AVITIA v. S.C.

Real Party in Interest, The People, Answer Brief on the Merits

Cal.November 17, 2017

~ & * mis ? ¥ CaOn the Supreme Court of the Stateof California LEO AVITIA, | 7 Petitioner, Case No. S242030 SUPREME COURT " FILED _ THE SUPERIOR COURT OF SAN | JOAQUIN COUNTY, NOV 47 2017 Respondent, Jorge Navarrete Clerk THE PEOPLE OF THE STATEOF CALIFORNIA, RealParty in Interest. Third Appellate District, Case No. C082859 San Joaquin County Superior Court, Case No. CJ20164112415 The Honorable Brett H. Morgan, Judge ANSWERBRIEF ON THE MERITS XAVIER BECERRA Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General RACHELLE A. NEWCOMB Deputy Attorney General ~ CATHERINE CHATMAN 7 ' Supervising Deputy Attorney General State Bar.No. 213493 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 210-7699 Fax:(916) 324-2960 Email: Catherine.Chatman@doj.ca.gov Attorneys for Real Party in Interest TABLE OF CONTENTS Page “Issues Presented ...ccccsccscssssccsceccsssscceesesessececssssesneceeneveessesseseesseeeseanesnsseeeees 13 IntrOCuectiOn .....ceeeessessecereseteseseseteneseneseesestesssesssseseesescscsenessseenenenteseseaseesees 13 Statement Of the Case...cccccssssscceseesssccseecseecenscsenssseesetsceeessnseeeesessseneeses 14 A.- The Grand Jury Hears Avitia’s Case and Returns an Indictment .............ceseessceeeeeeceseeseceseeeenes 14 B. The Superior Court Denies Avitia’s Motion to Dismiss the Indictment............ccsccsssserccccsesceeesseceeers 18 C. The Court of Appeal Denies Avitia’s Writ POtitiON ......eeceecesesseseeesceseceeeeeeeetesseseceessenseeeesseeesenses 19 Summary Of the ArQUMeN.........ecsecsesseresssseseseseseeneeeeseeneeeenessseseeseanseenenes 20 ATQUMENL.......cccsesscesceeesseeseseccecscesseecesesecenseessesesaeereesesaseeneeesseeeeeaeeesesenseonss 22 I. An Overview of Grand Jury Proceedings in California....... 22 A. How an Information Is Filed...eeeeeeeeneeseeeeeee 22 B. Howan IndictmentIs Found «0.0.0... cescssssoseeeeseee 23 C. The Remedy for Flawed Informations and Indictment.........cccccesssssssssesssececesseseeceseceeseeeeeseeeseneass 24. II. Dismissal of the Indictment IsNot a Remedy for This _ Procedural Error Unless a Defendant Establishes a Due Process Violation That Affected the Probable Cause Determination Under Section 995 wv.eseccsecsssseeseeseesees 25 A. The Prosecutor’s Error in Taking on the Task of Retiring a Grand Juror for Bias Is Not a Proper Ground for Dismissal of the Indictment Under Penal Code Section 995, subdivision (a)(1)(A)........ 25 B. State Grand Jury Proceedings Do Not Implicate Fourteenth Amendment Due Process ............sccccceeeee 28 TABLE OF CONTENTS (continued) Page To Prove a Violation of Due Process Under the California Constitution, a Defendant Must Show That the Nature and Extent of an Error in a Grand Jury Proceeding Is Such That It May Have Compromised the Independence of the Grand Jury and Contributed to the Decision to INICt ooo.eeeeeceeceseesesecessnecsscseceseneecsneesseesesesessneesecens 31 A Due Process Challenge to an Indictment Must Be Raised Under Section 995, subdivision (A)(1)(B) ...eeeeeeseesceseeteesereeceeeeeeeeeseseneaeeneatacesseneeseans 33 II. There Was No Violation of Due Process Nor Any Other Prejudicial Error...eeesseseeseeeesececeseeseeseeeseeeeneeees 37 A. Avitia Cannot Show That He Suffered a Violation of His Right to Due Process........eee 37 1. Avitia has not established the basic _ premise of a due process Claim..........eeeeeeee 38 2. Noncompliance with one statute did not violate Avitia’s right to due process whenconsidered in light of the comprehensive statutory scheme governing grand jury proceedings ............0.. 40 3. The role of the foreperson in section 939.5 is notcritical to ensuring the grand. Jury’s independence 0.0...eeeeseeeeeseseeseseeees 43 4. Williams v. Superior Court was wrongly (16s(6 1645 B. Avitia Is Not Entitled to a Presumption of Prejudice Or Automatic Dismissal..........ceceseeeeeeees 46 1. In California, a judgmentgenerally will not be set aside without a showing of PECJUCICC..... sc .eesseesceseceeteensnessseesecestesseessssasaeees 46 TABLE OF CONTENTS (continued) Page 2. Avitia was not denied a substantial right because the error did not result in PTCJUCICE....ee eeeeeeeeseeeseeeeseesseseeeseeseessereereres 48 3. Theerrorin this case wasnotstructural CITOL....sceceeeessceseeeeeesaassecesaceacsscacsersacsessacensaneass 51 4. The Pompa-Ortiz dictum remains a PTODIEM ..0......cecsecsesseescesneseeeseeesesesesseseeseees 53 5. Dustin involves a death penalty statute andits reliance on Pompa-Ortiz was TIStAKEN 00... esessscesseecesesessceersesetececsesssteeeeeees 54 C. The Prosecutor’s Error in Taking on the Task of Retiring a Grand Juror for Bias Did Not Violate the Separation of Powers Doctrine and Did Not Result in an Improperly Constituted Grand Jury......55 1. The grand jury was not improperly COMSTILULE 00... sc eescseesceeeesesereseesesesseseessesseeenes 55 2. The principle of separation of powers WAS NOt implicated... eesesseseesseesseeseesees 56 Conclusion............+sucenessessencsassendanescneosencscacesceatonsscoresesscosseeseteroterssenseeeess 57 TABLE OF AUTHORITIES Page CASES Albright v. Oliver (1994) 510 U.S. 266 oeeeescsesseseseeeesa tseseeeeseseansecaeseneeseeneesensaneneaneassees 29 Arizona v. Fulminante (1991) 499 U.S. 279 woesessscessscestesesscsssscsescaesrsssssessssecseesesseesseseesensens 52 Avitia v. Superior Court (Apr. 18, 2017, CO82859) 2017 WL 1382115 ......ccsseseeseeeeeeeeees passim Bank ofNova Scotia v. United States (1988) 487 U.S. 250 oeesesccecsssesessseesssessssecsessssesseeseeseesnens 34, 36, 51, 53 Beck v. Washington (1962) 369 U.S. 541 ooeecccsssctseeesnesesseseesesssseesetsnsesescsssersaes 28, 29, 38 Bruner v. Superior Court (1891) 92 Cal. 239iecceesesseeeecsesssecssssessensesesesseeeressesssseeateaseaeenes 55 Chapmanv. California (1967) 386 U.S. 18 ooo. eesssecccenceseseeeseceseeeesscesecscsseeesaceeceeessseaecetssresees 49 Collins v. City ofHarker Heights (1992) 503 U.S. 115 weesesescsesecesseeeseecsesesseceeseecsssensseusteseestesensenesenees 36 Cummiskey v. Superior Court (1992) 3 Cal.4th 1018wceececseceecessecesserseesessesesseseeseesseteeses passim Daily Journal Corp. v. Superior Court (1999) 20 Cal4th 1117eeesseeesseeseeetseeeseseseeseeeesceeeeseesnens 23, 35, 42 District Attorney's Officefor Tihird Judicial Dist. v. Osborne (2009) 557 U.S. 52 ..eeceesscesctceceeessesersncesseeceeeeeeeeeesseseseceeeseconeseeesseeereoes 35 Dowling v. United States | | (1990) 493 U.S.342 ........saaecacesuceeseseseessctesccseeseeeseeetereneesecseeeesessenecesoaees 28 Dustin v. Superior Court (2002) 99 Cal.App.4th 1311......... seseeeee seesceseessesseasocasseseeessaseeseseeesess 54, 55 TABLE OF AUTHORITIES (continued) Page Engle v. Isaac (1982) 456 U.S. 107 oeeeccsseeeecessetecscerseeeesesseseesssceessessesssseseeseensesacs 31 Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal4th 53...sesccsecseccececcssssseceesesssesssnesseaesssessesesesnesseeesesens 35 Estelle v. McGuire (1991) 502 USS. 62.0.0...asecenssesseesesssasessseceeuecesecesanssasessaesaesasnseneneasenss 40 Fitts v. Superior Court (1935) 4 Cal.2d 514oececscscssctsecereesssescsecsescceseresessseessseseseeeenesusees 55 Gerstein v. Pugh (1975) 420 U.S. 103 weeescessstcsessesseeees ssseeeaneaeaseessssessscsnessseneesceneenees 29 Harris v. Superior Court (2014) 225 Cal.App.4th 1129 occsscsssssssssesesssessstsescecssssssessssceeeeees 54 Hurtadov. California (1884) 110 U.S. 516 weeesesecsnsseceseussssesessnessaseessesssssessesssseseeses 28, 29 Jones v. Superior Court | (1979) 96 CalApp.3d 390 vo. ccccecsscsesstssesesssrsssssscssssessesssessseesssceserees 24 Kentucky Dept. of Corrections v. Thompson (1989) 490 U.S. 454cecscetstsccsenscrssrcnssssssseesessssseesenssessesseneeeeses 29, 30 Lorenson v. Superior Court (1950) 35 Cal.2d 49occssccceecscsssesseestscsssssssssssseseesstsessesssssesesseeses 30 McDonald v. City of Chicago (2010) 561 U.S. 742icecscssscstsetsesstesssssssscesssssssseseesesseeeesseseeeeseecescens 28 McGill v. Superior Court (2011) 195 CalApp.4th 1454ooccsseessesssessssssesssssssesesseseseess passim Medina v. California . (1992) 505 U.S. 437 ........... secensenseasecoetocdoororenseensesseuscesscersaseassesenasenenacens 31 Merrill v. Superior Court (1994) 27 Cal.App.4th 1586ocscscsccssssscsssscssessecesecesseseesseeessseeseeses 34 TABLE OF AUTHORITIES (continued) Page Murgia v. Municipal Court (1975) 15 Cal.3d 286 ...c.ccsccesssseesesseeessesseseacsucaessssesecsesscsessscarsanessseencseense 34 Obergefell v. Hodges (2015)US.135 S.Ct. 2584eeeccsceeecseeesescneeceeseeseneesnersrees 28 Packer v. Superior Court (2011) 201 Cal.App.4th 152 cececsessseccsesessersseessesoreseersessensees passim People ex. rel. Pierson v. The Superior Court ofEl Dorado County (2017) 7 Cal.App.Sth 402, 4100.eesessseseseteseeeeessesesseseenes 23, 35,56 People v. Arredondo (1975) 52 Cal.App.3d 973 ......cecseeseseneesa asesaeeseeesecseesseeeseseassneesesveresses 49 People v. Backus (1979) 23 Cal.3d 360 oo... cecescsssssssssstscsessssccssesscseserseresessrseseseeeees passim People v. Booker (2011) 51 Cal.4th 141eccsescsssensessersseseseerseessssscssesetesseereres 47,53 People v. Crudgington (1979) 88 CalApp.3d 295 w..ccsscssscsscsscesssssssssssessssssssssseeeesasensersenees 34 People v. Fujita | (1974) 43 CalApp.3d 454 ocecescsssscsecsectscrsssssessesssstesearssrsseseeseneeees 38 People v. Jablonski | (2006) 37 Cal4th 774 0... ssssscseeeeesdeecesaceeceeeceeceeserecseaseceesees 29, 40, 47 People v. Jefferson (1956) 47 Cal.2d 438.0...ceceesesceeeseeescesseeseseeeeaseseeesceseeeseeesees 26, 27 People v. Kempley (1928) 205 Cal. 441ceceeeeenseesseeeenees saseesseaeessecsesaceasensesseeseessnseseoes 27 People v. Konow (2004) 32 Cal.4th 995 ooeecccscesceceserssssssssseesessssssssssseesssesererseseeespassim _ TABLE OF AUTHORITIES (continued) Page _ People v. Pompa-Ortiz (1980) 27 Cal.3d 519 oo.cesesssessseeeseeeteeeeeeeeseesesavesseseeesaseessensnes passim People v. Sivongxxay (2017) 3 Cal.Sth 151, 180.0... cccccsscesscsessescssseesresssesseserseesscenes 51, 52 People v. Standish (2006) 38 Cal4th 858 oo.ccsesssssssscseessessscsseesserssresseesrsssessesseneespassim People v. Stewart | (2004) 33 Cal.4th 425 oocccsecsseeseeseeeeeeeeees sesaeseasesseesseneseseeonee 48, 53,54 People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403 .0.....cccsssesssssecstssssstsesssessrsssserseneens 33, 34, 37 People v. Towler (1982) 31 Cal.3d 105 wo. ecsecssscssssssesscsssssccsssssssescsessssnssnsscessncesees 25, 47 People v. Uribe. (2011) 199 Cal.App.4th 836.0... ccccsssesssseseseesssessenenesserenssenssesneneess 35, 36 People v. Watson © (1956) 46 Cal.2d 818 oeeceesseseesessesseneessessnnesssneesnessesseesesnenaesssssseees 47 Raven v. Deukmejian (1990) 52 Cal.3d 336...cecesessscesssseteceeseestesecssseeseeneosenonssessssnesnseeesees 32 - Reilly v. Superior Court (2013) 57 Cal.4th 653...ccccsescsssssessesssseesssssssssssecereseresresesssesesess passim Sandin v. Connor | (1995) 515 U.S. 472 vec ceecssctsescsscsscsessesesssessssssssssessseesessessessenseseseseees 31 Snowden v. Hughes . (1944) 321 U.S. 1 vce ecccccsscessectcesssceeressssssesnessssssessessessessscessenseesenees 31 Stanton v. Superior Court (1987) 193 Cal.App.3d 265 wo. essessscsesecteecssstersencsseeseenees seeseesenerses 34 Stark v. Superior Court (2011) 52 Cal.4th 368.0...scceseseeeeeeesa eteesessneeeeeeseeessteseeeseeeeeeees passim TABLE OF AUTHORITIES (continued) Page Sullivan v. Louisiana (1993) 508 U.S. 275 .ecccccccsssssssesscsssesseessseseesees seseeaeseneneneneneeaseneesasnenes 51 United States v. Mechanik (1986) 475 U.S. 66...taseneseneneesenegaeeseencsesacenesssescsesaneessestssneeesseses+ 29 United States v. Navarro-Vargas- | (9th Cir: 2005) 408 F.3d 1184... eeeeeeeesseseneesesecsesacesuaeeesess 40, 41, 43 United States v. T.erry . (N.D. Cal. 1889) 39 F. 355 weeeeeeeeneesseeeeneesesseesseesseneeseesesseeseesesenee 38 United States v. Williams (1992) 504 U.S. 36 occcescesetecssessessteeseneesnesssssssesseessssssesssacoreseeseesssses DO Vasquez