Jackson v. Superior Court of Contra Costa Cnty.

• Decision Date: 24 July 2018
• Docket Number: A153818
• Citation: 235 Cal.Rptr.3d 896,25 Cal.App.5th 515
• Court: California Court of Appeals Court of Appeals
• Parties: Jonathan JACKSON, Petitioner, v. The SUPERIOR COURT of Contra Costa County, Respondent; The People, Real Party in Interest.

25 Cal.App.5th 515

235 Cal.Rptr.3d 896

Jonathan JACKSON, Petitioner,

v. The SUPERIOR COURT of Contra Costa County, Respondent;The People, Real Party in Interest.

A153818

Court of Appeal, First District, Division 4, California.

Filed July 24, 2018

Evan Isaac Kuluk, Deputy Public Defender, Elizabeth K. Barker, Assistant Public Defender, for Petitioner.

No appearance for Respondent.

Xavier Becerra, Attorney General of California, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan, René A. Chacón, Supervising Deputy Attorneys General, for Real Party in Interest

Schulman, J.^* Petitioner Jonathan Jackson seeks extraordinary writ relief from the superior court's order denying his motion to dismiss an indictment issued by a grand jury charging him with special circumstances murder, kidnapping, and rape. Petitioner moved to dismiss the indictment pursuant to Penal Code section 995¹ and on nonstatutory grounds. The motion was brought on the grounds, among others, that the deputy district attorney's excusal of a juror for cause, in the presence of the remaining grand jurors, substantially impaired the independence and impartiality of the grand jury, deprived petitioner of a substantial right, and thereby violated his right to due process. The California Supreme Court is currently considering whether a prosecutor's improper dismissal of a grand juror denied a defendant a "substantial right" in Avitia v. Superior Court (Apr. 18, 2017, C082859), 2017 WL 1382115 [nonpub. opn.], review granted June 21, 2017, S242030. That court has also granted review of a subsequent decision by the Third District Court of Appeal that presents issues similar to those presented here. ( Williams v. Superior Court (2017) 15 Cal.App.5th 1049, 224 Cal.Rptr.3d 68, review granted Dec. 13, 2017, S245314 ( Williams ).) We conclude that while the prosecutor's dismissal of the grand juror was improper and violated section 939.5, it did not rise to the level of a violation of petitioner's due process rights, nor did it deprive petitioner of a substantial right. Further, petitioner has not made a showing of prejudice sufficient to warrant dismissal of the indictment. Accordingly, we shall deny the petition.

I. BACKGROUND

A. Grand Jury Proceedings

On October 13, 2016, the Contra Costa County District Attorney's Office filed a complaint charging petitioner with one count of murder (§ 187, subd. (a) ); one count of kidnapping to commit rape (§ 209, subd. (b)(1) ); one count of kidnapping to commit sexual penetration by foreign object (§ 209, subd. (b)(1) ); one count of forcible rape (§ 261, subd. (a)(2) ); and one count of sexual penetration by a foreign object (§ 289, subd. (a)(1)(A) ). With respect to the murder charge, petitioner was charged with felony murder special circumstances under two theories: rape and rape by instrument (§ 190.2, subd. (a)(17) ). With respect to the kidnapping charges, petitioner was charged with great bodily injury enhancements for an elderly victim pursuant to section 12022.7, subdivision (c). With respect to the rape and penetration charges, petitioner was charged with an enhancement pursuant to section 667.61, subdivision (a) and (d), for kidnapping and inflicting great bodily injury.

On March 27, 2017, before a preliminary hearing could be conducted, a grand jury was convened to consider criminal charges against petitioner. At the outset of the proceedings, the deputy district attorney, Aron J. DeFerrari, introduced himself to the 19 grand jurors present and presented an overview of the role of the grand jury, including its investigative function and the district attorney's advisory role. The deputy district attorney then gave an opening statement summarizing the alleged crimes and the evidence he anticipated the grand jury would hear. He also supplied the grand jurors with a list of witnesses he anticipated calling. At his request, the grand jury forewoman then read the following statement based upon section 939.5: "The grand jury is about to consider a request for an indictment brought by the District Attorney. I direct any member of the grand jury who has a state in mind in reference to the case to either party or any witness which will prevent him or her from acting impartially and without prejudice to the substantial rights of either party to retire." The deputy district attorney then asked whether any of the grand jurors knew the petitioner, the alleged victim, Sun Yi Kwon, or any of the listed witnesses. One grand juror responded affirmatively, and the following exchange ensued:

"A GRAND JUROR: Well, I really—I met Miss Jackson [sic] several times when she was at the donut shop, but I can't say I know her.

