Williams v. Superior Court of San Joaquin Cnty.

• Decision Date: 29 September 2017
• Docket Number: C083126
• Citation: 224 Cal.Rptr.3d 68,15 Cal.App.5th 1049
• Court: California Court of Appeals Court of Appeals
• Parties: Darren WILLIAMS, Petitioner, v. The SUPERIOR COURT of San Joaquin County, Respondent; The People, Real Party in Interest.

15 Cal.App.5th 1049

224 Cal.Rptr.3d 68

Darren WILLIAMS, Petitioner,

v. The SUPERIOR COURT of San Joaquin County, Respondent;The People, Real Party in Interest.

C083126

Court of Appeal, Third District, California.

Filed September 29, 2017

As Modified October 17, 2017

Miriam T. Lyell, Public Defender, Robert G. Remlinger, Nelson C. Lu and Jonathan W. Fattarsi, Deputy Public Defenders for Petitioner.

No Appearance for Respondent.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. Herndon and Paul E. O'Connor, Deputy Attorneys General for Real Party in Interest.

RENNER, J.

Petitioner Darren Williams seeks extraordinary writ relief from the superior court's order denying his Penal Code section 995¹ motion to dismiss an indictment issued by a grand jury charging him with a series of cell phone store robberies. Petitioner moved to dismiss the indictment on the basis that the deputy district attorney's excusal of a juror for hardship violated the grand jury's independence and rendered it improperly constituted. The California Supreme Court is currently considering the related question of 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) [nonpub. opn.], review granted June 21, 2017, S242030.² Pending further guidance from the Supreme Court, we resolve the matter before us. Petitioner also challenges the sufficiency of the evidence with respect to the gang allegations and counts regarding a March 10, 2014, robbery. We need not reach these sufficiency of the evidence claims because we conclude the superior court should have granted the motion to dismiss the indictment. The deputy district attorney's exercise of authority he did not have over the grand jury, in front of the grand jurors, was not harmless. It was a fundamental misunderstanding of the prosecutor's role that damaged the structure of the grand jury process and the independence of the grand jury itself. We will issue a peremptory writ of mandate vacating the superior court's order denying petitioner's motion to dismiss the indictment and directing the court to enter a new order granting the motion.

I. BACKGROUND

A. Grand Jury Proceedings

On August 6, 2015, the San Joaquin County District Attorney's Office filed a complaint charging petitioner and codefendants Jordan Ferguson and William Mayfield with multiple counts of robbery and other charges. The People filed an amended complaint on April 15, 2016, that included 26 charges and additional factual allegations. Petitioner in particular was charged with 15 counts of robbery, two counts of attempted robbery, one count of conspiracy to commit a crime, one count of kidnapping to commit robbery, and one count of possession of an assault weapon.

The transcript of the grand jury proceedings provided by petitioner begins on April 25, 2016, with the deputy district attorney introducing himself to the jurors. Next, the deputy district attorney excused Juror No. 15 from service: "Before I get any further, I have been informed that one of our potential jurors who was designated as Juror Number 15 learned over the break that she will not get paid for the full five days and that she has informed us that that will cause her an economic hardship as stated in the statute. [¶] So I'm going to release her from her service at this time . [¶] And that was—and just for the record, Juror Number 15; is that correct?

"THE JURORS: Yes.

"[Deputy District Attorney]: Thank you. [¶] You can leave your materials there and I will pick them up again." (Italics added.)

The proceedings continued with 18 jurors, and witness testimony began the following day. At the beginning of the second day of testimony, the deputy district attorney made the following record:

"Grand Juror Number 10 approached me yesterday at the conclusion of testimony for the day and let me know that one of the witnesses she recognized. She did not recognize that person when we read the witness list. They're not a close relationship of any real kind, and she assured me that that relationship wouldn't affect her ability to be impartial and impartially judge the facts of this case and deliberate.

"Is that correct?

"JUROR NO. 10: Yes.

"[Deputy District Attorney]: Thank you."

After that, testimony continued. The last witness testified and jury instructions were read on April 29, 2016. The prosecutor finished reading the jury instructions sometime after 1:30 p.m. and then gave a closing argument. The grand jury deliberated and returned a 68-page indictment later that same day. At least 12 of the grand jurors concurred in the finding of the indictment.

