— I dissent.
Four and a half decades ago it was firmly established in California that the presence in the jury room of alternate jurors to whom the case had not been submitted for decision was an invasion of the defendant’s right of trial by jury. (People v. Bruneman (1935) 4 Cal.App.2d 75 [40 P.2d 891].) And, said the court at that time, “we further conclude that this was an error so far destructive to the invaded right, that the error could not by mere consent be rendered harmless” (id. at p. 81).
This elementary rule of law has gone unchallenged since 1935, when, in the same year that Bruneman was decided, we approved the identical principle in People v. Britton (1935) 4 Cal.2d 622 [52 P.2d 217]. As recently as 1976, a unanimous opinion of this court again emphasized that after final submission of the cause the alternates “are sequestered apart from the deliberating jurors.” (People v. Collins (1976) 17 Cal.3d 687, 694 [131 Cal.Rptr. 782, 552 P.2d 742].) It would seem that the rule would be well known to and routinely respected by trial judges, and, indeed, it has been prior to this case. Thus it is with a feeling of deja vu that we face again the precise factual circumstances of Bruneman. Without persuasive explanation, however, the majority now jettison nearly 45 years of precedent and misread Penal Code section 1089 in *129order to adopt a radically different rule authorizing an invasion of the defendant’s right of trial by jury on the mere consent of counsel.
I turn first to the statute governing the use of alternate jurors in criminal prosecutions, Penal Code section 1089. As originally enacted (Stats. 1895, ch. 213, p. 279), the section provided that if the regular jurors are ordered sequestered during the course of the trial the “alternate jurors shall also be kept in confinement with the other jurors.” This, of course, is still the practice: alternates are taken out to meals by the sheriff together with regular jurors, and if the jury is held overnight all are quartered in the same facilities. The section further provided that the alternate jurors “shall be discharged upon the final submission of the case to the jury.”
In 1933 a significant amendment was adopted (Stats. 1933, ch. 521, p. 1342), drastically changing the treatment of alternates when jury deliberations begin: “and upon final submission of the case to the jury such alternate jurors shall be kept in the custody of the sheriff and shall not be discharged until the original jurors are discharged, except as hereinafter provided.” (Italics added.) Thereafter provided was a paragraph dealing with substitution of an alternate for an original juror. Similar provisions are contained in Code of Civil Procedure section 605 for civil cases.
The procedure devised by the Legislature is thus clear and uncomplicated: when the case is submitted to the 12 regular jurors and they retire for their private deliberations, the alternate jurors do not retire with them but remain with the sheriff and are retained in his custody until the original jury is discharged by the court. This has been the practice of our trial judges since 1933.
Bruneman arose shortly after the 1933 amendment was adopted. Defense counsel in the case was the eminent criminal lawyer of that era, Jerry Giesler. The trial judge recognized (4 Cal.App.2d at p. 77) that the new amendment required the alternates to be kept in the custody of the sheriff during deliberations; nevertheless, “in order to determine the meaning of the 1933 amendment” he requested counsel to stipulate that the alternates could accompany the regular jurors into the jury room. Giesler and the prosecutor obligingly so stipulated.
It is essential to note the underlying purpose of the Bruneman trial judge in asking for the stipulation: i.e., “if one or more of [the alternates] should have to act, it probably would be desirable that they hear the discussions of the other jurors up to that point.” (Id. at p. 77.) That *130purpose would be futile today, however, in view of our explicit holding in People v. Collins, supra, 17 Cal.3d at page 694, that “a proper construction of section 1089 requires that deliberations begin anew when a substitution is made after final submission to the jury.” To insure this step we further required the trial judge in such event to instruct the jury “that the law grants to the People and to the defendant the right to a verdict reached only after full participation of the 12 jurors who ultimately return a verdict; that this right may only be assured if the jury begins deliberations again from the beginning; and that each remaining original juror must set aside and disregard the earlier deliberations as if they had not been had.” (Ibid.) We recently declared an identical rule in civil actions. (Griesel v. Dart Industries, Inc. (1979) 23 Cal.3d 578 [153 Cal.Rptr. 213, 591 P.2d 503].)
Despite this crystal-clear admonition, a year after Collins the trial judge herein repeated the Bruneman error of inviting counsel to stipulate to inclusion of the alternate in the jury room “so in the event it is necessary for her to sit in for somebody else, the jury deliberations will not have to start out from the very beginning. ” And directly contrary to Collins, he proceeded to instruct that “In the event it is necessary for you to replace one of the other jurors during the course of the deliberations, . . . the other jurors won’t have to start all over with their deliberations.” (Italics added.) Our plain message in Collins had obviously not reached this judge.
