Dissenting. — I respectfully dissent.
The operative effect of the trial court’s denial of the request for juror information was to foreclose the defense from interviewing Juror No. 2. While the majority is correct in noting that defense counsel could have but did not suggest to the trial court additional lines of inquiry, I think that such a suggestion would have been an idle act; the trial court showed no inclination to allow the defense to question this juror. During the court’s questioning, defense counsel asked if the defense would be “allowed to inquire at all” and the trial court said no, i.e., not at “this point in time.” When the defense eventually did make clear that it wished to interview Juror No. 2, the denial of the request for juror information put an end to this endeavor. The trial court’s ruling denying the request for juror information prevented the defense from ascertaining whether there was any factual basis to contend, in a motion for new trial, that this juror did not actually believe that appellant was guilty.
Given that the standard is whether the trial court abused its discretion, I think that it is a close question whether the request for juror information should have been granted. Two factors make this a close call. First, the event of a juror declaring after the rendition of the verdict that she has a reasonable doubt is so rare that it merits the closest scrutiny. Second, the defense did not handle this matter as well as it should have; the defense efforts on this issue were both too little and too late. Thus, the likelihood that appellant was convicted on a less than unanimous verdict is simply too great. I therefore *996part company with the majority’s conclusion that the trial court did not err in denying the request for juror information. On balance, I think the request should have been granted.
I am also concerned, however, with the issue that we asked the parties to brief, i.e., whether under Penal Code section 1163 the trial court should have sent the jury out for further deliberations once Juror No. 2 stated that she had a reasonable doubt.
“When a verdict is rendered, and before it is recorded, the jury may be polled, at the request of either party, in which case they must be severally asked whether it is their verdict, and if any one answer in the negative, the jury must be sent out for further deliberation.” (Pen. Code, § 1163.) The question is just how many times a juror must answer “in the negative” before the jury is sent out for further deliberation.
Here, Juror No. 2 answered “in the negative” not once but three times in succession. First, when asked whether it was her “decision” to vote guilty on counts 2, 3 and 4, she stated no. Second, when asked whether she voted guilty because she felt compelled by the other jurors, she answered yes. Third, when asked what went on in the jury room that made her vote guilty when it was not her “desire and intent” to vote for a guilty verdict, she stated; “I had reasonable doubt.”
Given that the foregoing is a rare occurrence, I think that at this point the juror had made it adequately clear that she did not intend to find defendant guilty. There is precedent for the proposition that, in order to invoke Penal Code section 1163 and to require the trial court to send the jury out for further deliberations, it is enough if the juror says once or twice that he or she did not vote for the verdict. (People v Brancato (1948) 83 Cal.App.2d 734, 743 [189 P.2d 504].)1 While the trial court should ensure that the juror’s response is clear and unambiguous, this does not mean that the juror’s depth of conviction is to be explored under extended cross-examination by the trial judge.
*997Once the juror has made it clear that he or she did not intend to vote for the verdict, extended questioning by the trial court is likely to cause the juror to vacillate and even surrender his or her convictions in the face of the pressure created by the trial judge. In my opinion, this is what happened in this case. The trial court continued to ask the juror questions that suggested the answers and press home in his questioning that the juror was not to be concerned with the penalty. This put the juror on the defensive and shook her confidence in her views about this case. It is to be kept in mind that the juror was alone with the court and the lawyers, with everyone’s attention focused on her, which in and of itself exerted pressure on this juror who was already in the throes of strong feelings over the verdict.
Nothing in Penal Code section 1163 authorizes the trial court to delve into the reasons why a juror has answered “in the negative” about a verdict. And while I believe that the trial court acted out of the best of motives, I think it is unrealistic to conclude anything other than the court did in fact exert pressure on this juror, however unintended this may have been.
The majority notes, and I agree, that it would have been better practice for the trial court to have sent the jury out for further deliberations once Juror No. 2 stated that she had a reasonable doubt. But the majority concludes that neither side asked for further deliberations on this issue and that, “given the defense’s rather passive attitude,” the trial court’s questioning “adequately” showed that this juror intended to, and did, vote for guilt. In substance, the majority appears to conclude that if there was any error here, it was waived. Along the same lines, respondent contends in its letter brief on this issue that, since the matter of Penal Code section 1163 was not raised in the trial court, it has been waived for the purposes of this appeal.
There is no doubt that the best that can be said about defense counsel’s position on this issue is that she expressed reservations about the trial court’s ruling on Juror No. 2.2 Defense counsel’s observations simply do not amount to an objection based on Penal Code section 1163.