v. Hillery (1986) 474 U.S. 254 veeeecesessseeseeseesteeeenees Leceeesceeceeseeeeeeseeuersseteesenss 29 Washington v. Glucksberg | (1997) 521 U.S. 702 ooo. cceessceteeeseesececeeceecssecsaeeeesuecsanseascessessaseseaueeas 28 Weaver v. Massachusetts (2017) _ U.S. 137 S.Ct. 1899 vee eeeessssseesecensseteseeesessneseeesnneees 52, 53 Williams v. Superior Court (2017) 15 Cal.App.Sth 1049occsccsceesssescerssetsetesssssseceesssseteeesnenee 45 STATUTES | 28 U.S.C. § 2111 weenVeeceseescaceeecasesaneesacesessescaeeceseessnsssusestecesseneesaneeeesees 50 Evidence Code § 064 oo. ccecscsscessereesseccsseessceadesssessesseesseeecsessesseesssssssessesessesesesnseseueesenes 38 Federal Rules of Criminal Procedure . Tule 52(a), 18 U.S.C.eeeccccsssseceetcesseceeseseessssecesesnesessnsssesesesenesneeeseens 50 TABLE OF AUTHORITIES (continued) Page Penal Code § 69 vieccscscscssscescessscessnescesssenscesscesssesessesssneaescsssessessnseeessssseesseaeesaees 16, 18 § 148 iecesscccccssscsssstecsssessscesessssseessssssaeeecsssecsnsesseseesersessesnssessneeentens 16 § 183, SUDA. (6)...eeeececstessestecseceesesesseessesssssssscesssesscsssssessesssessaseseenee 43 § 184 vceceessssessseecsecssscessccsceesaeesssserseseeceseceassacsaeeaseccneseareeceacessasessesaes 43 § 186 wo.cceccccsccccsscccstcssecesceesecsssseecscsessceeecescusceeuessssessesseracssseeseseresseaees 44 § 187, SUD. (8) ....eee cceccessestcesessceessessseserseecesessesnsesseseeedeeveserseesensaes 18 §.191.5, Subd. (D) oeeects cseceeeeeseceseessedecessesessecessssessessesssessssesenseseeeens 18 § 191.5, SUD. ()oeeeeeeeeseeserseescceeesscoseessssssssesesenseesersessegeessseseseseens 18 § B59D veeeccescesseceseeeeseesssssessessssessscsessassesossesssseseesesscstanesseseeeerssesensassseeey 50 § 868 oe ceccsscsseccsccssssccsnssssesssssssesssesscseseseesnasessesnseeeesesceseaeseceeeseenseneeenees 22 § 872 viseccccssessresessecssessecssnscescssssccseseessnceeeesesuecenssesseaeeseceseseeeceeeseneenesenees 22 § 888.2 ..eccccccsscsscccsssssecssscssessssssssensceeseseecessncceseseeeeessetecnsereseensaseeeseesenees 24 § 893 vvccccccscesscecsssressessssessrecssssssaceesseceseceeeeesecesenecsceeceeseeessaesoesaeseeeeeeesaes 23 § 896, SUDA. (6)... eeccesceessesseeseseseeeteeseeeceseneessssssssssessussessssssceesesseseseneees 44 § 896, SUDA. (7). eeeeeeeeeesseeesescsssesseasececeesessnesscsesssnsnssseseususessesseseusneeteness 43 § 896, SUDA. (2) ...eeceecscrssssscsesteseesscssesssssssessssesscesssseseeeeessseeseenseeeeensesens 23 § 897 vveccccccscssecssecesssecessnsssscsssensssssecssessnssecssaaseeesscenseesesoesedeseseoesseenteeseetes 44 § 899 oo eccscsccsscceccsreceseccscsssssessseaessesseaeeeseacetersdsesesessseseesesereeseeesaeseeseee 23 § OOS .cceecessessccsssessssssesssessecsscsssssseccssesensecsssnsessesaceeeeeeesseeeessesesoaesenersensees 23 § 907 ..e.cesscsessecssressssscessscseccsecssssesecsensceaceeeccesenssensenssesessseeeseeeeseeconeees 27, 44 § 909 vueceecscesseecstessseecessecsesrsssssssnecssceeeseesseesecesseeseesorseseseseaeseseeees 23, 45 § 910 ve eeeeeesccssscsssseecsssccrcscsssesssceesecenseseceseesessesseesseessesessseeeassensneaseeseess 23 SOLDceceeuscecessceccecevsesesssvessensccuscsceccccessteseeeeeesesatecessessees 23, 27, 41 § O12 vcceccsssssscsscessessessnsesscesssscsssaccsseesencesseaceeeeeseseavscersnesereseesesesonssonserses 23 § 914 ww...“seeeessecsscesceuccssscecssccsssecceeccececesceceseneceeseecevsnaesecseesensnseesescenss 23 § 916 ceecccccccccsssessessecesecenssesscccsneessneceseceessceesseaeeessoeseanesessseeeeasecsoartaes 42 § 917, SUD. (2) oseceecssscscssotstsssnssssssscseeessrsseseesseseeseecssenssneeessenseeseseeens 42 § 918 vecccsssceleccsscseesssessscecsecssssnsecseesssceesseaeeseseassresessesesesssseacosesessensenes 44 § 924 vo ececsssssseresenecssecsscceseceenenees savscessevsccececseesceeessecessssreceessessaeeeesses 27, 41 § QQccecssscsecsscsscssseccecsesssssesssrscsscssessscsessssssesssssessseesecsatessesseesesseess 27, 41 § Q2A.2 ccceccssssssscsssessecsscsecssvscsssesssssssessessessssesssessesessessssessessseaseaecesess 27, 41 § 924.3 v..ceecceccccccsscscestccecsssnessscsssssssecsscsnnsscaccescceseaesseeseesneesessenesensees 27, 41 § D5 vcesccseccsscecessecseseescesssessestssnasesscescessuseacenscsueeeececseeseneesnneeeeaeens 23, 44 § OBA oeiececccsssecsccssseescnneecsssscsseseeesscnseseeseceescnacesucceaseeseseeseaeeesaees 23, 41, 42 § 934, SUDA. (2)... ecceseeeescerereccessorseesseecossssscessssecesssnesssascausvessassesotens 45 § O35 wucecsccssessecesssessseesssneesesessssesseesenereeeslecsceecseceesscescssssreesssessseaseeses 24, 25 § 938.1, SUDA. (8) oo. ceecesssseseseseceseceeseeseeeeseesessessesesesessesensconesseseeeesenses 24 10 - TABLE OF AUTHORITIES (continued) Page § 939 wiccecneesscesseseesesstesscesscsersssssessseseeseusseeseseesesseseneecsesenesseeese 23, 24, 41 § 939.2 vsssssscscssscssscesessseesscssrsecsscsssessessssscesssssessentesescasesascesseassesessnsnes 42 § 939.5 .ececcecscssssesscsccsssesecesesseesssssesesessesssssesssssessssesesesensenenesnsesseses passim § 939.6 wecceccccsscsscssccescssstsessseteccessesssssceessessessseesssseecseeesssececessssescsasasaaes 32 § 939.6, SUDA. (D) oceeceescscesscecesssstssssesscssssestesseneeeceesseuscsssnscssseseeans 41 § 939.7.eecsssccsssctccncesscesssensecasssesecssesesessetetesscsececesscseesenseceas 32, 41, 42 § 939.8 oe cessccsssserecssecseesesssesssecssscssssesecnssesseeesseseeseseesseseersasceees 24, 26, 30 § 939.9 eeecesseseesseecssecsssesscsesccssssssessecsetesssseesessecsersesenens paseeteateneaseneneas 30 $939.71seeecccssscescessseeessersedenseessssessccssseessseseesesssssaeeeeescesseeecseteeseseeses 27 § 939.71, Subd. (a) «0...sesesccesaeeenessceseacesecsevanessessneessneesssueeseeesess 27, 41 § 940 veeecccssscsesescsesceeteeseessssessersessseessssssssteneseseneesseeeeeeres24, 26, 30 § DAB ieecsesscesescssesssecseeccstseessecesesseesnseessevecesssssssssensessetesseeceseesereeseeensees 26 § 944ieseeeeeedesseessseeeseceeceessueceesesseeecceeerresseseessiseessacesessceeessneesseeesnenes 26 § 949 oeeecescceseseesesseccssssesesrssessesseseessssessssesscseeecsesesteseesesesaseusescaserees 22 § DOO oeceececccccescccsseessseeesceesseesscesececesesensessssssrsesesenseseeseeessessseeseesees 47,51 § 995 vo eesscsssccssscssessesecneessessessseesseacesseasecsessseesecseceecbateseeeuesenseeseenses passim § 995, SUDA. (8) oo. eecececssscsscesecsceeeetscsseesrssecsessessassseesseessseesseensenseseeseses 26 § 995, SUDA. (a)(1)(A)..seeececeecccesssstsesseresesssseesstsesssssesssatsessneeeeespassim § 995, subd. (A)(1)(B) «0.cee eesccssesecseeseeceessesseseseesessaeesseeeeses 20, 24, 33, 35 § 995, SUDA. (2)(2)... ee eeeeseeeerecetcetenseeseteseeesesscssssnscssseeseecsaeeseecsueeneees 49 § 995, SUC. (2)(2)(A) .ceeesccccesesesccscsscscseeassstersesssssseseceteseesseeseseesesseeaeees 49 § 1238, subd. (a)(1)....ee ecsccesscseseeseceecesseseeescesseseseeeesssseessatesseseesseseass 49 $1258eeccceseesscsscseescecceceteeessecsneeesseessaesccesssessusensesessnesenseeeesesensnes 47,51 § 1385 ........secetesaeesscesceasensseesecscseeessceasesscusenesesaeseeesesessesaesesesseseessseneens 49 § 1387, SUD. (A) «0... cecescesssccscsesecsscsecsseessessessseesccsessesssessnscesseensesssaesnreas 36 § 1404ieecccssserceesreeesteeeessresessneeeeseeeeeateddaeeaceesacccesaceesensceeaas 47,51 Statutes of 1911 Ch. 253, p. 434 wiecccccccssccssesssescssesecesseseseseesseesecesesesseesseeesesesessstsenessecaeees 44 Ch. 254, § 1, p. 434 ooeeccecsneesssessseeessssssesnessensseseenseeeesseeessesenseses 44 Vehicle Code § 14601.2, Sub. (€)eeeeeceescesseessetsseeessssssscensseseeessesenssesseeesecestenes 18 § 23152, SUC. (D) 0.eee eeeeeeesecceesserscseseecssesssssesscsneecseesessesessesersesecssess 18 § 23153, subd. (a)... eeeeeseeteeneessassasesacseesesesesesesesesteatecseesesssescsusessnesess 18 § 23153, subd. (D)oeeeeceesceesssctessessesssssseeseeneesseaeeeeseetensesentseessaeeeees 18 11 TABLE OF AUTHORITIES (continued) Page CONSTITUTIONAL PROVISIONS California Constitution Article [, § 14 ci... ccccccccccsccccceccssssecssscesceescsssccccesssssssssssssstsesscsseneecs 22, 23 Article I, § 15 vc. ccceccccccssscececscessesesecseusesssvecusessesssssssecsssscesuseeseseeseeeees 31 Article I, § 24... .ccesscssssecccesessseseeneeessensceccevesecesoesescesccssssaseseceuscssacercees 32 Article TID, § 3 ..........cccsccccssscccsceeececescesssssnesscenecseececesseeees deseeeesssesessseseesecs 56 Article VI, § 13...eesccecssseceseesessecsseccsccssssessescasesseasssseeeesseeesssessnsees 46 United States Constitution Fifth Amendment ...............ccccccccsscsscssescscecccccccsssccecscccsesscccceccssencsecsccacaes 40 Fourteenth Amendment................seeeesceecedecsnsceecececenneesssnaneeeeeeeseesncs 28, 29 COURT RULES California Rules of Court TUle 8.500(C)(2) ....eesccccsseetesccsccscssresscescessereceeesesssesseetsesssseseeecassenseseesess 14 Tule 8.1115 (D)(2).... cee cesesseeeeceessessecevseceesseeseensesessssscssoesseeseneeearseseaeens 14 Federal Rules of Criminal Procedure © Tle 52(a)... eceeecsscscccssssseceseeseeceeescecsessesesscsesesecsesssssssseesssssesoesesseasenees 51 OTHER AUTHORITIES Witkin, Summary of Cal.Law (10th ed. 2005) Separation of Powers, §§ 137-176 ..........ccsssessssecccccssssccccccessneecaccessesenesssacedeaesacssesessssees 56 12 ISSUES PRESENTED 1(a). As a remedyfora statutory violation during grand jury proceedings, may the court dismiss the indictment on due process grounds under Penal Code section 995, when section 995, which specifies the only groundsfor dismissal of an indictmentor information, does not provide dismissal as a remedyfor that statutory error? 1(b). Whatis required to show violation of due process in grand jury proceedings? | 1(c). Should a due process claim be raised in a Penal Code section 995 motion to dismiss the indictmentor a nonstatutory motion? 2(a). Has Avitia shownthat the prosecutor violated his right to due process by excusinga biased grand juror when Penal Codesection 939.5 | assigns that task to the foreperson? 2(b). Is Avitia entitled to automatic dismissal of the indictment without any showing of prejudice? | 2(c). Did the prosecutor’serrorin taking on the task of excusing the biased grandjury violate the separation of powers doctrine and result in an improperly constituted grand jury? INTRODUCTION After introducing Avitia’s case to a grand jury, the prosecutor asked whether any grand jurors had a state of mind that would prevent them from acting impartially. One grand juror forthrightly disclosed that she could not be fair to the defense. The prosecutor directed her toretire. Becausethe foreperson has the duty of directing a biased grand juror to retire, the prosecutorerred, but not to Avitia’s prejudice. Avitia nevertheless seeks a ruling that this procedural error amountsto structural error, and should result in the drastic remedy of dismissal of the indictment without any showing of prejudice. Avitia’s position would provide 13 defendants with a windfall while undermining the statutory scheme governing grand jury proceedings. Andhis reasoning is contrary to well- established law regarding harmlesserror. The superior court and the Court of Appeal correctly declined to dismiss the indictment against Avitia. STATEMENT OF THE CASE A. The Grand Jury Hears Avitia’s Case and Returns an Indictment | _ The San Joaquin County District Attorney’s Office filed a complaint alleging that Avitia drove while intoxicated, causingMonte Bowens’s death. (Exhibits [Exhs.] at 2-9.) The superior court empaneled a criminal grand jury consisting of nineteen grand jurors and four alternate grand jurors. (Avitia v. Superior Court (Apr. 18, 2017, C082859) 2017 WL 1382115at p. *1 [nonpub. opn] (Avitia)’; exhs. at 129-180.) The superior court explained to the grand jurors and alternates that district attorneys may ask citizens to decide whether “an individual suspected of a crime should be charged with that crime.” (Exhs. at 173.) It also told them that the District Attorney’s Office would present a case to them whenthey returned to court. (Exhs.at 172.) ' The exhibits referred to throughoutthis brief are those that Avitia filed in the appellate court with his petition for writ of mandate and/or prohibition (petition). The People refer to Avitia’s exhibits by Bates-stamp pagination. The Court ofAppeal’s unpublished opinion in this case is relevant here because “it states reasons for a decision affecting thesame defendant or respondentin another such action.” (Cal. Rules of Court, rule 8.1115 (b)(2).) This Court “will accept the Court ofAppeal opinion’s statements _ of the issues andfacts” unless Avitia called any alleged inaccuracies to the appellate court’s attention in his petition for rehearing. (Cal. Rules of Court, rule 8.500(c)(2).) 