I dissent.
Royal Kenneth Hayes was charged by the People through the Santa Cruz District Attorney with, among other things, murdering Lauren de Laet and Donald MacVicar, and was alleged to have done so under the special circumstance of multiple murder. Trial was by jury in the Santa Cruz Superior Court. The court ruled inadmissible certain evidence about Hayes’s criminal history, including this: He had committed two prior “murders” in Minnesota and Oregon, but had been acquitted of both, in Oregon on his successful plea of not guilty by reason of insanity; and he had been convicted of one or more firearm offenses under the law of the United States, and had been imprisoned therefor at the United States Penitentiary at Leavenworth. The court admonished the jurors not to read, watch, or listen to accounts in the press relating to the case. It also admonished them not to discuss it with others. Following trial of the issues of guilt and special circumstance, the jury found Hayes guilty of murdering de Laet and MacVicar under the special circumstance of multiple murder. Following trial of the issue of penalty, the jury deadlocked. The court declared a mistrial. The People elected to retry the penalty issue. On Hayes’s motion for change of venue, the court transferred the case to the Stanislaus Superior Court for such proceedings. At their conclusion, a jury fixed the penalty for the murders at death. The court rendered judgment accordingly.
I
After the original trial of the issue of penalty in the Santa Cruz Superior Court and before retrial of the same issue in the Stanislaus Superior Court, Hayes moved the Santa Cruz Superior Court for a new trial of the issues of guilt and special circumstance on the ground of juror misconduct, including the improper receipt of evidence outside of court relating to the case.
Under section 1181 of the Penal Code, a defendant may move the trial court for an order for a new trial after an adverse verdict or finding on grounds including misconduct by one or more jurors (see id., subds. 2, 3, & 4), including the improper receipt of evidence outside of court relating to the case (id., subd. 2). He may support his motion by affidavits or declarations. (6 Witkin & Epstein, Cal. Criminal Law (2d ed. 1989) Judgment and Attack in Trial Court, § 3078, p. 3802 [mentioning affidavits only]; see Code Civ. Proc., § 2015.5 [generally allowing declarations in place of affidavits].) Pursuant to People v. Hedgecock (1990) 51 Cal.3d 395 [272 Cal.Rptr. 803, 795 P.2d 1260], the trial court may conduct an evidentiary hearing into juror misconduct, and may permit the parties to call jurors and compel them to testify, in order to resolve disputed issues of material fact, but may do so *1289only in the face of evidence demonstrating a strong possibility of juror misconduct that might have been prejudicial. (Id. at pp. 414-419.) A determination by a trial court to conduct, or not to conduct, an evidentiary hearing ancillary to ordering, or not ordering, a new trial is examined by a reviewing court under the standard of abuse of discretion. (See, e.g., ibid.) A ruling ordering, or not ordering, a new trial itself is scrutinized under the same test. (E.g., People v. Clair (1992) 2 Cal.4th 629, 667 [7 Cal.Rptr.2d 564, 828 P.2d 705].) A trial court abuses its discretion when its action falls outside the bounds of reason. (E.g., People v. Kipp (1998) 18 Cal.4th 349, 371 [75 Cal.Rptr.2d 716, 956 P.2d 1169].)
In his moving papers for a new trial, Hayes offered unsworn “affidavits” by his attorney, Jon C. Minsloff, and his attorney’s investigator, Kevin Love.
