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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

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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 (§ 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?”

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Opinion of the Court by Liu, J.

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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

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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

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5

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.

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 ‘historic role as a

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protective bulwark standing solidly between the ordinary

citizen and an overzealous prosecutor’ [citation] is as wellestablished

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 Penal Code establish procedures

to select and dismiss grand jurors. Regarding initial selection,

section 909 provides: “Before accepting a person drawn as a

grand juror, the court shall be satisfied that such person is duly

qualified to act as such juror. When a person is drawn and found

qualified he shall be accepted unless the court, on the

application of the juror and before he is sworn, excuses him from

such service for any of the reasons prescribed in this title or in

Chapter 1 (commencing with Section 190), Title 3, Part 1 of the

Code of Civil Procedure.” Section 910 provides: “No challenge

shall be made or allowed to the panel from which the grand jury

is drawn, nor to an individual grand juror, except when made by

the court for want of qualification, as prescribed in Section 909.”

After selection, the dismissal of a grand juror must also

follow certain procedures. Section 935 provides: “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, and may interrogate

witnesses before the grand jury whenever he thinks it

necessary.” But the statute confers no authority on a prosecutor

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to dismiss a grand juror. Rather, section 939.5 provides: “Before

considering a charge against any person, the foreman of the

grand jury shall state to those present the matter to be

considered and the person to be charged with an offense in

connection therewith. He shall direct any member of the grand

jury who has a state of mind in reference to the case or to either

party which will prevent him from acting impartially and

without prejudice to the substantial rights of the party to retire.

Any violation of this section by the foreman or any member of

the grand jury is punishable by the court as a contempt.” These

statutes serve to ensure the impartiality and independence of

the grand jury.

The parties agree, and we also agree, that a prosecutor’s

dismissal of a grand juror violates section 939.5. During

selection of the grand jury, section 909 authorizes “the court” to

“excuse[] [a juror] from such service” for lacking certain

qualifications. After selection, section 939.5 authorizes “the

foreman of the grand jury” to “direct any member of the grand

jury who has a state of mind in reference to the case or to either

party which will prevent him from acting impartially and

without prejudice to the substantial rights of the party to retire.”

Section 935 authorizes the prosecutor to “give[] information or

advice relative to any matter cognizable by the grand jury.” But

no provision authorizes a prosecutor to dismiss a grand juror, as

the prosecutor did here. The prosecutor could have made his

concerns about Juror No. 18 known to the foreperson, who in

turn could have directed the juror to retire in accordance with

section 939.5. But the prosecutor’s dismissal of Juror No. 18

exceeded his authority.

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III.

We next consider whether an indictment must be set aside

because of a prosecutor’s violation of section 939.5. That

provision says: “Any violation of this section by the foreman or

any member of the grand jury is punishable by the court as a

contempt.” But the provision does not say what remedy is

available for a violation by the prosecutor. Avitia argues that

an indictment can nonetheless be set aside under section 995.

We agree that a defendant may seek a remedy under section

995(a)(1)(A) when a prosecutor dismisses a grand jury member

in violation of section 939.5.

In two early cases, we said that a grand jury foreman’s

noncompliance with section 907, the precursor to section 939.5,

was not grounds for dismissing an indictment under section 995.

In People v. Kempley (1928) 205 Cal. 441 (Kempley), two

defendants appealed from their convictions for accepting bribes

and moved for a new trial under section 995(a)(1)(A). (Kempley,

at p. 444.) The defendants offered to prove that several

members of the grand jury personally interviewed individuals

outside those named in the proceedings, used private funds to

employ detectives to obtain evidence, and had already decided

to indict without having heard any evidence. (Id. at p. 446.) We

understood the defendants’ claim as a challenge to “the

individual members of the grand jury on the ground of bias or

prejudice” (ibid.), and we observed that section 907 provides the

proper recourse to address such defects (Kempley, at p. 447).

Rejecting the defendants’ claim, we said: “The provisions of

[section 907] were not complied with; but the neglect or failure

of the foreman to comply therewith is not made a ground for

setting aside the indictment by section 995 of the Penal Code

and section 907 contains within itself the penalty for the

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violation of its provisions,” i.e., the foreman’s violation is

punishable as a contempt. (Ibid., italics added.) In People v.