14 ‘The court also detailed the prosecutor’s role. (Exhs. at 173-175.) The prosecutor would examine witnesses and present other evidence. (Exhs. at 174-175.) The defendant and his counsel would notbe there, but the prosecutor would be required to present any evidence suggesting innocence. (Exhs. at 173-174.) The grand jurors were cautioned that the prosecutor’s statements were not evidence. (Exhs. at 175.) At the conclusion of the evidence, the prosecutor would determine the appropriate instructions to give the grand jurors. (Exhs. at 175.) | The court then gave the grand jurors instructions on how to approach their work. (Exhs. at 172-178.) They could write questionsto give to the prosecutor. (Exhs. at 173.) They would decide what the facts were based on the evidence presented and would use the instructions to apply the law to the facts. (Exhs. at 175.) The superior court advised that 12 of them must find probable cause before finding an indictment, explaining: “Probable cause means that each grandjuror, voting to find an Indictment, is convinced of a state of facts as would lead a person of ordinary caution and prudenceto believe and conscientiously entertain a strong suspicion that a public offense has been committed and a strong suspicion of the guilt of an-accused.” (Exhs. at 176.) The court told the grand jurors they would not decide the ultimate question of the defendant’s guilt or punishment. (Exhs. at 177.) The court explained that a foreperson would “preside over all the sessions of the grandjury, administerall oaths, sign and date .. . any _ Indictments found to be true, and present the Indictmentto the Court.” (Exhs. at 177; see also exhs. at 174.) The court then selected a foreperson. (Exhs. at 178.) 15 On the next business day, a deputy district attorney appeared before the assembled grandjury (exhs. at 95°) and read the complaint (see exhs.at 87). The prosecutor then said, tracking the language of Penal Code? section 939.5, “Any member ofthe Grand Jury whohasthe state of” (exhs. at 31) “mind in reference to this matter, or any ofthe parties involved, which will prevent him orher from acting impartially and without prejudice to the substantial rights ofthe parties will now retire” (exhs. at 96). The prosecutor continued, “So, basically, ladies and gentlemen, I’m asking if anybodyhere, 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 ofparties.” (Avitia, supra, 2017 WL 1382115 at p. *1; exhs. at 96.) Grand Juror No. 6, who wasthe foreperson(exhs. at 87-88)°, and Grand Juror No. 18 responded. (Avitia, at p. *1; exhs. at 97-98.) Grand Juror No.18 said, “I’ve arrested peoplefor | 148.” (Avitia, at p. *1; exhs. at 97.) Grand Juror No. 18’s response wassignificant because she referred to a criminal offense, section 148, which is similar to a crime the grand jury would consider in Avitia’s case, section 69. (Exhs. at 7.) Section 148 makesit a crime to willfully resist, delay, or obstruct any peace officer discharging or attempting to dischargehis or her duties. Section 69 similarly criminalizes obstructing executive officers. 3 Exhibit H is an incomplete transcript of the grand jury proceedings on January 11, 2016. (Exhs. at 95-99.) The parties agree as to what was said and doneatthat proceeding, and the missing parts arefilled in from the other exhibits. The Court of Appeal accepted the facts as agreed on by the parties. (Avitia, supra, 2017 WL 1382115at pp *1-2 & fn. 3.) 4 Subsequentsection referencesaare to the Penal Code unless. otherwise specified. > Grand Juror No. 6 remained onthe grand jury (Avitia, supra, 2017 WL 1382115at p. *3; exhs. at 88), and Avitia raises no issue concerning that. 16 The prosecutor then questioned Grand Juror No. 18 outside the presenceofall the other grand jurors and alternates (Avitia, supra, 2017 WL 1382115 at pp. *1, *7; exhs. at 97, 99; see also exhs. at 88): Q. ... Juror Number 18, you stated that you may have some issues? A. [by Grand Juror No. 18] Correct. I am a peaceofficer. I work for the Department of Alcohol Beverage Control, and I havearrested subjects for 148 PC. Q. Aren’t you exemptfrom jury duty? A. ’m not. I’m 830.2. We don’t follow the exemption. Q. The fact that you’ve arrested people for... (Exhs. at 99.°) Q. The fact that you arrested people for resisting arrest before, do you think that’s going to affect your impartiality in this case?” A.Yes. Q. You do? A. I do, in addition to the fact that I’m currently conducting an investigation that’s very similar to these charges. Q. So you don’t thinkyou can be fair? A. No, I don’t think so. Q. What I’m going to askyou to do is go down to the basement, let them know that you were excused. 6 Exhibit H ends here, omitting the rest of the exchange between the prosecutor and Grand Juror No. 18. However,the rest of the exchangeis includedin the petition filed in the appellate court, at page 39. That accountis consistent with the account provided by the prosecutorin his opposition to Avitia’s motion to dismiss (exhs. at 32) and the accountthe superior court included in its written findings (exhs. at 87-88). 17 (Petition at 39, italics added.) After Grand Juror No. 18left, proceedings resumed before the other grand jurors. (Avitia, supra, 2017 WL 1382115at p. *2; see exhs. at 32.) After hearing the evidence, the grand jury returned an indictment. (Exhs. at 11-18.) Avitia is charged with second degree murder(§ 187, subd. (a)), gross vehicular manslaughter while intoxicated (§ 191.5, subds. (b), (d)); - driving underthe influence causing bodily injury (Veh. Code, § 23153, subds.(a), (b)); resisting an executive officer (§ 69), and driving while his privilege was revoked or suspended (Veh. Code, § 14601.2, subd. (a)). (Exhs. at 2-9.) The indictmentalleges that Avitia has two prior convictions for driving under the influence (Veh. Code, §23152, subd. (b)). (Exhs.at 4- 6.) B. TheSuperior Court Denies Avitia’s Motion to Dismiss the Indictment After Avitia entered pleas of not guilty, he filed a nonstatutory motion to dismiss the indictment. (Avitia, supra, 2017 WL 1382115 at p. *2; exhs. at 20-29.) Later, the court construed Avitia’s motion as a motionto set aside the indictment pursuantto section 995. (Exhs.at 63.) Avitia argued that section 939.5 allows only the grand jury foreperson to direct a grand juror who cannotact impartially to retire. (Exhs. at 23- 24.) Avitia asserted that the prosecutor’s action interfered with the grand jury’s independence, deprived him of a substantial right, and required dismissal of the indictmenteven in the absence of prejudice. (Exhs.at 23- 28, 190-191, 202.) | The superior court denied the motion to dismiss the indictmentin a written ruling. (Avitia, supra, 2017 WL 1382115at pp. *2-*4; exhs.at 87- 93.) The superior court found that the factsdid not support Avitia’s claims that the prosecutor’s action had affected the mindset of the grand jurors and had caused them to believe that the prosecutor controlled their operations. 18 (Exhs.at 89.) The superior court notedthat, after the two grand jurors had raised concerns, the prosecutor questioned each of them out of the presence of the other grand jurors. “The other members did not witness the prosecutorinstruct Juror No.18 to retire. Thus, with one grand juror staying on the jury and anotherleaving, the remaining grand jurors reasonably would have concludedthat Juror No. 18 needed to be excused due to a bias or impartiality.” (Exhs. at 89.) The superior court concluded that Avitia’s assertion regarding the effect on the grand jurors was “speculative and unsupported by the record.” (Exhs.at 89.) C. The Court of Appeal Denies Avitia’s Writ Petition Avitia filed a petition for writ of mandate and/or prohibition in the Court of Appeal. (Avitia, supra,2017 WL 1382115at p. *4.) The Court of Appealagreedthat the prosecutor erred (as did the People), but was not persuadedthat the indictment should be dismissed. (Id. at pp. *1, *9.) The Court of Appealfirst found that the prosecutor’s violation of section 939.5 did not fall within the grounds for dismissal set out in section 995, subdivision (a)(1)(A). (Avitia, supra, 2017 WL 1382115at p. *5.) The court next rejected Avitia’s claim that the prosecutor’s action amountedto a violation of his right to due process. Like the superior court, the appellate court noted that Grand Juror No. 18 was dismissed outside the presenceof the other grand jurors. (Avitia, supra, 2017 WL 1382115 at p. *7.) The court concludedthat, contrary to Avitia’s argument, the “deputy district attorney’s actions did not ‘inevitably create[] and foster[] the false impression that the grand jury was operating underhis scrutiny and control.’” (Ibid.) Finally, the Court of Appeal held that having the foreperson excuse grand jurors for bias did not amountto a “core right.” (Avitia, supra, 2017 WL 1382115at p. *7.) The errorwasneither “inherently prejudicial”(ibid.) nor an exceptional structural error not amenable to review for harmlessness 19 (id. at p. *8.) Avitia had made no showing of prejudice from the dismissal of “an admittedly biased grand juror” and so wasnotentitled to dismissal. (Ibid.) The Court of Appeal denied Avitia’s petition for rehearing and request for publication. SUMMARYOFTHE ARGUMENT’ 1(a). The groundsfor dismissal of an indictmentare limited. (§995.) Noncompliance with section 939.5’s procedure for excusing a biased grand juroris not one of them. A violation of section 939.5, without more, is not a ground for dismissing an indictment. Nor does an errorin state grand jury proceedings implicate federal due process. There is no federal constitutional right to indictment by a grandjuryor any sortofpretrial probable cause hearing. Nor has California created a liberty interest in grand jury proceedings that would be protected by the federal due process clause. California’s statutory scheme governing grand jury proceedings neither establishes substantive predicates governing the grand jury’s decision to indict nor requires any particular outcome based oncertain criteria. 1(b). The California Constitution’s due process guarantee requires that a prosecutor not undermine the grand jury's fundamental obligation to reject unfounded charges. Dueprocess is violated only when a defendant showsthat an error’s extent and nature might have compromised the grand jury’s independence andaffected its decision to indict. 1(c). A defendant must present his due process challenge to grand _ jury proceedings in a motion undersection 995, subdivision (a)(1)(B), by arguing that he was committed without probable cause. This respects the Legislature’srole in enacting the statutes that govern grand jury procedure. — Permitting the use of nonstatutory motions would provide a remedythat the Legislature purposefully omitted. 