In pertinent part, Defense Counsel Minsloff’s “affidavit” was to this effect: After the Santa Cruz Superior Court declared a mistrial on the issue of penalty, Defense Investigator Love interviewed Nancy C. Wynn, who had been one of the jurors, and became aware that she and other jurors had misconducted themselves. Minsloff and Love together interviewed Juror Wynn a second time. Wynn confessed. She “admitted that she, herself, had read . . . stories which appeared in the Santa Cruz Sentinel during the course of the trial. She said it was too tempting not to want to read about the case. She said that she was, as a result of said articlefs], familiar with . . . Hayes’ prior criminal record, including his two previous trials for murder.” (Emphasis in original.) Wynn “stated that it was obvious to her that . . . Norlene [sic: apparently for “Norleen”] Hawley,” another one of the jurors, “was reading the same articles she was because of her timing after the articles appeared and the context of her comments during the guilt-phase deliberations,” which referred to facts about Hayes that were not in evidence, such as: “ ‘You know he . . . met Jim Johnson’ ”—who was one of his associates—“ ‘in Leavenworth’ ” (which may or may not have been true); “ ‘He’s . . . done it twice before, you know . . .’ ”; and, “ ‘This isn’t the first time he’s done it.’ ” Wynn “stated that she felt most of the jurors had been reading newspaper accounts of the trial, during the trial. She always saw ... Ed Wagner,” another one of the jurors, “carrying” a “copy of the San Jose Mercury during the trial. And based on Wagner’s comments during deliberations she was sure he was reading articles about the case. Both Wagner and . . . Clarence Hedrick,” another one of the jurors, “stated during the penalty phase, ‘We’ve got to stop him now. We can’t let him get away with it again.’ ” Wynn “further stated that. . . Harvey Solomon,” who would become the jury foreperson, “had stated during the guilt-phase of the trial, that he had acquired a nick-name from his fellow teachers at school (during the Fridays when court was not in session) as a result of their *1290discussion about this case, that nick-name being ‘Hang ’em High Harvey [.]’” Minsloff met at his office with Assistant District Attorney Madeleine Boriss, who prosecuted the trial in the Santa Cruz Superior Court, and “shared with her information” that he had “obtained as set forth” above. Prosecutor Boriss admitted that Wynn had confessed to her as well. Boriss “informed” Minsloff “that she too had interviewed . . . Wynn shortly after the trial. . . , and that. . . Wynn had related to her the same information about juror misconduct.” Minsloff then “disclosed all of’ his “investigation materials regarding juror misconduct ... to District Attorney Arthur Danner, III,” at a meeting at Danner’s office. Sometime later, Assistant District Attorney Jon E. Hopkins, who would prosecute the retrial of the issue of penalty in the Stanislaus Superior Court, and his investigator, Dennis Clark, “spent approximately an hour with . . . Wynn, at her house, presumably in conversation about the alleged juror misconduct.” Later still, Minsloff and Love “again visited with . . . Wynn . . . On that occasion . . . Wynn declared unequivocally that she would, under no circumstances, submit an affidavit regarding the matter she had previously discussed with” them “as set forth” above.
Defense Investigator Love’s “affidavit” was similar in substance to Defense Counsel Minsloff’s. It also contained additional information, such as the following: At Love’s initial interview with Juror Wynn, Wynn “stated that she had spoken with” Prosecutor Boriss, and that “Boriss had told her that” Love “would probably try to get her to sign an Affidavit.” Love “asked” Wynn “if she had any idea why . . . Boriss would assume that” he “would want her to sign an Affidavit.” Wynn “stated that it was because of the conduct of the jury during the trial, and the fact that she felt that several of the jurors had been reading newspaper accounts of the case during the' course of the trial.” At the meeting at District Attorney Danner’s office at which Minsloff disclosed all of his investigation materials regarding juror misconduct, Love and Boriss were also present, as well as Assistant District Attorney Joyce E. Angelí. Boriss admitted that Wynn had confessed to her too. Boriss “stated that she had also spoken with . . . Wynn shortly after the trial and that . . . Wynn had admitted to her that she had read newspaper articles about the case during the course of the trial.”
In his moving papers for a new trial, Hayes made plain why he offered Defense Counsel Minsloff’s and Defense Investigator Love’s “affidavits” relating Juror Wynn’s hearsay statements, instead of calling Wynn herself and compelling her testimony: People v. Scott (1982) 129 Cal.App.3d 301 [180 Cal.Rptr. 891], which had recently been decided and was uniquely on point—and which we would subsequently disapprove in Hedgecock—barred such action; and, as he would later imply, “respect and consideration for *1291. . . Wynn” counseled against any attempt in avoidance. He argued that Wynn’s hearsay statements came within the exception for declarations against interest and hence were not inadmissible. He effectively requested an evidentiary hearing in the matter by explicitly offering testimony by Minsloff and Love and also, if he were permitted, by Wynn herself.
