Peavey

Appellant was charged in count I of the information filed against him with murder, a violation of Penal Code section 187. It was further alleged in count I that he used a firearm within the meaning of Penal Code sections 12022.5 and 1203.06, subdivision (a)(1). He pleaded not guilty to the murder charge and denied the use allegation.

Eventually, appellant was tried before a jury on count I. The jury found him guilty of murder in the second degree and found the use allegation to be true. Following the denial of appellant’s motion for a new trial, he was sentenced to a term in state prison. He now appeals from the final judgment of conviction.

Appellant’s sole contention on this appeal is that he was deprived of the right to a unanimous jury verdict guaranteed by article I, section 16 of the California Constitution. According to appellant, this deprivation resulted from circumstances surrounding a juror’s expression of disagreement with the verdict following a poll of the jury during which each juror affirmed that the guilty verdict was his or hers.

The jury in appellant’s case had deliberated for approximately one day when its foreman announced to the court that it had…