dissenting.
¶ 52 This appeal was filed by Escobedo pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). As such, our obligation is to thoroughly review the trial court record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App.1999). Having done so, we determined the maximum sentence Escobedo was facing when the case was submitted to the jury exceeded thirty years. Accordingly, he should have been tried before a jury of twelve persons, rather than the eight jurors who found him guilty, and thus the trial court committed error.
¶ 53 In my view, the majority has made unnecessarily complex the single issue before us — -whether the error committed is reversible. I would conclude the error is reversible because it is “structural” in nature and therefore Escobedo is entitled to a new trial.
*267¶ 54 Because the trial court failed to impanel four additional jurors, the jury was defective under Arizona’s Constitution. “Arizona closely guards a defendant’s right to a jury trial above and beyond that guaranteed by the Federal Constitution.” State v. Le Noble, 216 Ariz. 180, 182, ¶ 9, 164 P.3d 686, 688 (App.2007) (citing Derendal v. Griffith, 209 Ariz. 416, 419, ¶ 6, 104 P.3d 147, 150 (2005)). Our constitution provides:
The right of tidal by jury shall remain inviolate. Juries in criminal cases in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons. In all criminal cases the unanimous consent of the jurors shall be necessary to render a verdict.
Ariz. Const, art. 2, § 23.6
¶ 55 The framers of the constitution obviously placed some weight on the number twelve, as opposed to a lesser number, such as eight or six. Arizona’s voters also indicated their preference to continue to have certain criminal cases tried before twelve persons when they amended our constitution in 1971. Additionally, Arizona’s legislature has affirmed the significance of the twelve-person jury requirement by enacting A.R.S. § 21-102(A) (2002), manifesting an intent to provide defendants with the benefits of a larger jury. State v. Fancy, 139 Ariz. 76, 79, 676 P.2d 1134, 1137 (App.1983) (“By enacting A.R.S. § 21-102(A), our legislature manifested a clear intent to provide every advantage of a larger jury to those criminal defendants faced with the possibility of a substantial term of imprisonment.”).7 Despite the lack of a federal equivalent, in Arizona it is a constitutional requirement that a defendant be tried by a jury of twelve for certain types of cases, such as the one at issue here.
¶ 56 In criminal cases, we recognize three types of trial court error: harmless error, fundamental error, and structural error. State v. Valverde, 220 Ariz. 582, 584, ¶ 9, 208 P.3d 233, 235 (2009); State v. Henderson, 210 Ariz. 561, 565-68, ¶¶ 12-21, 115 P.3d 601, 605-08 (2005).8 “Each type of error places a different burden of proof on the parties.” Valverde, 220 Ariz. at 584, ¶ 9, 208 P.3d at 235.
¶ 57 Harmless error review applies in cases when the defendant objects at trial, and thus preserves the issue for appeal. Id. at 585, ¶ 11, 208 P.3d at 236. When reviewing for harmless error, the state must prove beyond a reasonable doubt that the error was harmless, having no effect on either the verdict or the sentence. Id. (citing State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993)). Escobedo did not object at trial; thus harmless error review has no applicability here.
¶ 58 “If no objection is made at trial, and the error alleged does not rise to the level of structural error, we review only for fundamental error.” Id. at ¶ 12 (citing Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607). Fundamental error, in turn, is limited to “those rare cases that involve ‘error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could 'not possibly have received a fair trial.’ ” Id. It is the defendant’s burden to prove that the error was fundamental and that the error caused him *268prejudice. Id. “Because fundamental error review is a fact-intensive inquiry, the showing necessary to demonstrate prejudice will vary on a case-by-case basis.” Id.
¶ 59 By contrast, a finding of structural error mandates reversal, irrespective of whether the issue was preserved for appeal or prejudice was found. Id. at 584-85, ¶ 10, 208 P.3d at 235-36. The concept of structural error, as described by Arizona’s appellate courts, flows from decisions of the United States Supreme Court beginning in 1991 addressing the appropriate type of review for federal constitutional errors. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). The error here, as the majority correctly notes, does not involve federal constitutional issues; however, the decisions of the United States Supreme Court are persuasive in evaluating state constitutional error, as such authority has been relied upon consistently by the Arizona Supreme Court and this court in determining whether a particular error is structural.
¶ 60 In Fulminante, a majority of the Court determined that an involuntary confession was subject to harmless error analysis. Id. at 285, 111 S.Ct. 1246 (opinion of White, J., for the Court). In reaching this conclusion, a different majority explained the nature of “ ‘trial error’- — error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Id. at 307-08, 111 S.Ct. 1246 (opinion of Rehnquist, C.J., for the Court). In doing so, the Court recognized many “trial errors” of constitutional import that did not require reversal. Id. at 308, 111 S.Ct. 1246. The Court noted, however, the marked differences between “trial errors,” which are subject to harmless error analysis, and “structural defects in the constitution of the trial mechanism, which defy analysis by harmless-error standards.” Id. at 309, 111 S.Ct. 1246. Such defects affect “[t]he entire conduct of the trial from beginning to end[.” Id. The Court noted specific examples of constitutional errors that would not fall under a harmless error category: total deprivation of right to counsel, a biased judge, unlawful exclusion of members of a defendant’s race from a grand jury, the right to self-representation, and the right to a public trial. Id. at 310, 111 S.Ct. 1246. The Court further explained:
Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself. Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.