In their papers in opposition to Hayes’s new trial motion, the People argued that Juror Wynn’s hearsay statements in Defense Counsel Minsloff’s and Defense Investigator Love’s “affidavits” were inadmissible as outside of any exception, including that for declarations against interest. They also offered a declaration by Juror Ida C. Murray, an affidavit by Juror Bonnie Brofft, and a declaration by Prosecutor Hopkins—but, surprisingly, nothing at all by Prosecutor Boriss, who had by now disappeared from the case.
In pertinent part, Juror Murray’s declaration was to this effect: “During the trial, and from the very first day when” the Santa Cruz Superior Court “admonished” her “to shun publicity about the case,” she “avoided all exposure to publicity about . . . Hayes on [szc: apparently for “or”] his trial.” “Never once did” she “see or hear anyone refer in anyway [sic\ to publicity about the case, or mention any matter pertaining to . . . Hayes that was not presented ... in the courtroom.” “Subsequent to the conclusion of the trial,” she “came to learn things about . . . Hayes’ background which were not presented ... at trial, specifically his prior difficulties with the law in Oregon and Minnesota.” She “never once heard these matters referred to in any way, by any juror, during the pendency of the case. The other jurors who were present when this news was imparted . . . expressed surprise . . . .” Jury Foreperson Solomon was never “referred to ... as ‘[H]ang ’em [H]igh Harvey.’ ” Juror Wynn “never made any statement. . . indicating that she had any knowledge of the case or . . . Hayes’ background, beyond what was admitted ... in court.” She added that Wynn “generally spent courtroom breaks by herself, and would not have been as able to comment on the extra-deliberation conversation of jurors as [Murray herself]. She did not, as a general rule, engage in casual conversation with the other . . . jurors or alternates.”
Juror Brofft’s affidavit was similar to Juror Murray’s declaration: She “never, not once, heard any juror make any reference to publicity material or any information about the case or” Hayes “that was not presented ... at trial.” In fact, she “heard almost daily comment from” her “fellow jurors about the feeling of being ‘out of touch’ from not reading any newspaper or watching TV news, but no one to” her “knowledge expressed any unhappiness or resentment at this state of affairs.” She “never heard the term ‘Hang ’em High Harvey’ used by any juror during the pendency of the trial.”
*1292Prosecutor Hopkins’s declaration described what transpired at the meeting that he and Prosecution Investigator Clark had had with Juror Wynn: Wynn “stated . . . that she did not read any newspaper articles relating to . . . Hayes during the pendency of the trial.” Asked whether “anything was said by any other juror that would lead her to believe that they had read newspaper articles or listened to other media coverage concerning the Hayes case,” “she said that no one said that they had, but she assumed that they did because they all stuck together and the men were all so ‘macho.’ ”
In his papers in reply to the People’s opposition to his new trial motion, Hayes “concede[dj” that Defense Counsel Minsloff s and Defense Investigator Love’s “affidavits” amounted to inadmissible hearsay outside of any exception—erroneously so, since a party is permitted to support a new trial motion by affidavits (6 Witkin & Epstein, Cal. Criminal Law, supra, Judgment and Attack in Trial Court, § 3078, p. 3802). But he again effectively requested an evidentiary hearing in the matter by explicitly offering testimony by Minsloff and Love and also, if he were permitted, by Juror Wynn herself.
