Concurring and Dissenting. — I agree with the majority’s conclusion there was no error in the trial court’s response to the jury’s request for clarifying instructions. I also share the majority’s aversion to overturning verdicts for trifling misconduct. However, the unusual facts of this case raise serious questions about what occurred during jury deliberations.
In my view, several jurors discussed and considered potential penalty in violation of the trial court’s express instruction (CALJIC No. 17.42).1 This constituted presumptively prejudicial misconduct which was not rebutted by the prosecution. Further, the prosecution failed to perfect its objection to the subjective statements contained in several jurors’ declarations and live testimony. This permitted the trial court to consider that evidence in its entirety. Consequently, it is unnecessary to consider defendant’s contention article I, section 28, subdivision (d),2 added to the California Constitution by Proposition 8, abrogates Evidence Code section 1150.3 Having concluded the trial court abused its discretion in denying defendant’s new trial motion, I would reverse.
Before explaining my reasons for these conclusions, I highlight facts relevant to the question of jury misconduct:
The jury retired to deliberate at 1 p.m. on April 20, 1988, and returned its verdict of guilty of conspiracy to commit first degree murder at 2:40 p.m. on *42April 22. On the second day of deliberations, the jury requested clarification of definitions for “conspiracy” and “overt act.” The trial court responded the following morning.
Defendant’s motion for new trial included declarations from three jurors. In two of them, Jurors Charlet Manjeot and Jean Passmore said the last written vote was ten for a guilty verdict versus two for undecided. Before the last written ballot and the final verbal vote, Juror Miller heard an unidentified juror say defendant would receive a sentence of only six months for what he had done.4 Manjeot heard a similar statement from an unidentified juror between the last written vote and the verbal vote. While Miller was trying to convince Passmore to convict, she repeated the information on penalty to Passmore.
In response to the new trial motion, the prosecutor maintained the juror declarations regarding the six-month sentence reflected the jurors’ subjective mental processes and were, therefore, inadmissible. The prosecutor also supplied declarations in which the remaining nine jurors said they heard no mention of the six-month penalty in the course of jury deliberations. There was no motion to strike all or part of the Manjeot, Passmore, and Miller declarations.
The trial court permitted Manjeot and Passmore to testify at the hearing on defendant’s new trial motion. The prosecutor repeatedly objected and argued the testimony constituted inadmissible evidence of subjective thought processes. In each instance, the trial court admitted all the evidence subject to a motion to strike to be made after testimony and argument were completed. However, the prosecutor did not, thereafter, make such a motion to strike. The trial court ruled on defendant’s new trial motion, declaring:
“We have got two separate questions which have been raised. And one is the question of consideration of penalty, the portion as to somebody in the jury room saying that six months was the penalty.[5]
“With reference to that aspect, the Court specifically instructed the jury in the precise words of CALJIC 17.42, in which I said, ‘In your deliberations the subject of the penalty or punishment is not to be discussed or considered by you.
“That is a matter which must not in any way [ajffect your verdict.’
*43“I think that was quite clear. And the Court feels that whatever was said in the jury room in . . . this particular case, with what had been presented to the Court, should not be deemed by the Court a sufficient basis for the granting of a new trial.” The court made no findings of fact concerning the weight of the evidence or credibility of witnesses.
The trial court erred in concluding CALJIC No. 17.42 negated the impact of the jury’s discussion and consideration of defendant’s penalty. Although an appropriate admonition may eliminate potential prejudice where a trial court receives prompt notice of jury misconduct (see People v. Harper (1986) 186 Cal.App.3d 1420 [231 Cal.Rptr. 414], and People v. Underwood (1986) 181 Cal.App.3d 1223 [226 Cal.Rptr. 840]), it is not effective when, as here, breach of an instruction constitutes misconduct which is not revealed until after the jury returns its verdict. I conclude there is no other basis on which to affirm this judgment.
