27 Cal. App. 5th 376
Cal. Ct. App.2018Background
- Christopher Bailey was charged with DUI (count 1, Veh. Code §23152(a)), BAC ≥ .08% (count 2, §23152(b)), and combined alcohol+drug DUI (count 3). Prior convictions alleged and later admitted.
- Jury returned written guilty verdicts on counts 1 and 2. Defense requested polling; Juror No. 4 answered "No" when asked if the verdicts were her individual verdicts and confirmed she did not intend to vote guilty on count 1 but did intend to vote guilty on count 2.
- The trial court nevertheless recorded the guilty verdicts, discharged the jury, and later sentenced Bailey (count 2 stayed). Defense objected after jurors left.
- On appeal, Bailey argued the non-unanimous recorded verdict on count 1 violated his right to a unanimous 12‑person jury and that retrial is barred by double jeopardy; he also challenged denial of a pretrial dismissal of count 3.
- The Court of Appeal held the oral poll showed a juror dissented as to count 1, the unanimity right was violated, the error was structural (no forfeiture), and retrial on count 1 is barred. The court affirmed denial of dismissal as to count 3.
Issues
| Issue | People’s Argument | Bailey’s Argument | Held |
|---|---|---|---|
| Whether recording a verdict after a polled juror disavows it violates the right to a unanimous 12‑person jury | The verdict was effectively unanimous or any error was forfeited/harmless | Juror No. 4’s "No" showed a lack of unanimity; recording the verdict violated the unanimity right | Violation of unanimous‑jury right; juror’s oral dissent controlled and the verdict as recorded was invalid |
| Whether defense forfeited the unanimity claim by not objecting before jurors left | Defendant failed to preserve claim by waiting until after discharge | No objection required; unanimity is a fundamental, personal right that cannot be forfeited by counsel silence | No forfeiture; defendant need not object prior to discharge to preserve the claim |
| Whether retrial on count 1 is barred by double jeopardy | Retrial is permissible in these circumstances | Double jeopardy bars retrial because jury was discharged without a valid verdict and without defendant’s consent or legal necessity | Double jeopardy bars retrial; court must enter acquittal on count 1 |
| Whether the trial court erred in denying pretrial dismissal of count 3 (combined alcohol+drug) | Evidence at preliminary hearing supported holding to answer | Defendant argued insufficiency at preliminary hearing | Denial of section 995 motion on count 3 was proper (court affirmed) |
Key Cases Cited
- People v. Collins, 26 Cal.4th 297 (discussing fundamental jury rights)
- Chipman v. Superior Court, 131 Cal.App.3d 263 (juror may change vote on polling; court must give effect to oral dissent)
- People v. Carbajal, 56 Cal.4th 521 (statutory procedures for receiving jury verdicts)
- People v. Traugott, 184 Cal.App.4th 492 (unanimous 12‑person verdict required; counsel’s consent insufficient to waive absent defendant’s express waiver)
- People v. Marks, 1 Cal.4th 56 (no obligation for defendant to call omission to court’s attention; fundamental jury protections)
- Curry v. Superior Court, 2 Cal.3d 707 (discharge of jury without legal necessity is equivalent to acquittal and bars retrial)
- People v. Anzalone, 56 Cal.4th 545 (discussion of jury polling and unanimity principles)
- People v. Garcia, 204 Cal.App.4th 542 (sealed/partial verdicts and requirement of unanimous 12‑person verdict)