Id. (internal quotations and citations omitted).
¶ 61 Two years later, in Sullivan v. Louisiana, 508 U.S. 275, 281-82, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993), the Court held that a constitutionally deficient reasonable doubt instruction constituted “structural error.” Because the error was based on an improper jury instruction, the Court discussed the importance of the integrity of the jury mechanism and held that the type of error in that case was of the category that “will always invalidate a conviction.” Id. at 277-82, 113 S.Ct. 2078. The Court described harmless error analysis, which examines the basis on which “the jury actually rested its verdict,” and determined that a defect in the jury mechanism defies this type of analysis, because there was no true jury verdict within the meaning of the Sixth Amendment to rest the analysis on. Id. at 279-80, 113 S.Ct. 2078 (internal quotations and citations omitted). The Court reasoned further that an inquiry into whether the error in the jury mechanism prejudiced the defendant beyond a reasonable doubt would not be sufficient because “[t]he Sixth Amendment requires more than appellate speculation about a hypothetical jury’s action ...; it requires an actual jury finding of guilty.” Id. at 280, 113 S.Ct. 2078.
¶ 62 Citing Fulminante, the Court also noted that error in the trial mechanism is not subject to the type of quantitative analysis that is required in a review for harmless error. Id. at 281-82, 111 S.Ct. 1246. Thus, the Court concluded that denial of the right *269to a jury verdict beyond a reasonable doubt had consequences that were “necessarily unquantifiable and indeterminate” and therefore “unquestionably qualified as ‘structural error.’ ” Id.9
¶ 63 Applying these principles, and under the unique and rare circumstances presented here, I find the error in this case fits squarely in the category of structural error.
¶ 64 The failure to impanel four additional jurors unquestionably “affect[sj the framework within which the trial proceeds” and “the entire conduct of the trial from beginning to end[.” See Fulminante, 499 U.S. at 309-10, 111 S.Ct. 1246. As such, the right to have twelve jurors in this case is a basic protection under the Arizona Constitution. A trial conducted without such protection cannot “reliably serve its function as a vehicle for determination of guilt or innocence,” and the criminal punishment related thereto is not “fundamentally fair.” See Id. at 310, 111 S.Ct. 1246. Escobedo was entitled to have twelve jurors determine whether he was guilty beyond a reasonable doubt. It was the State’s burden to prove its case to those twelve jurors, and it did not do so here. Thus, this constitutional error constitutes a structural defect in the trial court proceedings.
¶ 65 Moreover, similar to the error present in Sullivan, the error here affects the integrity of the jury mechanism. As there was no verdict rendered by twelve jurors, there was no true verdict within the meaning of the Arizona Constitution. It is impossible to know how four non-existent jurors would have decided the case, and thus we cannot quantitatively assess what impact this constitutionally deficient jury had on the verdict. The four additional jurors could have voted to convict, or they may have been persuaded to acquit. To attempt to divine what they would have decided is to engage in pure speculation. See Sullivan, 508 U.S. at 279, 113 S.Ct. 2078 (“[T]o hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee.”); State v. Henley, 141 Ariz. 465, 469, 687 P.2d 1220, 1224 (1984) (“We cannot predict, for example, whether four additional jurors would have found defendant Henley guilty beyond a reasonable doubt.”). For these reasons, the absence of the four additional jurors is not merely a trial error, but one that goes to the framework of the trial itself and undermines its ability to “reliably serve its function as a vehicle for determination of guilt or innocence.” See Valverde, 220 Ariz. at 584, ¶ 10, 208 P.3d at 235 (quoting Ring III, 204 Ariz. at 552, ¶ 45, 65 P.3d at 933).
¶ 66 As the majority recognizes, though several prior cases have labeled the failure to impanel a twelve-person jury as fundamental error, those decisions in large part cite Henley, which predated Fulminante, and was later described by Anderson as “structural error.” See supra ¶30. This description follows logically, considering that every reported decision in Arizona involving a defendant who was deprived of the right to be tried by a twelve-person jury has been granted a new trial. See supra ¶ 37; see also State v. Pope, 192 Ariz. 119, 121, ¶ 12, 961 P.2d 1067, 1069 (App.1998) (reversed and remanded for new trial based on failure to impanel twelve jurors even though trial court assured defendant that the court would not impose a sentence in excess of thirty years); State v. Miguel, 125 Ariz. 538, 540-41, 611 P.2d 125, 127-28 (App.1980) (reversed and i’emanded due to trial court’s failure to impanel twelve jurors).
¶ 67 In practice, Arizona has a per se rule of reversal when a defendant is tried by a constitutionally deficient jury. Indeed, the majority has not cited a single ease from any jurisdiction holding, or even suggesting, that trying a defendant to a lesser number of jurors than is constitutionally required is (a) *270harmless error, (b) technical error, or (e) non-prejudicial. Although the decisions from this court and our supreme court have not labeled this type of error as structural, a per se rule of reversal, based on presumed prejudice, is the functional equivalent of finding structural error.