The Santa Cruz Superior Court conducted a hearing on Hayes’s new trial motion. After confirming that the court had “received,” and presumably read, “all the moving papers,” Hayes, through Defense Counsel Minsloff, “initially submitted] the issue on the basis of’ such papers, which contained his two effective requests for an evidentiary hearing with their explicit offers of testimony by Minsloff and Defense Investigator Love and also, if he were permitted, by Juror Wynn herself. Through Prosecutor Hopkins, the People argued that the evidence that Hayes offered in order to show prejudicial juror misconduct consisted solely of inadmissible hearsay statements not within any exception. They conceded, in Hopkins’s words, that Wynn “told the defense one thing”—which, if true, would establish what they expressly acknowledged to be prejudicial juror misconduct, at least by her—and that she “told the prosecution, me and [Prosecution Investigator] Clark, a totally different thing”—which, if true, would preclude juror misconduct of any kind, if only on her part. In so conceding, they acknowledged that Wynn’s credibility was dispositive, but assumed that Scott’s bar against calling her and compelling her testimony was unavoidable, stating, to quote Hopkins, that “I think it would be a totally different matter if we were entitled to bring a juror and put them on the stand and I agree with the rationale that we can’t, but if we actually had someone in front of us and the Court had an opportunity to evaluate their credibility and demeanor, whether misconduct had actually occurred, it would be a different matter.” The court effectively accepted the People’s concession that Wynn both confessed prejudicial juror misconduct and also denied any such misconduct at all. It explicitly joined in *1293their acknowledgment that Wynn’s credibility was dispositive: Wynn’s “credibility is very much in issue, perhaps not the fact that she made” the statements reported, “but the question of whether” such statements were “true or not. . . But, without proceeding further, it denied the motion. It reasoned, in substance, that the evidence that Hayes offered in order to show prejudicial juror misconduct consisted solely of inadmissible hearsay statements not within any exception, and hence did not constitute “admissible content [szc: apparently for “competent”] evidence” of such a violation.
II
In my view, the Santa Cruz Superior Court erred by failing to conduct any further proceedings whatsoever on Hayes’s new trial motion relating to prejudicial juror misconduct in the form of the improper receipt, at least by Juror Wynn, of evidence outside of court about his criminal history. Its omission was altogether unreasonable.
To begin with, the Santa Cruz Superior Court had before it evidence demonstrating a strong possibility of prejudicial juror misconduct requiring the resolution of disputed issues of material fact. Perhaps more precisely, it had more than evidence. The People’s concession that Juror Wynn both confessed prejudicial juror misconduct and also denied any such misconduct at all amounted to a judicial admission. “Such a judicial admission” “ ‘is not merely evidence of a fact; it is a conclusive concession of the truth of a matter which has the effect of removing it from the issues.’ ” (Smith v. Walter E. Heller & Co. (1978) 82 Cal.App.3d 259, 269 [147 Cal.Rptr. 1].) The People’s concession was corroborated by an “adoptive admission,” as it were, on their part. As noted, Hayes offered “affidavits” by Defense Counsel Minsloff and Defense Investigator Love. Minsloff and Love each stated that Prosecutor Boriss had admitted to him that Wynn had confessed to her, as indicated. As also noted, the People did not offer anything at all by Boriss. One would reasonably have expected them to do so if Boriss believed Minsloff’s and Love’s statements to be false. Apparently, she did not.
Next, the Santa Cruz Superior Court had before it evidence demonstrating a strong possibility of prejudicial juror misconduct requiring.the resolution of disputed issues of material fact.
The court in In re Carpenter (1995) 9 Cal.4th 634 [38 Cal.Rptr.2d 665, 889 P.2d 985] recognized that it is misconduct for a juror improperly to receive evidence outside of court relating to the case. (Id. at p. 647.)
The Carpenter court also recognized that juror misconduct of this sort “gives rise to a presumption of prejudice” as a matter of law. (In re *1294Carpenter, supra, 9 Cal.4th at p. 651.) That means, of course, that the People “must then rebut the presumption or lose the verdict.” (People v. Marshall (1990) 50 Cal.3d 907, 949 [269 Cal.Rptr. 269, 790 P.2d 676]; accord, e.g., People v. Miranda (1987) 44 Cal.3d 57, 117 [241 Cal.Rptr. 594, 744 P.2d 1127]; In re Stankewitz (1985) 40 Cal.3d 391, 402 [220 Cal.Rptr. 382, 708 P.2d 1260]; People v. Pierce (1979) 24 Cal.3d 199, 207 [155 Cal.Rptr. 657, 595 P.2d 91].)
