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Name: People v. Traugott
Case #: E046884
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 05/06/2010

The state constitution requires the presence of 12 jurors when the verdict is declared in open court. At appellant’s felony trial only 11 of the 12 jurors were present when the verdicts were rendered. The final juror had left for a job interview, although the record was not clear when the juror left. Appellant was also not present because she misunderstood the bailiff’s instruction about staying close by. Nevertheless, counsel agreed to proceed in the final juror’s absence. On appeal, appellant argued she was denied her constitutional right to a 12-person jury. The court agreed. The oral declaration of the verdict, not the submission of the verdict forms is what constitutes return of the verdict. And while a defendant can consent to a jury of less than 12 people, that waiver must be expressed by the defendant in open court. That did not happen here. The court rejected the argument that she forfeited the right by not being present. Assuming arguendo she waived her right to be present, appellant’s absence had no bearing on the fact only 11 jurors were present in court after deliberations. Denial of a 12-person jury was structural error requiring reversal per se.