Filed 5/11/15; pub. order 6/10/15 (see end of opn.) pub. order received 6/26/15




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                              DIVISION EIGHT


THE PEOPLE,                                                     B254910

         Plaintiff and Respondent,                              (Los Angeles County
                                                                Super. Ct. No. NA091326)
         v.

MARCUS MORRIS,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Richard R. Romero, Judge. Reversed.


         Anthony M. Solis for Defendant and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle and
Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.


                            _____________________________________
       A jury convicted Marcus Morris of possession of cocaine base for sale in violation
of Health and Safety Code section 11351.5, and Morris admitted he had suffered multiple
prior convictions enumerated in Health and Safety Code section 11370.2. The trial court
sentenced Morris to an aggregate term of 13 years in county jail.
       We find an error under People v. Sanders (1988) 203 Cal.App.3d 1510 (Sanders)
because a juror who was excused in the midst of Morris’s trial was thereafter allowed to
testify in the trial as a prosecution witness. We find the error implicated Morris’s
constitutional due process right to a fair trial, and that the error was not harmless beyond
a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).
Accordingly, we reverse the judgment.
                                          FACTS
       Examined in light of the usual standard of review on appeal (see, e.g., People v.
Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence at trial established the following facts.
On February 7, 2012, a team of Long Beach Police Department (LBPD) officers executed
a search warrant at “6--- Orizaba Avenue, No. 103.” During the search, officers found a
bindle with .92 grams of a white granular substance containing cocaine base on a dresser
in a bedroom. The officers also recovered a bindle with a .84 gram “chunk” of a
substance, “maybe the size of a quarter,” containing cocaine base in the bottom of a
hamper filled with men’s clothing on a patio that was accessible through a sliding door
from the bedroom. Further, the officers found two digital scales commonly used to
weigh drugs, one of which had a powdery residue on it. The officers also found $6,090
cash inside a shoebox in a bedroom closet, and $1,552 cash in a drawer of a bedroom
television stand. Inside the residence, the officers also recovered Morris’s wallet, which
contained his driver’s license identifying his address as the Orizaba Avenue property, and
pieces of mail addressed to Morris at the Orizaba address.
       Officer Fox searched Morris and recovered a cell phone from his pants pocket.
Detective Christopher Bolt reviewed the text messages from Morris’s cell phone. They
included a series of text messages dated as received within days of the execution of the
search warrant, including one message that was received about an hour before the search.

                                              2
Among others, the messages read as follows: “This is brown eyes I need a 3.5 please
answer I’m almost there;” “I need 30. Can I see you;” “I need 50;” “Can I get 60 bucks
worth?” In the detective’s experience, the text messages were indicative of requests to
purchase drugs.
       In May 2012, the People filed an information charging Morris with possession of
cocaine base for sale. At trial in January 2014, the prosecution presented evidence
establishing the facts summarized above. Morris’s defense was that the police work had
been sloppy and that the evidence they developed did not prove that he, as opposed to
some other person, controlled the area where the drugs, scales, and cash were recovered,
or that he personally possessed the items. Morris also maintained that the evidence failed
to prove that he intended to sell the drugs. The jury found Morris guilty of the charged
offense.
                                       DISCUSSION
           The Trial Court Prejudicially Erred in Allowing a Juror to Testify
       Morris contends his conviction must be reversed because the trial court
prejudicially erred when it permitted an excused juror to testify during trial as a
prosecution witness. We agree.
Trial Setting
       After the prosecution’s police witnesses established the facts summarized above,
Morris called Mary Beverly Vinoya to testify as a defense witness. Vinoya testified that
she lived in the bedroom in which the approximately $7,500 cash was recovered during
the execution of the search warrant. According to Vinoya, she kept her “savings” of
$6,000 in a shoebox in the closet of her bedroom, and her “monthly budget” money of
$1,500 in the television stand in the bedroom. Vinoya testified that she lived in the
apartment with Morris’s mother and Morris’s son, and that Morris did not live in the
apartment, but slept on a couch there a few times each week. Morris did not have access
to Vinoya’s bedroom, which she kept locked with a key.