Without casting its language to take account of the presumption of prejudice, the Carpenter court went on to “summarize” the law relating to prejudice itself: “[W]hen [juror] misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record, and may be found to be nonprejudicial. The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant.” (In re Carpenter, supra, 9 Cal.4th at p. 653.)
With this language recast to take account of the presumption of prejudice, the “summary” reads thus: “When juror misconduct involves the receipt of information from extraneous sources, the effect of such receipt is judged by a review of the entire record. The verdict will be set aside unless there appears no substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias unless the extraneous material, judged objectively, is not inherently and substantially likely to have influenced the juror. Second, looking to the nature of the misconduct and the surrounding circumstances, we will also find bias unless it is not substantially likely the juror was actually biased against the defendant.”
Here, there exists a strong possibility of prejudicial juror misconduct in the form of the improper receipt, at least by Juror Wynn, of evidence outside of court about Hayes’s criminal history.
As for juror misconduct: The People’s concession that Juror Wynn both confessed prejudicial juror misconduct and also denied any such misconduct at all is sufficient.
As for prejudice: A presumption of prejudice arises as a matter of law. It does not show itself to be rebutted as a matter of fact. That is because we cannot say that there is no substantial likelihood of juror bias.
*1295First, we cannot declare that the out-of-court evidence improperly received here, namely, that Hayes had committed, but had been acquitted of, two prior “minders,” judged objectively, is not inherently and substantially likely to have influenced a juror. In People v. Holloway (1990) 50 Cal.3d 1098 [269 Cal.Rptr. 530, 790 P.2d 1327], which the Carpenter court cited with approval, we could not dismiss the threat of taint posed by out-of-court evidence that, on a single previous occasion, Holloway had not gotten away with assault with a deadly weapon. Here, a fortiori, we cannot dismiss the threat of taint posed by out-of-court evidence that, on two previous occasions, Hayes had, in fact, gotten away with murder. True, the evidence against Hayes in this case may be considered to have been relatively strong. But, at the same time, it must be deemed to have been relatively weak, coming as it did largely from the mouths of two witnesses, one an accomplice as a matter of law, the other an accomplice at least as a matter of fact. In Carpenter itself, of course, the court dismissed the threat of taint posed by out-of-court evidence that Carpenter had committed, and been convicted of, two prior murders. There, however, evidence had properly been admitted that Carpenter had in fact committed the murders in question. Here, by contrast, no evidence had been admitted, properly or otherwise, relating in any way to either of Hayes’s two prior “murders.”
Second, looking to the nature of the misconduct and the surrounding circumstances, we cannot say that it is not substantially likely that any juror was actually biased against Hayes. Recall Juror Wynn’s report of the statement of Jurors Wagner and Hedrick: “We’ve got to stop him now. We can’t let him get away with it again.” In In re Hitchings (1993) 6 Cal.4th 97 [24 Cal.Rptr.2d 74, 860 P.2d 466], which the Carpenter court also cited with approval, we were unable to deny the danger of partiality against Hitchings as revealed by the words of a single juror. Here, a fortiori, we cannot deny the danger of partiality against Hayes as revealed by the words of two. It may well be that an unbiased jury would have reached the same verdict. Nevertheless, as the Carpenter court concluded, “we must set aside the verdict, no matter how convinced we might be that an unbiased jury would have reached the same verdict. [Citation.] A biased adjudicator is one of the few ‘structural defects in the constitution of the trial mechanism, which defy analysis by “harmless-error” standards.’ ” (In re Carpenter, supra, 9 Cal.4th at p. 654, quoting Arizona v. Fulminante (1991) 499 U.S. 279, 309 [111 S.Ct. 1246, 1265, 113 L.Ed.2d 302].)