20 2(a). Avitia cannot show a due processviolation. First, the record does not suggest that the mindset of grand jurors was affected. They were never told the foreperson should direct grand jurorsto retire for bias. The grand jurors would nototherwise have been troubled by the prosecutor’s action, Since it is common knowledge that prosecutors participate in jury selection in trials. The grand juror who was excused had volunteered her bias, so the other grand jurors surely thought it proper that'sheleft. Second, the error must be consideredin light of the entire statutory scheme. The focus of section 939.5is impartiality. That purpose was served. To the extent that the purpose of having the foreperson handle excusing grand jurors for bias is to maintain the independenceof the grand jury, it is far from the only waythat the statutory scheme preserves and protects the grand jury’s independence. Third, it is unclear whether the purpose of assigning the task of excusing grandjurors to the forepersonis to ensure the grand jury’s independence. At onetime, challenges for bias were permitted and the superior court decided them. Now, challenges for bias have been eliminated, and the court is absent when the grand jury begins to hear a case. It is also possible the prosecutor would be absent because a grand jury may investigate criminal cases on its own. It became more practical to designate the foreperson. 2(b). Avitia is not entitled to dismissal without any showing of prejudice. Generally, only an error that reasonably could have affected the result denies a defendant a substantial right. Avitia’s argumentrelies on dicta that this Court has since clarified. 2(c). The grand jury in this case was not improperly constituted. Compliance with Penal Code section 939.5 would have resulted in the same grand jury. It would have violated section 939.5 for the foreperson notto | ask the biased grandjurortoretire. 21 The prosecutor’s error did not implicate the separation ofpowers doctrine. The grand jury does not belong to any of the three branches of government. In criminal cases,its role is accusatory. It acts as a check on prosecutorial overreaching. So long as the grandjury retainsits independenceto decide whether to indict, the separation of powersis intact. ARGUMENT I. AN OVERVIEW OF GRAND JURY PROCEEDINGSIN CALIFORNIA Because this case concerns the nature and effect of statutory error in grand jury proceedings, the People commence with anoverview of the law governing grand jury proceedings. California district attorneys begin a prosecution either by filing an information after a preliminary hearing before a magistrate or by obtaining a grand jury indictment. (Cal. Const., art. I, § 14; § 949; McGill v. Superior Court (2011) 195 Cal.App.4th 1454, 1465-1466 (McGill).) Both types of proceedings protect an accused from undergoing a criminal trial unless there is probable cause to believe the accusedis guilty of a crime (Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026-1027(Cummiskey), but in different ways. A. How anInformationIs Filed At a preliminary hearing, the accused hasthe right to appear with counsel, present evidence, and cross-examine the prosecution’s witnesses. (McGill, supra, 195 Cal.App.4th at p. 1467.) The hearing is “open and public.” (§ 868.) A neutral magistrate conducts the hearing and decides whether witnesses are credible. (McGill, at pp. 1467-1468.) If the magistrate finds that “a public offense has been committed, and there is sufficient cause to believe that the defendantis guilty” (§ 872), the accused person is “held to answer” and the prosecutorfiles an information setting out the chargesto be tried before a jury. (McGill, at pp. 1467-1468.) 22 B. How an Indictment Is Found Grandjuries are selected from the citizens of the county, and grand jurors serve for a year. (§§ 893, 899, 905; McGill, supra, 195 Cal.App.4th at p. 1468.) One duty of the grandjuryis to investigate and report on county government, includingits officers. (§ 925; McGill, at p. 1468.) Thatrole is purely statutory. (People ex. rel. Pierson v. The Superior Court ofEl Dorado County (2017) 7 Cal.App.Sth 402, 410 (Pierson).) The other duty of the grand jury, and the one relevanthere, is its constitutional duty to consider and return indictments in criminal cases. (Cal. Const., art. I, § 14; see McGill, supra, 195 Cal.App.4th at p. 1469.) The state constitution left it to the Legislature to enact laws governing grand jury proceedings. (Cal. Const., art. I, § 14; Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1125, fn. 5 (Daily Journal Corp.); Pierson, at pp. 411-414.) The superior court is responsible for ensuring that grand jurors meet basic qualifications. (§§ 893, 896, subd. (a), 909, 910.) A grand juror must be an Americancitizen, at least 18 years old, able to speak and understand English, mentally competent, and have no convictionsforfelonies or “malfeasance in office.” (§ 893; Packer v. Superior Court (2011) 201 Cal.App.4th 152, 163 (Packer).) Section 910 provides: “No challenge shall be made or allowedto the panel from which the grand jury is drawn, nor to an individual grand juror, except when madeby the court for wantof qualification, as prescribed in Section 909.” The superior court swears the grand jury in (see §§ 911, 914), selects a foreperson (§ 912), and gives the grand jurors any information that it finds necessary, including any criminal charges likely to come before them (§ 914). The superior court does not, however, conduct the grand jury proceedings. (Daily Journal Corp., supra, 20 Cal.4th at pp. 1128-1129.) The grand jury works in private. (§ 939.) It may request the advice of the judge; otherwise the judge will not be present. (§ 934; McGill, supra, 23 195 Cal.App.4th at p. 1471, fn. 15.) Witnesses may be present only while testifying. (§ 939.) The district attorney, however, has an importantrole in grand jury proceedings in criminal cases. “The district attorney of the county mayatall times appear before the grand jury for the purpose of giving information or advicerelative to any matter cognizable by the grand jury, and may interrogate witnesses before the grand jury wheneverhe thinks it necessary.” (§ 935.) _ “The grand jury shall find an indictment whenall the evidence before it, taken together, if unexplained or uncontradicted, would,in its judgment, warrant a conviction bya trial jury.” (§ 939.8.) This standardis essentially the same as the standard used in preliminary hearings, and both require a finding of probable cause. (Cummiskey, supra, 3 Cal.4th at pp. 1027-1029, 1036-1037.) The grand jury’s finding need not be unanimous. In a county the size of San Joaquin County,’ at least 12 of 19 grand jurors must concur in finding an indictment. (§ 940.) C. The Remedy for FlawedInformations and Indictments California law provides a meansto set aside an indictment or information, but only on specified grounds. For indictments, the two statutory grounds for dismissal are: “[w]Jhere it is not found, endorsed, and presented as prescribedin this code”or when “the defendant has been indicted without reasonable or probable cause.” (§ 995, subds. (a)(1)(A) & (B).) To perfect such challenges, once indicted, the defendanthasa right to a complete transcript of the grand jury proceedings. (§ 938.1, subd.(a); McGill, supra, 195 Cal.App.4th at p. 1470.) | If unsuccessful in superior court, the defendant mayfile a petition for writ of mandate or prohibition before trial Jones v. Superior Court (1979) 7 The numberofgrand jurors serving on a grandjury varies according to the populations of the counties. (§ 888.2.) 24 96 Cal.App.3d 390, 393) or raise the issue on direct appeal after conviction (see People v. Towler (1982) 31 Cal.3d 105, 123). The grand jury, not the court, has the exclusive duty of determining whetherto find an indictment. (Stark v. Superior Court (2011) 52 Cal.4th 368, 406 (Stark).) The reviewing court cannot reweigh the evidence “and must draw all reasonable inferences in favor of the indictment.” (/d. at p. 407.) II. DISMISSAL OF THE INDICTMENT Is NOT A REMEDY FOR THIS PROCEDURAL ERROR UNLESS A DEFENDANT ESTABLISHES A DUE PROCESS VIOLATION THAT AFFECTED THE PROBABLE CAUSE DETERMINATION UNDERSECTION 995 A. The Prosecutor’s Error in Taking on the Task of Retiring a Grand Juror for Bias Is Not a Proper Groundfor Dismissal of the Indictment Under Penal Code Section 995, subdivision (a)(1)(A) The statutes governing grand jury proceedings broadly permit the district attorney to be present, advise the grand jury, and question witnesses. (§ 935.) But the statutes assign the task of inquiring about prejudice and, if necessary, directing grand jurorsto retire, to the foreperson. (§ 939.5.) In the words of section 939.5: Before considering a charge against any person, the foremanof 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 memberof the grand jury whohasa state of mind in reference to the case orto either party whichwill prevent him from acting impartially and without prejudice to the substantial rights of the party to retire. Anyviolation of this section by the foreman or any memberof the grand jury is punishable by the court as a contempt. The prosecutor should not have directed Grand Juror No.18 to retire. The issue is the nature andeffect, if any, of that statutory violation. A departure from section 939.5’sprocedure, in and ofitself, is not a ground for dismissal. The Legislature has enacted statutes to ensure that grand jury proceedingsare fair to accusedpersons. It has also specified 25 remedies for violations of these statutes. Nowherein this carefully constructed statutory scheme does one find the drastic remedy of dismissal for noncompliance with section 939.5. Section 995, subdivision (a), provides for dismissal of an indictment on certain specified grounds: (a) Subject to subdivision (b) of Section 995a[*], the indictment or information shall be set aside by the court in which the defendantis arraigned, upon his or her motion, in either of the following cases: (1) If it is an indictment: (A) Whereit is not found, endorsed, and presented as prescribed in this code. (B) That the defendant has been indicted without reasonable or probable cause. (2) If it is an information: (A) That before the filing thereof the defendanthad not been legally committed by a magistrate. (B) That the defendant had been committed without reasonable or probable cause. | - Avitia cannot prevail on the groundthat the indictment was “not found, endorsed, and presented as prescribedin this code”(§ 995, subd. (a)(1)(A). (Avitia, supra, 2017 WL 1382115 at p. *5.) The finding, presentment, and endorsementof an indictmentare events that occurafter a . panel is assembled and evidenceis presented. (See §§ 939.8, 940, 943, 944.) According to this Court, section 995, subdivision (a)(1)(A)) “has beeninterpreted as applying only to those sectionsin part2, title 5, chapter 1, of the Penal Code beginning with section 940.” (People v. Jefferson 8 This pertains only to informations. 26 (1956) 47 Cal.2d 438, 442°; accord, Stark, supra, 52 Cal.4th at p. 416,fn. 24.) The statutory requirements for an indictmentthat fall within section 995, subdivision (a)(1)(A) include concurrence in the indictment by the proper numberofgrand jurors, endorsementas “[a] true bill” and by.a propersignature, inclusion of the namesof witnesses on the document, presentmentto the court by the foreperson in the presence of other grand jurors, andfiling by the clerk. (Cummiskey, 3 Cal.4th at p. 1039 (conc. & dis. opn. of Kennard, J.).) | Indeed,this Court held long ago that noncompliance with former section 907 (now § 939.5) is not a basis for setting aside the indictment under section 995. (People v. Kempley (1928) 205 Cal. 441, 447.) This was no merelegislative oversight, because, as this Court pointed out, the section “contains within itself the penalty for the violation of its provisions” (Kempley, at p. 447): contempt. (§ 939.5.)!° Thus, this Court held in People v. Jefferson, supra, 47 Cal.2dat p. 442, that the grand jury foreperson’s failure to comply with section 907 was not a cognizable groundforsetting aside the indictment under section 995. (People v. Jefferson, supra, 47 Cal.2d at p. 442.) And anallegation that a 9 At the time, and until 1959, current section 939.5 was numbered section 907. (See Packer, supra, 201 Cal.App.4th at p. 164.) It contained substantially the same language. (Compare People v. Kempley, supra, 205 Cal. at p. 447 to § 939.5.) 