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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FIFTH APPELLATE DISTRICT

THE PEOPLE, 

Plaintiff and Respondent, 

 v. 

BRIAN MICHAEL HRENKO, 

Defendant and Appellant. 

F064807 

(Super. Ct. No. CRF36768) 

OPINION

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. 
2. 

 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 FOREPERSON: Yes, sir. 

 “THE COURT: Would you hand to the Bailiff—the verdicts to the 

Bailiff, please.” 

 The jury’s verdict was then read aloud by the clerk. The jury found defendant not 

guilty of residential burglary, but found him guilty of receiving stolen property. Once the 

verdict was read, the court asked if “either counsel wished to have the Jury polled.” Both 

the prosecution and defense declined to do so. The court then thanked the jurors for their 

service and dismissed them. 

 1Unless otherwise indicated, all statutory references are to the Penal Code. 
3. 

DISCUSSION 

 On appeal, defendant argues his 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. Defendant further argues the error is structural and thus 

reversible per se. Plaintiff disagrees, arguing defendant forfeited his right to appeal the 

verdict by failing to object to the alleged error before the jury was discharged and that 

even if the issue is preserved, any error was harmless. 

 After briefing was completed, our Supreme Court decided People v. Anzalone

(2013) 56 Cal.4th 545, which squarely addresses the issues here. In Anzalone, the 

following exchange took place between the trial court and jury after deliberations: 

 “‘THE COURT: We’re back on the record in the presence of the jury 

now as well. And ladies and gentlemen, I understand you’ve reached a 

verdict. Who is the foreperson? Mr. (juror)? 

 “‘JUROR: Yes sir. 

 “‘THE COURT: Hand the verdict forms to the deputy. I’ll hand those 

to the clerk to read the verdict.’” (People v. Anzalone, supra, 56 Cal.4th at 

p. 549.) 

 The verdicts were then read aloud. The defendant was acquitted of vandalism, but 

found guilty on the other counts. (People v. Anzalone, supra, 56 Cal.4th at p. 549.) 

After the verdict was read, the court thanked the jurors and dismissed them. (Id. at pp. 

549-550.) On appeal, the defendant argued that her state constitutional right to a 

unanimous jury verdict was violated because the court failed to ask the jury foreperson 

or the jurors to affirm their verdict as required by section 1149. (Anzalone, at p. 550.) 

In addressing the issue, the Supreme Court set out several rules that govern the very 

controversies raised by the parties in the present case. 

 First, applying the requirement that a party must object to an incomplete polling to 

preserve the issue for appeal (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 263-265), 

the court held that “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.” (People v. Anzalone, 
4. 

supra, 56 Cal.4th at p. 551.) Second, the court found a failure to comply with section 

1149 does not constitute structural error, and where, as here, the verdict was read and 

recorded in the presence of all 12 jurors, the error was harmless. (People v. Anzalone, 

supra, at pp. 558-560.) The court held harmlessness is to be determined under the People 

v. Watson (1956) 46 Cal.2d 818, 836, standard of review. (People v. Anzalone, supra, at 

p. 555.) 

 Applying Anzalone to the present case, we find defendant’s failure to object to the 

court’s alleged noncompliance with section 1149 forfeited his right to raise the issue on 

appeal. Even if this court were to reach the merits of the issue, we would find any error 

harmless. 

 “[S]ection 1149 requires that when the jury returns after reaching a 

verdict, the court or clerk must ask ‘whether they have agreed upon their 

verdict, and if the foreman answers in the affirmative, they must, on being 

required, declare the same.’” (People v. Anzalone, supra, 56 Cal.4th at p. 

551.) 

The court in Anzalone explained that a foreman’s oral declaration is sufficient 

acknowledgement of the verdict. (Ibid.) Here, the court unequivocally asked the 

foreman whether the jury had reached a verdict, to which the foreman clearly answered in 

the affirmative. Thus, it is arguable that the court substantially complied with section 

1149. However, even if we were to assume section 1149 was not satisfied, any error was 

necessarily harmless. Like in Anzalone, the jury here was instructed that it must 

unanimously reach a verdict, the jury deliberated for approximately three hours, and 

when it returned with a verdict, the foreman affirmed the jury reached a verdict. (People 

v. Anzalone, supra, 56 Cal.4th at pp. 549, 555-560.) Further the verdict was read in open 

court with all jurors present and no juror expressed any disagreement with the verdict. 

Under these circumstances, any error was necessarily harmless. (Ibid.) 

DISPOSITION 

 The judgment is affirmed.