Lastly, the Santa Cruz Superior Court had before it evidence demonstrating a strong possibility of prejudicial juror misconduct requiring the resolution of disputed issues of material fact. Such issues were patent. They went to Juror Wynn’s credibility: Should she be believed in her confession of prejudicial juror misconduct? Or should she be believed in her denial thereof?
*1296In view of the foregoing, the Santa Cruz Superior Court erred by failing to conduct any further proceedings whatsoever on Hayes’s new trial motion relating to prejudicial juror misconduct. The court should have held a hearing to take evidence in order to resolve the disputed issues of material fact referred to above in the face of evidence demonstrating a strong possibility of prejudicial juror misconduct, or, at the very least, should have held a hearing of some sort in order to determine whether it could properly decline to take evidence for that purpose. Because it erred by failing to conduct any further proceedings whatsoever, it necessarily erred by denying the motion, as it did, prematurely.
Ill
In concluding that the Santa Cruz Superior Court did not err by failing to conduct any further proceedings whatsoever on Hayes’s new trial motion relating to prejudicial juror misconduct, the majority state a variety of reasons. No single one, however, yields the result that they desire. Neither do all of them together.
To salvage the Santa Cruz Superior Court’s ruling, the majority essentially fault Hayes.
Generally, the majority claim that Hayes “failed to present substantial competent evidence of jur[or] misconduct.” (Maj. opn., ante, at p. 1252.) Any such failure, of course, became immaterial in light of the People’s concession that Juror Wynn both confessed prejudicial juror misconduct and also denied any such misconduct at all. The majority assert that I maintain that the People’s concession “remov[ed] the issue of whether juror misconduct occurred from the case.” (Id. at p. 1258.) I do no such thing. The People’s concession raised the issue—for whose resolution, as the Santa Cruz Superior Court itself acknowledged, Wynn’s credibility was dispositive.
More specifically, the majority charge Hayes with not arguing the motion before the Santa Cruz Superior Court other than by submitting it on his moving papers. But he did in fact do so, and in any event was not required to speak what he had already written. They charge him with not offering any evidence other than inadmissible hearsay statements not within any exception. But he did in fact do so, by offering facts within the personal knowledge of Defense Counsel Minsloff and Defense Investigator Love. They charge him with not requesting an evidentiary hearing. But he did in fact do so, in effect if not in terms, by offering testimony by Minsloff and Love and also, if he were permitted, by Juror Wynn herself, and by offering such *1297testimony explicitly. To assert that “[w]hether an evidentiary hearing should be held never arose” (maj. opn., ante, at p. 1259) is to overlook the fact that the question was raised by the court itself, in its acknowledgment that Wynn’s credibility was dispositive. They charge him with not calling Wynn and compelling her testimony. True, he did not, but he not improperly abided by Scott, whose bar against such action was then treated by Witkin and Epstein themselves as black letter law (6 Witkin & Epstein, Cal. Criminal Law, supra, Judgment and Attack in Trial Court, § 3081, p. 3805), and he properly did not attempt to do otherwise “out of respect and consideration for . . . Wynn,” manifestly taking steps to preclude even the appearance of “improperly intrusive conduct” (In re Hamilton (1999) 20 Cal.4th 273, 303, fn. 23 [84 Cal.Rptr.2d 403, 975 P.2d 600]; accord, Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1092 [86 Cal.Rptr.2d 602, 979 P.2d 963]). They charge him with not offering the testimony in question yet again after the court denied his motion. True, he did not, but he was not compelled to press for an express refusal after receiving an implied one. They charge him with not obtaining a ruling whether the court would permit him to call Wynn and compel her testimony. But he did in fact do so, impliedly if not expressly, by obtaining a denial of his motion which sought such permission.
To salvage the Santa Cruz Superior Court’s ruling, the majority also excuse the court itself.
