A prosecutor’s improper excusal of a grand juror did not deny defendant due process or undermine the remaining jurors’ ability to determine whether he should be indicted. A grand jury was convened to consider whether Jackson should be indicted for special circumstance murder, rape, and other charges. At the outset of the proceedings, the prosecutor dismissed one of the grand jurors who said he had met the victim. The grand jury thereafter returned an indictment. Jackson moved to dismiss the indictment (Pen. Code, § 995 and nonstatutory grounds) on the basis that the prosecutor’s dismissal of a juror for cause, in the presence of the remaining grand jurors, impaired the independence and impartiality of the grand jury. The trial court initially granted the motion, feeling bound by Williams v. Superior Court (2017) 15 Cal.App.5th 1049, but stayed its ruling. When the California Supreme Court granted review in Williams, the court vacated its order and, after further hearing, denied the motion. Jackson sought writ relief. Held: Petition for writ of mandate and/or prohibition denied. Under Penal Code section 939.5, it is the duty of the grand jury foreperson, not the prosecutor, to direct a biased juror to “retire.” The prosecutor has no role in dismissing grand jurors. An indictment may be set aside if the grand jury proceedings failed to comport with due process. A defendant’s due process rights are violated “by an irregularity in grand jury proceedings only if the error substantially impaired the grand jury’s ability to reject charges which it may believe unfounded.” Here, the independence of the grand jury was not compromised because the prosecutor’s dismissal did not undermine the jury’s “authority or ability to call witnesses, issue subpoenas, ask questions, listen to and follow instructions, engage in deliberations, or reach a decision to indict based solely on the evidence presented before it.” And Morales failed to show prejudice, as the excused grand juror was arguably unfavorable to the defense.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A153818.PDF