10 The statutory schemeprovides specific remedies outside of section 995 for violations of other statutes governing grand jury conduct,too. Grandjurors are forbidden from disclosing evidence, discussions, and votes. (§§ 911, 924.1, 924.2, 924.3.) Willful disclosures are punishable as misdemeanors. (§§ 924, 924.1.) Andthe district attorney must inform the grand jury of any exculpatory evidencethat he or she knowsabout. (§ 939.71.) The remedy for a violation is contained within the statute:if the violation “results in substantial prejudice, it shall be grounds for dismissal of the portion of the indictmentrelated to that evidence.” (§ 939.71, subd. (a).) 27 foreperson should have directed a grand juror to retire pursuant to section 939.5 is not a groundfor setting aside an indictment. (Packer, supra, 201 Cal.App.4th at p. 164 & casescited.) | B. State Grand Jury Proceedings Do Not Implicate Fourteenth Amendment Due Process . Despite the Legislature’s decision not to provide a statutory remedy for a violation of section 939.5, Avitia contendsthat dismissal is necessary becausetheerrorviolates his right to due process. (OB 34, 36-39.) He does not specify whetherhe relies on the Fourteenth Amendmentof the United States Constitution or on the California Constitution or both. Regardless, error in state grand jury proceedings doesnotviolate the federal due process clause. The Fourteenth Amendment providesthat no State shall “deprive any personoflife, liberty, or property, without due process of law.” (U.S. Const., 14th Amend.) Through the due process clause, mostofthe rights guaranteed bythe Bill of Rights of the United States Constitution are fully applicable to the states. (Obergefellv. Hodges (2015)__—* US. __, 135 S.Ct. 2584, 2597.) It is significant for our purposes that one of the “handful” (McDonald v. City ofChicago (2010) 561 U.S. 742, 765) of rights in the Bill of Rights that is not applicable to the states is the Fifth Amendment’s right to indictment by a grand jury. (Hurtadov. California (1884) 110 US. 516, 538.) The states may “dispens[e] entirely” with the grand jury | procedure. (Beckv. Washington (1962) 369 U.S.541, 545.) The federal due process clause protects “against government interference with certain fundamental rights and liberty interests”in addition to the rights specifically protected by the Bill of Rights. (Washington v. Glucksberg (1997) 521 U.S. 702, 720.) Yet, “[b]eyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation.” (Dowling v. United States (1990) 493 U.S. 28 342, 352.) Anyway, the United States Supreme Court has already determined that there is no fundamental right to a grand jury proceeding under the due process clause whenit held that fundamental fairness does not require the states to secure a grand jury indictmentbeforetrial. (Hurtado v. California, supra, 110 U.S.at p. 538.) And the Court eliminated any fundamental right to any particular grand jury procedure whenit held that there is no due process liberty interest in a probable cause hearing ofanykind beforetrial. (Albright v. Oliver (1994) 510 U.S. 266, 268, 272-275; accord, Gerstein v. Pugh (1975) 420 U.S. 103, 118-119.) So the United States Constitution creates no liberty interest in state grand jury procedures.’ Though the United States Supreme Court once commented that Fourteenth Amendment due process may require a state that employs a grand jury procedure “to furnish an unbiased grandjury,” the Court addedthat this was “a question upon which we donot remotely intimate any view... .” (Beck v. Washington, supra, 369 U.S.at p. 546.) As of this writing, the Court still hasn’t. Undercertain circumstancesstate law can create a liberty interest that will be protected by the federal due process clause. (Kentucky Dept. of Corrections v. Thompson (1989) 490 U.S. 454, 460 (Thompson).) But a state creates a liberty interest only whenit places “substantive limitations on official discretion[,]’” such as “by establishing ‘substantive predicates’ to govern official decision-making and, further, by mandating the outcome to be reached upona finding that the relevant criteria have been met.” (Id. 11 Racial discrimination in the composition of a grand jury does violate the Constitution, but under the equal protection clause. (Vasquez v. Hillery (1986) 474 U.S. 254, 260-264.) The reasoning and result in Vasquez v. Hillery “havelittle force outside the context of racial ' discrimination in the composition of the grand jury.” (United States v. Mechanik (1986) 475 U.S. 66, 70-71, fn. 1; accord, People v. Jablonski (2006) 37 Cal.4th 774, 800.) 29 "at p. 462,citations omitted.) Another hallmark of a statute that creates a liberty interest is “‘explicitly mandatory language,’ Le, specific directives to the decisionmakerthat if the regulations’ substantive predicates are present, a particular outcome must follow. ...” (Id. at p. 463.) Section 939.5 creates no liberty interest. It does not even deal with “official decision-making.” (Thompson, supra, 490 U.S.at p. 462.) Grand jurorsare citizens, not governmentofficers, and the decision entrusted to them in criminal cases is whetherto return anindictment. (§§ 939.8, 939.9, 940.) “The grand jury shall find an indictment whenall the evidence before it, taken together, if unexplained or uncontradicted, would,in its judgment, warrant a conviction by trial jury.” (§ 939.8.) This does not mandate any conclusion based on defined predicates, but leaves grand jurors plenty of discretion to evaluate witness credibility and weigh evidence. (See Lorenson v. Superior Court (1950) 35 Cal.2d 49, 58 [applying probable cause standard prior to enactment of § 939.8].) Another convincing indication that California has created noliberty interest by enacting section 939.5 is thatneither it nor any other part of the surrounding statutory schemecreates a remedy for noncompliance that can be claimed by accused persons. “[A]n individual claiming a protected interest must have a legitimate claim of entitlement to it.” (Thompson, supra, 490 U.S. at p. 460.) In California, the remedies available to accused personsfor violations of the grand jury process were deliberately limited by the Legislature. (§995.) For example, the Legislature limited the remedy for violations of section 939.5 to punishment, of the grand juror only,by. contempt, which of course wouldbe discretionary with the superior court. (Packer, supra, 201 Cal.App.4th at p. 172.) All of this makes theerror in implementing section 939.5 a most unlikely candidate for an appeal to federal dueprocess. But that makes sense. After all, it is commonly accepted that the violation of a state law or 30 rule of procedureis generally not a violation of a right protected by the due process clause. (Engle v. Isaac (1982) 456 U.S. 107, 121, fn. 21; Snowden v. Hughes (1944) 321 U.S. 1, 11.) “If the contrary weretrue, then ‘every erroneousdecisionby a state court on state law would come [to the United States Supreme Court]as a federal constitutional question.’ [Citation.]” (Engle v. Isaac, supra, 456 U.S.at p. 121, fn. 21, bracketed material altered.) The Supreme Court has cautioned that the Constitution leaves it to the states to enact laws and rules of criminal procedure without the added burden of creating new due processrights. (See, e.g., Medina v. California (1992) 505 U.S. 437, 445 [state wasfree to allocate the burdenof proof in a competency proceeding to the defendant]; Sandin v. Connor (1995) 515 US. 472, 482-483 [prison regulation did not create liberty interest].) Construing state laws as creating liberty interests does come with a cost. The prospect of additional challenges clothed in due process may very well “create[] disincentives for States” topromulgate otherwise salutary laws like the one at issue here. (Sandin,at p. 482.) This Court should hold that neither the Constitution nor state law creates a liberty interest in the application of section 939.5 that is protected by the federal due process clause. To the extent that Avitia intended to argue a violation of the federal due process guarantee, that argumentfails because he was not deprived of any federal constitutionalright. C. To Prove Violation of Due Process Underthe California Constitution, a Defendant Must Show That the Nature and Extent of an Error in a Grand Jury Proceeding Is Such That It May Have Compromised the Independence of the Grand Jury and Contributed to the Decision to Indict The California Constitution has its own guarantee of due process. (Cal. Const., art. I, §15.) As a broadprinciple, the rights guaranteed by the California Constitution “are not dependent on those guaranteed by the 31 United States Constitution.” (Cal. Const., art. I, §24; see Raven v. Deukmejian (1990) 52 Cal.3d 336, 350-356.) This Court has assumedin a few cases that “the manner in which the grand jury proceedings are conducted mayresult in a denial of a defendant’s due processrights, requiring dismissal of the indictment.” (Stark, supra, 52 Cal.4th at p. 417; see also People v. Backus (1979) 23 Cal.3d 360, 392-393 (Backus); Cummiskey, supra, 3 Cal.4th at pp. 1022,fn. 1, 1039 (conc. & dis. opn. of Kennard,J.).) In each case, this Court recognized the possibility of a due process violation in the context of allegations of somesort of prosecutorial impropriety: that the prosecutor suffered a disqualifying conflict of interest (Stark, at pp. 414-417); that the prosecutor interfered with the grand jury’s attempt to exercise its statutory authority under section 939.7 to ask questions and obtain evidence,failed to - instruct on lesser-included offenses, and failed to present exculpatory | evidence (Cummiskey, at p. 1022); and that the prosecutor presented inadmissible evidence in violation of section 939.6 (Backus, at p. 393). (See Packer, supra, 201 Cal.App.4th at pp. 167-168 [noting the common thread of “prosecutorial impropriety”].) In none of these cases was a due process violation actually found. But several principles emerge. According to this Court, due process requires that a prosecutor not undermine the grand jury’s obligation to “reject charges which it may believe unfounded.” (Backus, supra, 23 Cal.3d at p. 392, internal quotation marks and citation omitted.) For example, had “the extent of incompetent and irrelevant evidence” presented to the grand jury by the prosecutorin Backus been “such that, under the instructions and advice given by the prosecutor, it [would have been] unreasonable to expect that the grand jury couldlimit its consideration to the admissible, relevant evidence” the defendants could have been denied due process. (Backus, at p. 393.) 32 This Court has also madeit clear it is defendant’s burden to establish the due process violation. This “requires a demonstration” by the defendant that the prosecutor actually committed an act (Stark, supra, 52 Cal.4th atp. 417; see also id. at p. 378) that threatened the grand jury’s ability to carry out its “obligation to act independently and to protect citizens from unfounded obligations” (Backus, supra, 23 Cal.3d at p. 393). Finally, according to this Court, a defendant must establish that the due process violation resulted in prejudice. (Backus, supra, 23 Cal.3dat pp. 393-396.) It is not enough that a reviewing court may “condemn”the prosecutor’s action. (/d. at p. 393.) “The nature and extent”ofthe error must be “such that it may have compromised the independenceof the grand jury and contributed to the decision to indict.” (dbid.; accord, Peoplev. