnesses.’ ” (People v.
Slaughter, supra, 35 Cal.3d at p. 637.) The magistrate may rely
on circumstantial evidence to form reasonable inferences of guilt
(People v. Superior Court (Jurado) (1992) 4 Cal.App.4th 1217,
1226), and his or her conclusions may be “based in whole or in
part upon the sworn testimony of a law enforcement officer,”




                                 6
provided the officer has “completed a training course certified by
the Commission on Peace Officer Standards and Training that
includes training in the investigation and reporting of cases and
testifying at preliminary hearings.” (§ 872, subd. (b).)
       After a defendant is held to answer and the prosecution
files an information, the defendant may file a motion in the trial
court under section 995 to dismiss one or more counts of the
information. (See People v. Sherwin (2000) 82 Cal.App.4th 1404.)
In reviewing the denial of that motion, “we ‘in effect disregard[ ]
the ruling of the superior court and directly review[ ] the
determination of the magistrate holding the defendant to
answer.’ [Citations.] Insofar as the … section 995 motion rests on
issues of statutory interpretation, our review is de novo.
[Citation.] Insofar as it rests on consideration of the evidence
adduced, we must draw all reasonable inferences in favor of the
information [citations] and decide whether there is probable
cause to hold the defendants to answer, i.e., whether the evidence
is such that ‘a reasonable person could harbor a strong suspicion
of the defendant’s guilt’ [citations].” (Lexin v. Superior Court,
supra, 47 Cal.4th at pp. 1071–1072.)
       “In reviewing an order denying a motion to set aside an
information on the ground of insufficiency of the evidence [at the
preliminary hearing], we may not substitute our judgment for
that of the magistrate as to the weight of the evidence or the
credibility of witnesses. Every legitimate inference must be
drawn in favor of the information, and as long as there is some
rational ground for assuming the possibility that an offense has
been committed and the accused is guilty of it, the prosecution
must be allowed to proceed.” (Barber v. Superior Court (1991)
1 Cal.App.4th 793, 795.)




                                 7
      1.2.   The trial court properly denied the section 995
             motion as to count 3.
       To hold a defendant to answer for driving under the
combined influence of an alcoholic beverage and a drug, the
prosecution must present evidence at the preliminary hearing
sufficient to raise a strong suspicion that (1) defendant drove a
vehicle, and (2) when he drove, defendant was under the
combined influence of an alcoholic beverage and a drug. (Veh.
Code, § 23152, subd. (g); see also CALCRIM No. 2110.) Here,
defendant contends the court should have dismissed count 3
because the prosecution failed to present sufficient evidence of a
clear nexus between marijuana use and driving impairment—
that is, that defendant was impaired as a result of his marijuana
use. In light of defendant’s admission of recent marijuana use
and poor performance on field sobriety tests, the court did not err
in denying the section 995 motion.
       Tettleton testified that he smelled marijuana coming from
defendant’s car, and based on the results of defendant’s
nystagmus test, defendant “could be potentially under the
influence of alcohol and marijuana.” In addition, Tettleton
testified that defendant underperformed on tests that assessed
defendant’s motor skills and ability to follow instructions—
sobriety tests that were administered shortly after defendant
admitted to smoking marijuana minutes before the stop and to
drinking beer with dinner. In short, based on Tettleton’s
testimony, there was sufficient cause to believe defendant was
guilty of driving while under the combined influence of an
alcoholic beverage and a drug as alleged in count 3 of the
information. (See People v. Benner (2010) 185 Cal.App.4th 791,
795 [“from a physical, emotional and cognitive standpoint, the




