Filed 5/11/15 P. v. Morris CA2/8

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

MARCUS MORRIS,

Defendant and Appellant.

 B254910

 (Los Angeles County

 Super. Ct. No. NA091326)

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.

_____________________________________
2

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. 
3

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. 
4

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.” 
5

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. 
6

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 
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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 
8

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 
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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 
10

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. 
11

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.) 
12

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 
13

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?”