Filed 9/21/26 P. v. Tapia CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E082601
v. (Super.Ct.No. FVI22003515)
KEVIN TAPIA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. John P. Vander
Feer, Judge. Reversed with directions.
Mary Woodward Wells, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Flavio
Nominati, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Kevin Tapia was convicted by a jury of first degree murder and kidnapping,
among other offenses. He appeals. He contends his federal and state constitutional rights
to a unanimous jury verdict were denied because only 11 of the 12 jurors who deliberated
together to reach the verdicts on his charges were present in court when the verdict was
rendered. He asserts the error is structural and requires reversal. Alternatively, he
contends the matter should be remanded for resentencing because Penal Code1 section
654 prohibits imposition of punishment on both the murder and kidnapping counts.
We agree with Tapia’s first claim and reverse on that basis. We conclude the trial
court’s failure to ensure that all 12 jurors were present together in court when the verdict
was rendered violated Tapia’s statutory and constitutional right to a unanimous 12-person
verdict and resulted in the recording of an invalid verdict. We further conclude that the
error is structural and requires reversal, and that double jeopardy principles do not
prohibit retrial. We therefore reverse the judgment and remand for a new trial. Because
of our conclusion on this issue, we do not address Tapia’s alternative claim that we
should remand for resentencing.
BACKGROUND
Tapia and codefendant Moises Morales, who is not a party to this appeal, were
charged with the kidnapping and murder of Juan Ochoa (§§ 187, subd. (a), 207, subd. (a);
counts 1 & 2) along with two counts of robbery of an inhabited dwelling (§§ 211, 213,
1 All further statutory references are to the Penal Code unless indicated otherwise.
2
subd. (a); counts 3 & 4), and two counts of assault with a firearm (§ 245, subd. (a)(2);
counts 5 & 6). Firearm enhancements were alleged as to Tapia in connection with all six
counts. (§ 12022.53, subds. (b), (c), & (d), counts 1 to 4; § 12022.5, subd. (a), counts 5 &
6.) Tapia was also alleged to have a prior conviction that qualified both as a strike prior
(§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a serious felony prior (§ 667,
subd. (a)(1)). Aggravating factors were alleged as to both defendants.
The charges stemmed from the following incident:
On March 6, 2017, a handful of people gathered at Morales’s apartment on Smoke
Tree Street in Hesperia, including Tapia, Morales, Leonel Hernandez, and Margarita C.
Other people were also there. Some people were drinking alcohol and smoking
marijuana. Margarita, Morales, and Hernandez smoked methamphetamine together, and
Margarita tried to sell them a stolen shotgun, but they did not buy it. Ochoa came over
and picked up Margarita around midnight. They went to a liquor store and to the house
of Ochoa’s “connect” where Ochoa purchased methamphetamine. They later returned to
Morales’s apartment and smoked methamphetamine with Morales and Hernandez.
Ochoa then bought a stolen car from Hernandez. Morales drove the car to Ochoa’s
house, where Morales, Ochoa and Margarita smoked methamphetamine again. Margarita
then fell asleep, and Ochoa drove Morales home.
At some point after Ochoa and Margarita left Morales’s apartment, Mark Cadena
and Louie (no last name given) came over. Cadena was upset because his girlfriend may
have been raped by a man named Raul one evening while his girlfriend was out with
Margarita and Ochoa. Cadena wanted to confront Raul about what happened. Cadena
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was asking if anyone at Morales’s apartment knew Raul, but no one did. At some point,
Cadena, Louie, Tapia, Hernandez and Morales were in the bedroom together. They
smoked methamphetamine, and a plan was hatched for Tapia, Hernandez, and Morales to
go over to Ochoa’s house to rob Ochoa and Margarita for drugs and the shotgun, and/or
to bring Margarita back so Cadena could get to Raul.
