Trejo

The question of first impression presented by this appeal is whether a defendant charged with a felony can waive a 12-person jury and stipulate to trial by 6 jurors. We conclude a criminal defendant can consent to a trial by six jurors pursuant to the constitutional provision which permits waiver of a jury trial.

Statement of the Case

Appellant Eladio Chavez Trejo was charged with one count of offering to sell heroin (Health & Saf. Code, § 11352) in an amount greater than 14.25 grams (Pen. Code, § 1203.07, subd. (a)(2)). Appellant requested trial by a six-person, rather than a twelve-person, jury. After determining that appellant’s waiver was knowing and voluntary, the court granted his request.

At sentencing, defense counsel explained his tactical reasons for opting for the smaller jury: “With a six man jury in a case where the prosecution had such strong evidenced[ ] I was in a position to guarantee that I could at least substitute all six jurors; whereas if it was a twelve man jury I only had ten challenges; if I wanted to knock them all off I couldn’t unless I could find cause. So I was in a position that I was able to select a jury that I felt would be best suited…