Opinion
We granted review to address issues concerning a trial court’s polling of a civil jury pursuant to Code of Civil Procedure section 618 (hereafter section 618) after rendering a verdict. This statute provides that if “more than one-fourth of the jurors disagree” with a verdict upon polling, “the jury must be sent out again” for further deliberation, “but if no disagreement is expressed, the verdict is complete and the jury discharged from the case.” (Italics added.) We conclude that a juror’s silence at polling, brought about by the trial court’s failure to poll that particular juror on one of several special verdict questions, does not constitute an expressed disagreement with the verdict under section 618, and hence does not prevent the trial court from accepting the verdict as complete and discharging the jury. We further conclude that a party’s failure to object to incomplete polling before the jury is discharged forfeits any claim of irregularity in polling procedure.
I
Scott Keener was killed while riding his motorcycle when a truck driven by Hector Solis, an employee of Jeld-Wen, Inc. (collectively, defendants), pulled away from a stop sign directly into Keener’s path. Keener’s survivors (plaintiffs) commenced this action against defendants.
After deliberating for more than two days, the jury informed the bailiff that it had reached a verdict and then reassembled in the courtroom. When the trial judge inquired whether the jury had arrived at a verdict, the foreperson, Raul Santana, who had signed and dated the multiple-question verdict form, answered in the affirmative. The trial judge explained: “What I’m going to do next is look at the verdict form and see if it’s in order. Once I determine it’s in order, I will have . . . my clerk . . . read the verdict form after which I’ll ask you as a group whether this was your verdict as read. [j[] Because it is a civil case, it requires nine of 12 on each of the questions to have ... a partial verdict. So what will ultimately happen is I will poll you individually asking you whether [on] a particular question you voted yes or no. And I hope you
The clerk then read aloud the three-page verdict form. It was divided into nine questions, some with subparts. The jurors’ responses—as reflected on the verdict form—revealed, in questions 1 and 2, that the jury found Hector Solis was negligent, and that his negligence was a substantial factor in causing Keener’s death. In questions 3 through 6, the jurors assessed plaintiffs’ damages. Question 7 asked, “Was Scott Keener negligent?” 1 2 Question 8 asked, “Was Scott Keener’s negligence a substantial factor in causing his death?” Question 9 asked, “What percentage of responsibility do you assign to: [f] Hector Solis _% [<0 Scott Keener_% . . . .” The verdict form further revealed that the jury had found both parties were negligent, the negligence of each was a substantial factor in causing Keener’s death, and plaintiffs suffered economic and noneconomic damages totaling $4,940,000. Finally, the jury found that defendant Solis bore 80 percent of the responsibility for the death, and Keener bore 20 percent of the responsibility for his own death.
The trial judge then addressed the jury: “Ladies and gentlemen, as a group, is this and was this your verdict as read? You can say yes or no depending on how you voted.” The reporter’s transcript reflects that in response, “the jurors answered collectively.” The judge explained that he would individually ask each juror to confirm his or her vote on each of the nine questions and subquestions, and then proceeded to poll each juror in numerical order. During the polling, eight jurors—Nos. 1, 2, 3, 5, 8, 9, 11, and 12—answered all questions consistently with the special verdict form. Four jurors, however, gave answers different in various respects from those set out in the verdict form.
In response to the first special verdict form question, Juror No. 4 responded with a finding that Solis was
not
negligent. The trial judge confirmed that vote, and then dispensed with immediately polling Juror No. 4 concerning
Thereafter, immediately following completion of the polling оf Juror No. 12, the trial judge inquired: “Mr. Foreperson, for those that voted no as to [verdict form question] No. 1 [(negligence of Solis)], did the two who voted no participate in any of the damage calculations?” Upon confirmation that the two jurors did so, the trial judge returned to Juror No. 4 and polled concerning that juror’s votes on special verdict form questions 3 through 9. Juror No. 4 stated that with respect to apportionment of responsibility (question 9), the juror’s vote was “Mr. Solis, 40 percent. Mr. Keener, 60 [percent].” Finally, the trial judge returned to Jury Foreperson Santana (Juror No. 10) and polled concerning his votes on special verdict form questions 3 through 9. With respect to apportionment of responsibility (question 9), Foreperson Santana stated his vote as “50 percent for both.”