Morales drove Tapia and Hernandez to Ochoa’s house and all three men went
inside. Tapia or Hernandez asked Ochoa if they could buy some methamphetamine. As
Ochoa was getting the methamphetamine out, Tapia pulled out a gun and hit Ochoa
across the face with it. Tapia fired the gun toward the corner of the room and said,
“Don’t think I won’t shoot you, because I will.” Tapia directed Hernandez and Morales
to grab Ochoa’s stuff. They took two duffel bags and Margarita’s shotgun. Tapia
dragged Ochoa from the bedroom into the living room by his shirt. Ochoa lay on the
ground face down, trying to cover his head. Tapia was hitting and kicking Ochoa, and
calling him a “ ‘fucking rapist.’ ” Tapia kept saying over and over, “you thought we
wouldn’t find out?” Tapia then pulled Margarita into the living room by her hair and
ordered her onto the ground too. Margarita saw Morales standing outside. She mouthed,
“[w]hat the fuck?” to him. He shrugged and walked away. Tapia ordered Ochoa and
Margarita to kneel and face the wall with their hands over their heads. Tapia demanded
Ochoa’s car keys. When Ochoa did not respond, Tapia put the gun to Margarita’s face
and told her to open her mouth. She shook her head no, and Ochoa gave Tapia his car
keys. Tapia made a phone call. He asked the person he called, “[w]hich one [do] you
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want, Maggie or Johnny?” He then told Ochoa it was his lucky day. Tapia told Ochoa to
get up and they walked outside. Tapia was holding a gun to Ochoa’s head.
Morales and Hernandez were outside waiting in Ochoa’s car. Morales was in the
driver’s seat and Hernandez was in the front passenger seat. Tapia and Ochoa got into
the back seat. A minute or two after they left, Hernandez heard a gunshot. Tapia had
shot Ochoa in the head. Morales drove down a dirt road and stopped. Tapia pulled
Ochoa out of the car and left him on the dirt road next to a field. Morales made a U-turn
and got back onto a paved road. Tapia and Hernandez were arguing about whether to go
to Los Angeles or back to Hesperia. Morales pulled over, got out of the car, and said,
“I’m out.” Then he walked away.
Tapia and Hernandez went to a gas station and then to Hawaiian Gardens in Los
Angeles County. They drove to the home of someone Tapia knew and unloaded the
duffel bags and the shotgun. Then they drove to a dried-out riverbed and abandoned
Ochoa’s car. Tapia wiped down the car and unsuccessfully attempted to set it on fire.
Hernandez pleaded guilty in connection with his role in the offenses and was
sentenced to 15 years. Cadena was not charged.
Tapia and Morales were tried together before a single jury. The jury convicted
Tapia of first degree murder, kidnapping, one count of robbery of an inhabited dwelling,
and one count of assault with a firearm (counts 1, 2, 3, & 5). As to the kidnapping and
robbery counts, it found true the allegations that Tapia personally used and discharged a
firearm. (§ 12022.53, subds. (b), (c).) As to the assault with a firearm count, it found
true the allegation that Tapia personally used a firearm. (§ 12022.5, subd. (a).) The jury
5
convicted Morales of a single count of robbery of an inhabited dwelling (count 3). It
acquitted Morales of murder and one count of assault with a firearm (counts 1 & 6). The
court declared a mistrial on the remaining counts and allegations on which the jury was
deadlocked.
Morales later pleaded no contest to an additional count of second degree robbery
in exchange for a sentence of 10 years.
At a bifurcated hearing, the court found Tapia’s prior conviction allegations true
and found several of the alleged aggravating factors true. The court sentenced Tapia to a
determinate term of 49 years and eight months, followed by an indeterminate term of 50
years to life.
Tapia timely filed a notice of appeal.
DISCUSSION
Tapia contends his federal and state constitutional rights to a unanimous jury
verdict were denied because only 11 of the 12 jurors who deliberated together to reach
the verdicts on his charges were present when the verdict was rendered. He asserts the
error is structural and requires reversal. We agree.
A. Additional Procedural History
The trial was estimated to last four weeks, but due to a variety of unanticipated
delays, it ended up taking over six weeks to try the case. The parties started the trial with
four alternate jurors. By the time the jury began deliberating on June 8, 2023,2 the court
2 All further date references are to the year 2023.
6
had already replaced one juror with an alternate, and two of the seated jurors, Juror No.
26 and Juror No. 8, had preplanned vacations scheduled for the following week.
On June 12, the court replaced Juror No. 26 with an alternate and instructed the
jury to begin their deliberations anew. (CALCRIM No. 3575.)