I
The Prosecution Failed to Perfect the Section 1150 Objection
The Manjeot, Passmore, and Miller declarations included evidence of “statements made, or conduct, conditions, or events occurring, . . . within ... the jury room” as well as evidence “[showing] the effect of such statement, conduct, condition, or event upon a juror . . . .” (§ 1150.) The prosecutor’s failure to renew his motion to strike evidence of subjective thought processes left all the evidence supplied by Manjeot, Miller, and Passmore before the trial court.
When evidence is received subject to a later motion to strike, the motion to strike is mandatory. If it is not made, the objecting party waives its objections to admission of that evidence. (Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 123 [117 Cal.Rptr. 812, 528, 1148, 74 A.L.R.3d 986] [no motion to strike after conditional admission of hearsay testimony about another witness’s observation of defects in vehicle]; Estate of Wempe (1921) 185 Cal. 557, 564 [197 P. 949] [no motion to strike after tentative admission of physician’s testimony concerning decedent’s mental competency in a will contest]; People v. Cook (1905) 148 Cal. 334, 344 [83 P. 43] [no motion to strike after conditional admission of testimony concerning defendant’s incestuous relationship with his daughter]; 1 Cal. Procedure During Trial (Cont.Ed.Bar 1982) § 11.19, p. 455.)
Similarly, when a trial court, through inadvertence or neglect, fails to rule or to reserve its ruling, “the party who objected must make some effort to *44have the court actually rule. If the point is not pressed and is forgotten, he may be deemed to have waived or abandoned it, just as if he had failed to make the objection in the first place.” (3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, § 2030, p. 1992, italics in original; see also People v. Rhodes (1989) 212 Cal.App.3d 541, 554 [261 Cal.Rptr. 1] [failure to secure rulings on motions for transcript of voir dire and authorization of investigative fees waived issues on appeal]; People v. Obie (1974) 41 Cal.App.3d 744, 750 [116 Cal.Rptr. 283], overruled on another ground in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4 [141 Cal.Rptr. 177, 569 P.2d 771] [failure to secure ruling on Penal Code section 995 motion waived issued on appeal]; and People v. Staver (1953) 115 Cal.App.2d 711, 724 [252 P.2d 700] [failure to rule on admission of documentary evidence waived issue on appeal].)
Whether applied in situations involving conditional admission of evidence pending further proof or admission of evidence subject to a later ruling on the objection, the rule is the same. In both criminal and civil cases, the burden is placed on the objecting party to renew the objection by means of a motion to strike and to obtain a ruling on that motion. (McCormick on Evidence (3d ed. 1984) § 58, p. 150; Annot., Evidence — Renewal of Objection (1959) 88 A.L.R.2d 12, 22, § 3[d].) This is especially true where the trial court admits evidence and invites objecting counsel, here the prosecutor, to make a motion to strike later.
Two practical consequences arise from enforcement of a waiver in these circumstances. The first consequence is relevant to the question before us. Absent a motion to strike, the challenged evidence is properly before the trier of fact. The second consequence, waiver of the evidentiary issue on appeal, is not at issue.
If the objector fails to make a record, the factual basis for the trial court’s ruling may be left unclear, if not entirely omitted. As a result, a reviewing court may draw incorrect inferences in support of the ruling, if it can address the matter at all.
Here, the trial court may have based its denial of the new trial motion on the objective testimony ¿one. Alternatively, it may have considered both subjective and objective evidence coming from Jurors Manjeot, Miller, and Passmore. Given the prosecution’s failure to perfect its objection to evidence of the jurors’ subjective mental processes, this court can only assume both objective and subjective evidence were properly before the trial court at the *45time of its ruling. At oral argument on appeal, the Attorney General conceded all the evidence was before the trial court.6
II
The Prosecution Did Not Rebut the Presumption of Prejudice
Penal Code section 1181 authorizes a trial court to grant a motion for new trial “[w]hen the jury has . . . been guilty of any misconduct by which a fair and due consideration of the case has been prevented; ...” (Pen. Code, § 1181, subd. 3.) Misconduct exists in a variety of forms. Well-established rules guide the court in determining whether a particular case of misconduct warrants a new trial.