The Court of Appeal in Bruneman was unimpressed by the fact that counsel had stipulated to the procedure adopted, for it found the error to have been an invasion of the defendant’s right of trial by jury. Consent, it held, could not render the error harmless. (4 Cal.App.2d at p. 81.) In the case at bar the People likewise rely on consent of counsel — not of defendant personally — but here the majority erroneously conclude that the attorney’s stipulation cures the defect. For this startling departure the majority offer no reasoned analysis of their own, but merely quote from a student comment, from the dissent in Britton (which concedes that the presence of an alternate during deliberations is error), and from two out-of-state cases. I would adhere to California precedent, and on the following grounds I would hold that the error affecting the conduct of the jury persists with or without counsel’s consent.
There are at least three elements of jury deliberations that are, or may be, affected by the presence in the jury room of a nonparticipant, who may be described as any person to whom the case has not been submitted for a verdict.
*131First, a fair jury trial can be achieved only if the juiy is insulated from outside communications or influences. (Parker v. Gladden (1966) 385 U.S. 363 [17 L.Ed.2d 420, 87 S.Ct. 468]; Rakes v. United States (4th Cir. 1948) 169 F.2d 739, 745.) Such communications, even if subtle or unintended, are nonetheless an adulteration of the pristine character of the jury function. It would be understandably difficult for an alternate to remain locked up with regular jurors, perhaps for days, without at some time, during heated discussions, reflecting agreement or disagreement, support or opposition, encouragement or disapproval, praise or derision, hope or frustration, or any of countless other emotions. Even if only one regular juror observed such a response on the part of the alternate — not necessarily from his speech, but from his gestures, attitude, or facial expressions — it could well have a tilting effect on the ensuing vote.
Second, the mere presence of a nonparticipant during juiy deliberations is likely to have an inhibiting effect upon the free flow of discussion. To permit outsiders in the jury room “not faced with the awful responsibility to decide” (State v. Cuzick (1975) 85 Wn.2d 146 [530 P.2d 288, 290]) creates the danger that those who must decide will be deterred from expressing themselves fully. This may influence the verdict “to an extent which cannot be seen or measured” (People v. Bruneman, supra, 4 Cal.App.2d at p. 81), but which is nonetheless real.
Third, though no law prohibits disclosure, it is preferable that the inevitable meandering of jury deliberations remain confidential. In his 1956 Hamlyn Lecture, Lord Patrick Devlin declared that “What goes on in the jury room is not only to be subject to no interference but it is also to be kept secret.” Though conceding that there are no cases on the subject, Lord Devlin noted that “it says a good deal for the sense of responsibility of the average juror that it never seems to have been necessary to decide the point.” (Devlin, Trial by Jury (1956) p. 46.) The reticence of the regular jurors to reveal discussion confidences may not be equally felt by the alternates. In People v. Adame (1973) 36 Cal.App.3d 402, 407 [111 Cal.Rptr. 462], the court cited with approval — indeed, it italicized for emphasis — this quotation from People v. Knapp (1879) 42 Mich. 267 [3 N.W. 921, 929]: “The presence of a single other person in the room is an intrusion upon this privacy and confidence, arid tends to defeat the purpose for which they are sent out.”
For the foregoing reasons I believe there were jury misconduct and error here. I therefore reach the issue of prejudice. Bruneman adopted a per se rule of reversal. Both before and since that time, howevér, our *132courts have reviewed a variety of other types of jury misconduct, and in each instance the error has been weighed on the scales of prejudice. The general rule in this state is that a presumption of prejudice arises from jury misconduct. (People v. Honeycutt (1977) 20 Cal.3d 150, 156 [141 Cal.Rptr. 698, 570 P.2d 1050], and cases cited.) The United States Supreme Court has also adopted a rule of presumptive prejudice. (Remmer v. United States (1954) 347 U.S. 227, 229 [98 L.Ed. 654, 655-656, 74 S.Ct. 450].) The presumption may be rebutted by proof that no prejudice actually resulted (In re Winchester (1960) 53 Cal.2d 528, 535 [2 Cal.Rptr. 296, 348 P.2d 904]), but the effort to do so must be conducted within statutory limitations. (Evid. Code, § 1150.)
There is no rational reason to distinguish the error involved here from any other case of juror misconduct. (People v. Adame, supra, 36 Cal.App.3d at p. 411 (cone. opn. of Brown (G. A.), P. J.).) I would therefore apply the general rule and hold that a presumption of prejudice arose in the case at bar. And because the People made no effort to rebut that presumption, I would reverse the judgment under the authorities discussed herein.
Bird, C. J., concurred.
Appellant’s petition for a rehearing was denied May 23, 1979. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.