Can a prosecutor refer to an excused juror as a witness?

But the prosecutor's passing reference to the excused juror did not amount to a systematic or pervasive misconduct and did not render appellant's trial fundamentally unfair. (People v. Espinoza, supra, 3 Cal.4th at p. 820.) Nor can defendant show prejudice as there is no reasonable likelihood the jury construed or applied the prosecutor's statements in an objectionable manner. (People v. Cole (2004) 33 Cal.4th 1158, 1202-1203.) The jury was instructed that evidence was limited to the sworn testimony of witnesses, exhibits admitted into evidence, and anything the court told the jurors to consider as evidence. The jury also was instructed that counsel's argument is not evidence, and the jury is presumed to have followed those instructions.

Appellant's reliance on People v. Morris (2015) 239 Cal.App.4th 276 is misplaced. There, a seated juror was excused in the midst of trial and allowed to testify as a witness for the prosecution. (Id. at p. 278.) The court held the error violated due process and was prejudicial because "the jurors could have been influenced by their close association with the testifying former juror." (Id. at p. 286.) No such error occurred in this case because prospective juror No. 17 did not testify at trial.