On June 13, the court again convened the parties and the jurors, although only 11
of the jurors were present. One of the jurors (Juror No. 4) was absent because she was
unable to arrange for childcare that afternoon. The court confirmed that the current
foreperson, Juror No. 8, was leaving on vacation the next day, and told the jurors it would
be substituting in an alternate juror. The court then said, “I checked with the foreperson,
I believe you’ve signed and dated the verdicts that the 12 of you previously all agreed on;
is that correct?” Juror No. 8 responded, “That is correct, sir.” The court then directed
Juror No. 8 to place the signed verdicts in the envelope provided. The court explained to
the jury that the signed verdicts would remain in the envelope, and the next foreperson
they elected would sign the remaining verdicts. The court instructed the jurors that the
new foreperson would need to be someone who had been on the jury since the start of
deliberations. The court asked counsel if they wanted to be heard on the court’s plan. No
counsel requested to be heard.
On June 14, the court formally replaced Juror No. 8 with an alternate juror and
again instructed the jury to begin their deliberations anew. (CALCRIM No. 3575.)
However, the court clarified that the instruction applied only to those charges on which
the jury had not yet reached a verdict. The court then excused the jury to resume their
deliberations.
7
Later that day, the court received two questions from the jury. The first question
stated the jurors had misunderstood one of the special allegations on which they had
previously reached a verdict and requested a new verdict form so they could redeliberate
on the allegation. The court provided a new blank verdict form and instructed the
foreperson to write “void” across the previously signed verdict form. The second
question clarified that the verdict form they were asking about had been signed by the
prior foreperson who was no longer present. The court and counsel agreed that did not
change their previous answer, and the court responded accordingly. Tapia’s counsel did
not oppose the court’s responses, but he took the position that the court should instruct
the now reconstituted jury to redeliberate on all of the charges, or there would be a
“polling issue.” The court denied the request.
The court was later informed the jury had reached verdicts on some of the counts.
All 12 members of the reconstituted jury entered the courtroom. After determining which
counts the jury was deadlocked on, the court directed the new foreperson, Juror No. 38,
to provide the verdict forms. The court then formally received the jury’s verdict. Juror
No. 38 orally affirmed that all of the signed verdicts were unanimous, including those
signed by the initial foreperson. The judicial assistant read the verdicts, and then polled
the jury at the request of Tapia’s counsel. All 12 jurors individually affirmed the
verdicts, and the court directed the verdicts to be recorded.
8
All of Tapia’s verdicts were signed by the initial foreperson, Juror No. 8.3
B. Applicable Legal Standards
The right to a trial by jury is a fundamental constitutional right guaranteed to a
criminal defendant by both the state and federal constitutions. (U.S. Const., 6th & 14th
Amends.; Cal. Const., art. I, § 16; People v. Collins (2001) 26 Cal.4th 297, 304.) An
essential aspect of that right is the right to a unanimous jury verdict. (Ramos v. Louisiana
(2020) 590 U.S. 83, 92-93; People v. Collins (1976) 17 Cal.3d 687, 693, superseded by
statute on another ground as stated in People v. Boyette (2002) 29 Cal.4th 381, 462,
fn. 19.) In California, “a defendant may not be convicted except by 12 jurors who have
heard all the evidence and argument and who together have deliberated to unanimity.”
(People v. Collins, supra, at p. 693; see Cal. Const., art. I, § 16 [requiring a jury in a
felony criminal matter to “consist of 12 persons”].)
To safeguard the right to a unanimous jury verdict, “[t]he 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; People v. Bailey (2018) 27
Cal.App.5th 376, 382 (Bailey); § 1147 et seq.)
Section 1147 requires all 12 jurors to be present when the trial court receives the
verdict. It provides: “When the jury have agreed upon their verdict, they must be
conducted into court by the officer having them in charge. Their names must then be
3 The one partial exception was the first special allegation to count 1, personal use
of a firearm. (§§ 12022.53, subd. (b), 12022.5, subd. (a).) The true finding on that
allegation was signed by the initial foreperson and voided by the subsequent foreperson.
9
called, and if all do not appear, the rest must be discharged without giving a verdict. In
that case the action may be again tried.” Section 1149 requires that upon the jury
appearing in court, the court, or clerk, must ask the jurors “whether they have agreed
upon their verdict, and if the foreman answers in the affirmative, they must, on being
required, declare the same.”
Sections 1163 and 1164 govern jury affirmation of the verdict by polling and the
recording of the verdict. Under section 1163, once the verdict has been rendered, either
party may ask the court to poll the jurors individually before the verdict is recorded.
