The People v. Hrenko CA5

California Court of Appeal Aug 28, 2013 No. F064807Unpublished

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Holding. The court held that a defendant forfeits the right to challenge a trial court's failure to comply with Penal Code section 1149 by failing to object in the trial court, and that such failure does not constitute structural error.

Issues

Whether the trial court's failure to have the jury orally affirm the verdict pursuant to Penal Code section 1149 violated the defendant's constitutional right to a unanimous verdict.
Whether the failure to comply with Penal Code section 1149 constitutes structural error or is subject to harmless error analysis.

Disposition. affirmed

Quotations verified verbatim against the opinion

“We find defendant forfeited the claim by failing to object in the trial court.”

“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.”

“the court found a failure to comply with section 1149 does not constitute structural error”

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 People v. Hrenko CA5

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