Was defendant denied a “substantial right” (People v. Standish (2006) 38 Cal.4th 858, 882) by the prosecutor’s improper dismissal of a grand juror?

Held: A prosecutor’s dismissal of a grand juror violates Penal Code section 939.5; only the grand jury foreperson may dismiss a grand juror. Avitia allegedly drove drunk, crashed into another car, and killed the other driver. The prosecution filed a complaint, and the trial court impaneled a 19-member grand jury. At a grand jury proceeding, the prosecutor asked if any juror would have difficulty being impartial. Juror Nos. 6 and 8 responded affirmatively. The prosecutor questioned each juror outside the presence of other grand jurors and excused Juror No. 18, who stated he could not be fair. After three days of proceedings, the grand jury returned an indictment on the charges presented. Avitia filed a nonstatutory motion to dismiss based on the prosecutor’s dismissal of Juror No. 18. The trial court denied the motion. Avitia filed a petition for writ of mandate, which the Court of Appeal denied. Held: Affirmed. 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, Penal Code 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 Juror No. 18 exceeded his authority and violated Penal Code section 939.5.

When a prosecutor dismisses a grand jury member in violation of Penal Code section 939.5, the available remedy is dismissal of the indictment under Penal Code section 995, subdivision (a)(1)(A). Penal Code section 995, subdivision (a)(1)(A) provides that an indictment should be set aside when “it is not found, endorsed, and presented as prescribed in this code.” This section allows a defendant to pursue a motion to set aside an indictment before trial where the defendant alleges that a prosecutor’s violation of section 939.5 has prejudiced a “substantial right.” In order to prevail on such a motion, the defendant must show that the error “reasonably might have had an adverse effect on the impartiality or independence of the grand jury.” In Avitia’s case, nothing in the record suggested the prosecutor was improperly involved in grand jury selection or the grand jury’s decisionmaking process. Rather, the prosecutor dismissed a juror who indicated he could not be fair. Although the prosecutor “unquestionably influenced the composition of the grand jury” by excusing Juror No. 18, the dismissal occurred outside the presence of the grand jury, which “reduced the likelihood that the independence of the remaining grand jury was impaired.” Other members of the jury had no reason to believe that the prosecutor, rather than the foreperson, excused Juror No. 18. Because Avitia did not show the error “reasonably might have affected the impartiality or independence of the grand jury in an adverse manner,” the court affirmed the judgment. [Editor’s Note: Justice Chin filed a concurring opinion.] (Avitia v. Superior Court (2018) 6 Cal.5th 486 (S242030).) This case was decided on 12/24/2018.