                                              3
       Before Vinoya finished testifying, Juror No. 10 asked to talk to the trial court
privately. At a sidebar discussion, Juror No. 10 informed the court that that he might
have overheard Morris talking with Vinoya on a cell phone. Juror No. 10 explained that
during the lunch break on the preceding court day, while he was in a stall in a restroom
near the courtroom, he heard someone whom he believed to be Morris say, “Don’t worry
about it. There’s some money in your pink shoes in the shoebox. You might have to
come to testify.” Further, “There’s some money that I put in your shoes – your pink
shoes in the shoebox.” Juror No. 10 told the court that he was concerned his judgment
might be swayed based on Morris’s statements. Juror No. 10 confirmed that he had not
said anything about what he had heard to any other juror because he did not put it all
together until Vinoya testified she talked to Morris on the phone on the previous court
day. Based on what he had heard in the bathroom, and Vinoya’s testimony, Juror No. 10
believed it was likely that it had been Morris talking on the phone. At the request of
Morris’s counsel, the court agreed to excuse Juror No. 10 and replace him with an
alternate juror, whereupon the prosecutor promptly asked the court, “Can I call him as a
witness now?” The court recessed.
       Juror No. 10 returned to the jury box, and the trial court advised the entire panel
that Juror No. 10 was being excused and replaced with an alternate juror.1 An instant
later, outside the presence of the reconstituted jury, the prosecutor asked that excused
Juror No. 10 be allowed to testify, explaining to the court that what Juror No. 10 heard
contradicted Vinoya’s testimony that she kept her own money in the shoebox in the
bedroom closet. The prosecutor argued that Juror No. 10’s evidence impeached Vinoya’s
credibility.




1
      “The court: Back in session. This is no reflection on Juror No. 10, but I think you
understand you have to be excused. So do report to the jury room.
      “Juror No. 10: Okay.”

                                             4
         Morris’s counsel objected to the proposed testimony, arguing that “every member
of the jury panel ha[d] a personal relationship” with excused Juror No. 10. Defense
counsel also objected on foundational grounds, arguing that excused Juror No. 10 had not
actually seen Morris talking, and that it could not be determined if it had actually been
Morris whom excused Juror No. 10 had overheard. Further, even assuming the juror had
overheard Morris, there was no way to determine the identity of the person on the other
end of the phone conversation. Finally, defense counsel argued that he would have no
opportunity to investigate Juror No. 10’s background for facts showing possible
credibility issues.
         The trial court ruled the testimony admissible. Because Vinoya testified she
talked on the phone with Morris the preceding court day, the court found there was a
sufficient foundation to show that excused Juror No. 10 heard Morris talking on the
phone.
          After Juror No. 10 was brought back into the courtroom, the court advised him
outside the presence of the jury that he might be called as a witness and admonished him
not to have any contact with the remaining jurors.
         Vinoya completed her testimony, and the defense rested its case. The trial court
then advised the jurors that the prosecution would likely be calling excused Juror No. 10
to testify in rebuttal, and admonished the jurors with the following cautionary instruction:
“One of the instructions that you’ll get . . . [is] that all witnesses are judged by the same
standards. Nobody has greater credibility, nobody has lesser credibility because of who
they are. A police officer, a judge, a lawyer, a defendant, a juror are all judged by the
same standards. [¶] A juror is not entitled as –– a former juror is not entitled to greater
credibility just because he was a former juror on the case. You’re not to have any
sympathy, empathy, not to rely on any kind of memory you have, any contact you had
with the witness when he was a juror. So he’s just a witness like any other witness.”
The court then asked if any juror was unable to follow such instruction, and no juror
indicated he or she could not.



                                               5
          Excused Juror No. 10 then took the stand and testified that he had heard Morris on
the phone telling someone not to worry, and that the person might have to come to court
to testify, and that Morris left some money for the person in their pink shoes in the closet.
          Morris’s counsel renewed the defense’s objections and moved for a mistrial.
The trial court denied the motion for mistrial.
Analysis
          In 1965, the Legislature enacted Evidence Code section 704 governing the subject
of a “juror as witness.” Summarized, the section says that a sitting juror impaneled in the
trial of an action may not be called to testify before the same jury in the trial. Evidence
Code section 704, subdivision (b), provides: “(b) Against the objection of a party, a juror
sworn and impaneled in the trial of an action may not testify before the jury in that trial as
a witness. Upon such objection, the court shall declare a mistrial and order the action
assigned for trial before another jury.” Evidence Code section 704, subdivision (c),
provides: “The calling of a juror to testify before the jury as a witness shall be deemed a
consent to the granting of a motion for mistrial, and an objection to such calling of a juror
shall be deemed a motion for mistrial.”
          Evidence Code section 704’s purpose is succinctly stated in the comment to the
section by the Assembly Committee on Judiciary: “A juror-witness is in an anomalous
position. He [or she] cannot weigh his [or her] own testimony impartially. A party
affected adversely by the juror’s testimony is placed in an embarrassing position. [The
party] cannot freely cross-examine or impeach the juror for fear of antagonizing the juror
–– and perhaps his [or her] fellow jurors as well. And, if [the party] does not attack the
juror’s testimony, the other jurors may give his [or her] testimony undue weight. For
these and other reasons, Section 704 forbids jurors to testify over the objection of any
party.”
          In People v. Knox (1979) 95 Cal.App.3d 420 (Knox), the defendant wanted to call
an excused juror to testify as a defense witness, but the trial court excluded the testimony
under Evidence Code section 352. On appeal, the defendant contended the court erred.
The Court of Appeal correctly recognized that Evidence Code section 704, by its plain