Juror misconduct raises a presumption of prejudice. (People v. Daniels (1991) 52 Cal.3d 815, 864 [277 Cal.Rptr. 122, 802 P.2d 906]; People v. Stankewitz (1985) 40 Cal.3d 391, 402 [220 Cal.Rptr. 382, 708 P.2d 1260].) “It is settled that ‘unless the prosecution rebuts that presumption by proof that no prejudice actually resulted, the defendant is entitled to a new trial.’ ” (Ibid.) The likelihood of rebutting the presumption of prejudice is “far less” where, as here, “the offending juror remains on the jury and participates in the verdict than when the juror is promptly removed.” (People v. Daniels, supra, 52 Cal.3d at p. 864.)
Whether the presumption of prejudice raised by juror misconduct is rebutted by the prosecution must be resolved through the analysis set forth in People v. Marshall (1990) 50 Cal.3d 907 [269 Cal.Rptr. 269, 700 P.2d 676]. “A judgment adverse to a defendant in a criminal case must be reversed or vacated ‘whenever ... the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to prejudicial matter relating to the defendant or to the case itself that was not part of the trial record on which the case was submitted to the jury.’ (2 ABA Standards for Criminal Justice, std. 8-3.7 (2d ed. 1980) p. 8.57 [additional citations omitted].)” (Id. at pp. 950-951.)
“ ‘The ultimate issue of influence on the juror is resolved by reference to the substantial likelihood test, an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently *46likely to have influenced the juror.’ (2 ABA Standards for Criminal Justice, supra, std. 8-3.7, Commentary, p. 8.58.)” (50 Cal.3d at p. 951.)7
The Marshall court elaborated on the substantial likelihood test, and emphasized “ ‘prejudice analysis’ is different from, and indeed less tolerant than, ‘harmless-error analysis’ for ordinary error at trial. The reason is as follows. Any deficiency that undermines the integrity of a trial . . . introduces the taint of fundamental unfairness and calls for reversal without consideration of actual prejudice. (See Rose v. Clark [1986] 478 U.S. [570,] 577-578 [92 L.Ed.2d 460, 106 S.Ct. 3101].) Such a deficiency is threatened by jury misconduct. When the misconduct in question supports a finding that there is a substantial likelihood that at least one juror was impermissibly influenced to the defendant's detriment, we are compelled to conclude that the integrity of the trial was undermined', under such circumstances, we cannot conclude that the jury was impartial.” (50 Cal.3d at p. 951, italics added.)8
Misconduct occurred in various forms during these jury deliberations. “[CALJIC No. 17.42] directs the jury not to involve the question of guilt with a consideration of the penalty. That is the law. Without that advice a jury may permit its consideration of guilt to be deflected by a dread of seeing the accused suffer the statutory punishment.” (People v. Shannon (1956) 147 Cal.App.2d 300, 306 [305 P.2d 101].) The evidence shows several jurors discussed and considered penalty during deliberations.
In addition, several jurors disregarded the trial court’s admonition to follow the law as stated by the court (CALJIC No. 1.00 (4th ed. 1979)), not be “swayed by . . . conjecture” (CALJIC No. 1.00, supra), and to “decide all questions of fact. . . from the evidence received . . . and not from any other source” (CALJIC No. 1.03 (4th ed. 1985 pocket pt.)).
