California Court of Appeal Reverses Drug Conviction - Upholds Right to 12 Person Jury Verdict

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The California Court of Appeal for the Fourth District (Div. 2) has reversed a woman's drug conviction on the grounds that she was denied her California constitutional right to a unanimous 12-person jury after only 11 jurors rendered verdict in open court. The woman's appellate attorney, Richard Glen Boire, applauds the ruling.

The right to a 12-person jury in a felony drug case has been upheld by the California Court of Appeal.

The case involved a Riverside woman who was caught in possession of drugs that she claimed we left in her car by another person. According to California criminal appeal attorney Richard Glen Boire, the lawyer who represented the woman before the Court of appeal, the ruling will result in the woman's release from prison, unless the decision is reversed by the California Supreme Court.

"This is a victory for all people who believe that the Constitution should take precedent over the war on drugs," said Richard Glen Boire. Attorney Boire, who was appointed to handle the case before the court of appeal and did not represent the woman at trial, is an expert at handling California criminal appeals and is nationally recognized for his success in expunging California criminal convictions and obtaining other post-conviction relief in criminal cases.

While some states have permitted felony convictions by less than a 12-person jury, the California constitution expressly requires a jury of 12 people in all felony cases. "In this case," explained attorney Richard Glen Boire, "12 jurors heard all the evidence, but only 11 jurors appeared in open court to announce the verdict."

At the trial in Riverside County, the woman's trial attorney waived her client's right to a 12-person jury just before the jurors announced their verdict.

Before the Court of Appeal, appellate attorney Boire argued that a waiver of such a fundamental right required the defendant's express agreement in open court. Because the defendant never consented to the waiver, argued attorney Boire in the court of appeal, the Riverside trial court erred by accepting a verdict from only 11 of the 12 jurors who heard all the evidence.

In agreeing with appellate attorney Boire's argument, the court of appeal reaffirmed that "a criminal defendant has a fundamental right under the California Constitution to a trial by a 12-person jury." While the court of appeal acknowledged that the right could be waived, it held that it required more than just the trial attorney's agreement. Rather, the waiver "must be expressed by the defendant in open court," held the court of appeal.

It is unclear whether the Attorney General will seek review in the California Supreme Court.

The case is People v. Traugott (E046884). The ruling was announced on 5/6/2010, and certified for publication, by the California Court of Appeal for the Fourth District, Division Two. The opinion can be access on the court's website.

The defendant was represented before the Court of Appeal, by Richard Glen Boire, whose law firm specializes in California criminal expungements and California criminal appeals. (

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