Avitia v. Superior Court of San Joaquin Cnty.

Decision Date24 December 2018
Docket NumberS242030
CourtCalifornia Supreme Court
Parties Leo Brian AVITIA, Petitioner, v. The SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; The People, Real Party in Interest.

David J. Cohen and Alexander P. Guilmartin for Petitioner.

No appearance for Respondent.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Rachelle A. Newcomb and Catherine Chatman, Deputy Attorneys General, for Real Party in Interest.

Justice Liu authored the opinion of the court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Cuéllar, Kruger and Rubin* concurred.


After a prosecutor questioned and dismissed a grand juror outside the presence of other jurors and the trial court, the resulting grand jury returned an indictment against defendant Leo Brian Avitia. Before trial, Avitia moved to set aside the indictment under Penal Code section 995 on the ground that the prosecutor's dismissal violated his constitutional and statutory rights to an impartial and independent grand jury. (All undesignated statutory references are to the Penal Code.) The trial court denied the motion, and the Court of Appeal found no error. We consider whether an indictment must be set aside because of a prosecutor's dismissal of a juror during grand jury proceedings.

We hold that a prosecutor's dismissal of a grand juror violates section 939.5; only the grand jury foreperson may dismiss a grand juror. We further hold that a defendant may seek dismissal of an indictment on the ground that the prosecutor violated section 939.5 by filing a pretrial motion under section 995, subdivision (a)(1)(A). 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 this case, a grand juror explicitly acknowledged that he could not fairly evaluate the case, and the prosecutor dismissed that juror outside the presence of other jurors. Because Avitia has not shown that the error reasonably might have had an adverse effect on the impartiality or independence of the grand jury, the motion here fails.


Avitia was allegedly driving under the influence of alcohol when he crashed into another driver and killed him. The San Joaquin County District Attorney's Office filed a complaint charging Avitia on six counts: second degree murder (§ 187), gross vehicular manslaughter while intoxicated with gross negligence and prior convictions (§ 191.5, subd. (d) ), resisting an executive officer (§ 69), driving under the influence of alcohol or drugs causing injury ( Veh. Code, § 23153, subd. (a) ), driving with a blood-alcohol content level of 0.08 percent or more causing injury ( id. , § 23153, subd. (b) ), and driving when the privilege has been suspended or revoked (id. , § 14601.2, subd. (a) ).

The trial court impaneled a grand jury of 19 members. At a grand jury proceeding, the prosecutor said to the jurors, "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 acting impartially and without prejudice to the substantial rights of parties." The prosecutor also asked, "Does anyone have any bias as a result of the charges, or as a result of the witnesses that were read?" Grand Juror No. 6, the foreperson, responded, "Yeah." Grand Juror No. 18 responded, "I've arrested people for 148." The prosecutor then said, "What we're going to do now, everybody is going to get out of the jury room and we're going to talk to Juror Number 6, the jury foreman. So can everybody leave?"

The prosecutor questioned Juror No. 6 outside the presence of the grand jury. Juror No. 6 said to the prosecutor, "I just want to divulge that my religion, we don't believe in drinking at all. I do acknowledge people have their agency to do what they want. But I'm morally opposed to drinking, period. But I realize other people don't feel that way." The prosecutor asked, "You do know that it is not against the law to drink and then drive a car?" Juror No. 6 said yes. The prosecutor then asked, "Do you have a problem finding that there's not probable cause just because you have these religious beliefs?" Juror No. 6 said no. The prosecutor then asked, "So you can follow the law?" Juror No. 6 responded, "Yeah." The prosecutor did not dismiss Juror No. 6.