*47“[T]he introduction of extraneous law, whether erroneous or not, constitutes misconduct.” (People v. Marshall, supra, 50 Cal.3d at p. 950; see People v. Honeycutt (1977) 20 Cal.3d 150 [141 Cal.Rptr. 698, 570 P.2d 1050]; In re Stankewitz, supra, 40 Cal.3d 391; and People v. Karis (1988) 46 Cal.3d 612 [250 Cal.Rptr. 659, 758 P.2d 1189].) “Jurors are not allowed to obtain information from outside sources either as to factual matters or for guidance on the law.” (People v. Karis, supra, at p. 642, italics added.) Clearly, jurors may not generate information or law from inside sources either. It is both the nature and impact of the information from outside the record, rather than its source, which is definitive here. (See Glage v. Hawes Firearms Co., supra, 226 Cal.App.3d 314 [reference to dictionary definition of “preponderance” followed by a dramatic shift in votes resulted in reversal].)
Another concern arises from discussion of penalty or introduction of extraneous law or fact. A juror’s duty “includes the obligation to follow the instructions of the court, and a judge may reasonably conclude that a juror who has violated instructions to refrain from discussing the case or reading newspaper accounts of the trial cannot be counted on to follow instructions in the future.” (People v. Daniels, supra, 52 Cal.3d at p. 865.)
The prosecution made a two-pronged attack on defendant’s allegations of jury misconduct. First, the prosecution referenced declarations in which nine jurors stated they had not heard any discussion of a six-month sentence during deliberations. This purported to establish nothing improper happened. Second, the prosecution argued juror statements as to penalty “were not prejudicial even if they were admissible” because (1) they “were not made with any apparent authority” and (2) the trial court read the jury CALJIC No. 17.42. At no time did the prosecution acknowledge its responsibility to rebut the presumption of prejudice, nor does the Attorney General here.
The majority concludes the prosecution rebutted the presumption of prejudice because the evidence of misconduct was weak, came from members of the jury, involved “three isolated statements during two days of deliberations,” was not presented as authoritative but “merely probable,” and was “not of such a nature as would reasonably be relied upon given the seriousness of the crime charged.”
Objective reasonableness of the extraneous information is not the standard for determining whether misconduct warrants reversal. (See People v. Marshall, supra, 50 Cal.3d at pp. 950-951.) Furthermore, the emphasis on authoritativeness of the extraneous information discounts the legal imperative to insulate jurors from extraneous information or law, from whatever source.
*48The objective facts show the jury stood at 10 to 2 for conviction before the extraneous information was introduced into the jury room. Two jurors heard an unidentified juror say defendant would probably only get six months for what he had done. One of those two jurors, Miller, attempted to persuade an undecided juror, Passmore, to vote guilty. In trying “to convince Jean Passmore to change her vote,” Miller pointed out defendant had committed one of the overt acts and stated he “would probably only get six months for what he had done, in reference to the conspiracy charge.” Shortly thereafter, Passmore changed her undecided vote, and the jury reached a unanimous verdict on a verbal vote. Passmore testified the information about the likely penalty caused her to change her vote.
Objective evidence demonstrates the jury votes changed between the last written vote and the last verbal vote.9 There is nothing express or implied in the trial court’s ruling to suggest it questioned the credibility of the three jurors who submitted declarations and testimony in support of defendant’s motion for new trial. Here the use of the extraneous information in an attempt to change a vote, and the temporal proximity of the misconduct to the vote change, support the conclusion “at least one juror was impermissibly influenced to the defendant’s detriment.” (People v. Marshall, supra, 50 Cal.3d at p. 951.)
“[T]he introduction of extraneous law, whether erroneous or not, constitutes misconduct.” (People v. Marshall, supra, 50 Cal.3d at p. 950.) The extraneous information here involved a matter of law, that is, the potential penalty. It was not only extraneous, it was grossly erroneous. (See fn. 4 ante, p. 42.) Furthermore, the information was received, discussed, and considered, willfully and in direct violation of and disregard for the trial court’s instructions. (See fn. 1 ante, p. 41.) The information was, in fact, repeated by Miller in an effort to convince Passmore to change her vote.
