APPEAL from the Superior Court of Riverside County. John G. O'Rourke, Judge. (Retired judge of the Kings Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed. (Super.Ct.No. BAF005302).
The opinion of the court was delivered by: King J.
CERTIFIED FOR PUBLICATION
A jury of 11 persons found defendant Heidi Ann Traugott guilty of possession of methamphetamine for sale and two related misdemeanor drug offenses.*fn1 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 approximately 1:30 a.m. on February 11, 2007, the vehicle in which defendant was seated was approached by two Riverside County Sheriff's deputies. The vehicle was located in a gas station next to a gas pump, with its hood open. An individual appeared to be working on the engine and defendant was in the driver's seat. One of the deputies testified that defendant's speech was rapid and that she appeared fidgety. Upon inquiry, she stated that she had used methamphetamine earlier in the evening. Following her arrest for being under the influence of drugs, the interior of the car was searched. Inside a black plastic bag located on the passenger side floor was a glass pipe and some methamphetamine. After reaching the jail, defendant reached into her bra and waistband and removed nine small plastic bags and one larger bag, all containing methamphetamine.
Testimony in defendant's trial began on Tuesday, January 29, 2008. Jurors began deliberating on Friday, February 1. On the following Monday, at approximately 3:30 p.m., the court was informed the jury had reached a verdict. However, only 11 members of the jury were present to render the verdicts. Defendant was not present.
Defendant argues her federal and state constitutional rights were violated because a jury comprised of only 11 persons, not 12, returned guilty verdicts. The People contend defendant forfeited her right to a unanimous 12-person verdict. They base this argument on the facts that counsel stipulated to taking the verdict with only 11 jurors present and defendant absented herself from the courthouse prior to the return of the verdicts. As we explain below, we hold that defendant had not waived or forfeited her state constitutional right to a unanimous 12-person verdict and, therefore, a valid verdict was not returned in this case. The error is structural and requires reversal.
The jury commenced deliberations in the late afternoon of Friday, February 1, 2008.*fn2 They deliberated for a short period of time before being directed to return to continue deliberations the following Monday morning.*fn3 Deliberations began on Monday at approximately 8:30 in the morning. At approximately 3:00 or 3:30 in the afternoon, the jurors informed the court they had reached a verdict. A conference was then held between Judge John G. O'Rourke (who was not the trial judge), Deputy District Attorney Al Kim, Valerie Garcia, and, by telephone, defendant's trial attorney, Gary Redinger. During this conference, the court informed counsel that a ―little irregularity‖ had occurred. According to the court, the jurors announced they had reached a verdict and handed all the verdict forms to the bailiff; however, they had failed to reach a verdict on count 2.
At this point, the following colloquy occurred:
―MR. REDINGER: I understand that Heidi was told by the bailiff she could go home and be on call, so I don't know if that's true. That's what Heidi represented to me.
―THE COURT: Who is Heidi?
―MR. REDINGER: The defendant.
―THE COURT: Have we got a hold of her yet?
―MR. REDINGER: I reached her by phone. She is in Fontana. She indicated to me-I asked her why she wasn't in court. She indicated to me the bailiff had told her she was on call and she could go home.*fn4
―THE BAILIFF: I said-what I said was stay close so your attorney can get a hold of you if the verdict comes. She ...