Generally, the majority claim that the Santa Cruz Superior Court “had no reason to even consider” conducting further proceedings. (Maj. opn., ante, at p. 1253.) Of course it did. Indeed, it stated the reason itself, in its acknowledgment that Juror Wynn’s credibility was dispositive, but unresolved.
More specifically, the majority say that the immediate formal question before the Santa Cruz Superior Court was whether Juror Wynn’s statements were inadmissible hearsay not within any exception. They are silent, however, about the fact that the ultimate substantive question was whether she and perhaps others engaged in prejudicial juror misconduct. They say that, whereas the evidence that Hayes offered in order to show prejudicial juror misconduct was inadmissible, the evidence that the People offered in order to show no such misconduct at all was, by contrast, altogether admissible. They are silent, however, about the fact that Hayes’s evidence and the People’s were not dissimilar—if the People’s evidence was admissible, so also was Hayes’s. They say, or at least do not deny, that there was no dispute about what Wynn stated to the People’s representatives and to Hayes’s after trial. They are silent, however, about'the fact that there was indeed a dispute about what she did during trial, namely, whether she engaged in prejudicial juror misconduct or in no such misconduct at all. They say that the law was *1298then not as Scott stated it to be, barring a party from calling a juror and compelling his testimony. They are silent, however, about the fact that Witkin and Epstein themselves treated Scott’s bar as black letter law-—to assert, now, that “contrary authority” existed (maj. opn., ante, at p. 1259) is not enough, for “contrary authority” of some sort always exists. They say that there is no indication that the court believed itself bound by Scott, as Witkin and Epstein themselves declared that it was, not to permit Hayes to call Wynn and compel her testimony. They are silent, however, about the fact that, whatever its belief, it did not permit him to do so—unreasonably, in view of the People’s concession that Wynn both confessed prejudicial juror misconduct and also denied any such misconduct at all, and its own acknowledgment that her credibility was dispositive. They say that there was no basis to conclude that further proceedings would have been productive. They are silent, however, about the fact that such proceedings would have resolved the question once and for all, and would thereby have rendered unnecessary the invitation that they find themselves compelled to extend today, some 14 years later, to reopen the issue by petition for writ of habeas corpus. They say that this case is similar to People v. Cox (1991) 53 Cal.3d 618 [280 Cal.Rptr. 692, 809 P.2d 351]. They are silent, however, about the fact that Cox did not involve a concession, like the People’s, or an acknowledgment, like the court’s, and is distinguishable on that ground alone.
IV
Having found error on the part of the Santa Cruz Superior Court by failing to conduct any further proceedings whatsoever on Hayes’s new trial motion relating to prejudicial juror misconduct, I turn now to consider its consequences.
Because the error concerned only a failure to conduct further proceedings relating to prejudicial juror misconduct, and not prejudicial juror misconduct itself, we should not reverse the judgment outright. Indeed, we may not do so under the harmless error rule of section 13 of article VI of the California Constitution, which prohibits us from taking such action except in the presence of a “miscarriage of justice.”
But, because the error did in fact concern a failure to conduct further proceedings relating to prejudicial juror misconduct, and thereby resulted in an absence of evidence regarding its actual existence or nonexistence, we should vacate the judgment and remand the cause to the Santa Cruz Superior Court with directions to do what it omitted and act in accordance with what transpires, including ordering a new trial if it finds prejudicial juror misconduct and transferring the matter to the Stanislaus Superior Court for reinstatement of the judgment if it does not. Indeed, we must do so. Otherwise, *1299the error in question would render itself harmless per se, inasmuch as it necessarily results in an absence of evidence of any miscarriage of justice that it might have brought about.
V
For the reasons stated above, I would therefore vacate the judgment and remand the cause to the Santa Cruz Superior Court for proceedings not inconsistent with the views expressed herein.
Kennard, J., and Werdegar, J., concurred.
Appellant’s petition for a rehearing was denied February 16, 2000, and the opinion was modified to read as printed above. Mosk, J., Kennard, J., and Werdegar, J., were of the opinion that the petition should be granted.