Apparently, no one noticed that throughout this process, although the polling revealed a clear three-quarters majority for special verdict form questions 1 through 8, the polling revealed only eight votes for the verdict form’s stated “80-20” apportionment of responsibility between Solis and Keener. On that allocation issue, two jurors—Jurors Nos. 4 and 10 (Foreperson Santana)— voted respectively to apportion responsibility between Solis and Keener at 40-60 percent and 50-50 percent. One juror—Juror No. 7 (Brown)—never was asked to state a vote on apportionment and hence, in essence, this juror was silent as to that polling question. One other panelist—Juror No. 6—confirmed in the polling a vote to apportion fault 90 percent to Solis and 10 percent to Keener.
Immediately after repolling Jury Foreperson Santana (Juror No. 10), the trial judge asked the clerk to record the verdict and, at length, thanked the jurors and then discharged them. After resolving a few remaining housekeeping matters with counsel, the trial judge asked counsel whether there was “anything further.” Attorneys for each side replied there was not.
The trial court ordered the declarations of Jury Foreperson Santana and Juror No. 2 stricken as inadmissible, and declined to consider plaintiffs’ proffered declarations. The court denied defendants’ motion to invalidate the apportionment verdict, concluding that defendants had “waived any right to object to any irregularity in the polling procedure by failing to timely object before the verdict was entered.” The court entered judgment in the amount of $3,952,000 (that is, 80 percent of $4,940,000) in accordance with the written special verdict form.
Defendants moved for a new trial on several bases, including the ground that the apportionment verdict was invalid bеcause the polling was incomplete and there were insufficient polled votes to uphold the written verdict’s 80-20 apportionment. Defendants submitted new declarations by Jury Foreperson
The court denied defendants’ motion for new trial. In doing so, the court considered the various declarations, but found them admissible only with regard to “[wjhether a particular juror gave a yes or no vote on a particular issue.” As to the polling issue, the court found once again that defendants “waived” any error by failing to object prior to the discharge of the jury. The court also concluded, in any event, there was no defect in the verdict, because Jury Foreperson Santana had provided the ninth vote in the jury room. 6
Defendants appealed, arguing, among other things, that the special verdict on apportionment, which was based upon the written verdict form, lacked sufficient votes in light of the circumstances that Jury Foreperson Santana may have changed his vote at the time of polling and that Juror Brown failed to state his vote at the time of polling. The Court of Appeal rejected most of defendants’ claims but ruled for defendants on the apportionment issue. In that regard, the appellate court reached three principal conclusions. First, the court determined, “the trial court erred [under Evidence Code section 1150] in accepting the jurоr declarations to inquire into and resolve the results of the jury’s decisionmaking process, and also when it made a credibility
Plaintiffs’ petition for review raised only two issues, the second and third described immediately above, and thus we address those issues only. 7 8 Specifi-cally—and, as explained below, significantly—the appellate court’s determination that all of the juror declarations (whether submitted by defendants or by plaintiffs) were inadmissible under Evidence Code section 1150 on the polling/apportionment issue is not before us in this proceeding.
II
California Constitution, article I, section 16 provides: “Trial by jury is an inviolate right . . . , but in a civil cause three-fourths of the jury may render a verdict.” When a jury is composed of 12 persons, it is sufficient if
any
nine jurors arrive at each special verdict, regardless of the jurors’ votes on other special verdict questions.
(Resch v. Volkswagen of America, Inc.
(1984)
It is established that a juror may change his or her vote at the time of polling.
(Chipman
v.
Superior Court
(1982)
III
A
We address first the assertion of defendants that the trial court erred under section 618 by accepting the verdict as complete and thereafter discharging the jury. That statute (quoted ante, at p. 256), provides, in essence, that upon polling, a civil verdict must be upheld unless “more than one-fourth of the jurors disagree thereto”; it states that absent such “disagreement . . . expressed, the verdict is complete.” (Italics added.) As plaintiffs observe, section 618 effectively creates a “rebuttable presumption: If a verdict appears complete, it is complete unless there is an affirmative showing [during polling] to the contrary.”
