I concur in the majority opinion to the extent that it reverses the judgment based on juror misconduct, although, as discussed below, I believe that the majority has unduly emphasized the errant juror’s status as foreman. I respectfully dissent, however, from the majority’s application of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], to the facts before us for in my opinion defendant’s confession was not elicited in violation of the Miranda rule.
1. Juror Misconduct
The majority stresses the special position of the foreman permitting him to influence other jurors, thus imparting to them any prejudice derived from his conversation with the attorney. Such speculation is unnecessary to the result. Because this is a criminal case, if a single juror, whether foreman or not, was prejudiced the entire verdict was infected. Accordingly, our principal inquiry, it seems to me, must ascertain whether there is any evidence in the record from which the trial court properly could have concluded that the presumption of prejudice had been rebutted. No such evidence appears.
In People v. Stokes (1894) 103 Cal. 193 [37 P. 207], we held that where juror misconduct raised the presumption that the verdict had been prejudiced, jurors could not overcome this presumption by swearing that the misconduct did not influence their verdict. Citing Stokes with approval in People v. Hutchinson (1969) 71 Cal.2d 342 [78 Cal.Rptr. 196, 455 P.2d 132], we held that Evidence Code section 1150, governing the admission of evidence concerning the validity of a verdict, limits jurors’ affidavits to “proof of overt acts, objectively ascertainable . . . .” (Id., at *162p. 349.) In the present case the presumption of prejudice was not properly rebutted by the foreman’s testimony that the conversation with the attorney did not influence his verdict, nor by the attorney’s declaration alleging the gist of his conversation with the foreman. Thus, I fully concur with the majority’s conclusion that defendant was prejudiced by the error and that the judgment must be reversed on this ground.
2. Admissibility of Defendant’s Confession
In holding defendant’s confession inadmissible, the majority opinion focuses on the following critical passage in Miranda v. Arizona, supra, 384 U.S. 436: “Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.” (Id., at p. 476 [16 L.Ed.2d at pp. 724-725], italics added.) The majority then reasons that although Miranda does not expressly disapprove the conversation-waming-interrogation sequence involved herein, nevertheless “When the waiver results from a clever softening-up of a defendant through disparagement of. the victim and ingratiating conversation, the subsequent decision to waive without a Miranda warning must be deemed to be involuntary for the same reáson that an incriminating statement made under police interrogation without a Miranda warning is deemed to be involuntary.” (Ante, pp. 160-161, italics added.)
I respectfully suggest that such a conclusion is neither mandated by Miranda nor required by notions of justice or fair play. Moreover, the opinion in this regard mischaracterizes the facts in the present case. The record clearly establishes that the waiver and confession in question were made after defendant was given the warnings required by Miranda. I find no basis for the majority’s conclusion, which is squarely contrary to that of the trial court, that any “softening-up” or “ingratiating conversation” rendered involuntary defendant’s willingness to confess.
*163Defendant was arrested and brought to a police station. Upon arrival he was taken to an interview room where he remained with Detectives Williams and Tague for approximately one-half hour. According to Williams, defendant initially cursed the officers and Williams made attempts to calm him and to communicate with him. Eventually, defendant conversed with the officers, although the circumstances of the offense were not discussed. Among other things, the officers and defendant talked about the victim, and the fact that the victim was a suspect in another homicide case, and was reportedly a homosexual. Contrary to the majority’s suggestion, other than the officers’ attempts to calm down defendant after his initial outburst of profanity, the record contains no evidence whatever of any “ingratiating” conversation or “clever softening-up” of defendant by the officers.'
Once defendant indicated that he would talk about the homicide a stenographer was called in and defendant was fully advised of his Miranda rights. Defendant was asked twice if he understood his rights and then, after expressly waiving his rights, he confessed that he had beaten and stabbed the victim.
Addressing the issue of voluntary waiver, the Miranda, court observed that, “No effective waiver . . . can be recognized unless specifically made after the warnings we here delineate have been given.” (Miranda, supra, at p. 470 [16 L.Ed.2d at p. 721].) The record before us reflects that the defendant ultimately was given the requisite Miranda warnings, stated that he understood his constitutional rights, waived those rights, and then made his incriminating statement. Notwithstanding this fact, the majority holds as a rule of law that such a waiver is inevitably invalid merely because the warnings are not given immediately upon a suspect’s arrest. Furthermore, the majority opinion inadequately explains with sufficient certainty precisely what type of police-suspect contact or conversation renders a waiver invalid. The terms “clever softening-up” and “ingratiating conversation” sound suspiciously vague as standards, particularly in the police investigation area which requires application of practical, readily understood rules of considerable specificity. Depending upon the interpretation given the foregoing phrases they may well prove unduly restrictive.
In summary, the majority not only adopts what seems to me to be an overly literal reading and interpretation of Miranda, but appears to extend that interpretation to create an irrebuttable presumption to the effect that, unless a Miranda warning is issued before any conversation *164with a suspect occurs, a subsequent waiver is ineffective. It would seem to me much more reasonable to leave to the discretion of the trial court the task of determining if, in the light of all the circumstances in the case, the suspect has been fully informed of his rights and has freely, knowingly and voluntarily waived those rights. Here the trial court made such a determination, and I find no evidence of threat, trickery or cajolery which would invalidate the waiver.
Accordingly, I dissent from that portion of the majority opinion and would hold that defendant’s confession was properly admissible at trial.
Clark, J., and Thompson (R. S.), J.,* concurred.
Respondent’s petition for a rehearing was denied December 8, 1977. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.
Assigned by the Chairperson of the Judicial Council.