Sanders

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…