The prosecutor then questioned Juror No. 18, also outside the presence of the grand jury. Juror No. 18 said to the prosecutor, "I am a peace officer. I work for the Department of Alcohol Beverage Control, and I have arrested subjects for 148 PC." The prosecutor asked, "Aren't you exempt from jury duty?" Juror No. 18 responded, "I'm not. I'm 830.2. We don't follow the exemption." The prosecutor then asked, "The fact that you arrested people for resisting arrest before, do you think that's going to affect your impartiality in this case?" Juror No. 18 said, "Yes." The prosecutor asked, "You do?" Juror No. 18 said, "I do, in addition to the fact that I'm currently conducting an investigation that's very similar to these charges." The prosecutor asked, "So you don't think you can be fair?" Juror No. 18 answered, "No, I don't think so." The prosecutor then concluded, "What I'm going to ask you to do is go down to the basement, let them know that you were excused." Juror No. 18 followed the prosecutor's instruction and did not serve on the grand jury. After three days of proceedings, the grand jury returned an indictment on all six counts as well as an additional count of vehicular manslaughter while intoxicated with ordinary negligence while operating a vehicle (§ 191.5, subd. (b) ).

Avitia moved to dismiss the grand jury's indictment by way of a nonstatutory motion to the trial court. The trial court granted permission for Avitia to include the nonstatutory motion as part of a section 995 motion to dismiss the indictment either entirely or at least as to count 6 on resisting an executive officer. But the trial court ultimately denied the motion. In a written ruling, the court concluded that there was no evidence that the dismissal impacted the mindset of the grand jury panel or led it to believe that the prosecutor's judgment ultimately controlled the operation and functions of the grand jury. Furthermore, the court concluded that a violation of section 939.5 does not require a per se finding of a due process violation, and Avitia had not shown actual bias or prejudice. The court refrained from deciding whether Avitia had a due process right to an unbiased grand jury, instead concluding that Avitia had failed to establish that any of the grand jurors were in fact biased. The court similarly concluded that because Avitia had not demonstrated that the error reasonably might have affected the outcome of the grand jury proceedings, Avitia had not shown any denial of a substantial right.

Avitia filed a petition for a writ of mandate seeking relief from the trial court's denial. The Court of Appeal denied the petition in an unpublished opinion. Section 995 provides that an "indictment ... shall be set aside by the court" either "[w]here it is not found, endorsed, and presented as prescribed in this code" ( § 995, subd. (a)(1)(A) (hereafter section 995(a)(1)(A) ) ) or when "the defendant has been indicted without reasonable or probable cause" (id. , subd. (a)(1)(B) (hereafter section 995(a)(1)(B) ) ). The Court of Appeal rejected Avitia's argument under section 995(a)(1)(A) that the indictment was "not found, endorsed, and presented as prescribed in this code." But the court said Avitia had properly raised a due process challenge to the indictment, whether under section 995(a)(1)(B) or through a nonstatutory motion.

Evaluating this claim, the Court of Appeal observed "two parallel standards: (1) Whether the error substantially impaired the independence and impartiality of the grand jury, or (2) whether the error constituted the denial of a substantial right." The court said "it does not matter which analysis is used because ... neither standard was met." The court held that Avitia had made no showing that the improper dismissal substantially impaired the independence and impartiality of the grand jury, or that it otherwise reasonably might have impacted the outcome of the proceedings to constitute a denial of a substantial right. The court also held that the dismissal did not constitute structural error and that the grand jury was properly constituted. The court said "the prosecutor's violation of statutory requirements is troubling, [but] the trial court's decision to deny petitioner's motion was not error."

We granted review.


" ‘Under the ancient English system ... the most valuable function of the grand jury was not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge was founded upon credible testimony or was dictated by malice or personal ill will.’ [Citation.] [¶].... [¶] The grand jury's ‘historic role as a protective bulwark standing solidly between the ordinary citizen and an overzealous prosecutor [citation] is as well-established in California as it is in the federal system.... ‘A grand jury should never forget that it sits as the great inquest between the State and the citizen, to make accusations only upon sufficient evidence of guilt, and to protect the citizen against unfounded accusation, whether from the government, from partisan passion, or private malice.’ [Citation.] [¶] The protective role traditionally played by the grand jury is reinforced in California by statute." ( Johnson v. Superior Court (1975) 15 Cal.3d 248, 253–254, 124 Cal.Rptr. 32, 539 P.2d 792 ( Johnson ).)

Several provisions of the Penal Code establish procedures to select and dismiss grand jurors. Regarding initial selection, section 909 provides: "Before accepting a person...

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