Ames

The sole issue is whether appellant effectively waived her right to be tried by a jury of 12 people. The trial which had begun with 12 jurors was completed with 11 jurors because one juror was excused while the trial was in progress with no alternate available.

During defense counsel’s closing argument the judge noticed that one of the jurors had been sleeping. A recess was called and both counsel and appellant met in chambers whereupon the following took place:

Discussion

If this were a case of first impression we would not hesitate to hold that appellant impliedly waived her right to be tried by a full jury by declining to accept the trial court’s offer for a mistrial and by remaining silent while her counsel expressly consented to continue with a jury of 11 members. Logically, appellant received a jury trial even though the jury had only 11 .members.

However, precedent compels us to conclude that appellant did not effectively waive her right to be tried by 12 jurors. In People v. Maes, 236 Cal.App.2d 147 [ 45 Cal.Rptr. 903 ], an intoxicated juror was excused with the consent of defense counsel and the prosecuting attorney who stipulated that the trial could proceed…