                                               6
language, only applies in the situation of testimony by a sitting trial juror who is called as
a witness in the same trial, and does not apply when a juror who has already been
excused is involved. In an ensuing discussion, the Court of Appeal ruled, without
expressly deciding whether an excused juror may testify in the trial in which he or she
had been a sworn juror, that the trial court did not abuse its discretion under Evidence
Code section 352 in excluding the excused juror’s testimony. (Id. at pp. 432-435.)
       Sanders, supra, 203 Cal.App.3d 1510, went further than Knox, and directly
addressed whether an excused juror may be allowed to testify in the same trial in which
he or she had earlier been a sworn juror. In Sanders, the People charged the defendant
with possession of marijuana for sale. (Id. at p. 1511.) At trial, police witnesses testified
that the defendant had a dozen baggies of marijuana hidden in a hole in a wall in a vacant
lot, and that the nature of the possession was consistent with a “stash location” used for
the sale of the drugs. (Id. at p. 1512.) The prosecution then called its final witness –– a
former juror in the case named “Melanche” –– who had been excused for cause “after the
jury was sworn.” Although Sanders is not altogether concrete in its chronology, it
appears Melanche was excused before any witnesses testified, after bringing it to the trial
court’s attention that he recalled having seen the defendant sell marijuana in the past.
Melanche testified that on two occasions about three or four months after the defendant
was arrested for the offense being tried, Melanche observed the defendant sell marijuana
to Melanche’s brother. (Id. at p. 1513.) The jury convicted the defendant as charged.
The Court of Appeal in Sanders, without discussing Evidence Code section 704 or Knox,
supra, reversed the defendant’s conviction based on constitutional due process concerns
for the following stated reasons:
              “The Sixth Amendment to the United States Constitution mandates
       that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a
       speedy and public trial, by an impartial jury . . . .’ The right to jury trial in
       criminal cases . . . encompasses the right to trial by an impartial jury. (U.S.
       Const., Amend. VI.) A basic requirement of due process is that a defendant



                                               7
be accorded a fair trial in a fair tribunal. (Turner v. Louisana (1965) 379
U.S. 466, 472-473 . . . .)
       “The Sixth Amendment encompasses additional guarantees implicit
in the nature of trial by an impartial jury; namely that the jury’s verdict be
based upon the evidence adduced at trial, uninfluenced by extrajudicial
evidence or communications or by improper association with the witnesses,
parties, counsel or other persons. (Turner v. Louisiana, supra, 379 U.S. at
pp. 472-473 . . . .) ‘In the constitutional sense, trial by jury in a criminal
case necessarily implies at the very least that the “evidence developed”
against a defendant shall come from the witness stand in a public courtroom
where there is full judicial protection of the defendant’s right of
confrontation, of cross-examination, and of counsel.’ (Turner v. Louisiana,
supra, 379 U.S. at pp. 472-473 . . . .)
       “Turner involved a jury trial in which the prosecution’s leading
witnesses were the same two deputy sheriffs who watched over the jury
during the three-day period it was sequestered for trial. The United States
Supreme Court held that the witnesses’ close and continuous association
with the jurors deprived Turner of his constitutional right to trial by an
impartial jury as guaranteed by the due process clause of the Fourteenth
Amendment. Although the witnesses testified they had not discussed the
case with the jurors, the court found their close relationship had a
prejudicial impact on the credibility attached to the witnesses’ testimony.
(379 U.S. at pp. 472-473.)
       “[¶] . . . [¶]
       “The court commented that permitting an intimate association
between the jurors and two key prosecution witnesses would have violated
the basic guarantees of the defendant’s constitutional right to an impartial
jury even if the witnesses had not been deputy sheriffs. The fact that they
were in the role of guardian, made the association even more prejudicial