Jefferson (1956) 47 Cal.2d 438 (Jefferson), we applied Kempley

to reject another motion to set aside an indictment under section

995(a)(1)(A) where the grand jury foreperson again did not

comply with former section 907.

Kempley and Jefferson are distinguishable because they

concerned violations of section 939.5 (former section 907) by the

grand fury foreperson and not, as here, by a prosecutor. Section

939.5 specifies a penalty of contempt for violations by the

foreperson but provides no comparable mechanism to deter

violations by a prosecutor. (Kempley, supra, 205 Cal. at pp. 447–

448.) Nor does such a violation fall within the coverage of

section 995(a)(1)(B), which requires setting aside an indictment

where the defendant “has been indicted without reasonable or

probable cause.” (Cf. Stark v. Superior Court (2011) 52 Cal.4th

368, 407 (Stark) [setting aside an indictment under section

995(a)(1)(B) “when a grand jury is not asked to consider the

mental state required for the commission of the offense”];

Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1029

[refusing to set aside an indictment under section 995(a)(1)(B)

because a challenged instruction on probable cause was

adequate and there was sufficient evidence to find probable

cause]; People v. Backus (1979) 23 Cal.3d 360, 385–391 [refusing

to set aside an indictment under section 995(a)(1)(B) because

there was sufficient evidence to find probable cause].) Avitia

does not claim that the prosecutor’s dismissal of Juror No. 18

resulted in a grand jury that indicted him without reasonable or

probable cause.

Section 995(a)(1)(A)’s directive to set aside an indictment

“not found, endorsed, and presented as presented in this code”

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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 section 995, we have

explained that “ ‘[a]n information . . . will not be set aside merely

because there has been some irregularity or minor error in

procedure in the preliminary examination. [Citation.] But

where it appears that, during the course of the preliminary

examination, the defendant has been denied a substantial right,

the commitment is unlawful within the meaning of section 995,

and it must be set aside upon timely motion.’ ” (Jennings v.

Superior Court (1967) 66 Cal.2d 867, 874.) Because the text of

section 939.5 also addresses substantial rights, we see no reason

why a similar rule should not apply to ensure the procedural

integrity of an indictment when a prosecutor violates this

section. (§ 939.5 [“[the foreperson] shall direct any member of

the grand jury who has a state of mind in reference to the case

or to either party which will prevent him from acting impartially

and without prejudice to the substantial rights of the party to

retire”] (italics added).) In this context, section 995(a)(1)(A)

allows a defendant to pursue a motion to set aside an indictment

where the defendant alleges that a prosecutor’s violation of

section 939.5 has prejudiced a substantial right.

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

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995(a)(1)(A) remedy when a prosecutor, rather than the grand

jury foreperson, was responsible for a section 939.5 violation.

We next address whether a section 939.5 violation by a

prosecutor can amount to the violation of a substantial right.

Although we have focused our analysis on “substantial rights”

in some contexts (People v. Standish (2006) 38 Cal.4th 858, 882

(Standish)) and “due process” in others (Stark, supra, 52 Cal.4th

at p. 417), we understand the inquiries to be one and the same

in this context: a right is substantial when denial of the right

results in a denial of due process. In Stark, we said that a

prosecutor’s conflict of interest — there it was alleged that the

district attorney’s office was “financially impacted” by the

defendant’s misconduct and that the prosecutor was “personally

involved” in the events under investigation (id. at p. 414) — can

result in a denial of due process if it is shown that the conflict

“substantially impaired the independence and impartiality of

the grand jury” (id. at p. 417). A prosecutor’s violation of section

939.5 likewise can threaten the basic function of the grand jury

as “ ‘a protective bulwark standing solidly between the ordinary

citizen and an overzealous prosecutor.’ ” (Johnson, supra, 15

Cal.3d at p. 253.) A prosecutor’s improper dismissal of a grand

juror may result in a grand jury that is skewed in its

composition. It also risks creating a perception in the jurors’

minds that the prosecutor exercises control over the operation

and functions of the grand jury, beyond the authority vested in

the foreperson and the jurors themselves. Section 939.5’s

conferral of authority on the foreperson to dismiss a biased juror

is an important safeguard to ensure that the grand jury remains

impartial and independent of the prosecutor.

