Prosecutor’s improper dismissal of a grand juror was grounds for dismissing an indictment because it substantially impaired the grand jury’s independence and impartiality. The San Joaquin County District Attorney’s Office filed a complaint charging Williams and his codefendants with multiple robberies and other related offenses. During the grand jury proceedings, the prosecutor announced he was excusing one of the jurors from service due to an economic hardship. The proceedings continued with 18 jurors, who ultimately returned a 68-page indictment. Williams later moved to dismiss the indictment under Penal Code section 995, arguing that the prosecutor exceeded his authority by dismissing a previously qualified grand juror for hardship and leaving an improperly constituted jury of less than the required 19 jurors. The trial court denied the section 995 motion, and Williams sought review by filing a petition for writ of mandate. Held: Petition granted. The trial court holds the authority to accept or excuse a person who is found qualified to serve on a grand jury (Pen. Code, § 909), and while the prosecutor may appear before the grand jury to give information or advice, he or she has no role in excusing jurors. (See Pen. Code, § 910.) A defendant’s “due process rights might be violated if the grand jury proceedings are conducted in such a way as to compromise the grand jury’s ability to act independently and impartially.” (People v. Thorbourn (2004) 121 Cal.App.4th 1083, 1089.) While the indictment is not void merely because the prosecutor excused one of the jurors for hardship, here the prosecutor’s excusal colloquy took place in front of the other jurors, allowing the remaining jurors to mistakenly believe that the prosecutor had legal authority to approve a hardship request and assert actual control over them. Because this may have contributed to the jury’s determination that probable cause existed to accuse Williams of the charged crimes, the trial court was directed to enter a new order granting the motion to dismiss the indictment based on the improper excusal of the grand juror.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C083126M.PDF