Traugott

I. INTRODUCTION

A jury of 11 persons found defendant Heidi Ann Traugott guilty of possession of methamphetamine for sale and two related misdemeanor drug offenses. 1 Found true were the allegations that defendant had suffered a prison prior under Penal Code section 667.5, subdivision (b) and a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c). Defendant was sentenced to a total of six years in state prison.

On appeal, defendant argues the trial court violated her constitutional and statutory rights to a unanimous verdict by accepting the verdict with only 11 jurors present and by taking the verdict in defendant’s absence. She further contends she was denied effective assistance of counsel, in that counsel failed to object to the prosecutor’s misstatements of the law relative to the issues of corpus delicti and aiding and abetting.

We hold that defendant’s state constitutional right to a unanimous 12-person verdict was violated and that valid verdicts were not returned. We further hold that the error is structural and requires reversal. Because of our conclusion on this issue, we do not address defendant’s remaining…

I concur in the result.

Penal Code section 1147 1 required that the jury be discharged when only 11 jurors appeared to deliver the verdict. The presence of each of the jurors during the declaration of the verdict in open court is a minimal requirement essential to ensure a unanimous jury verdict. (Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266 [ 182 Cal.Rptr. 123 ].) Thus, no valid verdict could be delivered in the absence of Juror No. 4, and his or her absence was structural error requiring reversal. (See People v. Cahill (1993) 5 Cal.4th 478, 501-502 [ 20 Cal.Rptr.2d 582 , 853 P.2d 1037 ].) “[I]n some instances [errors] may result in a ‘miscarriage of justice’ . . . without regard to the strength of *506 the evidence presented at trial . . . because they operate to deny a criminal defendant the constitutionally required ‘orderly legal procedure’ . . . .” (Ibid.)

As the court stated in People v. Loving (1977) 67 Cal.App.3d Supp. 12, 16 [ 136 Cal.Rptr. 851 ], “Absent strict compliance with article I, section 16 of the Constitution, it is not only irregular and uncommon to proceed with 11 jurors, it is reversible error to proceed with 11 jurors. [Citation.]” The…

A jury of 11 persons found defendant Heidi Ann Traugott guilty of possession of methamphetamine for sale and two related misdemeanor drug offenses. [1] Found true were the allegations that defendant had suffered a prison prior under Penal Code section 667.5, subdivision (b) and a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (c). Defendant was sentenced to a total of six years in state prison.

On appeal, defendant argues the trial court violated her constitutional and statutory rights to a unanimous verdict by accepting the verdict with only 11 jurors present and by taking the verdict in defendant's absence. She further contends she was denied effective assistance of counsel, in that counsel failed to object to the prosecutor's misstatements of the law relative to the issues of corpus delicti and aiding and abetting.

We hold that defendant's state constitutional right to a unanimous 12-person verdict was violated and that valid verdicts were not returned. We further hold that the error is structural and requires reversal. Because of our conclusion on this issue, we do not address defendant's remaining arguments.

At…