1
Although in the present case, when polled, only three jurors (that is, “not more than one-fourth” of the jurors) “expressed” their “disagreement” with the apportionment verdict, the Court of Appeal below concluded that Juror Brown’s “missing vote is essentially a disagreement,” and hence “there are more than three jurors who ‘disagreed’ under section 618.” But by remaining silent when the court failed to poll him concerning the apportionment verdict, Juror Brown did not thereby “express” any “disagreement” with the verdict— and hence the polling did not disclose that “more than one-fourth of the jurors disagree[d] with the apportionment verdict.” Indeed, if the Legislature had intended that a juror’s mere silence at polling, caused by the trial court’s failure to poll that particular juror on one of several special verdict questions, would be sufficient to establish “expressed” “disagreement” with a verdict, we expect the Legislature would have written section 618 quite differently, such as by employing language used by legislatures in other jurisdictions in enacting similar statutes, some of which, unlike section 618, effectively equate a juror’s silence with disagreement. 12
We agree with plaintiffs that section 618 requires
affirmative
disagreement—an utterance, statement, or some similar active conduct—of “more than one-fourth” of the jurors in order to prevent a trial court from finding the verdict to be complete and from then discharging the jury. (Cf.
Van Cise v. Lencioni
(1951)
We briefly address defendants’ contrary arguments. First, defendants claim that Juror Brown did indeed affirmatively express his disagreement with the verdict apportioning fault between Hector Solis and Scott Keener. They assert that based upon the polling, “the undisputed evidence established that only eight jurors voted in favor of Special Verdict No. 9.” Defendants next argue that the declaration of Juror Brown, stating that he voted for a “100%-0% apportionment—100% for Mr. Solis and 0% for Mr. Keener,” together with corroborating declarations by other jurors, demonstrate that Juror Brown did not vote in the jury room in favor of the 80-20 apportionment verdict. Based upon this information from the declarations (and Brown’s in particular), defendants argue, it is “undisputed” and “established” that “Juror Brown did not supply the requisite ninth vote.” As plaintiffs observe, however, defendants cannot properly rely upon Brown’s, or any other juror’s, declaration, because the Court of Appeal concluded that no declaration submitted below in this matter is admissible, in whole or in part; as noted above, the inadmissibility of the declarations is not before us for review, and we treat it as a settled question for purposes of this case. (See ante, at p. 255 & fn. 7.) Accordingly, the premise of defendants—that Juror Brown affirmatively expressed his disagreement with the 80-20 apportionment verdict—has not been, and cannot be, established by admissible evidence. The record leaves unresolved whether, at the time of polling or in the jury room, there were eight votes only (or whether there were nine or more votes) for the apportionment verdict. 16
Defendants also assert that permitting an eight-vote civil verdict to stand would call into question the constitutionality, as applied, of section 618, and would violate article I, section 16 of the Constitution, which, as noted, requires a verdict of three-quarters of the jurors (meaning, in this case, nine of 12). Defendants argue that a special verdict based upon only eight votes is unconstitutional and cannot be upheld on appeal.
In any event, as we observed immediately above, no admissible evidence supports defendants’ assertion that nine of the jurors did not agree with the 80-20 apportionment verdict; the record reveals only that eight of the 11 jurors who were polled on that particular question so voted. Once again, defendants’ premise—that there were eight votes only, and not nine votes or more in support of the verdict—has not been, and cannot be, established by admissible evidence.
(Walling v. Kimball
(1941)
Although section 618 did not bar the trial court from accepting the verdict as complete and discharging the jury, the circumstance remains that the record does indeed disclose that the court failed to poll Juror Brown on two of the special verdict questions, including the one related to the issue of apportionment. As observed earlier, the Court of Appeal below concluded that defendants’ failure to object to the incomplete polling did not constitute a “waiver” of any such defect. In this court, defendants argue that the conclusion reached by the intermediate appellate court was correct, although defendants propose a slightly different analysis in support of that result.