Upon such a request, each juror must be asked “whether it is their verdict, and if any one
answer in the negative, the jury must be sent out for further deliberation.” The jurors
may also be polled, upon request, after the clerk has recorded the verdict. (§ 1164,
subd. (a).) If any juror disagrees with the verdict at that point, “the jury [will] again [be]
sent out; but if no disagreement is expressed, the verdict is complete, and the jury shall ...
be discharged from the case.” (Ibid.)
A verdict is complete when it has been rendered in compliance with these
provisions, i.e., once it “ ‘has been received and read by the clerk, acknowledged by the
jury, and recorded.’ ” (People v. Hendricks (1987) 43 Cal.3d 584, 597; People v. Bento
(1998) 65 Cal.App.4th 179, 188; People v. Garcia (2012) 204 Cal.App.4th 542, 551
(Garcia).)
Acknowledgement of the verdict in open court by all 12 members of the jury “is
not a mere procedural formality.” (People v. Traugott (2010) 184 Cal.App.4th 492, 501
(Traugott).) It is essential to the validity of the verdict. (Id. at pp. 501-502.) If the jury
10
returns a written verdict but fails to unanimously endorse the verdict in open court, the
verdict cannot normally be sustained based solely on the written form. (Id. at p. 506
(conc. opn. of Hollenhorst, Acting P. J.); People v. Thornton (1984) 155 Cal.App.3d 845,
858-860 (Thornton).) 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, at
p. 500; Garcia, supra, 204 Cal.App.4th at pp. 549-550.) In other words, “there is no
verdict absent unanimity in the oral declaration.” (People v. Green (1995) 31
Cal.App.4th 1001, 1009; Bailey, supra, 27 Cal.App.5th at p. 382.)
“It follows from these authorities that a criminal defendant has a fundamental right
under the California Constitution to a trial by a 12-person jury. This right requires that
all 12 jurors deliberate and reach a unanimous verdict voted upon and, upon request by
any party, declared orally by each of the 12 jurors. In the absence of such a declaration,
‘there is no verdict … .’ ” (Traugott, supra, 184 Cal.App.4th at p. 500; accord, Bailey,
supra, 27 Cal.App.5th at p. 387 [“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”].)
C. Application to the Present Case
When the jury rendered their verdict on June 14, only 11 of the 12 jurors who
deliberated together to reach the verdicts on Tapia’s charges were present in court to
orally declare the verdicts. Juror No. 8, the initial foreperson who signed all of Tapia’s
verdict forms, had been excused due to a pre-planned vacation. Because it is the oral
11
declaration of the jurors, and not the submission of the written verdict forms that
constitutes the return of the verdict (Traugott, supra, 184 Cal.App.4th at p. 500), we are
compelled to agree with Tapia that his statutory and constitutional right to a unanimous
verdict rendered by all 12 members of the jury was violated. Absent the express consent
of the defendant, a valid verdict cannot be rendered by only 11 jurors. (Garcia, supra,
204 Cal.App.4th at p. 550.)
We base our holding on the cases of Traugott, supra, 184 Cal.App.4th 492, and
Garcia, supra, 204 Cal.App.4th 542.
In Traugott, supra, 184 Cal.App.4th 492, a panel of this court reversed the
defendant’s conviction because only 11 jurors were present when the verdict was
rendered. One of the jurors had left to attend a job interview, and defense counsel did not
object to the court taking the verdict in the juror’s absence. (Id. at pp. 498-499.) The
clerk read the verdict in open court, the foreperson acknowledged it as correct, and the
court polled the jurors at the defense request. All 11 jurors present affirmed the verdict.
(Id. at p. 499.) The defendant appealed. We held the defendant’s conviction could not
stand because only 11 of the 12 jurors orally affirmed the verdict. We explained 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.) As an example of this, we cited People v. Superior Court (1967)
67 Cal.2d 929, 930-932, a case where the jurors collectively affirmed the verdict, but
upon individual polling, one of the jurors stated he had not voted for the verdict.
(Traugott, at pp. 501-502.) We then went on to explain that “without the oral declaration
12
of the missing juror, there is no way to know whether that juror actually voted for the
verdicts or whether, if he or she did vote for the verdicts, he or she might have
equivocated or changed his or her mind when asked to affirm the verdict.” (Id. at p. 502.)
