Prosecutor’s dismissal of grand jurors violated Penal Code section 939.5, but was harmless error. Defendant was indicted for two counts of murder and other offenses. He moved to dismiss the indictment under Penal Code section 995 arguing the prosecutor violated section 939.5 and the separation of powers doctrine when she dismissed three grand jurors because the prosecution has no authority to dismiss a grand juror. The trial court denied the motion. Defendant filed a petition for writ of mandate, which the Court of Appeal denied. The California Supreme Court granted review, decided Avita v. Superior Court (2018) 6 Cal.5th 486, and transferred the matter back to the Court of Appeal with directions to vacate its decision and issue an order to show cause in light of Avita. Held: Petition denied. Penal Code sections 909 and 910 establish the procedures for selecting and dismissing grand jurors. During initial selection of the grand jury, the court may excuse a juror for lacking certain qualifications. After selection, section 939.5 authorizes the foreperson of the grand jury to direct a biased juror to retire. While the prosecutor may provide information or advice, or make concerns known to the grand jury foreperson, no provision authorizes a prosecutor to dismiss a grand juror. Thus, the prosecutor’s dismissal of the jurors in this case exceeded her authority and violated section 939.5. In such cases, the indictment must be set aside only when the defendant shows that the violation reasonably might have had an adverse effect on the impartiality or independence of the grand jury. The record in this case does not make this showing, nor does it reflect the prosecutor’s actions violated the separation of powers doctrine or defendant’s right to due process.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/H044349.PDF