Avitia v. Superior Court of San Joaquin Cnty.
Decision Date | 18 April 2017 |
Docket Number | C082859 |
Court | California Court of Appeals Court of Appeals |
Parties | LEO AVITIA, Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest. |
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. STKCRFE2016881, GJ20164112415)
Petitioner Leo Avitia seeks extraordinary writ relief from the trial court's order denying his Penal Code section 995 motion to dismiss the indictment charging him with second degree murder and other offenses.1 The motion was based on the deputy districtattorney's dismissal of a grand juror for bias outside of the presence of the other grand jurors. The People concede the deputy district attorney's dismissal of the grand juror was legal error. Therefore, the question presented by this petition is whether that error required the trial court to grant petitioner's motion to dismiss. On the record presented in this case, we conclude the deputy district attorney's error was not structural, and petitioner has failed to demonstrate he was denied a substantial right or that the error substantially impaired the independence and impartiality of the grand jury. Accordingly, while the prosecutor's violation of statutory requirements is troubling, the trial court's decision to deny petitioner's motion was not error, and we shall deny his petition for writ of mandate.
On July 22, 2014, the San Joaquin County District Attorney's Office filed a complaint charging petitioner with second degree murder; gross vehicular manslaughter while intoxicated; driving under the influence of alcohol and drugs and causing bodily injury; driving with 0.08 percent or more, by weight, of alcohol in his blood and causing bodily injury; resisting an executive officer; and driving while his license was revoked or suspended due to a driving under the influence conviction. The complaint also alleged that petitioner had suffered two prior convictions for driving with 0.08 percent or more, by weight, of alcohol in his blood on December 16, 2013, and March 25, 2014, respectively. The complaint further alleged infliction of great bodily injury.
On January 8, 2016, nineteen grand jurors and four alternate grand jurors were selected and sworn in by the superior court. On January 11, 2016, Deputy District Attorney Frank Kooger appeared before them. The partial transcript of these proceedings contained in the record reflects that the deputy district attorney asked the jurors about their ability to be impartial: "I'm asking if anybody here, after listening to the charges, or listening to the witnesses, has the state of mind which will prevent him or her from actingimpartially and without prejudice to the substantial rights of parties." The grand jury foreperson and Juror No. 18 both responded. Juror No. 18 said, "I've arrested people for [section] 148."2
The deputy district attorney then said, "everyone is going to get out of the jury room and we're going to talk to Juror Number 6, the jury foreman." After the foreman said he could follow the law despite his religious and moral opposition to drinking alcohol, the deputy district attorney asked the foreman to wait outside.
Then, the deputy district attorney had this exchange with Juror No. 18:
The petition represents that the exchange continues as follows, but no corresponding record was provided:3
The proceedings apparently resumed before the remaining grand jurors and alternates. Three days later, the grand jury returned an indictment. The indictment included the offenses and allegations that appeared in the complaint, and also a charge of vehicular manslaughter while intoxicated based on ordinary negligence.
After pleading not guilty as to all counts and denying all of the enhancement allegations, petitioner filed a nonstatutory motion to dismiss the indictment. The court later agreed to consider the motion as though it were made under section 995.
Petitioner argued the deputy district attorney's dismissal of a grand juror in violation of section 939.5 interfered with the jury's independence and resulted in an improperly constituted grand jury. Petitioner asserted that because he was denied an independent jury "free from prosecutorial bias and undue influence" from the outset of the proceedings, his substantial rights were violated and the indictment should be dismissed even in the absence of a showing of prejudice.
The trial court denied the motion to set aside the indictment in a written ruling filed on July 29, 2016. Given the relevance to the issues presented in this petition, we include a significant portion of the trial court's ruling. The court began by addressing petitioner's claims regarding the impact of the prosecutor's actions on the mindset of the panel:
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