With respect to petitioner, the indictment included all the offenses and allegations that appeared in the amended complaint.

B. Motion to Dismiss the Indictment

On July 15, 2016, petitioner filed a motion to dismiss the indictment against him under section 995. He argued that, by dismissing a previously qualified grand juror for hardship, the prosecutor exceeded his authority, "usurped a judicial branch function," and "invaded the independent role of the grand jury." This, he argues, left an improperly constituted jury of less than the required 19 grand jurors and rendered the indictment fatally defective. Petitioner argued these allegations were "compounded by other actions of the Deputy District Attorney" but did not specify any. Additionally, petitioner raised challenges to the sufficiency of the evidence with regard to the gang allegations and his involvement in the March 10, 2014, robbery.

The People's opposition attached as an exhibit a ruling by the Honorable Brett H. Morgan denying a motion to dismiss an indictment in an unrelated grand jury proceeding in which a different San Joaquin County deputy district attorney exceeded his authority by excusing a biased juror outside the presence of the other jurors.³ As discussed below, this action violated sections 910 and 939.5.

Borrowing from this earlier ruling, the court denied petitioner's motion. With respect to the excusal of Juror No. 15, the court explained, "[E]verybody agrees [the deputy district attorney] kicked off a juror improperly, although, [the juror] probably would have been excused by a judicial officer in some fashion. But it's not clear what the remedy is here. Judge Morgan felt, I think, his cases that he cites are correct, that there is no automatic prejudice by having 18 versus 19 when you have the declaration that 12 or more returned the indictment. That's what you are entitled to. So what's the best that could have happened here? This 19th juror could have voted against a voting order or the indictment. Still would have had 12 or more.

"So with that state, I don't think there is any automatic prejudice, and I don't see that the defendant has shown any actual prejudice here. Twelve or more grand jurors voted for the indictment and that's all that's required.

"So while there was a technical violation of that statute, I don't think it rises to a due process violation and its displayed prejudice here on behalf of any of the defendants. So I would overrule the 995 on those grounds."

Petitioner sought review in this court by filing a petition for writ of mandate or prohibition. We requested that the People file an opposition, and they did.

On December 1, 2016, we issued an order to show cause why the relief prayed for in this proceeding should not be granted and issued a stay of all further proceedings, including the trial. The People subsequently indicated their earlier opposition to the petition may be deemed their return.

II. DISCUSSION

A. The Grand Jury Process

In the prosecution of a felony, the People may proceed either by indictment or information. ( Cal. Const., art. I, § 14 ; §§ 682, 737.) "An indictment is an accusation in writing, presented by the grand jury to a competent court, charging a person with a public offense." (§ 889.) "Thus, under the statutory scheme, it is the grand jury's function to determine whether probable cause exists to accuse a defendant of a particular crime." ( Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026, 13 Cal.Rptr.2d 551, 839 P.2d 1059.) "Prior to the authorization of informations, the chief function of the grand jury was to hear evidence of felonies and to bring indictments." ( 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Introduction to Criminal Procedure, § 33, p. 58.) While this is no longer so (ibid .), in determining whether probable cause exists to accuse a defendant of a particular crime, "[t]he 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." ( Johnson v. Superior Court of San Joaquin County (1975) 15 Cal.3d 248, 253-254, 124 Cal.Rptr. 32, 539 P.2d 792.) A grand jury is " ‘ "a constitutional fixture in its own right." ’ [Citations.] In fact the whole theory of its function is that it belongs to no branch of the institutional Government, serving as a kind of buffer or referee between the Government and the people. [Citations.] Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the Judicial Branch has traditionally been, so to speak, at arm's length." ( United States v. Williams (1992) 504 U.S. 36, 47, 112 S.Ct. 1735, 118 L.Ed. 2d 352.)

The grand jury originates from the common law, but "the California Legislature has codified extensive rules defining it and governing its formation and proceedings, including provisions for implementing the long-established tradition of grand jury secrecy." ( Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1122, 86 Cal.Rptr.2d 623, 979 P.2d 982.) For instance, "[d]eliberations of the grand jury are completely private; no...