We therefore concluded that even though the foreperson affirmed the verdicts were
unanimous, that was “insufficient to satisfy the 12-person requirement.” (Ibid.)
Similarly, in Garcia, supra, 204 Cal.App.4th 542, the appellate court reversed the
defendant’s conviction because only 11 of the 12 jurors who reached the verdicts were
present in court when the verdict was rendered. Garcia involved a situation, much like
the present case, where one of the deliberating jurors (Juror No. 181) needed to be
replaced with an alternate. (Id. at p. 548.) After the court excused the juror, the
foreperson indicated the jury had reached unanimous verdicts on some of the charges
while Juror No. 181 was still a member of the jury. The court ordered those verdicts
sealed. Counsel did not object. (Ibid.) The next day, the reconstituted jury returned to
court and rendered the verdicts. The court polled the jury at the request of counsel. All
12 jurors affirmed the verdict on the final count, and the 11 jurors who reached the initial
verdicts affirmed those verdicts. Several days later, Juror No. 181 returned to court and
affirmed the initial verdicts. (Id. at p. 549.) The defendant appealed, and the appellate
court reversed. Citing Traugott, supra, 184 Cal.App.4th at page 501, the court
emphasized that the right to an oral affirmation of the verdicts is not a “ ‘mere procedural
formality’ ” but is required by sections 1147, 1163 and 1164. (Garcia, at p. 550.) The
court went on to explain that because section 1147 “insists on the presence of the 12
jurors for the verdict to be entered in the minutes[,] … [t]he unanimity required for a
13
valid verdict cannot be obtained when only 11 jurors are present to affirm it.” (Garcia, at
p. 550.) The fact that Juror No. 181 later returned to court and affirmed the verdicts did
not change the result because Juror No. 181 was no longer a sitting juror when she
affirmed the verdicts. (Id. at pp. 549, 551.)
Central to the holding in both Traugott and Garcia, was the fact that neither
defendant had expressly waived their right to a unanimous 12-person jury verdict.
(Traugott, supra, 184 Cal.App.4th at p. 502; Garcia, supra, 204 Cal.App.4th at p. 552.)
In both cases, it was defense counsel—not the defendant—who consented to having the
verdicts declared by only 11 of the jurors. (Ibid.) However, the “right to a unanimous
verdict is constitutional in nature and must be personally waived by the defendant.”
(Garcia, at p. 552.) “Like the waiver of the right to a jury, the consent to a jury of fewer
than 12 persons must be expressed by the defendant in open court.” (Traugott, at p. 501.)
“[T]he consent or stipulation by defendant’s counsel to a jury of fewer than 12, without
the express consent of defendant, is ineffective.” (Ibid.)
Here, like Traugott and Garcia, only 11 of the 12 jurors who deliberated together
to reach the verdicts on Tapia’s charges were present in court on June 14 when the
verdicts were rendered, and at no point did Tapia personally consent to having the
verdicts orally declared by only 11 jurors. We therefore agree with Tapia that his right to
a unanimous verdict rendered by all 12 members of the jury was violated. “The presence
of each of the jurors during the declaration of the verdict in open court is a minimal
requirement essential to ensure a unanimous jury verdict.” (Traugott, supra, 184
Cal.App.4th at p. 505 (conc. opn. of Hollenhorst, Acting P. J.).)
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Respondent contends there was no need for Juror No. 8 to be present on June 14
because Juror No. 8’s oral confirmation on June 13 that the jury had reached unanimous
verdicts was sufficient to render a valid partial verdict, and that partial verdict was later
adopted by the reconstituted jury. Thus, respondent asserts, Tapia “benefitted from two
unanimous verdicts from two juries.” We reject this argument.
The trial court may take a partial verdict from a jury before discharging a juror and
substituting an alternate juror. (People v. Sanborn (2005) 133 Cal.App.4th 1462, 1467;
People v. Thomas (1990) 218 Cal.App.3d 1477, 1487-1488.) But in doing so, the court
must comply with the statutory authority that governs the receipt of verdicts—all 12
jurors must be present, and the verdict must be received and read by the clerk,
acknowledged by the jury, and recorded. (§§ 1147, 1149, 1163, 1164; Garcia, supra,
204 Cal.App.4th at pp. 552-553.)
On June 13, the court confirmed with Juror No. 8 that the jury had reached a
unanimous decision on some of the charges, but the court did not inquire as to which
charges, nor did it receive the signed verdict forms from the jury. It simply instructed
Juror No. 8 to place the signed verdict forms in an envelope.4 Merely confirming that the
4 The full extent of the court’s discussion with Juror No. 8 about the verdicts was
as follows:
“[The Court:] I checked with the foreperson, I believe you’ve signed and dated
the verdicts that the 12 of you previously all agreed on; is that correct?
