PEOPLE v. ROMERO (1980)

This case illustrates the crucial need for utmost care by the trial judge in examining a jury's verdict form, and causing the correction of any conceivable improprieties therein before the jury is discharged. Proper care and action here would have avoided the manifest injustice to the People and wasted judicial effort that our decision necessarily will bring about.

Defendant was charged with two counts of burglary (Pen.Code, s 459). The jury returned a verdict of guilty as to count 1, not guilty as to count 2. Judgment was entered accordingly and defendant appeals. His primary contention is that the trial court erroneously denied his motion for new trial after he presented competent and convincing evidence that on count 1 the jury had actually voted “not guilty.”

The consolidated information charged defendant in count 1 with the daytime burglary of a residence at 13381 Escalon-Bellota Road in Escalon. Lealon Brumley, who lived at that address, testified at the trial and identified defendant as the person he saw fleeing when he returned to his home on the morning of February 13, 1979. Brumley's identification was questioned by the defense, which pointed out some inconsistencies between his earlier reports and his trial testimony. At the trial, count 1 was referred to as the “Brumley burglary.”

Count 2 of the information charged defendant with the February 25, 1979 burglary of a business located at 524 E. Fremont in Stockton. The building at that address housed a foreign car repair shop (Autohaus) and a warehouse containing furniture and hospital beds. Defendant was apprehended inside a warehouse doorway on which the lock had been forced. His arrest occurred moments after a silent alarm in the Autohaus shop had been activated by an intrusion. At the trial, count 2 was referred to as the “Autohaus burglary.”¹

The two partially printed and partially typewritten verdict forms returned by the jury and filed read:

“We, the Jury in the above entitled cause, find the defendant, LARRY ROMERO guilty of a violation of Section 459 of the Penal Code of the State of California, to-wit: BURGLARY, a felony, as charged and set forth in Count One of the Amended Information on file herein; and further we fix the degree, thereof, as Burglary in the Second Degree.”

“We, the Jury in the above entitled cause, find the defendant, LARRY ROMERO not guilty of a violation of Section 459 of the Penal Code, of the State of California, to-wit: BURGLARY, a felony, as charged and set forth in Count Two of the Amended Information on file herein.”²

When the jury foreman delivered the verdicts, the court questioned handwritten designations of the counts added at the bottom of each form. The foreman informed the court he had separated the verdict forms and made the notations, presumably before any verdict was reached. Unbelievably, the count numbers are inverted; “Count $ 1” is written on the verdict form for count 2 and “Acount 2” (sic ) is written on the count 1 verdict form. The record also contains a copy of an earlier note from the judge to the jury (to which both counsel stipulated) informing the jury that “Count one is the Brumley burglary at Escalon” and “Count two is the Autohaus burglary at Stockton.” This correct information apparently had no salutary effect on the foreman's notations.

The verdict forms were duly delivered by the foreman and read by the clerk, and the verdicts on each count as recorded on the two forms were confirmed by an individual poll of each juror. The jury was then dismissed.

The notation on the count 1 verdict form was the basis of defendant's motion for new trial. In his moving papers were six affidavits from jurors, including one from foreman, indicating that in the jury room no juror raised a hand to vote “guilty” on the Brumley burglary and all raised their hands to vote “not guilty” thereon. The foreman's affidavit further states, “ I recorded a ‘not guilty’ verdict for the Brumley burglary on one of the verdict forms by signing my name.”

The prosecution objected to the admission of the affidavits as evidence and argued for denial of the new trial motion on the grounds that the jury had switched the verdict forms, retrial on count 2 was barred by double jeopardy, and the jury obviously intended to convict and did convict the defendant on one burglary. The trial court denied the new trial motion without specifically ruling on the admissibility of the affidavits.

The juror affidavits were competent evidence material to the issue of mistake in the verdict. They show the jury in truth voted for acquittal on count 1 and conviction (inferentially) on count 2. The evidentiary requirements of Evidence Code section 1150, subdivision (a), are met by the affidavits. That section reads in part: “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.” The raising of hands in a vote for acquittal on count 1 was an objective event occurring within the jury room demonstrates the actual vote. (People v. Hutchinson (1969) 71 Cal.2d 342, 78 Cal.Rptr. 196, 455 P.2d 132.)

We are thus left with undisputed unanimous jury room votes for acquittal as to count 1 and conviction as to count 2. But the actual verdict on count 2 was one of acquittal;³ and any error with reference to it cannot now be corrected because of legal principles precluding review of acquittals, however erroneously bestowed. (Sanabria v. United States (1978) 437 U.S. 54, 64, 98 S.Ct. 2170, 2178, 57 L.Ed.2d 43, 53-54; People v. Gottman (1976) 64 Cal.App.3d 775, 780, 134 Cal.Rptr. 834.) On the other hand, while the actual verdict rendered as to count 1 also is not the verdict for which the jury voted, there is no legal principle which precludes us from reviewing its propriety. Clearly it cannot stand, being inconsistent with the jury's vote, the evidence of which we have ruled competent.

Both the People and the defendant were entitled to a verdict of either acquittal or conviction by a jury (Cal.Const., art. 1, s 7), not by the trial judge, nor by us. We cannot supply the People with a guilty verdict as to count 2 in contravention of the jury's actual verdict of not guilty. Nor can we supply the defendant with a not guilty verdict as to count 1 in contravention of the jury's actual verdict of guilty. We can only do what defendant asks, reverse the trial court's order denying a new trial as to count 1 and direct it to grant a new trial.

The order denying the motion for new trial is reversed.

FOOTNOTES

1.  Our review of the record in this case leads us to agree with the prosecutor's opinion (expressed at the hearing on the motion for new trial) that the stronger case against defendant was on count 2.

2.  The problem could perhaps have been avoided by the simple addition of distinguishing particulars as to each count on the verdict forms.

3.  By “actual” verdict, we mean the verdict that was returned in open court and recorded. Until this occurs there is in fact no verdict. (See 23A C.J.S., Criminal Law, s 1412, p. 1119; 76 Am.Jur.2d, Trial, s 1116, p. 96.)

PARAS, Acting Presiding Justice.

REYNOSO and BLEASE, JJ., concur.