We disagree with the Court of Appeal, and with defendants. As explained below, by not objecting to the incomplete polling, defendants forfeited 19 their right to assert that the failure to poll Juror Brown on the final special verdict question, related to apportionment, rendered that part of the verdict invalid.
1
We briefly review the relevant case law. In
People v. Lessard
(1962)
Thereafter, in a civil case,
Silverhart
v.
Mount Zion Hospital
(1971)
The most frequently quoted statement of the applicable rule is found in
Henrioulle v. Marin Ventures, Inc.
(1978)
More recently, in
People v. Wright
(1990)
The forfeiture rule generally applies in all civil and criminal proceedings. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 400, pp. 458-459; 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 37, pp. 497-500.) The rule is designed to advance efficiency and deter gamesmanship. As we explained in
People
v.
Simon
(2001)
Consistent with this general rule, various treatises and benchbooks have highlighted the particular forfeiture rule at issue in the present case and set out in
Henrioulle, supra,
As suggested above, the 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—ranging from the introduction of otherwise inadmissible evidence or dispositive procedural rulings,
24
to various constitu
In reaching a contrary conclusion, the Court of Appeal suggested, first, that no forfeiture occurred, because the polling defect was not “apparent” to the trial court, to the jurors, or to counsel. (See
Henrioulle, supra,
The record reflects, however, that the polling was methodical. The trial court’s polling of Juror Brown concerning most of the special verdict questions-—but not the apportionment question—was not confusing, nor did defense counsel’s failure to notice this omission establish that the polling was confusing. This situation was not one in which it was impractical to expect defense counsel to be able to follow the course of the polling and make a contemporaneous objection to any omission. Indeed, as observed earlier, immediately prior to polling the jury the trial court noted its hope that each juror would have available his or her “cheat sheet”—the personal “colored copy” of the special verdiсt form (see
ante,
fn. 1). The record also reflects
Nor, contrary to the appellate court’s characterization, did the trial court take the matter out of defense counsel’s hands. After accepting the verdict and then thanking the jury at length, the court simply proceeded to address postverdict matters. The court was not obligated to ask counsel whether there was “anything further” prior to discharging the jury. By asking that question afterward, the court did not deprive defense counsel of earlier opportunities to object when the court had completed its polling of Juror Brown, or immediately after the court had thanked the jurors for their service but before the jury wаs discharged.
We conclude that the incomplete polling of Juror Brown was indeed
“apparent
at the time the verdict was rendered and could have been corrected.” (Hen
rioulle, supra,
Nor do we find persuasive the Court of Appeal’s attempt to distinguish prior cases involving forfeiture. The appellаte court below observed that “[i]n both
Henrioulle . . .
and
Silverhart . . . ,
there were at least nine votes to support a verdict at the time the waiver occurred,” and it speculated that, in
Henrioulle,
we found the asserted defect (the absence of evidence that the
same
nine jurors had voted for each special verdict element) could be forfeited because that alleged defect was
“less severe
than an eight-vote special verdict, the defect in this case.” (Italics added.) The appellate court below added: “It is also possible to view the written verdict as inconsistent
As noted earlier, it cannot be established that the verdict in the present case was supported by eight votes only, rather than by nine or more votes. Nor do we find support for the suggestion that forfeiture of the right to challenge the polling of a jury depends upon the severity of the alleged defect in the verdict. 26 Nor, contrary to the Court of Appeal’s assertion, is it possible to view the defect here as an “inconsistent verdict.” 27
For these reasons, we reject the Court of Appeal’s determination that defendants did not forfeit their claim оf incomplete polling 28
2
As noted, defendants suggest that the appellate court’s no-forfeiture determination was correct, although for reasons upon which the Court of Appeal did not rely. We find defendants’ alternative analysis to be unpersuasive.
