Trial court erred by recording a guilty verdict after one juror orally disagreed with the verdict. At Bailey’s trial for driving under the influence of drugs and alcohol, the jury returned verdict forms finding him guilty of all counts. When defense counsel asked the court to poll the jurors, the clerk asked each juror if the verdict represented his or her individual verdict. Juror No. 4 said no. The court followed up: “Okay. It is not yourso you did not intend to vote guilty as to count 1?” Juror No. 4 replied, “yes.” After polling the remaining jurors, the court thanked and excused the jurors. Defense counsel objected to the court’s acceptance of the verdict. The court then recorded the guilty verdicts and sentenced Bailey to state prison. He appealed. Held: Reversed. Before the verdict is recorded, either party may ask the court to poll the jurors individually. If any juror answers in the negative, the jury must be sent out for further deliberation. (Pen. Code, § 1163.) 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. (Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266.) Thus, it is the oral declaration of the jurors, not the submission of the written verdict forms that constitutes the return of the verdict. Here, Juror No. 4 did not agree with the verdict. Despite the People’s suggestion that Juror No. 4 intended to convict, the colloquy between the court and Juror No. 4 made clear that she disagreed with the guilty verdict.
Defendant did not forfeit the error. The People argued that Bailey forfeited this claim by objecting to the non-unanimous verdict only after the jury was discharged. 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 (i.e., if the juror was absent when the verdict was returned or if one juror does not affirm the guilty verdict). Because the right to a jury trial is personal to the defendant, it cannot be forfeited by defense counsel’s failure to object.
The double jeopardy clause bars retrial. 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 a discharge of that jury without a verdict is equivalent in law to an acquittal and bars a retrial. (Curry v. Superior Court (1970) 2 Cal.3d 707, 712.) Here, the judgment was entered into a court of competent jurisdiction before a jury duly impaneled and sworn. Thus, jeopardy had attached. Bailey did not consent to an 11-person verdict, and the court did not declare a mistrial. No legal necessity justified the discharge of the jury without a verdict. Bailey may not be retried for count 1.