*998It is, of course, basic that a defendant may not be convicted except on the vote of all 12 jurors. (People v. Boyette (2002) 29 Cal.4th 381, 436 [127 Cal.Rptr.2d 544, 58 P.3d 391].) “Unanimity obviously requires that each juror must vote for and acquiesce in the verdict. Acquiescence simply because the verdict has been reached by the majority is not an independent judgment, and if permitted, would undermine the right to a unanimous verdict.” (People v. Superior Court (1967) 67 Cal.2d 929, 932 [64 Cal.Rptr. 327, 434 P.2d 623].) Under the California Constitution, appellant has a right to have his guilt or innocence determined by a unanimous verdict of 12 jurors. (Cal. Const., art. I, § 16; People v. Collins (1976) 17 Cal.3d 687, 692, fn. 3 [131 Cal.Rptr. 782, 552 P.2d 742].)3 I think that there is a realistic probability that in this case there were not 12 votes to convict. If this is true, it means that appellant has been deprived of a right protected by the California Constitution.
If the introduction of an involuntary confession requires a reversal despite a defendant’s failure to object to its introduction (People v. Matteson (1964) 61 Cal.2d 466, 469 [39 Cal.Rptr. 1, 393 P.2d 161]), it seems the same should be true when the verdict has not been unanimous. In both instances, the errors affect a fundamental, important, and constitutionally protected right that can be raised in a collateral attack on the judgment. Given this circumstance, the lack of an objection should not be dispositive.
I think this conclusion is supported by the circumstance that the error in this case was reversible error per se. Given the broad range of situations when the denial of the right to a jury has been held to be reversible error per se (see cases digested in 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 23, pp. 477^-78),4 there is every indication, in my opinion, that a less than unanimous verdict is reversible error per se.
The suggestion by the attorney general in its supplemental letter brief that, even if the court erred in failing to order further jury deliberation, appellant was not prejudiced is untenable. The very real possibility in this case that appellant was convicted on a less than unanimous verdict is, as I have noted, reversible error per se; on no account is it harmless.
*999The jury in this case has long been discharged. It is also true that the lack of a unanimous verdict appears to be reversible error per se. Accordingly, the only remedy in this case is to reverse the judgment and to remand for a new trial.
A petition for a rehearing was denied July 2, 2008, and the opinion was modified to read as printed above. Appellant’s petition for review by the Supreme Court was denied September 24, 2008, S165273.
Corrigan, J., did not participate therein.“The case was given the jury at 3:44 p.m. At 5:44 p.m. they reported that they were unable to agree and were again sent out. At 10:22 p.m. they returned and the foreman announced that they had agreed upon ‘a verdict.’ The court ordered ‘the verdict’ handed to the clerk. The clerk then read two verdicts, one finding Pedrotti guilty of robbery in the first degree and one finding Brancato guilty of robbery in the first degree. The clerk then asked ‘Is that your verdict’ and the jurors responded in the affirmative. The jury was then polled at the request of defense counsel. Each juror responded that this was his or her verdict with the exception of the eleventh juror, who replied: ‘Please, I would rather not answer that question.’ The court asked her what she had said and she replied: T don’t like to answer that question.’ The court then told the jury to retire for further deliberation.” (People v. Brancato, supra, 83 Cal.App.2d at p. 743.) It is noteworthy that the juror’s response in Brancato was far more equivocal than Juror No. 2’s responses in this case.
“[Defense Counsel]: Just may the record reflect that in response to the court’s last question and proposing to this juror that this is now her state or her position on these counts and verdicts, she still did hesitate. She did give the court ultimately a yes.
“I don’t know — my concern is this: In the jury room, there had to be some reading of the forms and discussion of the fact that the charges were felonies. As she sat out here now, she indicates that she changed her position because she now learned they were felonies. We had always through the trial been discussing the felony counts. The court read the information.
“So not to disparage that juror at all, Your Honor, but I’m not quite sure — either perhaps she didn’t understand the court, she was taking the court’s suggestion, because it was definitely a helpful suggestion by the court, I’m sure it relieved a lot of stress, because it did come in the form of it’s okay of that’s okay [sic] the way you feel, but ultimately, Your Honor, her statement was I had reasonable doubt. That doesn’t mean anything about felony, misdemeanor, infraction or any other type of crime.”
While in a federal criminal prosecution the verdict must be unanimous (Johnson v. Louisiana (1972) 406 U.S. 356, 363 [32 L.Ed.2d 152, 92 S.Ct. 1620]), the Sixth Amendment does not require unanimous verdicts in state criminal proceedings (Apodaca v. Oregon (1972) 406 U.S. 404, 411-412 [32 L.Ed.2d 184, 92 S.Ct. 1628]), except when the jury is composed of six members. (Burch v. Louisiana (1979) 441 U.S. 130, 138 [60 L.Ed.2d 96, 99 S.Ct. 1623].)
These are ineffectual waivers of the right to a jury trial, discriminatory selection of the jury, departure from the statutory procedure in selecting the jury, failure to swear the jury, unlawful separation of the jury, permitting unauthorized contact with the jury, failure to reread incorrectly heard testimony and peremptory challenges on the basis of race. (6 Witkin & Epstein, Cal. Criminal Law, supra, Reversible Error, § 23, pp. 477-478.)