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 435 (Mouchaourab).) Requiring a showingthat any error affected the decision to indict recognizes that the ultimate “function”ofthe grand jury is to “determine whether probable cause exists to accuse a defendantof a particular crime.” (Cummiskey, supra, 3 Cal.4th at p. 1026.) D. A Due Process Challenge to an Indictment Must Be Raised UnderSection 995, subdivision (a)(1)(B) This Court has never decided whethera due process claim may be raised in a motion to dismiss the indictment under section 995. Although Avitia raises this question, he does not take a position on whether section 995 provides the proper vehicle for his due process claim. (OB 35-36.) The People ask this Court to hold that a defendant must “enforce” the “due processright to a determination of probable cause by a grand jury acting 39 66.independently and impartially” “through meansof a challenge under section 995 to the probable cause determination underlying the indictment .... (Mouchaourab, supra, 78 Cal.App.4th at p. 424.) That is, a cognizable due processclaim will fall within section 995, subdivision 33 _(a)(1)(B) as a claim “[t]hat the defendant had been committed without reasonable or probable cause.” The People’s proposedrule is consistent with whatthis Court said in Backus: a defendantasserting a due process violation in grand jury proceedings must demonstrate that “t]he nature and extent” of the error was “such that it may have compromised the | independence of the grand jury and contributed to the decision to indict.” (Backus, supra, 23 Cal.3d at p. 435; see also Mouchaourab,atpp. 425, 435; accord, Bank ofNova Scotia v. United States (1988) 487 U.S. 250, 256 (Bank ofNova Scotia).) | The People oppose the use of a nonstatutory motionfor this purpose. Certainly, this Court has recognized the possibility of a nonstatutory pretrial motion to dismiss for a case alleging discriminatory prosecutionin violation of the right to equal protection. (Murgia v. Municipal Court (1975) 15 Cal.3d 286, 294,fn. 4.) In that case, the defendants sought discovery to prove invidious discrimination. (Id. at p. 290.) Courts since ‘Murgia have approved nonstatutory motions for claims that require evidence outside the record ofthe pretrial proceeding. (See, e.g., Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1596 [claim that prosecution failed to disclose material evidence at preliminary hearing]; Stanton v. Superior Court (1987) 193 Cal.App.3d 265, 270 [same].) A motion to dismissthe indictment undersection 995, on the otherhand, is decided “on the basis of the record made before the grand jury... .” (People v. Crudgington (1979) 88 Cal.App.3d 295, 299.) A claim that the prosecutor’s conduct undermined the independence or impartiality of the grand jury will necessarily be decided on the record of the grand jury proceeding, for if it did not happen before the grand jury, how could it have affected their independence? Nonstatutory motions are not appropriate just because a claim inconveniently does not meet the strictures of section 995. 34 Requiring a showing that meets the requirementof section 995, subdivision (a)(1)(B), would respect the Legislature’s role in enacting the statutes that govern grand jury procedure. (See Daily Journal Corp, supra, 20 Cal.4th at p. 1125, fn. 5; Pierson, supra, 7 Cal.App.Sth at pp. 411-414.) The Legislature chose to “sharply”restrict “the supervisory role of the superior court” in grand jury proceedings. (Daily Journal Corp., at p. 1128.) The Legislature also specified remedies for violations of these statutes, either within the statuteor in section 995. Expanding relief under section 995 or allowingthe use of nonstatutory motions evades these legislative decisions. It “would be supplying a dismissal remedy that the Legislature chose to omit.” (People v. Standish (2006) 38 Cal.4th 858, 884 (Standish). “This court has no powerto rewrite the statute so as to makeit conform to a presumedintention which is not expressed.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 59, internal quotation marks and citation omitted.) The expansion of review of grand jury proceedings beyond the groundsin section 995 wouldalso affect the state’s interest in the orderly administration of justice. As.Packer, supra, 201 Cal.App.4th at page 68, footnote 11, recognized, expanded review begetslitigation. If permissible groundsfor dismissal drift away from the mooring of section 995, already overworked superior courts would expend additional time and effort to decide more motions to dismiss indictments based on the“scarce and open- ended”“guideposts” of due process. (District Attorney's Office for Third Judicial Dist. v. Osborne (2009) 557 U.S. 52, 72; see also People v. Uribe (2011) 199 Cal.App.4th 836, 863.) ‘More similarly ill-defined writ petitions ~ would be filed in the appellate courts and would not be decided on defined criteria like that included in section 995 or on any specific right guaranteed by the California constitution. “‘The doctrine ofjudicial self-restraint requires us to exercise the utmost care whenever weare asked to break new 35 ground in this field.”” (Uribe, at p. 863, quoting Collins v. City ofHarker Heights (1992) 503 U.S. 115, 125.) And dismissals may come with a high cost. It is true that, in this case, the prosecution canfile again. (See OB 9- 10.) But that will not be true in every case. Underthe “two-dismissal rule,” ““[a]n order terminating an actionpursuantto this chapter, or Section 859b, 861, 871,or 995, is a bar to any other prosecution for the same Offenseif it is a felony . . . and the action has been previously terminated pursuantto this chapter, or Section 859b, 861, 871, or 995... .’” (§ 1387, . subd.(a).) | | Avitia contendsthat, unless the indictment against him is dismissed, section 939.5 is unenforceable and prosecutors in this state will continue to flout it without fear of consequences. (OB at 9, 40.) The People disagree. But moreto the point, the United States Supreme Court also disagrees with Avitia. That Court has rejected an argument that federal district courts could use their supervisory powerto dismiss an indictment for prosecutorial misconductthat did notresult in prejudice. (Bank ofNova Scotia v. United States, supra, 487 U.S.at pp. 254-255.) The Court explained that “deterrence is an inappropriate basis for reversal where ‘means more narrowly tailored to deter objectionable prosecutorial conduct are available.’ [Citation.] . .. [A] court may not disregard the doctrine of harmless error simply “in order to chastise what the court view[s] as prosecutorial overreaching.’” (Id. at pp: 255-256.) This is so whether or not the underlying error is constitutional. (Id. at p. 256.) In this case, dismissal is not necessary to address any concern overthe prosecutor’s conduct. It is apparent that the prosecutor was simply unaware that section 939.5 forbade his involvement in excusing grand jurors for — cause. (See exhs. at 198-199.) He believed that, in addition to the statutory authority granted the foreperson, the District Attorney’s Office had a duty to “make sure the panel is fair” in the particular case before it. (Exhs.at 36 199.) After all, this Court has said that “the obligation of the prosecutor to assure independence, procedural regularity, and fairness in grand jury proceedings is compelled by due process... .” (Backus, 23 Cal.3d at p. 392.) And, again, the dismissed grand juror wasbiased in favorof the prosecution. “Being wrong on a legal point is not prosecutorial misconduct,it's just being wrong.” (McGill, supra, 195 Cal.App.4th at p. 1465.) Asa result of the proceedingsin this case, the prosecutor understood that he had made a mistake. (See exhs. at 199-200, 210.) It is not necessary to resort to dismissal to make a pointin this or future cases. Section 939.5 will still be on the books, and, as this Court suggested in Standish, once this Court focuses prosecutors’ attentionto its requirements, there is no reason to assumethat attorneys will not heed what this Court says. (See Standish, supra, 38 Cal.4th at pp. 886-887.) For grand jurors whoviolate section 939.5 , the statute provides expressly provides a remedy short of dismissal: contempt. III. THERE WAS NO VIOLATION OF DUE PROCESS NORANY OTHER PREJUDICIAL ERROR A. Avitia Cannot Show That He Suffered a Violation of His Right to Due Process Whateverthe proper vehicle, Avitia’s argument mustultimately rise or fall as a claim that the error in this case violated due process under the state constitution; that it actually “compromised the independence ofthe grandjury and contributed to the decisionto indict.” (Backus, supra, 23 Cal.3d at pp. 393-396; accord, Mouchaourab, supra, 78 Cal.App.4th at p. 435.) Avitia cannot show thatthe grand jurors in this case were awareofor affected by the error. The purpose of section 939.5 is to further impartiality, and that purpose wasfulfilled. Having the foreperson inquire aboutbias and direct grand jurors to retireis not key to the independenceof 37 the grand jury. Otherstatutes are crafted to and did maintain the grand jury’s independence. | 1. Avitia has not established the basic premise of a dueprocess claim Avitia has not shownthatthe errorhere actually affected the mindset of the grand jurors in any way,let alone that they felt that their | independence was weakened. It is presumedthat the grand jurors’ official duty was regularly performed. (Evid. Code, § 664; Packer, supra, 201 Cal.App.4th at p. 171.) Avitia must show otherwise. (Packer, at p. 171; cf Reilly v. Superior Court (2013) 57 Cal.4th 653 [“petitioner for a writ of mandate [] bears the burden ofpleading and proof’”’].) “Bias cannot be presumed” (Packer, at p. 169) — nor can anyother improperinfluence on the grand jurors’ minds. Courts should not presumethat grand jurors are “so weak and so unmindful of their duty as to have been induced by the mere presenceofthe district attorney”to disregard the evidence and _ instructions in considering an indictment. (United States v. Terry (N.D. Cal. 1889) 39 F. 355, 361.) | Avitia must show unfairness “‘not as a matter of speculation but as a demonstrable reality.’” (Packer, supra, 201 Cal.App.4th at p. 169, quoting Beck v. Washington, supra, 369 USS.at p. 558.) Success on a claim that a flaw in grand jury proceedings violated due process requires “a demonstration”that the irregularity “substantially impaired the independence and impartiality of the grand jury.” (Stark, supra, 52 Cal.4th at p. 417.) In the absence of any showing that the grand jurors were actually affectedto the extent that their freedom to refuse to indict was compromised, a defendant cannot succeed. (Cummiskey, supra, 3 Cal.4th at pp. 1033-1034; People v. Fujita (1974) 43 Cal.App.3d 454, 475.) Avitia has never been able to make this showing, as the superior court and the Court of Appeal found. As the superior court noted (exhs. at 88- 38 89), Grand Juror No. 18 was questioned anddirectedto retire outside the presenceof the other grand jurors. (Exhs. at 96-99.) The other grand jurors heard only that Grand Juror No. 18 had “arrested people for 148”in response to the prosecutor’s question about bias. (Exhs. at 97.) The superior court rejected, as “speculative and unsupported” Avitia’s arguments that the grand jury somehowrelinquished its independence and felt controlled by the prosecutor. (Exhs at 89.) The Court of Appeal agreed, emphasizing that Grand Juror No. 18 “was excused outside of the presence ofthe other grand jurors.” (Avitia, supra, 2017 WL 1382115at p. *7,) The People add that the grand jurors had no expectation that the prosecutor should not have been inquiring about bias. When the superior court told them whatto expect once the court released them to begin their work, the court told them the prosecutor would present evidence and provide legal instructions. (Exhs. at 173-175.) The court did nottell them about the terms of section 939.5. (See exhs. at 171-180.) To the extent that the grand jurors had any expectations about being questioned regarding © bias, they would have been based on the common knowledgethat prosecutors do ask questions about bias whenjurors are selected for criminal trials, and they may also have been awarethat prosecutors may excuse jurors themselves. They certainly knew Grand Juror No. 18 had spoken up in response to a question about bias and no doubt assumedthat she left for that entirely proper and unsurprising reason. Moreover,the grand jurors heard Grand Juror No. 18 mention arresting people (exhs.at 97), so they likely thought — correctly — her bias favored the prosecution. Therefore, to the extent that the grand jurors thought aboutit atall, they would have thought the prosecutor’s motive wasonly to preserve the ' impartiality of the grand jury, not to