First, defendants reiterate their assertion that the verdict was supported by only eight votes and hence was “not a constitutional verdict as a matter of law”—a defect that, defendants claim, cannot be forfeited. As observed earlier, however, defendants’ argument rests upon a faulty premise: They rely upon the various juror declarations, but as also observed earlier, the Court of
Defendants also assert that their claim of incomplete polling was not forfeited because, they observe, there is no indication that their failure to object was “the result of a desire to reap a ‘technicаl advantage’ or engage in a ‘litigious strategy.’ ”
(Woodcock v. Fontana Scaffolding & Equip. Co.
(1968)
In
Woodcock,
a jury returned a verdict for the plaintiff, a worker who had been physically injured in the course of employment, in the sum of $13,000. Thereafter, on appeal, the parties contested an alleged ambiguity in the verdict. The defendant asserted that the $13,000 represented the entire amount of the plaintiff’s damages, and hence that sum was required to be reduced by the amount of workers’ compensation benefits received by the plaintiff. The plaintiff argued that the $13,000 sum already reflected an offset by the jury for the workers’ compensation payments. We upheld the defendants’ position, finding that, in light of the jury instructions, the verdict was
not
ambiguous, that it included workers’ compensation payments, and hence that the amount of thé damages awarded was required to be reduced accordingly. (Woodcock,
supra, 69
Cal.2d 452, 457-459.) Despite arriving at that conclusion, however, we also observed, in dictum, that when a verdict is truly ambiguous, the adversely affected party should request that the trial court act under Code of Civil Procedure section 619
29
to secure from the jury a “ ‘more formal and certain verdict.’ ”
(Woodcock, supra, 69
Cal.2d at p. 456.) In this respect, we further observed in a footnote that is presently relied upon by defendants: “Frequently, failure to object to the form of a verdict before the jury is discharged has been held to be a waiver of any defect. [Citations.] However, waiver is not automatic, and there are many exceptions. [Citations.] QQ
Waiver is not found where the record indicates that the failure to object was not the result of a desire to reap a ‘technical advantage’ or engage in a ‘litigious strategy.’
[Citations.] . . . In . . . many . . . cases, waiver is not an issue where a defect is latent and there is no hint of ‘litigious strategy.’ [f] There was no waiver here because, in light of the instructions, the verdict was not ambiguous. [Citation.] Accordingly, there was nothing to clarify. But even if the verdict were ambiguous, there is no hint of a purpose to achieve a ‘technical advantage’ or fulfill a ‘litigious
Defendants assume that
Woodcock’s
articulated exception to the waiver (forfeiture) rule for
ambiguous
verdicts, as to which a party failed to object and seek a more formal verdict under Code of Civil Procedure section 619, applies as well to the
incomplete polling
of a juror under section 618. Defendants do not cite any decision that has so extended the exception described in
Woodcock’s
dictum, however,
30
and we decline to so extend it here.
31
We agree with plaintiffs that such an exception to the objection and forfeiture rule would be unwarranted in the context of incomplete polling under section 618. As plaintiffs observe, a court generally can avoid or cure an
ambiguity
in a verdict by interpreting it—as we did in
Woodcock,
reading the verdict’s “ ‘language ... in connection with the pleadings, evidence and instructions’ ”
(Woodcock, supra,
We conclude that defendants, by failing to timely object to the incomplete polling of Juror Brown, forfeited their claim of error. 32
The judgment rendered by the Court of Appeal is reversed. The matter is remanded to that court for proceedings not inconsistent with this opinion.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
Notes
Previously, in instructing the jury, the trial court stated: “Each of you may be asked in open court how you voted on each question, [f] For that purpose and . . . toward that possibility, you’re each given a colored copy of the special verdict form where you may, if you want, record your personal votes on each of the questions if in fact you do vote on those questions.”
This part of the verdict form, tracking question 1, also provided: “If you answered no, stop here, answer no further questions, and have the presiding juror sign and date this form.”
The failure to poll Juror Brown regarding whether Keener’s negligence was a substantial factor in his own death posed no significant problem because, even without Brown’s vote, there were 11 votes supporting the verdict on that element. The failure to poll Brown as to apportionment raised an issue because, without Brown’s vote, and in light of the polled vote of Juror No. 10 (Foreperson Santana, who may have changed his vote during polling), there were only eight polled votes for the 80-20 apportionment.