¶ 68 As separate grounds for reversal, I would conclude that the trial court’s failure to obtain a waiver of Escobedo’s right to a twelve-person jury constitutes structural error. The right to a jury trial can be waived, but the defendant must be aware of the right, State v. Conroy, 168 Ariz. 373, 376, 814 P.2d 330, 333 (1991), and waive it knowingly, intelligently, and voluntarily, Le Noble, 216 Ariz. at 184, ¶ 18, 164 P.3d at 690; State v. Baker, 217 Ariz. 118, 120, ¶ 8, 170 P.3d 727, 729 (App.2007). The right to a trial by a jury of twelve must be waived in the same manner. State v. Smith, 197 Ariz. 333, 340, ¶ 21, 4 P.3d 388, 395 (App.1999) (finding that the requirements for waiver of right to a twelve-person jury were not satisfied and reversing defendant’s conviction based on fundamental, prejudicial error); State v. Maldonado, 206 Ariz. 339, 342, ¶ 12, 78 P.3d 1060, 1063 (App.2003) (noting that the waiver of a twelve-person jury “is comparable to the waiver of a jury trial” because the court must advise the defendant and ascertain that the waiver is “knowing, voluntary, and intelligent”).10
¶ 69 In this ease, nothing in the record indicates that Escobedo’s right to a twelve-person jury was even discussed, much less waived. The trial court’s failure to obtain such a waiver from Escobedo constitutes structural error. See Le Noble, 216 Ariz. at 183-85, ¶¶ 16-19, 164 P.3d at 689-91 (concluding that the failure of the trial court to notify and explain to a defendant the right to a jury trial and to obtain an effective waiver of that right is structural error); Baker, 217 Ariz. at 122, ¶ 20, 170 P.3d at 731 (finding structural error based on lack of evidence showing an effective waiver of right to a jury trial).
¶ 70 Arizona’s courts, its legislature, and its citizens have consistently recognized the importance of the constitutional guarantee to a twelve-person jury. That guarantee was established in Arizona in 1912 when our constitution was adopted and remains in place unless and until it is amended.
¶71 It is undeniable that there was no constitutional jury present in this ease, nor was there a constitutional verdict. Only eight people decided Escobedo’s guilt or innocence, and therefore the jury did not comply with the constitutional mandate that the “concurrence of all shall be required to render a verdict.” If this case was tried in federal court, or in a state such as Florida that does not have a constitutional requirement similar to Arizona’s, the result could be different. But here, when the trial was conducted with an insufficient number of jurors under the plain language of the Arizona Constitution, the only option before us is to reverse the conviction and remand, for a new trial. For these reasons, I respectfully dissent.
. This section of the constitution was amended in 1971. It originally stated:
The right of trial by jury shall remain inviolate, but provision may be made by law for a jury of a number of less than twelve in courts not of record, and for a verdict by nine or more jurors in civil cases in any court of record, and for waiving of a jury in civil cases where the consent of the parties interested is given thereto.
. In Fancy, this court referenced findings from the United States Supreme Court addressing the effects of smaller juries in criminal cases. 139 Ariz. at 79 n. 1, 676 P.2d at 1137 n. 1 (citing Ballew v. Georgia, 435 U.S. 223, 223-37, 98 S.Ct. 1029, 55 L.Ed.2d 234 (1978) (noting data suggesting that smaller juries are less likely to foster effective group deliberation, the risk of conviction rises as the size of the jury diminishes, and reduction in size erects barriers to fair representation by minorities)).
. In my view, the majority places unjustified significance on the "technical error” provision found in the Arizona Constitution.. . That provision was not referenced in Flenderson, and no decision in Arizona has ever suggested that a failure to impanel a sufficient number of jurors in a criminal case should be considered "technical."
. Structural error was first mentioned in Arizona case law in State v. Romanosky, 176 Ariz. 118, 121 n. 1, 859 P.2d 741, 744 n. 1 (1993). A number of subsequent cases from our supreme court have addressed generally the concept of structural error, consistent with the analysis of Fulminante and Sullivan. See, e.g., Valverde, 220 Ariz. at 584, ¶ 10, 208 P.3d at 235; Henderson, 210 Ariz. at 565-67, ¶¶ 12, 14-16, 115 P.3d at 605-07; State v. Ring ("Ring III"), 204 Ariz. 534, 552, ¶¶ 44-46, 65 P.3d 915, 933 (2003). My research reveals that no reported criminal case in any jurisdiction in the United States labeled an error as "structural” prior to Fulminante.
. Based on this principle, the majority's reliance on the invited error doctrine is misplaced. A defendant must be aware of and personally waive the right to a twelve-person jury. Escobe-do was neither aware of the right, nor did he waive it. Thus, even if Escobedo's counsel invited the error, such action does not override the trial court’s obligation to obtain an effective waiver of the right to a twelve-person jury.