Bailey

*141 *378 INTRODUCTION

Under the California Constitution, a criminal defendant has the right to a unanimous jury verdict. The jury in this case returned verdict forms finding defendant Christopher Bailey guilty of driving under the influence of alcohol (count 1) and driving with a blood alcohol content of 0.08 percent or more (count 2)-but when the trial court polled the jury, one juror replied that she did not find defendant guilty of count 1. Notwithstanding the lack of a *379 unanimous verdict on count 1, the court recorded guilty verdicts for both counts and discharged the jury.

Defendant contends that the court erred by discharging the jury without a unanimous verdict on count 1 and that the evidence at the preliminary hearing was insufficient to hold him to answer for count 3-driving under the combined influence of an alcoholic beverage and a drug. We hold that defendant was denied his constitutional right to a unanimous verdict as to count 1, no objection was required to preserve the issue, the error is structural, and retrial of that count would violate the prohibition against double jeopardy. We also conclude, however, that the court properly denied defendant's pretrial…