Each of the two trial defense counsel also filed declarations, both stating that until the trial court mentioned that Juror Brown had not been polled on two questions, the respective declarant was unaware that the polling had been incomplete.
That subdivision provides: “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or cоncerning the mental processes by which it was determined.” (Evid. Code, § 1150, subd. (a).)
The trial court based this finding upon the four juror declarations submitted by plaintiffs, which the court found “highly credible, especially in light of the fact that Mr. Santana’s declaration is conspicuously silent as to his vote on apportionment.” The court stated: “His assertion, as jury foreperson, that the jury had in fact reached a verdict, coupled with the declarations just cited lead the court to conclude that there were, in fact, nine votes for an 80-20 apportionment and that one of those nine votes was Mr. Santana’s notwithstanding his inexplicable and dubious statement at polling that he had voted for a 50-50 apportionment.” The court found irrelevant and inadmissible the declarations of Woods and Santana and the portion of Brown’s declaration stating his apportionment vote was 100-0.
Defendants did not file an answer to the petition for review (Cal. Rules of Court, rule 8.500(a)(2)) and hence did not ask this court to consider any additional issue resolved by the Court of Appeal, in the event this court were to grant review. (Ibid; id., rule 8.504(b).)
Moreover, our decision in
Resch, supra,
This is the current wording of the statute, as amended in 2007. (Stats. 2007, ch. 263, § 7.) At the time of trial in the present case, the section read slightly differеntly—for example, it employed gender-specific language (“foreman” instead of “foreperson”), and the concluding phrase read, “but if no disagreement be expressed” instead of “but if no disagreement is expressed.” (Stats. 1978, ch. 258, § 1, p. 542, italics added.) These minor changes, enacted along with other technical amendments to various codes upon the recommendation of the California Law Revision Commission, are not material.
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), contains language identical to the key passage of section 618—differing only in that it also reflects the unanimity requirement for criminal verdicts. It reads: “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.” (Pen. Code, § 1164, subd. (a), italics added.)
Once the polled verdicts are reсorded, however, jurors are not permitted to change their votes, even if the jury has not yet been discharged.
(People v. Bento
(1998)
For example, Oregon provides: “If fewer jurors answer in the affirmative than the number required to render a verdict, the jury shall be sent out for further deliberations.” (Or. Rules Civ. Proc., rule 59(G)(3); see also 2009 Conn. Practice Book, Superior Court—Procedure in Civil Matters, § 16-32 [“If upon the poll there is not unanimous concurrence, the jury may be directed to retire for further deliberations or they may be discharged.”]; Md. Rules, rule 2-522(b) [“If the poll discloses that the jury, or stated majority, has not concurred in the
(Ala. Code § 12-16-15 [if, upon polling, “any [jurors] answer in the negative, the jury must be sent out for further deliberation”]; Ark. Code § 16-64-119 [essentially same]; Neb. Rev. Stat. § 25-1124 [essentially same]; N.D. Cent. Code § 28-14-23 [essentially same]; Okla. Stat. tit. 12, § 585 [essentially same]; S.D. Codified Laws § 15-14-29 [essentially same]; Tex. Rules Civ. Proc., rule 294 [if, upon polling, “any juror shown by the juror’s signature to agree to the verdict should answer in the negative, the jury shall be retired for further deliberation”]; Wyo. Code Civ. Proc. § 1-11-213 [essentially same as Ala. provision and others listed above].)
