Can a criminal defendant waive a right to jury at trial by jury?

We believe the crucial question is not whether the 12-person jury is a mandatory provision such that failure to comply with its dictates renders the trial proceedings invalid, but rather whether the provision was intended to preclude an accused from waiving its benefits if he believes it is in his best interests to do so. The policy issue involved is whether the constitutional [217 Cal.App.3d 1031] provision regarding trial by jury of 12 is meant to establish that number as an essential element of every felony criminal jury trial or only to confer a right upon the accused which he may forego at his election. (See Patton v. United States (1930) 281 U.S. 276, 294-298, 50 S.Ct. 253, 256-258, 74 L.Ed. 854.)

The purpose of the jury trial is to prevent oppression by the government. " 'Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.' [Citation.]" (Williams v. Florida, supra, 399 U.S. at p. 100, 90 S.Ct. at pp. 1905-1906.)

At common law the accused could not waive trial by jury or any right intended for his protection. This rule was justified because under the old English system, conviction of a crime worked an attaint and forfeiture of official titles of inheritance, thus affecting the rights of third parties. (Patton v. United States, supra, 281 U.S. at pp. 296, 306-307, 50 S.Ct. at pp. 257, 261.) However, the common law conditions which bode against waiver of rights by the accused no longer exist under our modern system of criminal justice. (Id. at p. 307, 50 S.Ct. at p. 261.) Since 1928 the California Constitution has permitted a criminal defendant to waive a jury trial. (Cal. Const., art. 1, former 7, repealed Nov. 5, 1974, now 16.) ²

It was pursuant to this authority that the pre-1980 cases held that a criminal defendant could consent to continuation of a jury trial with 11 jurors when 1 juror became incapacitated and unable to continue with the trial. The courts concluded there was no sound reason why a defendant could not waive a part of a jury since the Constitution authorized him to waive the entire jury. (People v. Clark, supra, 24 Cal.App.2d at p. 304, 74 P.2d 1070.) The right to jury provision was meant to confer a right on the accused which he could forego at his election. To deny him the power to do so, converted a privilege into an imperative requirement. (Id. at p. 305, 74 P.2d 1070.)