“[Juror No. 8:] That is correct, sir.
“[The Court:] So just leave those aside in the envelope that you were given. The
counts that have not been decided[] on[,] those verdict forms are left unsigned, correct?
“[Juror No. 8:] That is correct.”
15
jury has reached a verdict on certain unidentified charges is not sufficient to render a
verdict. (§§ 1149, 1163, 1164.) Moreover, any such verdict would not have been valid
because only 11 members of the jury were present in court on June 13. One of the jurors
was absent that afternoon because she was unable to arrange for childcare. A verdict
cannot be received by the court when only 11 members of the jury are present unless the
defendant personally consents to such a procedure, which Tapia did not. (§ 1147;
Traugott, supra, 184 Cal.App.4th at pp. 501-502; Garcia, supra, 204 Cal.App.4th at
p. 552.)
The verdict in this case was not rendered until June 14, when all 12 members of
the reconstituted jury entered the courtroom, the current foreperson (Juror No. 38) turned
over the verdict forms, orally acknowledged that the verdicts were unanimous, and at the
direction of the court, the judicial assistant read the verdicts, polled the jurors, and
recorded the verdicts. (§§ 1147, 1149, 1163, 1164.) By that point, however, Juror No. 8
had already been discharged, and only 11 of the jurors who deliberated together to reach
the verdicts on Tapia’s charges were present to render the verdict. The alternate juror
who replaced Juror No. 8 may have agreed with the verdicts on Tapia’s charges, but that
juror did not participate in those deliberations, and his or her affirmation of Tapia’s
verdicts was not sufficient to satisfy the 12-person requirement. “It is not enough that 12
jurors reach a unanimous verdict if 1 juror has not had the benefit of the deliberations of
Then before excusing Juror No. 8, the court again confirmed, “All your verdict
forms that you signed and dated are in that envelope; is that correct?
“[Juror No. 8:] That’s correct.
“[The Court:] So those will stay there.”
16
the other 11.” (People v. Collins, supra, 17 Cal.3d at p. 693.) A defendant may only be
convicted “by [the] 12 jurors who have heard all the evidence and argument and who
together have deliberated to unanimity.” (Ibid., italics added.) It is those 12 jurors who
must appear together in court when the verdict is rendered, and upon request, individually
affirm the verdict. (§§ 1147, 1149, 1163, 1164.)
A key purpose of requiring all 12 members of the jury to individually affirm the
verdict after it has been received by the court and read aloud by the clerk is to confirm
that each juror is willing to stand by his or her individual vote—to “allow the defendant
to ‘test’ whether the verdict form that was signed in the privacy of the jury room
represents … 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.”
(Thornton, supra, 155 Cal.App.3d at p. 859.) Because Juror No. 8 was not present when
the verdict was rendered, Tapia was not able to test whether the verdict forms Juror No. 8
signed in the privacy of the jury room accurately reflected his intended verdicts. This
undermined Tapia’s ability to ensure a unanimous verdict. Although there is nothing in
the record to suggest Juror No. 8 disagreed with the verdicts, nor is there any “way to
know whether [the] juror … might have equivocated or changed his or her mind when
asked to affirm the verdict.” (Traugott, supra, 184 Cal.App.4th at p. 502; see Chipman v.
Superior Court (1982) 131 Cal.App.3d 263, 266 [“any juror is empowered to declare, up
to the last moment, that he dissents from the verdict”].)
In sum, the procedure the trial court employed of sealing verdicts while the jury is
in the process of deliberating may be appropriate in a case where the jurors are
17
deadlocked on some of the charges and the same 12 jurors will later be rendering the
verdicts. (See, e.g., People v. Hernandez (1985) 163 Cal.App.3d 645, 649, 658.) But
when, as here, the trial court is replacing a seated juror with an alternate, setting aside the
verdicts to be rendered at a later time by a reconstituted jury does not sufficiently
safeguard the defendant’s right to a unanimous verdict because it does not ensure that all
12 jurors who deliberated together to reach the verdicts will be present in court when the
verdict is rendered. The presence of all 12 jurors is a necessary prerequisite to the receipt
of a valid verdict. (§ 1147; Garcia, supra, 204 Cal.App.4th at p. 550.)
