People v. Sanders

Opinion

MERRILL, J. Artis Sanders, Jr., appeals from a judgment of conviction, following jury trial, of one count of possession of marijuana for sale. (Health & Saf. Code, § 11359.) We reverse the judgment herein for the reason that the admission of the testimony of an individual sworn as a juror in the case, but excused prior to testifying, impermissibly violated Sanders’s constitu[1512]tional right to trial by an impartial jury as guaranteed by the due process clause of the Fourteenth Amendment to the United States Constitution.

I

On March 29, 1984, at approximately 11 a.m., Oakland Police Officer Forrest Thornberry, while driving a marked police car, observed Sanders in a vacant lot. Sanders was standing in front of a three- to four-foot cement wall, with his back to the officer. As the officer turned the corner, Sanders looked over his shoulder and saw the officer. The officer then observed Sanders lift up an orange cushion which was on the wall, place his hand underneath the cushion, put the cushion down and walk away.

Officer Thornberry pulled over and asked Sanders for some identification. He then asked Sanders what he had placed under the cushion and Sanders replied that it was a book of matches. The officer lifted the cushion and saw an eight-inch-deep hole in the cement, filled with twelve baggies of green vegetable matter which appeared to be marijuana. Sanders was placed under arrest. Two hundred sixty-eight dollars in $10, $5, and $1 bills were found on his person. The officer did not observe a book of matches under the orange cushion or on Sanders’s person.

Officer Thornberry also testified that for the two weeks prior to Sanders’s arrest, he had observed him each day talking to individuals in double-parked cars or to passers-by on the sidewalk.

A criminalist testified that the 12 baggies each contained approximately 1.5 grams of marijuana.

Oakland Police Officer Everet Gremminger, with 12 years of experience in the vice detail, testified as an expert concerning the packaging of marijuana as it relates to the intent to sell. He testified that the neighborhood where Sanders was arrested was known for its high rate of marijuana sales. Officer Gremminger described a common “street sale” transaction; the seller, with only one or two baggies on his person, stands on a street corner and flags down cars to make sales. The remainder of the seller’s supply is typically kept in a “stash location.”