                                 8
evidence readily suggests appellant’s driving ability was
appreciably impaired, as compared to an ordinarily prudent and
cautious driver in full possession of her faculties”].)
       Nor does the court’s subsequent grant of the section 1118.1
motion undermine the earlier denial of the section 995 motion. To
meet its burden of proving the charges beyond a reasonable doubt
at trial, the prosecution must adduce substantially more evidence
than is required to hold a suspect to answer at a preliminary
hearing. (People v. Slaughter, supra, 35 Cal.3d at p. 637 [“the
burden on the prosecution before the magistrate is quite distinct
from that necessary to obtain a conviction before a judge or
jury”].)
       Taken as a whole, the evidence at the preliminary
hearing—poor performance on field sobriety tests, admission of
recent marijuana and alcohol usage, and early onset nystagmus
in both eyes of an individual found sitting in the driver’s seat of a
car that had recently been speeding down the freeway—was
sufficient to support a reasonable suspicion that defendant was
impaired from a combined influence of marijuana and alcohol.
Accordingly, the trial court did not err by denying defendant’s
995 motion as to count 3.4
2.    The jury did not reach a unanimous verdict for
      count 1.
     In response to our request for supplemental briefing,
defendant contends that the court violated his right to a
unanimous jury when it recorded a non-unanimous verdict for


4In light of our conclusion, we do not address defendant’s additional
contention that evidence about his marijuana use prejudiced the jurors’
ability to fairly weigh the evidence as to counts 1 and 2.




                                  9
count 1 and that the double jeopardy clause bars retrial of that
count. The People argue the verdict was unanimous, defendant
forfeited the issue, any error was harmless, and the double
jeopardy clause does not bar retrial.
       We hold that when a polled juror disavows the written
verdict but the court nevertheless records it, the court violates
the defendant’s right to a unanimous jury under the California
Constitution. We also hold that defendant was not required to
object to preserve the issue, the error is structural, and double
jeopardy bars retrial of that count.
      2.1.   Right to a Unanimous Verdict
       Article I, section 16, of the California Constitution provides:
“Trial by jury is an inviolate right and shall be secured to all … .
A jury may be waived in a criminal cause by the consent of both
parties expressed in open court by the defendant and the
defendant’s counsel. … [¶] In criminal actions in which a felony is
charged, the jury shall consist of 12 persons.” The right to a jury
trial is fundamental in this State (People v. Collins (2001) 26
Cal.4th 297, 304), and among the “essential elements” of that
fundamental right are the number of people comprising the jury
(12) and the unanimity of their verdict (People v. Collins (1976)
17 Cal.3d 687, 692–693, limited on another ground by People v.
Fields (1983) 35 Cal.3d 329, 351, fn. 9). Accordingly, “to be
valid[,] a criminal verdict must express the independent
judgment of each juror. [Citation.]” (Chipman v. Superior Court
(1982) 131 Cal.App.3d 263, 266 (Chipman).)
       To safeguard this fundamental right, the “Legislature has
set forth in prescriptive detail the procedures that trial courts
must follow in receiving a jury verdict.” (People v. Carbajal (2013)
56 Cal.4th 521, 530.) When the jury announces it has reached a




                                 10
verdict, the officer in charge of the jurors must bring them to
court. (§ 1147.) Then, the court or clerk must ask the jurors if
they have agreed on the verdict, “and if the foreman answers in
the affirmative, they must, on being required, declare the same.”
(§ 1149.) Before the verdict is recorded, either party may ask the
court to poll the jurors individually. (§ 1163.) If any juror answers
“in the negative, the jury must be sent out for further
deliberation.” (Ibid.)
        This polling procedure allows the court to determine
whether the written verdict form “represents the ‘true verdict,’
i.e., the verdict that each and every juror is willing to hold to
under the eyes of the world, or whether it is a product of mistake
or unduly precipitous judgment.” (People v. Thornton (1984) 155
Cal.App.3d 845, 859.) To assure that the verdict expresses the
unanimous judgment of all jurors, “any juror is empowered to
declare, up to the last moment, that he dissents from the verdict.
[Citation.]” (Chipman, supra, 131 Cal.App.3d at p. 266; accord,
People v. Traugott (2010) 184 Cal.App.4th 492, 501 (Traugott)
[“the 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”].)
        The verdict is complete only if no juror expresses
disagreement on polling. (§ 1164, subd. (a).) Thus, “it is ‘the oral
declaration of the jurors, not the submission of the written
verdict forms [that] constitutes the return of the verdict.’ ”
(Traugott, supra, 184 Cal.App.4th at p. 500, alteration in
Traugott.) In other words, “ ‘there is no verdict absent unanimity
in the oral declaration.’ [Citation.]” (Ibid.) Finally, the court may
not discharge the jury “until the court has verified on the record




