LEO BRIAN AVITIA, Petitioner, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; THE PEOPLE, Real Party in Interest.
S242030
IN THE SUPREME COURT OF CALIFORNIA
December 24, 2018
241 Cal. Rptr. 3d 190 | 431 P.3d 176 | 6 Cal. 5th 486
Third Appellate District, C082859. San Joaquin County Superior Court, STKCRFE2016881, GJ20164112415.
Justice Liu authored the opinion of the court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Cuellar, Kruger and Rubin* concurred.
Justice Chin filed a concurring opinion in which Chief Justice Cantil-Sakauye concurred.
* Presiding Justice of the Court of Appeal, Second Appellate District, Division Five, assigned by the Chief Justice pursuant to
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
We hold that a prosecutor‘s dismissal of a grand juror violates
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.
I.
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 (
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 thаt 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.
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
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.
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.
II.
” ‘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 ‘historiс 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 (Johnson).)
Several provisions of the
After selection, the dismissal of a grand juror must also fоllow certain procedures.
The parties agree, and we also agree, that a prosecutor‘s dismissal of a grand juror violates
III.
We next consider whether an indictment must be set aside because of a prosecutor‘s violation of
In two early cases, we said that a grand jury foreman‘s noncompliance with section 907, the precursor to
Kempley and Jefferson are distinguishable because they concerned violations of
Section 995(a)(1)(A)‘s directive to set aside an indictment “not found, endorsed, and presented as prescribed in this code” may provide a remedy in certain cases when procedural rights of the accused have been violated. In the related context of setting aside an information under
The Attorney General relies on Jefferson‘s observation that section 995(a)(1)(A) “has been interpreted as applying only to those sections in part 2, title 5, chapter 1, of the Penal Code beginning with section 940.” (Jefferson, supra, 47 Cal.2d at p. 442, citing Kempley, supra, 205 Cal. at p. 447.) But this dicta was only an observation about how our precedent had interpreted section 995(a)(1)(A) up to that point. Neither Kempley nor Jefferson contemplated the availability of a section 995(a)(1)(A) remedy when a prosecutor, rather than the grand jury foreperson, was responsible for a
We next address whether a
Although not every prosecutorial violation of
IV.
Next, we consider what standard applies in determining whether a prosecutor‘s violation of
“[S]ome errors such as denial of the right to counsel by their nature constitute a denial of a substantial right.” (Standish, supra, 38 Cal.4th at p. 882; see, e.g., People v. Gamache (2010) 48 Cal.4th 347, 396 [“[S]tructural errors not susceptible to harmless error analysis are those that go to the very construction of the trial mechanism — a biased judge, total absence of counsel, the failure of a jury to
In certain instances, we have set aside informations because of procedural defects without conducting a prejudice analysis. (See People v. Elliot (1960) 54 Cal.2d 498, 504 (Elliot) [defendant was denied the right under ”
More recently, we have explained that “whether a showing of prejudice is required depеnds on the stage of the proceedings at which the claim is raised in the reviewing court.” (People v. Booker (2011) 51 Cal.4th 141, 157.) In People v. Pompa-Ortiz (1980) 27 Cal.3d 519 (Pompa-Ortiz), we considered a defendant‘s request, on appeal from a judgment of conviction, to set aside an information under
Pompa-Ortiz involved a posttrial motion and did not provide an occasion for application of its language concerning “pretrial challenges of irregularities.” (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) We clarified in Standish, which involved a pretrial motion to set aside an information, that Pompa-Ortiz did not mean that “any and all irregularities that precede or bear some relationship to the preliminary examination require that the information be set aside pursuant to
The violation of other statutes that “do[] not implicate a core right at the preliminary examination itself” or “call[] for dismissal” are “subject to the general test for prejudice because ... the error is not inherently prejudicial.” (Standish, supra, 38 Cal.4th at p. 883.) In light of this case law, we hold that outside a narrow category of errors that “by their nature constitute a denial of a substantial right” and hence require dismissal “without any showing of prejudice,” a defendant seeking to set aside an indictment before trial must show that an error “reasonably might have affected the outcome.” (Id. at pp. 882, 886.) This showing is less onerous than the “reasonably probable” showing required to prevail on a similar motion after trial, when interests in finality are greater. (See id. at pp. 882-883 [“By this language, we do not mean that the defendant must demonstrate that it is reasonably probable he or she would not have been held to answer in the absence of the error. Rather, the defendant‘s substantial rights are violated when the error is not minor but ‘reasonably might have affected the outcome’ in the particular case.“].)