Although not every prosecutorial violation of section 939.5

is reason to set aside an indictment, an indictment must be set

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aside where the violation results in the denial of a substantial

right. (See Stark, supra, 52 Cal.4th at p. 417 [“the manner in

which the grand jury proceedings are conducted may result in a

denial of defendant’s due process rights, requiring dismissal of

the indictment”]; cf. Beck v. Washington (1962) 369 U.S. 541;

Packer v. Superior Court (2011) 201 Cal.App.4th 152.) We hold

that a defendant can proceed by a section 995(a)(1)(A) motion to

set aside an indictment on the ground that a section 939.5

violation substantially impaired the impartiality and

independence of the grand jury.

IV.

Next, we consider what standard applies in determining

whether a prosecutor’s violation of section 939.5 amounts to the

denial of a defendant’s substantial right to an impartial and

independent grand jury. Avitia argues that no showing of

prejudice is required because he is seeking dismissal of the

indictment in a pretrial motion. The Attorney General

disagrees. We hold that the defendant, when proceeding by way

of a section 995(a)(1)(A) motion, must show that the section

939.5 violation reasonably might have had an adverse effect on

the impartiality or independence of the jury.

“[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 reach any verdict on

an essential element.”]; Vasquez v. Hillery (1986) 474 U.S. 254,

263–264 [“[D]iscrimination in the grand jury undermines the

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structural integrity of the criminal tribunal itself, and is not

amenable to harmless-error review.”].) 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 “section 868 of the Penal Code, to require that all

unauthorized persons be excluded from the courtroom during

the preliminary examination”]; People v. Napthaly (1895) 105

Cal. 641, 644–645 [defendant was denied the right to counsel];

see also Harris v. Superior Court (2014) 225 Cal.App.4th 1129,

1144 [defendant was denied effective assistance of counsel

because counsel “had a material conflict of interest with him at

the time of his preliminary hearing”].)

More recently, we have explained that “whether a showing

of prejudice is required depends 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 section 995 because his preliminary

examination had been closed to the public. (Pompa-Ortiz, at

p. 522.) We said “[i]t is settled that denial of a substantial right

at the preliminary examination renders the ensuing

commitment illegal and entitles a defendant to dismissal of the

information on timely motion.” (Id. at p. 523.) Applying this

interpretation of section 995, we held that a defendant “has a

statutory right to a public preliminary examination and that

denial of the right renders the commitment unlawful within the

meaning of Penal Code section 995[(a)(2)(A)].” (Id. at p. 522.)

But we also held that “such illegality can be successfully urged

as a ground of reversal on appeal only if it in some way

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prejudiced defendant at his subsequent trial.” (Ibid., citing Cal.

Const., art. VI, § 13.) Because the defendant made “no showing

that he was denied a fair trial or otherwise suffered prejudice

from the closure of the preliminary examination,” we affirmed

the judgment of conviction. (Id. at p. 530.) In reaching this

conclusion, we held that “irregularities in the preliminary

examination procedures which are not jurisdictional in the

fundamental sense shall be reviewed under the appropriate

standard of prejudicial error and shall require reversal only if

defendant can show that he was deprived of a fair trial or

otherwise suffered prejudice as a result of the error at the

preliminary examination.” (Id. at p. 529.) We added, “The right

to relief without any showing of prejudice will be limited to

pretrial challenges of irregularities.” (Ibid.) We have since said

“[t]he reasoning of Pompa-Ortiz applies with equal force in the

grand jury context.” (People v. Towler (1982) 31 Cal.3d 105,

123.)

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 section 995.”

(Standish, supra, 38 Cal.4th at p. 885.) We recognized that

certain errors, even if challenged before trial, will be considered

a denial of a substantial right “only if the error ‘reasonably

might have affected the outcome.’ ” (Id. at p. 882, quoting People

v. Konow (2004) 32 Cal.4th 995, 1024–1025.) We distinguished

two pretrial cases where we presumed prejudice in light of

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statutory violations because “they were based in large part on

the circumstance that the relevant statute required dismissal as

the proper remedy when, without a showing of good cause, the

defendant had not been brought to trial within the statutory

period.” (Id., at p. 886, citing Serna v. Superior Court (1985) 40

Cal.3d 239, 263 [“Prejudice is presumed when relief is sought on

section 1382 grounds pretrial because the statute commands

that the court ‘must order the action to be dismissed.’ ”]; People

v. Wilson (1963) 60 Cal.2d 139, 151 [“[S]ection 1382, subdivision

2, is mandatory . . . ; hence—there being no sufficient showing

of good cause for delay in the case at bench—defendant then had

the right to have the action dismissed on his motion.”].) 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.” (Standish, supra, 38 Cal.4th