                                          8
because ‘the relationship was one which could not but foster the jurors’
confidence . . . .’ (Turner v. Louisiana, supra, 379 U.S. at p. 474.)
       “It is well settled that the very character of certain procedures makes
it impractical to determine the degree of prejudice to the defendant. A
defendant attempting to establish that he has been deprived of due process
of law during the course of his or her trial need not show actual prejudice in
order to obtain relief; it is sufficient if the defendant demonstrates a
‘reasonable probability of prejudice.’ [Citations.]
       “Application of these principles to the record in the instant case
compels the conclusion that Sanders was deprived of his due process right
to a fair trial by an impartial jury. Contrary to the People’s argument,
Melanche had more than a ‘brief encounter’ with the jury, spending at least
two days with the other members of the jury panel. In addition, Melanche’s
fellow jurors had the opportunity to listen to his responses during voir dire,
thereby gaining further familiarity with him. During this examination
Melanche described his employment as a security officer at a nightclub and
his observations of people smoking marijuana. He referred to his friendly
relationship with police officers and their involvement in arrests made at
the nightclub. . . .
       “Melanche enjoyed an intimate association with the jury panel
during the two-day period of voir dire examination. The record does not
reveal the amount of time spent by Melanche with the other jurors but the
jurors conversed with one another in the halls of the courthouse prior to
court sessions and at recesses. Also, it appears that Melanche was together
with the other jurors in the jury assembly room prior to the day that the case
was assigned for trial. Notwithstanding Melanche’s testimony that he did
not speak with any jurors about Sanders’s subsequent marijuana sales, this
case demonstrates a reasonable probability of prejudice from his testimony
as a witness. The special relationship which may develop among members

                                       9
       of a jury venire and especially members of the panel selected and sworn in
       a case may impermissibly permeate the jury’s objectivity in the event a
       former juror is called as a witness. By virtue of the jury’s familiarity and
       close association with Melanche, the jury may have attached greater
       credibility to his testimony. In essence, the jury’s verdict in this case was
       not based solely on the evidence developed at trial but was prejudicially
       influenced by the jurors’ close association with a witness in the trial. Under
       the facts of this case it was prejudicial error for the trial court to have
       permitted the prosecution to call Melanche as a witness, after he was
       excused as a juror.
                 “Inasmuch as we reverse on the basis of denial of due process of
       law, we need not reach the remaining contentions raised by Sanders’s
       appeal.” (Sanders, supra, 203 Cal.App.3d at pp. 1513-1516.)

       The only difference between Sanders and this case is that an excused juror
testified in the prosecution’s case in chief, whereas, in Morris’s case, an excused juror
testified in rebuttal to impeach the only defense witness. We find the difference
inconsequential. The problem identified in Sanders is that allowing an excused juror to
testify in a case in which he or she had once been a juror creates a constitutionally
unacceptable probability that the other jurors who ultimately decide the case may look
with favorable bias on the excused juror’s testimony due to their shared jury experience.
This concern is as strong in Morris’s current case as it was in Sanders. Allowing an
excused juror to testify implicates a defendant’s constitutional due process right to a fair
trial process.
       The People’s urge us not to follow Sanders. They claim the issue in Morris’s
current case is largely limited to an evidentiary one, which should be viewed to determine
if there was an abuse of discretion. They further assert the court did not abuse its
discretion because Morris “was not entitled to exclude the . . . testimony of a percipient
impeachment witness.” We are not persuaded to reject Sanders.


                                              10
       Plainly, had the trial court declared a mistrial, and had Vinoya taken the stand at
retrial and repeated her testimony, excused Juror No. 10 could have testified in rebuttal to
impeach Vinoya’s testimony. In other words, excused Juror No. 10 could testify for the
prosecution at a trial in which he had not once been a sworn and seated trial juror.
Similarly, excused Juror No. 10 could testify at a retrial. But the issue for purposes of
Morris’s current appeal is a bit more nuanced –– was it permissible under constitutional
due process precepts to have allowed excused Juror No. 10 to testify in front of jurors
who knew him by virtue of their shared jury experience.
       We acknowledge that Sanders discusses no specific fact or circumstance in that
case which tended to indicate that any of the jurors in the case actually felt a bias in favor
of the testifying excused juror. Further, there is no fact or circumstance in Morris’s case
tending to indicate that any of the jurors at his trial actually felt a bias in favor of excused
Juror No. 10. But, in reading Sanders, we understand the court there not to have required
any direct showing of actual juror bias; Sanders is concerned with the risk of possible
bias, and found the risk too strong to accept that the defendant had been tried in a fair
trial proceeding. As stated by the court in Sanders: “A defendant attempting to establish
that he [or she] has been deprived of due process of law during the course of his or her
trial need not show actual prejudice in order to obtain relief; it is sufficient if the
defendant demonstrates a ‘reasonable probability of prejudice.’” (Sanders, supra, 203
Cal.App.3d at p. 1514, quoting from Gordon v. Justice Court (1974) 12 Cal.3d 323, 329.)
       The People argue that Sanders’s “reasonable probability of prejudice” standard is
“completely contrary” to California Constitution, Article VI, section 13, and to People v.
Watson (1956) 46 Cal.2d 818. The problem with the People’s approach is that it is
premised on a view that Morris’s is claiming an evidentiary error on appeal, whereas
Morris’s claim is that his constitutional due process right to a fair trial is in question.2
Because constitutional trial rights are implicated here, we find the proper test for
prejudice is the standard articulated in Chapman, supra, 386 U.S. at page 24. In