"MR. DeFERRARI: You met Miss Jackson or Miss Kwon?

"A GRAND JUROR: Kwon. Not Jackson, Kwon. The Oriental lady. She goes to the same place where I go to buy donuts, next to where she used to live. But I can't say that I know her. So I just want to bring it up.

"MR. DeFERRARI: And this was back, obviously, before 2012?

"A GRAND JUROR: Oh, yeah. Yeah. A couple days later, I was there and I heard. And that's why I said in the paper, everything came up. But just want to bring it up. I'm not trying to excuse myself.

"MR. DeFERRARI: No. Thank you. I appreciate you bringing it up. This is really important.

"Is your familiarity with Miss Kwon or the nature of the case itself, 'cause you're the same grand juror who brought up that this was in the newspapers, going to influence you such that you cannot be fair and impartial in your consideration of this evidence or your investigation of the case or both?

"A GRAND JUROR: Well, it's—I'd like to stay, but it's a tough decision when you know what the guy did.

"MR. DeFERRARI: Here is my—

"A GRAND JUROR: I'd like to hear it through.

"MR. DeFERRARI: Here's my thought: I want to make sure, again, that what we do here is transparent and has integrity and stands up to scrutiny. So out of an abundance of caution, you seem like an honest guy, you seem like you can be fair and impartial, but out of an abundance of caution, I'm going to excuse you from grand jury service in this case. Okay?

"What I want you to do is return next Monday, right? I want you to come back on Monday to the exact same place.

"A GRAND JUROR: Here?

"MR. DeFERRARI: Right here, sir. And you're going to be able to hear the other cases presented to you. Okay. The other cases that have nothing to do with Miss Kwon. But because you saw her and because you're familiar with her and you know a little bit about the case, I just want to be careful and make sure that we don't—we don't have you sit through something that may trigger something in you that you won't be able to be fair.

"I'll tell you this—let me put it this way. If I were Mr. Jackson's attorney and if I were sitting in this room, and I had somebody that said, 'Oh, I did see her a lot when she would come into the donut store,' I would think, This isn't somebody I'd necessarily want hearing about this case.

"Again, it's nothing personal, but I do have a job to do in terms of making sure we can be fair and impartial. Okay?

"A GRAND JUROR: I'm curious to see the results.

"MR. DeFERRARI: I understand.

"Now, let me do one thing, sir. Can you do this for me? Can you write down your name—I don't want to use anybody's names on the record because the grand jurors are to remain confidential. So if you can write down your name and give it to Madam Forewoman, I'm going to have Madam Forewoman keep this, and that way I can relay to jury services and the judge what we've done.

"All right. Thank you very much, sir. I appreciate your time. You can leave your materials here. And then, again, we'll see you back here on—

"A GRAND JUROR: Monday?

"MR. DeFERRARI: —Monday, 9:00 o'clock a.m."

The deputy district attorney then asked, "Anyone else have any issues that would give them a bias in this case or prejudice such that they could not be fair and impartial? Anyone else at all? Okay. Excellent."

The deputy district attorney then handed out a draft indictment to the grand jury, responded to some questions regarding lesser included offenses and other issues, and read the jury opening instructions. Over the course of the next several days, the grand jury heard testimony by multiple witnesses and received documentary and other evidence, including exculpatory evidence. On April 6, 2017, the grand jury returned an indictment against petitioner. All 18 remaining grand jurors concurred in the finding of the indictment. The indictment included all the offenses, enhancements, and allegations that appeared in the complaint.²

B. Motion to Dismiss the Indictment

On July 21, 2017, petitioner filed a motion to dismiss the indictment against him. He argued, among other things, that the grand jury proceedings denied him due process because the prosecution had subverted the independence of the grand jury and thwarted its protective role by treating it as "part of the prosecution team." On October 16, 2017, after the publication of the decision in Williams , petitioner filed a supplemental brief in support of his motion to dismiss the indictment based on that newly decided authority, arguing that the prosecution had violated petitioner's due process rights by improperly dismissing a grand juror for bias.

Following the October 27, 2017 initial hearing on the motion, the People filed an additional supplemental brief. They expressly "concede[d] that DDA DeFerrari committed an error by dismissing a grand juror from the proceedings based on bias." They argued, however, that removal of the grand juror did not substantially impair the grand jury's impartiality and independence because, unlike Williams , the district attorney did not supplant the court's role in the grand jury proceedings, and because the grand juror was dismissed in order to protect the petitioner's due process rights and prevent bias from influencing its deliberations. The People filed written...