(Ariz. Rules Civ. Proc., rule 49(b) [“If any such juror disagrees as to the verdict, the jury shall again retire to consider the case further, but if no juror disagrees, the court shall receive the verdict. . . .”]; Fla. Rules Crim. Proc., rules 3.440 [“The clerk shall then read the verdict to the jurors and, unless disagreement is expressed by one or more of them or the jury is polled, the verdict shall be entered of record, and the jurors discharged from the cause”], 3.450 [“If a juror dissents, the court must direct that the jury be sent back for further consideration,” but “[i]f there is no dissent the verdict shall be entered of record and the jurors discharged”]; Iowa Court Rules, Rules Crim. Proc., rule 2.22(5) [“If any juror expresses disagreement on such poll or inquiry, the jury shall be sent out for further deliberation . . . ."]; Kan. Crim. Proc. Code § 22-3421 [“If any juror disagrees, the jury must be sent out again; but if no disagreement is expressed, and neither party requires the jury to be polled, the verdict is complete . . . .”]; Ky. Rev. Stat. § 29A.320(3)(e) [“If more than the number of jurors required ... as appropriate to the type of case being tried, answers in the negative, the jury must bе sent out for further deliberation.”];
id.,
§ 29A.320(3)(f) “If no disagreement is expressed or, in an appropriate case, an insufficient number disagree, the verdict is complete and the jury shall be discharged from the case.”]; Minn. Stat. § 546.24 [“If any juror disagrees, the fact shall be entered in the minutes, and the jury again sent out"]; Mont. Code Ann. § 25-7-501(2) [“If upon such inquiry or polling more than one-third of the jurors disagree thereto, the jury must be sent out again, but if no such disagreement be expressed, the verdict is complete and the jury discharged from the case”]; N.M. Rules Civ. Proc. Dist. Cts. rule 1-038G [“[I]f upon . . . polling more than two of the jurors disagree thereto, the jury must be sent out again but if no such disagreement be expressed, the verdict is complete and the jury discharged from the case.”]; N.Y. Crim. Proc. Law § 310.80 [if upon polling “any juror answers in the negative, the court must refuse to accept the verdict and must direct the jury to
Indeed, at least one decision,
Suggs v. Fitch
(Tex.App. 2001)
There was silent acquiescence on the part of defendants to rulings—made both by the trial court and by the appellate court—that bear upon defendants’ present claim of reversible error. Juror Brown, not having been asked by the trial court to state a vote on the apportionment issue, in essence was silent as to this polling question. That silence in turn was compounded by the silence of defendants’ trial counsel, who failed to object to this incomplete polling, and further compounded by the silence of their appellate counsel, who failed to preserve for review in this court their present objections to the Court of Appeal’s ruling that none of the juror declarations submitted to the trial court were admissible. Although purporting to rely upon these declarations in their briefing and oral argument in this court, counsel failed to contest— and hence to preserve for review—the Court of Appeal’s ruling that all of the juror declarations (whether submitted by defendants or by plaintiffs) were inadmissible. (Cal. Rules of Court, rule 8.500.)
Indeed, if, as defendants suggest, we were to reconsider the Court of Appeal’s determination that the juror declarations were inadmissible, and credit the declarations-—and hence, if we were to assume that Foreperson Santana changed his vote upon polling-—it would be equally reasonable to assume, with regard to Juror Brown, that if his prior vote in the jury room had allocated fault 100 percent to defendants and 0 percent to Keener, when given the opportunity at polling Juror Brown might have altered his own vote in order to conform with the jury’s 80-20 allocation. It is perhaps even more likely that Juror Brown would have done so in light of the assumed change in Foreperson Santana’s vote, in order to preclude Santana, by a last-minute switch, from depriving plaintiffs of a verdict to which the jury had agreed.