undermineit. Grand Juror No. 18’s 39 departure could not have led the grand jurors to feel that they were under the prosecutor’s thumb. . Significantly, “if the prosecutor’s dismissal of Juror No. 18 had any impact on the grandjury, it leans in favor of having produced an unbiased _ and impartial grand jury.” (Exhs. at 90-91.) “[{Grand Juror No. 18] twice stated, under questioning, that she could notbe fair to the defendant. . . . [Grand] Juror No. 18 neededto retire from the grand jury nevertheless.” (Exhs. at 90.) Avitia has failed to establish the basic premise of his due process claim. Speculation will notcarry the day. (People v. Jablonski, supra, 37 Cal.4th at p. 800.) Putting speculation aside, no actual adverse effect on the independence and impartiality can be found in or even inferred from the record. | 2. Noncompliance with onestatute did notviolate _ Avitia’s right to due process when considered in light of the comprehensive statutory scheme governing grand jury proceedings The violation of one statute should not be viewedinartificial isolation, but must be viewedin light of the other statutes that were given effect before a court concludesthat a grand jury proceeding wasnot fundamentally fair. (Cf. Estelle v. McGuire (1991) 502 U.S. 62, 72 [instructional error must be considered in light of the entire charge and the rest of the record of the proceeding when considering a claimed due process violation].) In grand jury proceedings, accused personsare protected by the grand jury’s independence, impartiality, and secrecy. (McGill, supra, 195 Cal.App.4th at p. 1469; cf. United States v. Navarro-Vargas (9th Cir. 2005) 408 F.3d 1184, 1199-1202 [en banc] (Navarro-Vargas) {considering the Fifth Amendment Grand Jury Clause and the rules governing grandjuries in federal courts].) A host of statutes make sure that this is so in California. 40 This statutory frameworkis sturdy enough to withstand errors and irregularities. Aswe havealready seen, section 939.5 requires grand jurors to be neutral. (§ 939.5.) This is but one way in which the Legislature maintains the impartiality and independenceof the grand jury. (See McGill, supra, 195 Cal.App.4th at pp. 1467-1471.) Other statutes promote neutrality by ensuring balance andfairness in the presentation of evidence before the grand jury. The grand jury must receive only evidence that would be admissible at trial. (§ 939.6, subd. (b).) The prosecutoris required to inform the grand jury of any exculpatory evidence within his or her knowledge (§ 939.71, subd. (a)), and the grand jury can order evidenceifit believes there could be evidence that “will explain away the charge” (§ 939.7). Oneof the most importantprotections is secrecy. (Navarro-Vargas, supra, 408 F.3d at pp. 1199-1202; see also McGill, supra, 195 Cal.App.4th | at p. 1469. “The grandjury’s discretion—its independence—liesin two important characteristics: the absolute secrecy surroundingits deliberations and vote and the unreviewability of its decisions.” (Navarro-Vargas,at p. 1200.) The California Legislature has madeit clear that grand jurors are responsible for maintaining secrecy. Grand jurors are forbidden from ‘disclosing evidence, discussions, and votes. (§§ 924.1, 924.2, 924.3.) Grand jurors not only swear an oath to that effect (§ 911), but certain willful disclosures are punishable as misdemeanors (§§ 924, 924.1.) No one mayobserve grand jury proceedings. (§ 939.) Witnesses may be present only while testifying. (§ 939.) Even the judgeof the superior court maybe present only if the grand jury seeks the judge’s advice. (§ 934.) _ The secrecy of the grand jury’s proceedingsalso protects an accused for whom no indictment is found. ““‘[T]he innocent accused are protected from the harm to their reputations which might result from disclosure.’ 41 [Citations.]” (Daily Journal Corp., supra, 20 Cal.4th at p. 1127.) Secrecy also encourages witnesses to be candid despite potential fears about the consequencesoftestifying regarding a crime. (/d. at pp. 1126-1127.) The Legislature has also given the grand jury substantial authority that further ensures its independence. Grandjuries choose their officers, except for the foreperson, and adopt their ownrules of procedure. (§ 916.) A grand jury may inquire into possible crimes on its own initiative. (§ 917, subd.(a).) It may request that witnesses be subpoenaed (§ 939.2) or order that evidence be producedfor its consideration (§ 939.7). It may request advice from the superior court judge, the district attorney, and the Attorney General. (§ 934.) Here, the purpose of section 939.5 was not thwarted despite the error, and none of the other statutes were undermined. Section 939.5 is plainly directed at preserving the impartiality of the grand jurors by giving them the opportunity to retire after hearing the details of the case to be presented to them. That was accomplished. It has never been disputed that Grand Juror No. 18 stated a bias in favor ofthe prosecution that required her to retire. The prosecutor’s error affected a brief and self-contained proceeding that was preliminary to and separate from the actual consideration of the evidence and deliberations. Nothing indicates that the grand jurors somehow assumed from whatlittle they saw of this single event that they no longer had the authority granted by other statutes that gave them independence,or that they thought they no longer hadtodeliberate in secret, or that they thought that a decision not to indict would have repercussions. As described above, they were thoroughly instructed that the district attorney’s statements were not evidence andthat it would be their responsibility to decide what the facts were based on the evidence presented. (Exhs. at 175.) Like petit jurors, grand jurors are presumed to 42 follow their instructions. (Navarro-Vargas, supra, 408 F.3d at p. 1202,fn. 23.) | The independence and impartiality of the grand jury, buttressed bya comprehensive statutory framework, was not so fragile that it collapsed as a result ofone error in onepart of onestatute. 3. Therole of the forepersonin section 939.5 is not critical to ensuring the grand jury’s independence Even viewed in isolation, the nature of the violation here does not implicate due process. The Legislature’s assignmentofthe task of inquiring about bias to the forepersonis notcritical to its goal of ensuring the grand jury’s independence. Again, section 939.5 is directed at ensuring an impartial grand jury. (McGill, supra, 195 Cal.App.4th at p. 1471.) The history of the grand jury statutes suggests that the assignmentof this task to the foreperson may have simply been a practical, not a policy, decision. California lawprovided in 1851 that an individual grand juror could be challenged on the ground that “he has formed a decided opinion that the defendantis ouilty ....” (Former § 183, subd. (6).) The challenge was tried by the court. (Former § 184.) In 1872, the Legislature renumbered the section and added to the grounds for challenges language similar to current section 939.5: “That a state of mind exists on his part in reference to the case, or to either party, which satisfies the Court that he cannotact impartially and without prejudice to the substantial rights of the party challenging.” (Former § 896, subd. (7).) The Note to subdivision (7) explained that the new subdivision “stands upon the same footing of reason and justice as, and covers cases that may notfall within, Subdivision 6.” In 1906, the language became: “That a state of mind exists on his part 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 | challenging, but no person shall be disqualified as a juror by reason of 43 having formed or expressed an opinion upon the matter or cause to submitted to the jury, founded upon public rumor, statements in public journals, or common notoriety, providedit satisfactorily appearto the court upon his declaration, under oath or otherwise, that he can and will, notwithstanding such an opinion, act impartially and fairly upon the matters to be submitted to him.” (Former § 896, subd. (6).) | Challenges to grand jurors’ impartiality were permitted and decided by the superior court until 1911. (Former §§ 186, eff. 1851); former § 897, eff. 1872, 1906.) That year, the Legislature amendedthestatutes “relating to proceedings before the grand jury, the persons who maybe presentat the sessions of such jury, and the records of testimony takenat such sessions.” (Stats. 1911, ch. 254, § 1, p. 434.) Section 925 was amended to provide that the court would no longer be present for grand jury sessions, and that the district attorney “may” appear: “The grand jury may,at all times, ask the advice of the court... or of the district attorney; but unless such advice is asked, the judge ... must not be present during the sessions of the grand jury. The district attorney ofthe county may at all times appear before the grand jury for the purpose of giving information or advicerelative to any matter cognizable by them... .” (Former § 925,italics added.) The Statutes permitting challenges for bias were repealed. (Stats. 1911, ch. 253, p. 434.) At the same time, a new section 907 was added,andforthe first time it assigned the task of inquiring about bias to the foreperson, using the languagethat today appearsin section 939.5. This history suggests that the task of inquiring about bias was assigned to the foreperson because, after the 1911 changes, the superior court was no longer present when the grand jury considered specific matters. And the prosecutor “may”appear, but that was not certain. After all, section 918 permits the grand jurors to investigate offenses on their own initiative. That left the foreperson. Contrary to Avitia’s assumptions,it is 44 far from clearthat the assignmentof carrying out the purpose of section 939.5 to the foreperson wasintendedto, or hasthe effect of, maintaining the grand jury’s independence. 4, Williams v. Superior Court was wrongly decided After Avitia filed his openingbrief, the Court of Appeal decided that a prosecutor had violated an accused person’s right to due process by granting a grand juror’s requestto retire for hardship. (Williams v. Superior Court (2017) 15 Cal.App.Sth 1049, 2017 WL 4324952) (Williams).) The reasoning in Williamsis flawed. Williams recognizedthat this Court has held that the manner in which grand jury proceedings are conducted mayviolate due process. (Williams, _ | supra, 2017 WL 4324952at p. *6.) The court decided that the prosecutor had “supplanted the court’s role” under section 909 and substantially impaired the grand jury’s independence. (Jd.at pp. *6-7.) But the Williams court failed to consider whether the grand jurors had been affected by the prosecutor’s actions. The opinion doesnotreflect that the grand jurors were ever told that it was the court’s role to handle hardship requests that arose after they began considering cases. Indeed, section 909itself is unclear on this point, as it gives the superiorcourt authority to excuse a grand juror “before he is sworn.” (Italics added.) After that, the grand jurors may seek the adviceof the court and the prosecutor(§ 934, subd. (a).) Nor did the court consider the other protections in the statutory scheme, the instructions given the grand jurors, or that the incident was isolated from the presentation of evidence and deliberations. Instead, the court simply concluded, without factual support, that the prosecutor’s action “may have contributedto its determination that probable cause existed ... .” (Williams, supra, 2017 WL 4324952 at *6.) This falls far short of what should be required for an alleged due process violation to result in dismissal. 