I am not persuaded that the standard of review for prejudice resulting from juror misconduct should be different when the *1273motion for new trial is granted than when the motion is denied. I therefore respectfully dissent.
Let us review the circumstances under which the majority opinion does not apply. It does not apply to a defendant, only to the People. (Maj. opn., ante, at pp. 1255-1256.) It does not apply to error, as opposed to prejudice resulting from that error. (Id. at p. 1267, fn. 9 [“we need not and do not consider whether a more stringent standard of review might apply to a trial court’s determination of error leading to its decision to grant a new trial, where the claim of error involved a mixed law and fact issue”].) It does not apply to a People’s appeal of an order vacating a judgment on habeas corpus on the ground of juror misconduct. (Id. at p. 1268.) Rather, in apparently all of these situations, independent review will routinely apply.
Suppose the question here involved a defendant’s confession, and the trial court granted a new trial on the ground the confession was involuntary and its admission prejudicial. The People appeal the order granting the new trial motion. Under the majority’s analysis, we would apply independent review to the question of whether the confession was voluntary. However, once the confession was deemed involuntary, because the People, not the defendant appealed, we would then consider whether admission of the involuntary confession was prejudicial by applying an abuse of discretion standard. If, however, the trial judge had vacated the judgment on habeas corpus, or if the new trial motion had been denied and the defendant appealed the underlying judgment, we would continue to apply an independent review standard. Little commends such an inconsistent practice.
Rather, as Justice Benke noted in her dissent in the Court of Appeal, according independent review to mixed questions of law and fact is based “on the sound principle that where a constitutional issue is involved, the law requires uniformity, [and] clarity of precedent.” Thus, both People v. Nesler (1997) 16 Cal.4th 561, 582 [66 Cal.Rptr.2d 454, 941 P.2d 87], and In re Carpenter (1995) 9 Cal.4th 634, 647, 658-659 [38 Cal.Rptr.2d 665, 889 P.2d 985] (Carpenter), concluded that independent review applies to a determination of whether prejudice arose from juror misconduct. Nothing in either opinion distinguishes between appeals from orders granting and those denying such relief. Indeed, Carpenter was a People’s appeal from an order vacating a judgment.
The majority attempts to distinguish Carpenter on the ground it involved a habeas corpus proceeding, stating, “While all intendments traditionally favor a new trial order, habeas corpus is a separate, collateral proceeding that attacks a presumptively valid judgment. . . . This presumption against the validity of a collateral attack on a conviction and sentence weighs strongly *1274toward close appellate review of all mixed law and fact determinations leading to a lower court’s decision to grant relief on habeas corpus.” (Maj. opn., ante, at p. 1268, fns. omitted.) However, as the majority also recognizes, Carpenter did not involve a final judgment. (Id. at p. 1268, fn. 11.) The record in that case had not yet been certified, and the appeal was not to be decided for another four years. (Carpenter, supra, 9 Cal.4th at p. 659; People v. Carpenter (1999) 21 Cal.4th 1016 [90 Cal.Rptr.2d 607, 988 P.2d 531].) Rather, Carpenter “challenged] the judgment . . . shortly after its rendition” (Carpenter, supra, 9 Cal.4th at p. 642), and the judge was the same at trial and on the habeas corpus proceeding. (Id. at pp. 661, 672-673 (dis. opn. of Mosk, J.).) Thus, little basis exists to distinguish it from the circumstances here.
Moreover, the majority relies on the fact that “[a] trial court’s finding of prejudice is based, to a significant extent, on ‘ “first-hand observations made in open court” ’ which that court itself is best positioned to interpret.” (Maj. opn., ante, at p. 1267.) That is true, however, whether the trial court does or does not find prejudice, and yet the majority does not dispute that when a new trial is denied we exercise independent review on appeal.
In addition, the majority deems critical its view that “[e]ven if the trial court has erred on the side of caution in a close case, appellate deference to the court’s determination produces no final victory for either party, but simply allows the matter to be retried before a new jury.” (Maj. opn., ante, at p. 1266; id. at p. 1267, fn. 9 [“In the case before us, the only result is that the People must re-present their evidence before a new jury”].) Such statements minimize the inherent costs of retrial, i.e., that the pain and trauma to a victim or the family in having to endure a retrial can be substantial, and that neither witnesses nor other persons associated with a criminal prosecution are static. Here, for example, the case involves a teenager, adopted at the age of five from Russia, who testified against a former family friend regarding a series of alleged molestations. (Maj. opn., ante, at p. 1256.) As a result of the majority’s decision, this young woman will be forced to once again confront the person who violated a position of trust, and relive these experiences, an ordeal that can hardly be characterized as a “simpl[e]” retrial. As the People observe, “Certainly the criminal justice system is equally flawed whether a conviction is improperly set aside for nonprejudicial jury misconduct or whether a conviction is improperly allowed to stand despite prejudicial jury misconduct.”
*1275The scope of the issue before this court is simply what the appropriate standard of review on appeal is under these circumstances, not whether the Court of Appeal properly applied that standard. (See maj. opn., ante, at pp. 1256, 1272.) Having concluded an independent review standard is appropriate, I would reverse the judgment of the Court of Appeal and remand this case to that court for further proceedings.