2
       “‘The failure to accord an accused a fair hearing violates even the minimal
standards of due process.’” (Turner v. Louisiana, supra, 379 U.S. at pp. 471-472.)

                                               11
Chapman, the United States Supreme Court was concerned with state criminal law which
allowed a prosecutor to comment on a defendant’s failure to testify at trial, and allowed a
trial court to instruct the jurors that they could draw adverse inferences from a
defendant’s failure to testify at trial. Applying a “harmless beyond a reasonable doubt”
standard of review, the Supreme Court found that although the prosecution had
“presented a reasonably strong ‘circumstantial web of evidence’ against
petitioners, . . . absent the constitutionally forbidden comments, honest, fair-minded
jurors might very well have brought in not-guilty verdicts.” (Chapman, supra, 386 U.S.
at pp. 25-26.)
       Sanders evaluates prejudice based on the fact that the jurors could have been
influenced by their close association with the former-juror witness. (Sanders, supra,
203 Cal.App.3d at p. 1515.) Although the evidence in Sanders was overwhelming and
undisputed, the court reversed the conviction because the jurors could have been
influenced by their close association with the testifying former juror. Here, Cervantes
spent far more time with other jurors than the former juror in Sanders and easily could
have developed a relationship with the other jurors. As in Sanders, the jurors “may have
attached greater credibility” to Cervantes’s testimony because they were familiar with
him. (Sanders, at p. 1515.) Defendant’s conviction therefore must be reversed.
       While the evidence of possession was overwhelming, the evidence of defendant’s
intent to sell was not. Defendant admitted to Officer Andrew Calderon that he possessed
the controlled substance, but denied any intent to sell. Intent to sell—an element of the
offense—therefore was critical as the prosecutor appeared to recognize when she argued:
“When the defendant possessed the controlled substance, he intended to sell it. Now, this
is the big issue in this case.”
       Defense witness Mary Vinoya’s testimony undermined the People’s evidence on
that element; her testimony questioned whether the money found in the closet in the
bedroom with the cocaine base belonged to defendant. She testified that she did not have
a bank account and kept her “savings, which is $6,100, in my shoes in the closet – my
shoebox . . . a nike shoebox.” Vinoya’s testimony therefore contradicted a principal basis

                                             12
for Officer Christopher Bolt’s opinion that defendant possessed the cocaine base for sale.
Officer Bolt’s opinion was the primary evidence that defendant possessed the cocaine
base for sale. Officer Bolt testified that the money was a “big factor” in his conclusion
defendant possessed the contraband for sale. During closing argument, the prosecutor
exploited the error in admitting Cervantes’s testimony by suggesting that defendant
bribed Vinoya for her testimony.3 The introduction of Cervantes’s testimony impeaching
Vinoya—the only defense witness—was not harmless beyond a reasonable doubt.
Reversal is therefore required.
                                     DISPOSITION
       The judgment is reversed.


                                                        BIGELOW, P.J.
We concur:


                     FLIER, J.




                     GRIMES, J.




3
        Specifically the prosecutor argued: “Then you heard from Mr. Cervantes who
came in and talked about that conversation that he heard. Is the defendant bribing her for
her testimony? Is the defendant referring to the money that he put in that shoebox in
2012?”

                                            13
Filed 6/10/15
                           CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION EIGHT


THE PEOPLE,                                        B254910

        Plaintiff and Respondent,                  (Los Angeles County
                                                   Super. Ct. No. NA091326)
        v.
                                                  ORDER CERTIFYING
MARCUS MORRIS,                                    PUBLICATION

        Defendant and Appellant.                   (No Change in Judgment)




        THE COURT*:


        The opinion in the above entitled matter filed on May 11, 2015, was not certified
for publication in the Official Reports. For good cause it now appears that the opinion
should be published in the Official Reports and it is so ordered.




________________________________________________________________________
* BIGELOW, P. J.                 FLIER, J.             GRIMES, J.




                                            14