Writing for a unanimous court in People v. Holloway, Justice Panelli declared: “Defendant was entitled to be tried by 12, not 11, impartial and unprejudiced jurors. ‘Because a defendant charged with crime has a right to the unanimous verdict of 12 impartial jurors [citation], it is settled that a conviction cannot stand if even a single juror has been improperly influenced.’ ” (50 Cal.3d at p. 1112, quoting People v. Pierce (1979) 24 Cal.3d 199, 208 [155 Cal.Rptr. 657, 595 P.2d 91], italics added.)
*49I do not find the prosecution’s declarations and arguments sufficient to rebut the presumption of prejudice. Far from rebutting that presumption, the nine juror declarations submitted by the prosecution suggest additional jury misconduct in the form of enclave deliberations.
Although the statements concerning defendant’s probable penalty may not have been made with any apparent authority, I do not view that fact as critical in this case. In assessing jury misconduct, the type of data may be as relevant as the source. Here, the fact the information was repeated suggests at least one juror gave that information some credence. Passmore did, in fact, change her undecided vote to guilty shortly after Miller told her defendant would only get six months in jail.
I find the record reflects a substantial likelihood extraneous and erroneous information about defendant’s penalty impermissibly influenced at least one juror to change her vote. Thus, I conclude the trial court abused its discretion in denying the new trial motion and would reverse.
Ill
Section 1150 Excludes Evidence for Reasons Apart From Relevance
Perhaps most perplexing is the rationale by which the majority justifies its conclusion evidence of a juror’s subjective reasoning process is immaterial, and therefore irrelevant, to a challenge to the validity of a verdict. That conclusion forms the basis for the majority’s rejection of defendant’s contention article I, section 28, subdivision (d) of the California Constitution nullifies section 1150, a question the majority need not reach. The majority’s analysis of materiality and relevance also pertains to the type of evidence a court may consider on the question of jury misconduct in the absence of a motion to strike.
I have no quarrel with the majority’s assumption “relevant evidence” in California Constitution article I, section 28, subdivision (d), means the same as “relevant evidence” in section 210. Nor do I question its conclusion section 210 encompasses “materiality” in its description of “relevance.”10 At the same time, I believe the majority’s application of section 1150 ignores both the plain language of the statute and its common law origins. Simply *50put, section 1150 excludes relevant and material evidence for policy reasons quite apart from relevancy and materiality.
Section 1150 begins, “Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence” may be received or not received as specified. (Italics added.) Because only relevant evidence is admissible (§ 350), “otherwise admissible evidence” refers to relevant evidence. Section 1150 then declares a statutory exclusionary rule: “No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.”
I cannot agree with the majority’s characterization of section 1150 as “delimiting the issues ‘upon an inquiry as to the validity of the verdict.’ ” (Italics added.) Section 1150 merely limits facts that may be proved to impeach a verdict. (People v. Hutchinson (1969) 71 Cal.2d 342, 349 [78 Cal.Rptr. 196, 455 P.2d 132], cert. den. 396 U.S. 994 [24 L.Ed. 457, 90 S.Ct. 491].) Evidence of “overt facts, objectively ascertainable” is admissible; evidence of “the subjective reasoning processes of the individual juror” is not. (Ibid.)
The statute excludes evidence of mental processes for public policy reasons. Indeed, such evidence may be excluded because it is too material and too probative of the question of jury misconduct. In Hutchinson, the Supreme Court rejected the view section 1150 involved the balancing of two conflicting policies — the need “ ‘to prevent instability of verdicts, fraud, and harassment of jurors,’ ” and the desire “ ‘to give the losing party relief from wrongful conduct by the jury.’ ” (Id. at p. 348.) Instead, the Supreme Court concluded “there is no substantial conflict of policies and that the wrong to the individual cannot be considered the lesser of two evils.” (Id. at p. 349.)