We therefore conclude the trial court’s failure to ensure that all 12 jurors were
present together in court when the verdict was rendered violated Tapia’s statutory and
constitutional right to a unanimous verdict and resulted in the recording of an invalid
verdict.
D. Prejudice
When the verdict has been read and recorded in the presence of all 12 jurors,
minor procedural errors and “technical violations of the statutory requirements for
receiving the jury verdicts” are subject to harmless error analysis. (People v. Anzalone
(2013) 56 Cal.4th 545, 556-558, 560.) However, when only 11 members of the jury are
present to render the verdict, the error is considered structural, and reversal is required.
(Traugott, supra, 184 Cal.App.4th at p. 505 [“the denial of a 12-person jury rendering a
unanimous verdict [is] clearly structural and, as such, reversible per se”].)
The absence of a juror when the verdict is rendered is not susceptible to harmless
error analysis because it goes to the very validity of the judgment. Absent the express
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consent of the defendant, a verdict rendered by only 11 jurors is not a valid verdict, and
without a valid verdict there can be no valid judgment. (Garcia, supra, 204 Cal.App.4th
at pp. 550, 553; Traugott, supra, 184 Cal.App.4th at pp. 495, 505; see Borns v. Butts
(1979) 98 Cal.App.3d 208, 210 [“prejudice is inherent in the entry of an invalid verdict
and judgment”], overruled on other grounds in Juarez v. Superior Court (1982) 31 Cal.3d
759, 768-769.)
Accordingly, reversal is required.
E. Double Jeopardy
Having determined that reversal is required, the last question we must address is
whether Tapia may be retried. Broadly stated, the court in Bailey, supra, 27 Cal.App.5th
376, held that when a trial court violates the defendant’s right to a unanimous jury verdict
by accepting a verdict rendered by only 11 jurors, retrial of the affected counts would
violate the prohibition on double jeopardy. (Id. at pp. 379, 381.)
We asked the parties to provide supplemental briefing to address the impact, if
any, of Bailey, supra, 27 Cal.App.5th 376, on the present case. Both parties agreed that
assuming we found prejudicial error, the constitutional prohibition on double jeopardy
would prohibit retrial. As we explain, we disagree.
Both the state and federal constitutions prohibit placing a person in jeopardy more
than once for the same offense. (U.S. Const., 5th Amend. [no person shall “be subject for
the same offense to be twice put in jeopardy of life or limb”]; Cal. Const. art. I, § 15
[“Persons may not twice be put in jeopardy for the same offense”].) “Unless sound
reason exists, California courts will not interpret the California double jeopardy clause
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more broadly than its federal counterpart.” (People v. Eroshevich (2014) 60 Cal.4th 583,
588 (Eroshevich); People v. Wilson (2023) 14 Cal.5th 839, 852 (Wilson).)
The legal standards governing double jeopardy are well established. “At its core,
the double jeopardy clause ‘protect[s] an individual from being subjected to the hazards
of trial and possible conviction more than once for an alleged offense.’ ” (Eroshevich,
supra, 60 Cal.4th at p. 588; Green v. United States (1957) 355 U.S. 184, 187.) 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.” (Curry v. Superior
Court of San Francisco (1970) 2 Cal.3d 707, 712 (Curry).)
Once jeopardy has attached, the question of whether double jeopardy principles
bar a second trial depends on how the first trial ended. (Wilson, supra, 14 Cal.5th at
p. 852.) “ ‘An acquittal is accorded special weight.’ [Citation.] ‘The constitutional
protection against double jeopardy unequivocally prohibits a second trial following an
acquittal.’ ” (Ibid.) Similarly, when the jury is discharged without having issued a
verdict, courts will treat that circumstance as “equivalent in law to an acquittal” and
retrial will be barred unless the defendant consented to the discharge or legal necessity
required it. (Curry, supra, 2 Cal.3d at p. 712.)
The rules differ when the trial ends in a conviction. “As a general rule, it is well
established that if the defendant secures on appeal a reversal of his conviction based on
trial errors other than insufficiency of evidence, he is subject to retrial.” (People v.