We agree with the Court of Appeal in this case that a
V.
We now apply this inquiry to the facts of this case. As noted, the prosecutor‘s dismissal of Juror No. 18 was unlawful under
As for the independence of the grand jury, the prosecutor unquestionably influenced the composition of the grand jury by removing Juror No. 18. But mere influence over the composition of the grand jury is not impermissible;
In this case, nothing in the record suggests that the prosecutor was improperly involved in the selection of the grand jurors or in the grand jury‘s subsequent decisionmaking process. Instead, the record indicates that the prosecutor dismissed Juror No. 18 outside the presence of other grand jurors after the grand jury heard Juror No. 18 express concern about his own bias. The fact that the prosecutor dismissed Juror No. 18 outside the presence of
Dustin v. Superior Court (2002) 99 Cal.App.4th 1311 is distinguishable. The court there held “it was error for the trial court to have placed the burden on defendant to show prejudice as a result of the denial of his right to a transcript of the entire grand jury proceedings.” (Id. at p. 1326.) But the court did so where “[i]n the absence of a transcript, coupled with the fact that no judge or defense representative was present, it is difficult to imagine how a defendant could ever show prejudice.” (Ibid.) Further, the court said the prosecutor apparently excluded a court reporter “for the express purpose of precluding discovery by the defendant of his opening statement and closing argument” and that “the prosecutor‘s behavior is relevant in addressing whether dismissal is an appropriate remedy for the failure to providе a complete transcript of the grand jury proceedings.” (Id. at pp. 1323-1324.) No similar circumstance is present here.
Although we conclude that Avitia‘s motion fails on the facts before us, we emphasize that prosecutors must be mindful of the dictates of
We affirm the judgment of the Court of Appeal and vacate the stay we previously imposed.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
RUBIN, J.*
* Presiding Justice of the Court of Appeal, Second Appellate District, Division Five, assigned by the Chief Justice pursuant to
Concurring Opinion by Justice Chin
I agree that
Although the majority barely acknowledges it, the prosecutor excused a grand juror who was biased against defendant, Leo Brian Avitia. Excusing a grand juror who was biased against a defendant does not violate that defendant‘s substantial rights. Nor does it call into question ” ‘the intеgrity of the grand jury.’ ” (Maj. opn., ante, at p. 18.)
As a result, I do not read today‘s opinion as answering the question that both the high court and our state courts have previously avoided answering — whether defendants have a due process right to enforce procedures that ensure the impartiality of a grand jury under pain of dismissal. (Beck v. Washington (1962) 369 U.S. 541, 546; Jackson v. Superior Court (2018) 25 Cal.App.5th 515, 530, review granted Sept. 19, 2018, S250995; Packer v. Superior Court (2011) 201 Cal.App.4th 152, 168-169.) Like those cases, and to an even greater extent here, it is sufficient to state that defendant failed to show he was judged by a biased grand juror.
This is an odd case. Decades ago, we noted with approval that the Court of Appeal in the case had “held that the obligation of the prosecutor to assure independence, procedural regularity, and fairness in grand jury proceedings is compelled by due process. ...” (People v. Backus (1979) 23 Cal.3d 360, 392, italics added.) The prosecutor might have had that admonition in mind when excusing a grand juror who was biased against defendant.
A credible argument exists that the prosecutor has inherent authority under People v. Backus, supra, 23 Cal.3d 392, to excuse a grand juror who
But no party is arguing that, as part of his obligation to ensure fairness, the prosecutor had inherent authority to excuse the biased juror. Accordingly, I accept that the prosecutor erred; only the foreperson may excuse a grand juror. But it was a technical error. Rather than excuse the juror himself, the prosecution could have advised the foreperson to excuse the juror. Certainly, the prosecutor had the authority to do that. “The district attorney of the county may at all times appear before the grand jury for the purpose of giving information or advice relative to any matter cognizable by the grand jury ....” (
The difference between excusing the biased juror directly and advising the foreperson to do so could not have affected any substantial right of the defendant. Either way, a juror biased against him would have been removed.
I do not suggest that an indictment can never be set aside because of a
CHIN, J.
I Concur:
CANTIL-SAKAUYE, C. J.