Chipman v. Superior Court

California Court of Appeal Apr 29, 1982 No. Civ. 54221Published

Before: Christian

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Holding. A trial court errs by accepting a verdict as unanimous when a juror dissents during polling; under California law, a juror has the right to dissent at any time before the verdict is recorded, requiring the jury to be sent out for further deliberation.

Issues

Whether a trial court may accept a verdict as unanimous when a juror expresses dissent during the jury poll.
Whether a juror may change their vote during the polling process before the verdict is recorded.

Disposition. Writ issued; trial court ordered to vacate recordation of verdict and grant mistrial.

Quotations verified verbatim against the opinion

“Every criminal defendant is entitled to a unanimous verdict.”

“any juror is empowered to declare, up to the last moment, that he dissents from the verdict.”

“Respondent court’s reception of the verdict when it had been repudiated by one juror was error.”

Opinion

CHRISTIAN, J.

Susan Chipman seeks a writ to compel respondent superior court to take no further action against her in a pending case in which she is charged with possession of stolen property (Pen. Code, § 496). The contention is that the court erred in accepting a nonunanimous verdict. We issue a writ as prayed for.

Reception of the Verdict

After deliberations, the jury returned to court with a verdict of guilty. The court asked the jurors whether, this was their true verdict and there was no negative response. Petitioner requested that the jury be polled. The first 11 jurors responded “yes” to the question of whether this was their true verdict. Juror number 12 responded “no.” Then the following exchange took place:

“The Court: No?

[265]

“Juror No. 12: No.

“The Court: I am going to ask you, the Jury Foreman, was this unanimous inside in the jury deliberations room?

“Juror No. 12: Yes, your Honor.

“The Court: At that time did you say ‘Yes’?

“Juror No. 12: I voted because—

“The Court: Just answer the question. Did you vote yes in the jury room?

“Juror No. 12: Yes, I did.

“The Court: You have changed your vote.

“Ms. Libben [petitioner’s attorney]: I move for a mistrial.

“The Court: Please. In other words you voted ‘Yes’ in the jury deliberations room, is that correct?

“Juror No. 12: Yes.

“The Court: On this verdict that was just read.

“Juror No. 12: Yes.

“The Court: Since you came out here you changed your mind, is that correct?

Chipman v. Superior Court

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CHRISTIAN, J.

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