                                 11
that the jury has … reached a verdict … on all issues before
it … .” (§ 1164, subd. (b); see People v. Superior Court (Marks)
(1991) 1 Cal.4th 56, 73, fn. 15 (Marks) [“We emphasize the
importance of this safeguard against nonconforming verdicts and
urge strict compliance to forestall procedural quagmires such as
the one we labor through today.”].)
      2.2.   Proceedings Below
       Defendant’s case was submitted to the jury on June 20,
2016. Later that day, the jury returned verdict forms finding
defendant guilty of both charged counts. After the clerk read each
verdict form and asked whether it was the jury’s verdict, the
jurors collectively answered in the affirmative.
       Defense counsel asked the court to poll the jury. The clerk
instructed the jurors, “Ladies and gentlemen of the jury, when
your juror number is called, please answer ‘yes’ or ‘no’ to the
following question: Is this your individual verdict … ?” In
response, the first three jurors individually answered yes. Then
the following occurred:
        “Clerk. Juror number 4.
       Juror 4. No.
         Court. Okay. It is not your—so you did not intend
                to vote guilty as to count 1?
       Juror 4. Yes.
         Court. And guilty as to count 2?
       Juror 4. Yes.
         Court. Did you intend to vote guilty as to count 2?
                So those are your verdicts?




                               12
        Juror 4. Yes.”
The remaining jurors were polled and each answered that the
verdict was his or hers.
       The court then thanked the jurors for their time, told them
they had completed their service, and instructed them with
CALCRIM No. 3590. That instruction provides in part, “Now that
the case is over, you may choose whether or not to discuss the
case and your deliberations with anyone.” Finally, the court
concluded, “Everyone is excused. Go to the second floor, jury
services, and they will give you your check-out slips so that you
[can] check out.”
       When the jurors left the courtroom, the court turned to
defense counsel and asked, “Concerning [defendant’s] court trial
as to his priors and probation and sentencing, when would you
like to do that?” Counsel replied, “Yes. And then just for the
record, defense objects to the acceptance of that verdict just based
on Juror No. 4’s responses. I didn’t feel confident that was her
verdict. It was confusing to me, and I think she should have been
further polled and explained why she was changing. And her
demeanor seemed to be uncertain.”
       Neither the court nor the prosecutor responded. The court
did not attempt to recall the jurors or declare a mistrial. Instead,
the verdicts were recorded, and defendant admitted his prior
convictions and was sentenced that day.
      2.3.   Juror No. 4 did not agree with the verdict.
      The colloquy between the court and Juror No. 4 is clear: the
juror did not find defendant guilty of count 1. The People
nevertheless invite us to interpret the exchange as establishing
that Juror No. 4 intended to convict. We decline their invitation.




                                13
       When the clerk asked the jurors, “Is this your individual
verdict,” Juror No. 1 said yes. Juror No. 2 said yes. Juror No. 3
said yes. But Juror No. 4 said no. When the court asked her, “So
you did not intend to vote guilty as to count 1?” Juror No. 4 said
yes—that is, she confirmed she “did not intend to vote guilty as to
count 1.” Plainly, Juror No. 4 disagreed with the count 1 verdict.
       Given the clear textual meaning of this exchange, to the
extent anything about Juror No. 4’s body language or tone of
voice indicated her words were ambiguous or susceptible to
another interpretation, the court and prosecutor were required to
make a record of it. (See, e.g., People v. Superior Court (1967) 67
Cal.2d 929, 932, italics added [where “a juror makes equivocal or
conflicting statements as to whether he has assented to the
verdict freely and voluntarily,” “subtle factors of demeanor and
tone of voice” can help the court determine whether additional
deliberations may be helpful].) But on the record before us, we
cannot speculate that Juror No. 4’s apparently clear words had
some other meaning.
      2.4.   Defendant did not forfeit the error.
       The People argue defendant has forfeited this claim by
objecting to the non-unanimous verdict only after the jury was
discharged. (See People v. Thornton, supra, 155 Cal.App.3d 845
[court has no jurisdiction to recall discharged jurors].) In support
of that proposition, they cite to cases in which the defendant
failed to request polling, the court failed to complete the polling, a
polled juror responded ambiguously, or the polled jurors
responded unanimously. (See People v. Anzalone (2013) 56
Cal.4th 545, 549–550, 555 [failure to request jury polling where
there is no evidence of juror disagreement is not structural error];
Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 265 [failure to




