6 Cal. 5th 486
Cal.2018Background
- Defendant Leo Brian Avitia was charged by complaint with multiple DUI-related offenses including second‑degree murder and vehicular manslaughter. A 19‑member grand jury indicted on six original counts plus an additional vehicular manslaughter count.
- During grand jury proceedings the prosecutor separately questioned two jurors outside the room. Juror No. 6 (foreperson) was questioned but not excused. Juror No. 18, a peace officer who said he would be biased, was told by the prosecutor to go down to the basement and let them know he was excused; the juror left and did not serve.
- Avitia moved under Penal Code § 995 (and by a nonstatutory motion incorporated into § 995) to set aside the indictment, arguing the prosecutor’s dismissal violated Penal Code § 939.5 (only the foreperson may direct a juror to retire) and deprived him of an impartial, independent grand jury. The trial court denied relief; the Court of Appeal affirmed.
- The California Supreme Court granted review to decide (1) whether a prosecutor’s dismissal violates § 939.5, (2) whether § 995(a)(1)(A) can provide relief for such a violation, and (3) what prejudice standard applies on a pretrial motion.
- The high court held the prosecutor’s dismissal violated § 939.5; a defendant may seek relief under § 995(a)(1)(A); but on a pretrial § 995 motion the defendant must show the violation reasonably might have had an adverse effect on the grand jury’s impartiality or independence.
- Applying that standard, the court affirmed denial of Avitia’s motion because Juror No. 18 had unequivocally said he could not be impartial and the prosecutor’s removal (conducted outside the jury room) likely mirrored what the foreperson would have done and did not reasonably suggest impairment of the grand jury’s independence or impartiality.
Issues
| Issue | Avitia's Argument | People/AG's Argument | Held |
|---|---|---|---|
| Whether a prosecutor may dismiss a grand juror during proceedings | Prosecutor’s dismissal violated § 939.5 because only the foreperson may direct a juror to retire | Prosecutor had authority or dismissal was harmless; no basis to set aside indictment | Prosecutor’s unilateral dismissal violates § 939.5; only the foreperson may direct retirement |
| Whether § 995(a)(1)(A) can be used to set aside an indictment for a § 939.5 violation by a prosecutor | § 995(a)(1)(A) permits relief where procedural rights at grand jury were violated by prosecutor | Precedent limited § 995(a)(1)(A) to certain related provisions; remedy not warranted here | A defendant may seek relief under § 995(a)(1)(A) when a prosecutor’s § 939.5 violation prejudices a substantial right |
| Prejudice standard on pretrial challenge to grand jury procedure | No showing of prejudice required for pretrial dismissal | Must show prejudice or adverse effect on grand jury independence/impartiality | On a pretrial § 995(a)(1)(A) motion defendant must show the error reasonably might have had an adverse effect on impartiality or independence (pretrial "reasonably might have affected the outcome" standard) |
| Application to facts: whether indictment must be set aside here | Prosecutor’s unlawful dismissal tainted the grand jury and requires dismissal | Juror admitted bias; removal likely would have occurred via foreperson; dismissal outside room minimized impact | Motion denied: Avitia failed to show the § 939.5 violation reasonably might have adversely affected grand jury impartiality or independence |
Key Cases Cited
- Johnson v. Superior Court, 15 Cal.3d 248 (overview of grand jury historic protective role)
- People v. Kempley, 205 Cal. 441 (court declined to set aside indictment for foreman’s § 907 violation; contempt remedy emphasized)
- People v. Jefferson, 47 Cal.2d 438 (applied Kempley regarding foreman noncompliance)
- Stark v. Superior Court, 52 Cal.4th 368 (prosecutorial conflict can require dismissal when it substantially impairs grand jury independence/impartiality)
- People v. Backus, 23 Cal.3d 360 (prosecutor’s duty to assure independence and fairness in grand jury proceedings)
- People v. Pompa‑Ortiz, 27 Cal.3d 519 (pretrial v. posttrial prejudice standards for § 995 claims)
- People v. Standish, 38 Cal.4th 858 (pretrial challenge requires showing error reasonably might have affected outcome)