Hernandez (2003) 30 Cal.4th 1, 6; United States v. DiFrancesco (1980) 449 U.S. 117,
131.) “ ‘It has long been settled … that the Double Jeopardy Clause’s general prohibition
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against successive prosecutions does not prevent the government from retrying a
defendant who succeeds in getting his first conviction set aside, through direct appeal or
collateral attack, because of some error in the proceedings leading to conviction.’ ”
(Wilson, supra, 14 Cal.5th at pp. 852-853; Lockhart v. Nelson (1988) 488 U.S. 33, 38.)
Several policy considerations underlie this rule. “First, ‘society would pay too high a
price “were every accused granted immunity from punishment because of any defect
sufficient to constitute reversible error in the proceedings leading to conviction.” ’
[Citation.] Second, requiring retrial after a reversal on appeal ‘is not the type of
governmental oppression targeted by the Double Jeopardy Clause.’ ” (Wilson, at p. 853;
Tibbs v. Florida (1982) 457 U.S. 31, 40.) And third, “ ‘By seeking reversal of a
judgment of conviction on appeal, “ ‘[i]n effect, [a defendant] assents to all the
consequences legitimately following such reversal, and consents to be tried anew.’ ” ’ ”
(Wilson, at p. 853; Eroshevich, supra, 60 Cal.4th at p. 591.) Accordingly, when a
defendant has successfully challenged a conviction on appeal for reasons other than
insufficiency of the evidence, “ ‘retrial simply “affords the defendant a second
opportunity to seek a favorable judgment” and does not violate the constitutional
prohibitions against double jeopardy.’ ” (Wilson, at p. 853.)
In Bailey, supra, 27 Cal.App.5th 376, all 12 jurors were present when the verdict
was rendered, but during the polling process one of the jurors disavowed the verdict.
(Id. at pp. 383-384.) When asked by the clerk if the verdict represented his or her
individual vote, Juror No. 4 responded “ ‘No.’ ” (Id. at pp. 379, 383.) The court then
followed up: “ ‘Okay. It is not your—so you did not intend to vote guilty as to count 1?’
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Juror No. 4 responded, ‘Yes.’ Then the court asked, ‘And guilty as to count 2?’ Juror
No. 4 said, ‘Yes.’ ” The court then confirmed, “ ‘So those are your verdicts?’ Juror No.
4 answered, ‘Yes.’ ” (Id. at pp. 379-380.) Based on this somewhat ambiguous exchange,
Bailey concluded that Juror No. 4 did not find the defendant guilty of count 1, and it held
the trial court violated the defendant’s right to a unanimous jury by recording a verdict
that had been disavowed by one of the jurors. (Id. at pp. 381, 384.) It then went on to
hold that double jeopardy barred retrial of the affected count “[b]ecause the jury was
discharged without a verdict, without legal necessity, and without [the] defendant’s
consent.” (Id. at p. 389.)
Bailey did not offer any substantive analysis to support its conclusion that the jury
was discharged without a verdict. It appears to have assumed that the court’s entry of a
verdict later determined by the reviewing court to have been invalid meant the jury had
been discharged “without a verdict.” (Bailey, supra, 27 Cal.App.5th at p. 388.) We
decline to apply that reasoning here. Tapia’s jury was not discharged without a verdict.
The jury returned a verdict on the affected counts. The court accepted that verdict (albeit
erroneously) and subsequently pronounced judgment. By seeking reversal of that
judgment, Tapia has in effect “ ‘ “assent[ed] to all the consequences legitimately
following such reversal, and consents to be tried anew.” ’ ” (Eroshevich, supra, 60
Cal.4th at p. 591; see In re Hess (1955) 45 Cal.2d 171, 176 [“by failing to object to the
entry of judgment on the defective verdict and by collaterally attacking the judgment …
petitioner has impliedly waived any objection to being retried on the charge of which he
was improperly convicted”].)
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We therefore apply the general rule that when the defendant secures a reversal of
his conviction based on trial errors other than insufficiency of evidence, he is subject to
retrial. (Hernandez, supra, 30 Cal.4th at p. 6; United States v. DiFrancesco, supra, 449
U.S. at p. 131.)
DISPOSITION
The judgment is reversed and the case is remanded for a new trial.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
FIELDS
J.
MENETREZ
J.
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