Avitia v. Superior Court of San Joaquin Cnty.

Decision Date18 April 2017
Docket NumberC082859
CourtCalifornia Court of Appeals Court of Appeals
PartiesLEO AVITIA, Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

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.

A. Grand Jury Proceedings

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of alcohol in his blood and causing bodily injury; resisting an executive officer; and driving while his license was revoked or suspended due to a driving under the influence conviction.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:

"BY MR. KOOGER: Q. You had—Juror Number 18, you stated that you may have some issues?

"A. Correct. I am a peace officer. I work for the Department of Alcohol Beverage Control, and I have arrested subjects for [section] 148[].

"Q. Aren't you exempt from jury duty?

"A. I'm not. I'm [section] 830.2. We don't follow the exemption.

"Q. The fact that you've arrested people for—the fact you've arrested people—hold on just one second.

"A. Sure."

The petition represents that the exchange continues as follows, but no corresponding record was provided:3

"Q. The fact that you arrested people for resisting arrest before, do you think that's going to affect your impartiality in this case?

"A. Yes.

"Q. You do?

"A. I do, in addition to the fact that I'm currently conducting an investigation that's very similar to these charges.

"Q. So you don't think you can be fair?

"A. No, I don't think so.

"Q. What I'm going to ask you to do is go down to the basement, let them know that you were excused."

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.

B. Motion to Dismiss the Indictment

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:

"In Packer v. Superior Court (2011) 201 [Cal.App.4th] 152, at page 166 [(Packer)], the Court recited that federal law is unsettled on whether a defendant has a right to an unbiased grand jury under the due process clause of the federal Constitution. As for California law on that point, the Court wrote as follows:

"Although California law is similarly unresolved, our Supreme Court 'has recognized that the manner in which the grand jury proceedings are conducted may result in a denial of a defendant's due process rights, requiring dismissal of the indictment. [Citation.]' [Citation.] The court has also stated that the determination whether a defendant's due process rights have been violated in this regard ultimately depends on whether the error at issue 'substantially impaired the independence and impartiality of the grand jury.' [Citation.] The court has also spoken of the need to ensure that the grand jury acts 'independently of the prosecutor or judge.' [Citation.] ([Packer, supra, 201 Cal.App.4th] at p. 167.)

"First, there is no evidence of defendant's assertions that the prosecutor's actions 'impacted the mindset of the panel' and led it 'to incorrectly believe that [the prosecutor's] judgment is ultimately what controls the operation and functions of the grand jury.' His arguments are speculative and unsupported by the record. They fall in the category of being theoretically possible, but nothing more. On this issue, the defendant concedes the point when he writes, 'There is no exact way to know how the grand jury was affected . . .' [Citation.]

"Moreover, the other grand jurors initially heard the foreperson (No. 6) and Juror No. 18 say that they may each have an issue regarding their abilities to be impartial. [Citation.] Thereafter, the prosecutor had all of the grand jurors leave the grand jury room except for the foreperson. After questioning the foreperson and essentially directing him to remain on the grand jury, the prosecutor questioned Juror No. 18 alone, and instructed her to retire. The remainder of the grand jurors did not see or hear either voir dire process, but they did eventually learn that the foreperson remained on the jury, but that Juror No. 18 did not. The other members did not witness the prosecutor instruct Juror No. 18 to retire. Thus, with one grand juror staying on the jury and another leaving,the remaining grand jurors reasonably would have concluded that Juror No. 18 needed to be excused due to a bias or impartiality.

"Second, there is no California authority for the proposition that a violation of [section] 939.5 requires a per se finding of a due process violation. In [Packer, supra,] 201 [Cal.App.4th] at page 169, the Court wrote as follows:

"Ultimately, we need not decide whether Packer had a due process right to an unbiased grand jury because he fails to demonstrate that Juror No. 2 was actually biased. [Citations.] Even those Courts that have recognized a defendant's due process right to challenge an indictment on the ground of grand juror bias have concluded that the defendant 'bears a heavy burden of showing actual bias and prejudice.' [Citations.] Bias cannot be presumed. [Citation.]

"In the instant case, as in Packer, the defendant has not met the heavy burden of showing actual bias and prejudice. Here the prosecutor instructed grand Juror No. 18 that she must retire because she twice stated, under questioning, that she could not be fair to the defendant. [Citation.] Though the foreperson should have been the one who instructed the grand juror to retire pursuant to [] section 939.5, a point the prosecutor readily and appropriately acknowledged during the hearing on the motion to dismiss, Juror No. 18 needed to retire from the grand jury nevertheless. . . . Accordingly, as in Packer, this court likewise need not decide whether the defendant had a due process right to an unbiased grand jury because the defendant fails to establish that any of the grand jurors was actually biased.


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