                                 14
object to incomplete polling of a juror]; People v. Wright (1990) 52
Cal.3d 367, 415, limited on another ground by People v. Williams
(2010) 49 Cal.4th 405, 459 [failure to request clarification where
a juror’s response to polling was ambiguous]; People v. Lessard
(1962) 58 Cal.2d 447, 452 [failure to object where the record
incorrectly reflected that 11 of 12 jurors had been polled and the
verdict was in fact unanimous]; Zagami, Inc. v. James A. Crone,
Inc. (2008) 160 Cal.App.4th 1083, 1092 [failure to request
clarification of an ambiguous verdict]; People v. Romero (1982) 31
Cal.3d 685, 693 [jury rendered a unanimous verdict, but months
later, some jurors revealed disagreement about the verdict].) “It
is axiomatic that cases are not authority for propositions not
considered.” (People v. Casper (2004) 33 Cal.4th 38, 43.) Yet the
People do not explain why those cases should apply to the wholly
different circumstances at issue here.
       Nor do the People cite any authority for the proposition
that a defendant must object to preserve a challenge to an
incomplete or non-unanimous verdict—and our research has
revealed none. To the contrary, numerous cases have held that
the fundamental right to a unanimous verdict by a 12-person jury
cannot be forfeited.
       Traugott is instructive. (Traugott, supra, 184 Cal.App.4th
492.) As the California Supreme Court described it, “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. [Citation.] … [¶] … [By the
time the court convened to take the verdict, however,] Juror No. 4
had left to go to a job interview. [Citation.] The court indicated it
would take the verdicts in the absence of Juror No. 4 unless there




                                 15
was an objection. … [D]efense counsel replied, without conferring
with her absent client, ‘ “We can proceed, Your Honor. No
objection.” ’ [Citation.]
       “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.)” (People v.
Anzalone, supra, 56 Cal.4th at pp. 559–560, fn. omitted.)
       Similarly, in Garcia, the court excused a juror during
deliberations. (People v. Garcia (2012) 204 Cal.App.4th 542, 548.)
After the juror had been replaced with an alternate, the court
learned the jury had previously reached a verdict on all but one
count. (Ibid.) The court sealed the earlier verdicts, and the newly




                                 16
constituted jury reached a verdict on the remaining count and its
enhancement. (Id. at pp. 548–549.) At the defendant’s request,
the court polled the 11 participating jurors as to the sealed
verdicts and polled all 12 jurors on the remaining verdict. (Id. at
p. 549.) The court then recorded all the verdicts. (Ibid.) Eleven
days later, the court brought the discharged juror back to court;
she said the sealed verdicts had been hers. (Ibid.)
Notwithstanding the agreement of the prosecutor, defendant’s
counsel, and codefendant’s counsel to this procedure, the
reviewing court held that defendant did not consent to a verdict
of fewer than 12 jurors. (Id. at pp. 548–549, 552–553.)
       Furthermore, the California Supreme Court has long held
that no objection is required in situations analogous to the one
before us. In Marks, for example, the Supreme Court addressed
section 1157, which provides that when a trier of fact fails to
specify the degree of an offense, the verdict is deemed a
conviction of the lesser degree. (Marks, supra, 1 Cal.4th at p. 71.)
Thus, even though the jury in that case found the defendant
guilty of murder, found a special-circumstance allegation true,
and imposed a death verdict, its failure to specify the degree of
murder explicitly meant that as a matter of law, its verdict was
for second degree murder. (Id. at pp. 72–74.)
       The Supreme Court held the defendant had “no obligation
to bring the omission to the court’s attention.” (Marks, supra,
1 Cal.4th at p. 77, fn. 20.) The court analogized to Curry, which
held that under the California Constitution, when a trial court
declares a mistrial without legal necessity or the defendant’s
consent, “his mere silence in the face of an ensuing discharge
cannot be deemed a waiver. [Citations.]” (Curry v. Superior Court
(1970) 2 Cal.3d 707, 713; Marks, at p. 77, fn. 20.)




