Filed 8/28/13 P. v. Hrenko CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.


        IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                   FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F064807
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF36768)
                   v.

BRIAN MICHAEL HRENKO,                                                                    OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.

         Kendall Simsarian, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis M.
Martinez, and Charity S. Whitney, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-

         *Before Cornell, Acting P.J., Kane, J. and Peña, J.
       Defendant Brian Michael Hrenko was convicted of receiving stolen property (Pen.
Code,1 § 496) after trial by jury. His sole contention on appeal is that his state
constitutional right to a unanimous verdict was violated because the court failed to
request that each juror orally affirm the verdict, pursuant to section 1149. We find
defendant forfeited the claim by failing to object in the trial court.
                  PROCEDURAL AND FACTUAL BACKGROUND
       Defendant was charged with residential burglary and receiving stolen property.
Before jury deliberations, the court gave the jury its final instructions, including the
admonition that “[their] verdict on each count must be unanimous. This means that to
return a verdict, all of you must agree to it.” After approximately three hours of
deliberations, the jury reached a verdict and returned to the courtroom, at which time the
following exchange took place:

              “THE COURT: Let the record reflect that all jurors are present. The
       alternate is not present, counsel are present and the defendant is present.

               “Ladies and gentleman, I understand you’ve reached a verdict in this
       case?

               “THE FOREPERSON: We have.

               “THE COURT: (BADGE NO 277489), are you the foreperson?

               “THE FOREPERSON: Yes, sir.

               “THE COURT: Would you hand to the Bailiff—the verdicts to the
       Bailiff, please.”
       The jury’s verdict was then read aloud by the clerk. The jury found defendant not
guilty of residential burglary, but found him guilty of receiving stolen property. Once the
verdict was read, the court asked if “either counsel wished to have the Jury polled.” Both
the prosecution and defense declined to do so. The court then thanked the jurors for their
service and dismissed them.


       1Unless otherwise indicated, all statutory references are to the Penal Code.



                                               2.
                                       DISCUSSION
       On appeal, defendant argues his constitutional right to a unanimous verdict was
violated because the court failed to request that each juror orally affirm the verdict,
pursuant to section 1149. Defendant further argues the error is structural and thus
reversible per se. Plaintiff disagrees, arguing defendant forfeited his right to appeal the
verdict by failing to object to the alleged error before the jury was discharged and that
even if the issue is preserved, any error was harmless.
       After briefing was completed, our Supreme Court decided People v. Anzalone
(2013) 56 Cal.4th 545, which squarely addresses the issues here. In Anzalone, the
following exchange took place between the trial court and jury after deliberations:

              “‘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.’” (People v. Anzalone, supra, 56 Cal.4th at
       p. 549.)
       The verdicts were then read aloud. The defendant was acquitted of vandalism, but
found guilty on the other counts. (People v. Anzalone, supra, 56 Cal.4th at p. 549.)
After the verdict was read, the court thanked the jurors and dismissed them. (Id. at pp.
549-550.) On appeal, the 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. (Anzalone, at p. 550.)
In addressing the issue, the Supreme Court set out several rules that govern the very
controversies raised by the parties in the present case.
       First, applying the requirement that a party must object to an incomplete polling to
preserve the issue for appeal (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263-265),
the court held that “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.” (People v. Anzalone,

                                              3.
supra, 56 Cal.4th at p. 551.) Second, the court found a failure to comply with section
1149 does not constitute structural error, and where, as here, the verdict was read and
recorded in the presence of all 12 jurors, the error was harmless. (People v. Anzalone,
supra, at pp. 558-560.) The court held harmlessness is to be determined under the People
v. Watson (1956) 46 Cal.2d 818, 836, standard of review. (People v. Anzalone, supra, at
p. 555.)
       Applying Anzalone to the present case, we find defendant’s failure to object to the
court’s alleged noncompliance with section 1149 forfeited his right to raise the issue on
appeal. Even if this court were to reach the merits of the issue, we would find any error
harmless.

              “[S]ection 1149 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.’” (People v. Anzalone, supra, 56 Cal.4th at p.
       551.)
The court in Anzalone explained that a foreman’s oral declaration is sufficient
acknowledgement of the verdict. (Ibid.) Here, the court unequivocally asked the
foreman whether the jury had reached a verdict, to which the foreman clearly answered in
the affirmative. Thus, it is arguable that the court substantially complied with section
1149. However, even if we were to assume section 1149 was not satisfied, any error was
necessarily harmless. Like in Anzalone, the jury here was instructed that it must
unanimously reach a verdict, the jury deliberated for approximately three hours, and
when it returned with a verdict, the foreman affirmed the jury reached a verdict. (People
v. Anzalone, supra, 56 Cal.4th at pp. 549, 555-560.) Further the verdict was read in open
court with all jurors present and no juror expressed any disagreement with the verdict.
Under these circumstances, any error was necessarily harmless. (Ibid.)
                                     DISPOSITION
       The judgment is affirmed.




                                             4.
