Appellant, William Satele, Reply Brief - California Courts - State of ...

to him from an omitted or improperly administered subdivision (a) oath. (AOB
227-229.) But no such opportunity for mitigation is available to the defendant
whose jurors are not correctly given the subdivision (b) oath.
Respondent does not discuss People v. Pelton (1931) 116 Cal.App.Supp.
789, in which the court held that reversal was the appropriate remedy because a
conviction by an unsworn jury is a nullity. (Id. at p. 791.) The jury that convicted
Pelton was not sworn. Pelton discerned that certain kinds of trial errors were
"mere irregularities which may be waived by failure to object," and cited as
examples irregularities in summoning the jury or placing the jury in charge of a
deputy where the sheriff was disqualified. The court noted that these kinds of
irregularities were not "fundamental." (Ibid.) Pelton said "[W]hen we consider
the requirement to swear a jury to try a cause, we are dealing with a fundamental,
in the absence ofwhich, there is, in fact, no legal jury." (Ibid.)
In the opening brief, appellant contended that if a failure to swear the jury
renders a conviction a nullity, it follows that a defendant's constitutionally
protected right to a unanimous verdict operates to render a conviction a nullity
when it is reached by a jury with even one member who is not properly sworn.
(See AOB at p. 213.)
Respondent relies on Cruz's language placing the burden of showing
prejudice upon the defendant. This burden flows from the Cruz court's reliance on
the presumption that the jurors properly perfonned their official duty under
Evidence Code section 664, with the burden ofdisproving that presumption on the
defendant. (Cruz, at pp. 73-74.) Appellant has explained why that reasoning (and
the consequent burden placement) is flawed. (See AOB 219-221.) Respondent
addresses none of these contentions and merely reiterates the analysis set forth in
Cruz.
For the reasons set forth here and in the opemng brief, appellant
respectfully submits that reversal of the judgment of conviction is the appropriate
remedy here.
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