                                17
        In so holding, the Marks court emphasized that “our state
law requires and directs regularity in the jury’s verdict” (Marks,
supra, 1 Cal.4th at p. 72, fn. 14), and reasoned that “[w]hen the
verdict is ‘deemed of the lesser degree’ by operation of law, the
prosecution bears at least partial responsibility. The
consequences of an irregular verdict are well settled, and nothing
precludes the prosecution from calling the deficiency to the
court’s attention before it discharges the panel. (See §§ 1161–
1164.) Since any failure to do so results from neglect rather than
lack of notice and opportunity to be heard, the People’s right to
due process is accordingly not offended.” (Id. at p. 77, fns.
omitted.)
        We see no reason to treat a present juror’s clear
repudiation of a verdict during polling differently than the silence
of an absent juror. In California, the right to a jury trial includes
the right to a unanimous 12-person verdict, orally affirmed by
each individual juror. In the absence of an express waiver by the
defendant, an 11-person verdict violates that right—regardless of
the reason it occurs. Nor do we see any reason to treat a polled
juror’s statement that the verdict is not hers differently from the
jury’s failure to explicitly designate the degree of an offense. In
all of these circumstances, because the right to a jury trial is
personal to the defendant, it cannot be forfeited by defense
counsel’s failure to object. (See, e.g., People v. Blackburn (2015)
61 Cal.4th 1113, 1130 [in a mentally-disordered-offender
commitment-extension hearing, the decision to waive a jury trial
belongs to the defendant in the first instance, and the trial court
must elicit the waiver decision from the defendant on the record
in a court proceeding]; In re Tahl (1969) 1 Cal.3d 122, 131 [in
California, jury trial waiver “must be expressed in words by the




                                 18
defendant and cannot be implied from the defendant’s conduct” or
counsel’s statements].)
      Having concluded the court’s erroneous recording of the
non-unanimous verdict is properly before us, we turn to the
question of whether defendant may be retried on count 1.5
      2.5.   The double jeopardy clause bars retrial.
        Article I, section 15, of the California Constitution provides,
“Persons may not twice be put in jeopardy for the same
offense … .” “ ‘The fundamental nature of the guarantee against
double jeopardy can hardly be doubted. Its origins can be traced
to Greek and Roman times, and it became established in the
common law of England long before this Nation’s independence.’
[Citation.] ‘The prohibition is not against being twice punished,
but against being twice put in jeopardy; and the accused, whether
convicted or acquitted, is equally put in jeopardy at the first
trial.’ [Citation.]” (Marks, supra, 1 Cal.4th at pp. 71–72.)
        “Implementing this constitutional command, the decisions
of [the California Supreme Court] have settled the now familiar
rules that (1) jeopardy attaches when a defendant is placed on
trial in a court of competent jurisdiction, on a valid accusatory
pleading, before a jury duly impaneled and sworn, and (2) a
discharge of that jury without a verdict is equivalent in law to an
acquittal and bars a retrial, unless the defendant consented
thereto or legal necessity required it. [Citations.]” (Curry v.


5As the error is structural, reversal is required regardless of prejudice.
(Traugott, supra, 184 Cal.App.4th at p. 496; People v. Blackburn,
supra, 61 Cal.4th at pp. 1132–1134 [failure to obtain a valid jury trial
waiver is tantamount to the denial of a jury trial and defies ordinary
harmless error analysis.].)




                                   19
Superior Court, supra, 2 Cal.3d at p. 712; see also People v.
Hernandez (2003) 30 Cal.4th 1, 5 [“The appellate court correctly
observed that a discharge of the entire jury without a verdict is
equivalent to an acquittal and bars a retrial unless defendant
consented to it, or legal necessity required it.”].)
       Here, judgment was entered in a court of competent
jurisdiction on a valid accusatory pleading before a jury duly
impaneled and sworn. Thus, jeopardy had attached. As discussed,
defendant did not consent to an 11-person verdict, and the court
did not declare a mistrial. Since the jury was discharged without
a verdict, the only remaining issue is whether legal necessity
justified the discharge.
       “California provides its citizens a greater degree of
protection against double jeopardy than that provided by federal
law by placing limitations on what constitutes ‘legal necessity.’
[Citations.] A judicial error of law or procedure does not
constitute legal necessity. [Citations.] Rather, ‘legal necessity for
a mistrial typically arises from an inability of the jury to agree
[citations] or from physical causes beyond the control of the court
[citations], such as the death, illness, or absence of judge or juror
[citations] or of the defendant [citations].’ [Citation.]” (Carrillo v.
Superior Court (2006) 145 Cal.App.4th 1511, 1525, fn. omitted;
see also People v. Sullivan (2013) 217 Cal.App.4th 242 [where the
jury reaches a verdict on a substantive offense but deadlocks on
an enhancement, a court’s declaration of mistrial on both bars
retrial under the double jeopardy clause because there was no
legal necessity for mistrial on the substantive count]; People v.
Batts (2003) 30 Cal.4th 660, 686–687 [federal constitution
provides only minimum standards of double jeopardy protection,