Thus, the majority’s lengthy discussion of rule 606(b) of the Federal Rules of Evidence (28 U.S.C.) does no more than confirm what was also stated in Hutchinson: there are valid policy reasons for excluding some types of evidence offered to prove jury misconduct. Given shared common law roots, it is not surprising the same policy considerations provide the basis for both the federal and state rules.
In cases involving claims of jury misconduct, the relevancy and materiality of evidence are determined by the substantive questions we have already discussed, not by section 1150. First, has the jury been guilty of misconduct by which a fair and due consideration of the case has been prevented? (Pen. Code, § 1181, subd. 3.) Second, is there evidence of misconduct which gives *51rise to the presumption of prejudice? Third, is the prosecution evidence sufficient to rebut the presumption of prejudice, or, is there “a substantial likelihood that at least one juror was impermissibly influenced to the defendant’s detriment”? (People v. Marshall, supra, 50 Cal.3d at p. 951.) A juror’s subjective reasoning process is relevant to these questions.
There may be other grounds upon which to reject defendant’s argument article I, section 28, subdivision (d), of the California Constitution nullifies section 1150. However, I cannot agree with the analysis offered by the majority.
A petition for a rehearing was denied February 25, 1992, and appellant’s petition for review by the Supreme Court was denied April 16, 1992.
The court instructed the jury: “In your deliberations the subject of penalty or punishment is not to be discussed or considered by the jury. That is not [sic] a matter which must not in any way affect your verdict.”
“Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code, Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press.” (Italics added, see also Evid. Code, §351.)
All statutory references are to the Evidence Code unless otherwise indicated.
Defendant faced a sentence of 25 years to life on the conspiracy count alone. (Pen. Code, §§ 182, 190.)
The second question related to defendant’s contention the verdict was not unanimous, an issue not raised on appeal.
Thereafter, this court asked the parties to provide supplemental briefing on questions unrelated to waiver.
The majority misreads this portion of Marshall as limiting the court’s inquiry to the nature of the extrajudicial material. A court may also consider the impact of the extraneous material. (See, e.g., Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 321-326, 328 [276 Cal.Rptr. 430] [applied Marshall analysis, and reversed judgment where there was a dramatic shift in jury votes after discussion of the word “preponderance”].) The majority itself believes timing of the extraneous information is a factor to consider. (See fn. 9, post, p. 48.)
Although the majority correctly states the presumption of prejudice applies in both civil and criminal cases, civil and criminal cases require different approaches to the question whether that presumption has been rebutted. An express agreement by the jurors to consider evidence of insurance in their verdict may be required to establish jury misconduct in a civil case. (See Gorman v. Leftwich (1990) 218 Cal.App.3d 141, 147 [266 Cal.Rptr. 671], and Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728, 740 [223 Cal.Rptr. 859], cited by the majority.) However, “[a] strict rule that one tainted juror compels reversal is necessary in criminal cases because under the California Constitution, the jury must unanimously agree that a defendant is guilty.” (See Glage v. Hawes Firearms Co., supra, 226 Cal.App.3d at p. 322.)
The majority states “the record is silent as to when during the 49 hours between the start and finish of deliberations the statements concerning penalty were made or the votes were taken. The final vote may have been taken well after the statements were made and following substantial discussion among the jurors of matters properly before them.” (Maj. opn., ante, p. 39.) The only reasonable inference is the jury took the “last” written vote and the “last” verbal vote much closer to the end of deliberations than the beginning.
“While there is no universal test of relevancy, the general rule in criminal cases might be stated as whether or not the evidence tends logically, naturally, and by reasonable inference to establish any fact material for the prosecution or to overcome any material matter sought to be proved by the defense. [Citation.] Evidence is relevant when no matter how weak it may be, it tends to prove the issue before the jury.” (People v. Slocum (1975) 52 Cal.App.3d 867, 891 [125 Cal.Rptr. 442].) Concerns regarding the reliability of such evidence go to its weight.