Finally, defendants advance two related arguments. First, they assert that section 618 requires that if polling occurs, each juror must be polled on each special verdict question—and they argue that in light of the circumstance that Juror Brown was not polled concerning his apportionment vote, under the statute the trial court could not properly thereafter accept the verdict as complete and discharge the jury. This argument appears to be in essence a variation of the argument addressed and rejected
ante,
in part IIIA1. In any event, we disagree with defendants’ proposed statutory interpretation. The statute provides that if requested by a party, the trial court must poll each juror. Here the court did so (evidеntly on its own motion), but the court incompletely polled one of the jurors. We reject any suggestion that section 618 must be construed to bar completion of the verdict and discharge of the jury if, as here, the trial court happens to poll a single juror incompletely and no party objects or brings that defect to the court’s attention for correction. Defendants have not cited any decision so construing section 618, nor have they cited any decision so construing any of the analogous out-of-state statutes
Second, defendants assert that the circumstance that three of the 11 jurors who were asked the apportionment question—that is, 27.2 percent of those 11 jurors—disagreed with the 80-20 allocation, signifies that more than one-fourth of the jurors did indeed “express” their “disagreement” with the apportionment verdict. As plaintiffs observe, however, section 618 assumes that the denominator in a 12-juror case is 12, and not a lesser number. In any event, defendants’ argument, if accepted, would require that in all cases in which there is expressed disagreement of three of 11 jurors, the verdict would be deemed “incomplete,” thereby removing a trial court’s authority to discharge the jury—and effectively eliminating the well-established forfeiture rule, discussed post, in part IIIB. Once again, defendants fail to cite any decision so construing section 618, or any of the analogous out-of-state statutes listed ante, in footnotes 13 and 14. We decline to construe section 618 in the manner suggested by defendants.
Plaintiffs observe that the correct term for the effect of the failure to object to the incomplete polling is “forfeiture,” rather than “waiver.” As we explained in
In re Sheena K.
(2007)
After concluding in
Henrioulle
that we “need not reach the question of whether or not the same nine jurors must agree on each part of a special verdict”
(Henrioulle, supra,
(Accord,
Juarez, supra,
(See also
In re Seaton
(2004)
Similarly, another well regarded source states: “[F]ailure to object to a verdict before the discharge of a jury and to request clarification or further deliberation precludes a party from later questioning the validity of that verdict if the alleged defect was apрarent at the time the verdict was rendered and could have been corrected.” (Cal. Civil Courtroom Handbook & Desktop Reference (Thomson 2008) § 39:5.) As observed in Witkin: “Even a seriously prejudicial kind of error in the conduct, deliberations, or verdict of the jury may be waived [forfeited] by failure to raise it in a timely manner. [][]••■ [1] • Where the error is a defect in the verdict, counsel should request its correction or clarification [citation]; failing this, counsel may lose the right to object. [Citations.]” (7 Witkin, Cal. Procedure, supra, Trial, § 376, pp. 438-439; see also 3 Cal. Civil Procedure During Trial (Cont.Ed.Bar 3d ed. 1995) § 22:31; Cal. Judges Benchbook: Civil Proceedings—Trial (CJER 1997) §§ 15.21, 15.28.)
(E.g.,
Simon, supra,
(E.g.,
People v. Alvarez
(1996)
Many of the prior decisions that have enforced the general forfeiture rule (see ante, fns. 24 & 25) have involved significant and important statutory and constitutional rights in a broad range of civil and criminal proceedings, including capital cases.
An “inconsistent” verdict is one that is
internally
inconsistent—not merely a verdict as to which the polling was incomplete, or a verdict that has been changed by the response of one or more jurors at the time of polling.
(Henrioulle, supra,
Our conclusion is consistent with the decision in
Suggs, supra,
That statute provides: “When the verdict is announced, if it is informal or insufficient, in not covering the issue submitted, it may be corrected by the jury under the advice of the Court, or the jury may be again sent out.” (Code Civ. Proc., § 619.)
The cases that have applied the
Woodcock
dictum to find an absence of forfeiture have involved, similarly to
Woodcock, ambiguous
verdicts or informal, inconsistent, or mistaken verdicts that could be corrected under Code of Civil Procedure section 619; they have not concerned claims of incomplete polling under section 618.
(Saxena v. Goffney
(2008)
Even if the
Woodcock
exception were applicable outside the context of ambiguous verdicts and in the situation posed by incomplete polling, it is not clear that the exception would apply in the present case. Although we observed in
Woodcock
that “in many . . . cases, waiver is not an issue where a defect is
latent . .
.”
(Woodcock, supra,
In any event, defendants have not established prejudice from any error that may have arisen from the incomplete polling.
(College Hospital Inc.
v.
Superior Court
(1994)