EPSTEIN, J.

FACTUAL AND PROCEDURAL SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . DISCUSSION

The division of labor between trial court and jury has long been established throughout the United States: the jurors decide the facts and the court instructs them on the law. In Sparf and Hansen v. United States (1895) 156 U.S. 51, the United States Supreme Court addressed this issue. The court surveyed the state of the law in both federal and state courts, finding consistent application of this principle. ( Id. at pp. 64-86.) The court concluded: "We must hold firmly to the doctrine that in the courts of the United States it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence." ( Id. p. 102.)

This principle is codified in Penal Code section 1126, which states that the jury is "bound, nevertheless, to receive as law what is laid down as such by the court." The duty of the jury to follow the court's instruction as to the law predated this legislative statement. In People v. Anderson (1872) 44 Cal. 65, decided the same year Penal Code section 1126 was enacted, the court held: "In this State, it is so well settled as no longer to be open to debate that it is the duty of the jury in a criminal case to take the law from the Court." ( Anderson, at p. 70.) More recently, our Supreme Court has reaffirmed "the basic rule that jurors are required to determine the facts and render a verdict in accordance with the court's instructions on the law." ( People v. Williams (2001) 25 Cal.4th 441, 463; In re Stankewitz (1985) 40 Cal.3d 391, 399, quoting Noll v. Lee (1963) 221 Cal.App.2d 81, 87 [jurors are "`bound by the law as given them by the court'"].)

The practice of the jury receiving the law from the court is so ingrained that prior to 1988, the Legislature did not find it necessary to include a promise in the jury oath to follow the court's instructions. The statutory terms of the previous oath, enacted in 1872 and similar to the oath administered here, required only that the jury "well and truly try the matter in issue . . . and a true verdict render according to the evidence." (See former Code Civ. Proc., § 604, repealed by Stats. 1988, ch. 1245, § 7, p. 4155.) No intent is evident from the legislative history of the Trial Jury Selection and Management Act, which repealed the prior oath and enacted the current one, to overturn the judicial and legislative pronouncements that jurors have a duty to follow the instructions of the court.

The jury in this case was not unmindful of its duty. Though the jurors were not expressly asked to acknowledge an agreement to render a verdict according to the instructions of the trial court, they were told that this was their duty. The jurors were instructed, "You must apply the law as I state it to you to the facts as you determine them to be and in this way arrive at your verdict. You must accept and follow the law as I state it to you whether or not you agree with the law. If anything concerning the law said by the attorneys during trial or arguments conflicts with my instructions, you must follow my instructions."

Defendant contends that it is specious to rely on the trial court's instructions to the jury as a basis to conclude the jurors followed the law, unless they explicitly agreed to follow the instructions. Absent a separate duty to follow the court's instructions, this argument might have some plausibility. But, as we have seen, statutory and case law establishes a duty independent of the jury oath. The court's instructions served merely to remind the jury of this duty, as would the oath if properly administered.

Even if the jury did not expressly agree to perform a duty, we must presume that an official duty has been performed. (Evid. Code § 664; see United States v. Schneiderman (S.D.Cal. 1952) 106 F. Supp. 906, 926 [characterizing jury deliberations as "official duties"].) Specifically, we presume that the jury "meticulously followed the instructions given." ( People v. McNear (1961) 190 Cal.App.2d 541, 547.)

The presumption that an official duty has been performed is a presumption affecting the burden of proof. (Evid. Code § 660) "The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact." (Evid. Code § 606) Defendant, arguing only that failure to instruct the jury properly is structural error requiring automatic reversal, makes no showing that the jury did not perform its duty of following the law as laid down by the trial court. Therefore, the presumption holds that the jury followed the trial court's instructions.

A similar situation arose in People v. Lewis (2001) 25 Cal.4th 610. There, the jury oath to not commit perjury during voir dire, also in Code of Civil Procedure section 232, was not administered before the jurors answered a written questionnaire. The court placed the burden of proof on defendant to show that this failure prejudiced him. ( Lewis, at p. 630.) As in Lewis, the burden should be on defendant to show prejudice from failure to swear the jury properly. This is especially applicable here because, while perjury requires an oath, the duty to follow the court's instructions does not. (Pen. Code, § 118, subd. (a).) Because defendant has made no showing of prejudice flowing from the failure of the court to administer the current statutory oath, and because we must presume that the jury followed the court's instructions, we find no reversible error in the misadministration of the jury oath.

II

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DISPOSITION

The judgment of conviction is affirmed.

We concur:

VOGEL (C. S.), P. J.

CURRY, J.