                                  20
and in some contexts, the California Constitution provides
greater protection].)
       The People devote one sentence to their claim that retrial is
proper and point us to one case—Chipman—to support that
claim. (Chipman, supra, 131 Cal.App.3d at p. 263.) Yet Chipman
did not address the issue before us. In that case, “although Juror
No. 12 had acquiesced in the verdict during deliberations, she
answered ‘No’ to the clerk’s question of whether this was her true
verdict. When the court asked the juror whether she had voted
‘Yes’ in the jury room and she admitted that she had, the court
accepted this prior concurrence as contributing to a unanimous
verdict. The court failed to establish that the juror’s present
verdict was anything other than the ‘No’ with which she had
responded to the poll. The court thus did not give effect to the
right of a juror to change his verdict at any time up to the time
that it is finally recorded.” (Id. at p. 267.)
       The defendant moved for a mistrial, which the court
denied. The defendant then petitioned the court of appeal for a
writ of mandate directing the superior court “to vacate the order
for recordation of the verdict and to grant the motion for
mistrial.” (Chipman, supra, 131 Cal.App.3d at p. 267.) The
appellate court granted the writ. Given the procedural posture of
the case, Chipman did not have occasion to consider whether the
double jeopardy clause would have barred a retrial if the
defendant had not moved for a mistrial, as in this case. Indeed,
since the Chipman court granted the defendant’s requested relief,
it declined to address the substantive double jeopardy issue at
all: the court devoted only a paragraph to the issue. (Ibid.; see,
e.g., People v. Barragan (2004) 32 Cal.4th 236, 243 [cases are not
authority for propositions not considered therein].)




                                21
      Here, of course, defendant did not request a mistrial, and
the court did not grant one. Indeed, as the jury had deliberated
for only an hour, and there is nothing in the record to indicate the
jury was hopelessly deadlocked or would be unable to reach a
verdict if it had continued deliberating, the court was in no
position to declare a mistrial. (People v. Medina (1980) 107
Cal.App.3d 364, 370.) And because the court discharged the jury
without a verdict, Juror No. 4 was not given the chance to
persuade the other jurors to acquit defendant of count 1. Because
the jury was discharged without a verdict, without legal
necessity, and without defendant’s consent, defendant may not be
retried for count 1.




                                22
                         DISPOSITION

       Count 1 is reversed and the matter is remanded with
directions to enter a verdict of acquittal for count 1. The
judgment is modified to lift the stay on count 2 and to strike the
fees associated with count 1. (Pen. Code § 1260 [appellate courts’
authority to modify judgments]; People v. Alford (2010) 180
Cal.App.4th 1463, 1468–1469, 1472–1473, review den. Apr. 22,
2010, S180373 [modifying judgment to impose and stay a
sentence under Pen. Code § 654].) In all other respects, the
judgment is affirmed as modified.
       Upon remand, the superior court is directed to: (1) modify
the minute order of June 20, 2016, to reflect that defendant was
acquitted of count 1, (2) modify the minute order of June 20,
2016, to reflect the judgment as modified, (3) amend the abstract
of judgment to reflect the judgment as modified, and (4) send a
certified copy of the amended abstract of judgment to the
Department of Corrections and Rehabilitation.



        CERTIFIED FOR PARTIAL PUBLICATION


                                                     LAVIN, J.
WE CONCUR:



      EDMON, P. J.



      EGERTON, J.




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