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

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the outcome’ in the particular case.”].) We agree with the Court

of Appeal in this case that a section 939.5 violation is “not

inherently prejudicial.” When a defendant seeks to set aside an

indictment before trial under section 995(a)(1)(A) on the ground

that the prosecutor violated section 939.5, the indictment must

be set aside only when the defendant has shown that the

violation reasonably might have had an adverse effect on the

independence or impartiality of the grand jury.

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 section 939.5. But Juror No. 18 had said he thought he

would be biased in evaluating the case, and the prosecutor

appeared to dismiss the juror on that basis. We cannot be

certain what the foreperson would have done if not for the

prosecutor’s actions or how the grand jury would have otherwise

proceeded. But in light of Juror No. 18’s unequivocal statement

that he would not be able to fairly review the case, there is a

high probability that the foreperson ultimately would have

removed the juror. In any event, the dismissal of Juror No. 18

helped to ensure the grand jury’s impartiality by removing a

potential juror who said he could not be impartial.

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; section 935 provides that

the prosecutor may “giv[e] information or advice relative to any

matter cognizable by the grand jury.” The facts here are

different from cases where the prosecutor was actively involved

in the selection of grand jurors or excused a grand juror in the

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presence of other grand jurors. In those cases, the prosecutor’s

actions could have led grand jurors to believe they were

beholden to the prosecutor during the decisionmaking process.

(See De Leon v. Hartley (N.M. 2014) 316 P.3d 896, 901 (De Leon)

[setting aside an indictment where the district court permitted

the prosecutor to select the grand jury without the court’s

involvement]; Williams v. Superior Court (2017) 15 Cal.App.5th

1049, 1061 [setting aside an indictment where “[t]he

prosecutor’s actions supplanted the court’s role in the

proceedings and, because the excusal colloquy took place in front

of the other jurors, allowed the remaining jurors to mistakenly

believe the prosecutor had legal authority to approve a hardship

request”].)

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 the other grand jurors does not make the

dismissal any less unlawful. But it reduced the likelihood that

the independence of the remaining grand jury was impaired.

The other members had no reason to think that the prosecutor,

as opposed to the foreperson, dismissed Juror No. 18. On the

record before us, the foreperson was the only grand juror who

could have known that he was not the one who removed Juror

No. 18, and even the foreperson did not necessarily know it was

the prosecutor who had done so. Avitia therefore has not shown

that the error reasonably might have affected the impartiality

or independence of the grand jury in an adverse manner.

AVITIA v. SUPERIOR COURT

Opinion of the Court by Liu, J.

18

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 provide 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 section 939.5 and conform their conduct

accordingly. We agree with the New Mexico high court’s

admonition that the “entity charged with the actual selection

and excusal of grand jurors is of paramount importance to the

process. As such, the statutory provisions assigning that role

. . . should be seen as mandatory, not directory, because they are

critical to ensuring that the process of impaneling a grand jury

is impartial and free of unfair influences. [Citations.] [¶] . . . .

[¶] The manner in which grand jurors are selected and excused

goes to the very heart of how the public views the integrity of

the grand jury system. [¶] . . . . [¶] And if the integrity of the

grand jury is called into question, there is little hope that the

public at large, or the accused in particular, will view the grand

AVITIA v. SUPERIOR COURT

Opinion of the Court by Liu, J.

19

jury as capable of returning well-founded indictments or serving

as a realistic barrier to an overzealous prosecution.” (De Leon,

supra, 316 P.3d at pp. 900–901.) Section 939.5 makes clear that

the foreperson, not the prosecutor, has authority to dismiss

grand jurors. The prosecutor, who “ ‘ “is in a peculiar and very

definite sense the servant of the law” ’ ” (People v. Eubanks

(1996) 14 Cal.4th 580, 589), is expected to know the law and to

follow it.

We affirm the judgment of the Court of Appeal and vacate the stay we previously imposed.