1 Filed 11/27/13 P. v. Dorr CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Yolo)

----

THE PEOPLE, Plaintiff and Respondent,

v. RONALD JACK DORR, Defendant and Appellant. C072215 (Super. Ct. No. CRF 11-3591)

A jury found defendant Rona ld Jack Dorr guilty of one count of offering to sell a controlled substance (the parties stipulating that he had oxycodone in his possession). As instructed, the jury did not return a ve rdict on the alternate count that charged him with the lesser offense of po ssessing a controlled substance for sale. The trial court dismissed the second count sua sponte. It th en sustained a recidivist allegation. (The court also found defendant in vi olation of probation in a differe nt case that is not part of this appeal.) It sentenced him to state prison for eight years.2 On appeal, defendant argues the inclusion of the wrong statutory reference in the verdict form made it fatally ambiguous, requ iring reversal of the judgment. Rejecting this argument, we shall affirm.

FACTUAL AND PROCED URAL BACKGROUND Our resolution of defendant’s argument does not implicate the facts underlying his conviction. We therefore omit them. The information charged defendan t with offering to sell oxycodone and Oxycontin (we note the latter is simply a brand name of th e former) in violation of Health and Safety Code section 11352, subdivision (a) 1 and possessing it for sale in violation of section 11351. The court clerk read the information to the jury at the outse t of the trial. The written instructions correctly defined the el ements of the two offenses, including the correct code section for each (alo ng with code sections for ot her offenses that the pattern instructions embrace). The trial court did not make any reference to code sections in reading these instructions to th e jury. As noted above, the co urt instructed the jury that count two (possession for sale) was a lesser included offense of count one (offering to sell), and it could return a verdict on count tw o only if it found th at defendant was not guilty of count one; if the jury found unanimously that defenda nt was guilty of count one, it could not return a verdict on count two. The prosecutor highlighted the distinction between the offenses charged in the two co unts without any reference to the code sections, emphasizing the presence of eviden ce of an attempt to sell. The verdicts correctly described the conduct involved in each o ffense and the count in the information to which it related, but transposed the code references: They included section 11351 in the verdict form for count one (offering to sell ), and section 11352 in the verdict form in count two (possessing for sale).

1 Undesignated statutory references ar e to the Health and Safety Code.3 DISCUSSION Defendant asserts the error in the gu ilty verdict rendered it “ambiguous.” He contends this is a “structural” error that requires reversal per se , though he does not provide any authority to this effect in the context of e rroneous statutory references in a verdict form. He also asserts “the blame lies with the prosecution, [which] must therefore bear the consequence,” though he fails to spell out exactly what consequence the People are to bear (since the concepts of invited erro r or forfeiture do not ha ve any application to a respondent in the present context). If defendant is asserting the latter point as a way of evading the consequences of his own failure to object to the def ective verdicts form, he is incorrect. The case he cites, People v. Superior Court ( Marks ) (1991) 1 Cal.4th 56, 77, si mply holds that the People are not deprived of due process in the reduction of the degree of an offense on appeal (for the failure of the verdict to specify the degree) because they had the opport unity to call the error to the attention of the trial court. The case does not remotely suggest that a defendant does not have any corresponding du ty to correct a defective verdict. The principle of forfeiture generally applies in all proceedings, civil or criminal, even where a constitutional protection is involved; it is prem ised on the duty of parties to protect their rights, and it is designed to deter the gamesm anship of sitting on one’s hands and raising a defect only after an adverse outcome. ( Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 264-265.) Thus, as the Suprem e Court has repeatedly held on this specific point (in cases both parties overlook), the failure to object to th e form of a verdict either at the time the trial court proposes it or at the time the ju ry returns it forfeits th e issue on appeal. ( People v. Jones (2003) 29 Cal.4th 1229, 1259 [claim of ambiguity]; People v. Bolin (1998) 18 Cal.4th 297, 330 [claim of erroneous statutory reference]; People v. Webster (1991) 54 Cal.3d 411, 446 [claim of unauth orized special verdict].) Defendant has consequently forfeited the issue of the defect on appeal.4 To give an abbreviated rather than plenary analysis in li ght of defendant’s forfeiture, we simply note that ther e is a consistent body of law (that both parties entirely ov erlook) to the effect that the form of a ve rdict is immaterial if the inten tion to convict a defendant of a charged crime is manifest . All that is necessary in a guilty verdict is a reference to a specific count in the informa tion; all else is su rplusage that may be disreg arded (such as an incorrect code section). ( People v. Camacho (2009) 171 Cal.App.4th 1269, 1273-1274 [verdict had described offense as ca rjacking instead of r obbery; immaterial because information charged count two as robbery, instructi ons on robbery referenced count two; arguments of counsel referenced count two as robbery]; People v. Reddick (1959) 176 Cal.App.2d 806, 820 [reference to nonexistent code section immaterial where verdic t form refers to count in information charging conspiracy ]; 6 Witkin & Epst ein, Cal. Criminal Law (4th ed. 2012) Criminal Judgment, § 81, p. 123 [“Erroneous surplusage will be disregarded. This may consist of an unnecessary and mi staken reference to the wrong statute”].) Here, too, the verdict referenced the count in the informat ion that correctly allege d a violation of section 11352 by offering to sell a controlled substance. Instructions and argument also made it manifestly clear that that was the conduct at issue in the verdict. As a result, the error in the verdict is immaterial and far fro m being a structural error.

DISPOSITION The judgment is affirmed.

BUTZ , J.

We concur:

ROBIE , Acting P. J.

HOCH , J.