45 - In conclusion,ifAvitia’s complaintis that his state due processrights were violated,it is unfounded. The violation of one aspect of section 939.5 neither impaired the grand jury’s independence and impartiality nor contribute to its decision to indict. (See Backus, supra, 23 Cal.3d atpp. 392-393.) B. Avitia Is Not Entitled to a Presumption of Prejudice Or Automatic Dismissal This Court should hold that a defendantseeking relief from grand jury proceedings must show prejudice at any stage of a criminal proceeding. Relyingheavily on dicta in Peoplev. Pompa-Ortiz (1980) 27 Cal.3d 519 (Pompa-Ortiz), Avitia argues that he need not show prejudice becausehis claim is being raised and decided before trial. (OB 16, 19.) Avitia maintains that because he was “denied a substantial right,” prejudiceis presumed (OB 14, 19, 25-26, 28-29), and “[a] prejudice analysis is only required when it becomes unclear whether Petitioner was denied a ‘substantial right...” (OB 14). Avitia has it backwards. “[G]enerally a denial of substantial rights occurs only if the error ‘reasonably might have affected the outcome.’” (Standish, supra, 38 Cal.4th at p. 882, quoting People v. Konow (2004) 32 Cal.4th.995, 1024-1025 (Konow),italics added.) 1. In California, a judgment generally will not be set aside without a showing of prejudice The California constitution requires harmless error review under a miscarriage ofjustice standard. It says: “No judgmentshall be set aside, or newtrial granted, in any cause, on the ground of misdirection of the jury ... or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be ofthe opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) This Court explained the state 46 constitutional requirement in People v. Watson (1956) 46 Cal.2d 818, 836: a defendant must persuade the court that “it is reasonably probable that a result more favorable to the appealing party would have been reachedin the absenceoftheerror.” | This principle appears throughout the Penal Code, too. Section 1258 explains that, on appeal, “the Court must give judgment without regard to technical errors or defects, or to exceptions, which donotaffect the substantial rights of the parties.” Section 1404 provides: “Neither a departure from the form or modeprescribed by this Code in respect to any pleading or proceeding,nor an error or mistake therein, rendersit invalid, unlessit has actually prejudiced the defendant, or tendedto his prejudice, in respect to a substantial right.” Regarding pleadings in particular, section 960 provides: “No accusatory pleading is insufficient, nor can thetrial, judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form which doesnot prejudice a substantial tight of the defendant upon the merits.” Thesestatutes are the source of the phrase “substantial right” that appears in the cases discussing preliminary hearings and other probable cause hearings. As can be seen, the phrase “substantial right” goes hand-in- hand with prejudice. Avitia misuses the term “substantial rights analysis” to mean applying a presumption of prejudice. (See OB 14, 19, 25-26, 28- 29.) “TI]rregularities in grand jury proceedingsare generally subject to analysis for prejudice.” (People v. Jablonski, supra, 37 Cal.4th at p. 800 [unauthorized presence of prosecutors not presenting the case at grand jury proceeding]; accord, People v. Booker (2011) 51 Cal.4th 141, 156 [court’s failure to swear in grandjurors until after they had heard some evidence]; People v. Towler, supra, 31 Cal.3d at p. 123 [unspecified errors at grand jury proceeding].) The sameis truefor irregularities in preliminary 47 hearings. (People v. Stewart (2004) 33 Cal.4th 425, 461-462 [allegation that prosecutor’s failure to immediately disclose evidence necessitated a continuance and forced accused to waivehis right to a continuous preliminary hearing]; Pompa-Ortiz, 27 Cal.3d at p. 529 [preliminary hearing wasclosed instead of public].) 2. Avitia was not denied a substantial right because the error did not result in prejudice _ Avitia arguesthat, according to dicta in Pompa-Ortiz, he is entitled to a presumption of prejudice because his case is being decided beforetrial. (OB 16.) But this Court hasclarified that dicta adversely to Avitia’s position. While this Court has not yet squarely held that prejudice must be shown to obtain dismissal of an indictment before trial, all indications point that way. Avitia’s position is untenable and would simplyresult in a | windfall. The Pompa-Ortiz dictum has muddiedthe watersslightly. In Pompa- Ortiz, a direct appeal, this Court overruled an earlier case to hold that “(henceforth 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 ofa fairtrial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) But this Court then commented that “[t]he right to relief without any showing of prejudice will be limited to pretrial challenges of irregularities.” (/bid.) This dictum might lead litigants to think, if they can show anerroror irregularity in grand jury or preliminary hearing procedures beforetrial, they need not show prejudice to have the indictmentor informationsetaside. This dictum is not the law. This Court’s more recent decisions in Konow, Standish, and Reilly— all cases decided beforetrial, like this one—show exactly why the Pompa- 48 Ortiz dictum doesnot establish that a violation of a substantial right can be shown without resulting prejudice. In Konow,the superior court set aside an information because the magistrate presiding over the preliminary hearingwould have dismissed the complaint in furtherance ofjustice under section 1385, had he not erroneously believed he had no authority to do so. (Konow, supra, 32 Cal.4th at pp. 1009, 1011.) ThePeople appealed the ruling (id. at p. 1012; see § 1238, subd.(a)(1)), and so the issue cameto this Court before trial. This Court held that “a defendant is denied a substantial right affecting the legality of the commitment['7] whenhe orsheis subjected to prejudicial error, that is, error that reasonably might have affected the outcome[citation].” (7d. at p. 1024; accord Reilly, supra, 57 Cal.4th at p. 653; Standish, supra, 38 Cal.4th at p. 882,italics added by the People.) This Court reasonedthat its conclusion was consistent with “judicial practice in other areas of the law where, as in the context ofplain error rules, a defendant is deemedto be denied a substantial right by exposure to prejudicial error.” (Konow,at p. 1025, citing Chapmanv. California (1967) 386 U.S. 18, 21-22; People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) This Court went on to find prejudice, as the record was clear the magistrate would have dismissed the complaint pursuantto section 1385 if he had knownheretained the authority to do so. (dd.at p. 1026.) In Standish, supra, 38 Cal.4th 858, this Court followed Konow and also clarified the Pompa-Ortiz dictum. The Court considered whether the superior court mustset aside an information (§ 995, subd. (a)(2)) where the magistrate refused to grant the defendantrelease on his own recognizance 12 One of the statutory grounds for dismissal of aninformation (but not an indictment) is “[t]hat before the filing thereof the defendant had not been legally committed by a magistrate.” (§ 995, subd. (a)(2)(A).) 49 pending the preliminary examination, in violation of section 859b. (Standish, at pp. 882-888.) Standish was also a People’s appeal from the superior court’s order dismissing an informationpursuantto section 995, and was decided beforetrial. This Court said that Pompa-Ortiz did not entitle the defendant to dismissal without any showingofprejudice. (Id. at p. 885.) This Court explained that: “Pompa-Ortiz must not be read overbroadly” becauseit “did not establish that any andall irregularities that precede or bear somerelationship to the preliminary examination require that the information be set aside pursuantto section 995;later decisions such as People v. Konow, supra, 32 Cal.4th 995, have madethisclear.” (Standish, at p. 885; accord, Reilly, 57 Cal.4th at pp. 653-654.) As in other areas of criminal law, reversal without any showingof prejudiceis limited to a small category of “inherently prejudicial” errors (Standish,at p. 883) — in other words,structural errors (discussed post). Although Standish and Konow involve informations, their reasoning applies equally where a defendantseeksto set aside an indictment before trial. Indeed,this Court relied on Standish and Konowin considering an errorin the pretrial assessment protocol in a Sexually Violent Predators Act case. (Reilly v. Superior Court, supra, 57 Cal.4th at pp. 653-654.) This Court expressly disagreed that Pompa-Ortiz had created a rule that prejudice is presumed forerrors in probable cause hearings that are raised and decided pretrial. (fd. at p. 653.) Rather, Pompa-Ortiz’s general rule “is that nonjurisdictionalirregularities in preliminary hearing procedures should be reviewedfor prejudice.” (/bid., citing Pompa-Ortiz, supra, 27 Cal.3d at p. 529.) While Pompa-Ortiz appliedthe rule to a postconviction challenge, “it applies with equal force to a pretrial challenge that addresses an issue that a subsequentfact finder will reconsider.” (Reilly, at p. 653.) In federal court, too, a defendant’s substantial rights are not affected inthe absenceof prejudice. (See 28 U.S.C. § 2111; Fed. Rules Crim. Proc., 50 tule 52(a), 18 U.S.C.) Accordingly, the United States Supreme Court has held that “‘as a general matter, a district court may not dismiss an indictment for errors in grand jury proceedings unless such errors prejudiced the defendants.” (Bank ofNova Scotia, supra, 487 U.S.at p. 254.) Andthis is because rule 52(a) of Federal Rules of Criminal Procedure, similarly to California’ s sections 960, 1258, and 1404, provides that “[a]ny error, defect,irregularity or variance which doesnot affect substantial rights shall be disregarded.” (Id. at pp. 254-255.) | In Stark, this Court examined, for harmlessness, an alleged © instructional error arising before trial in a grand jury proceeding, though without expressly discussing whether or not harmless error review was appropriate. (Stark, supra, 52 Cal.4th at pp. 407-409.) This Court should now hold whatis implicit in Stark, Standish, Konow, and Reilly: a defendant seeking relief based on anerror in grand jury proceedings must show prejudice at any stage of the criminal proceedings. As in other areas of criminal law, the only exception should bethe “rare”structural error requiring automatic reversal regardless of prejudice. (See Sullivanv. Louisiana (1993) 508 U.S. 275, 282; People v. Sivongxxay (2017) 3 Cal.5th 151, 180.). Avitia cannot show prejudice here. Hedoes not argue that Grand Juror No. 18 was unbiased. And, as discussed, he has not shownthat the error “may have compromised the independenceofthe grand jury and contributed to the decision to indict.” (Backus, supra, 23 Cal.3d at p. 393.) 3. The errorin this case was not structural error In addition to interpreting a “substantial right” as incorporating a presumption of prejudice, Avitia attempts to characterize the error in his case as structural error. (OB 8-9, 14-16, 20, 22, 25, 28-30.) This argument misses the mark. 51 A structuralerror is an error that ““‘affect[s] the framework within whichthetrial proceeds,’ rather than being ‘simply anerrorin thetrial process itself.’” (Weaver v. Massachusetts (2017) __ U.S. __ [137 S.Ct. 1899, 1907] (Weaver), quoting Arizona v. Fulminante (1991) 499 U.S. 279, 310.) A structural error simply “‘def[ies] analysis by harmlesserror standards.’ [Citation.]” (Weaver, at pp. 1907-1908.) A structural error results in “reversal without any inquiry into prejudice.” (/d. at p. 1905.) Avitia asserts that a violation of section 995 is structural error (OB 14, 28, 29), even suggesting that a violation of a substantialright is necessarily structural error (OB 14). Few errors in grand jury proceedings or preliminary hearings are structural, and they shouldnotbetreated as such just because they are decided pretrial. As this Court has said, “[c]ategorization of an error as structural represents ‘the exception and nottherule.’ [Citation.]” (People v. Sivongxxay, supra, 3 Cal.5th at p. 178.) “The fact that an error implicates important constitutional rights does not necessarily makeit structural.” (bid.) “‘Manystatutes ... set out procedures designed to protect constitutional principles. Broadly construed, many of these procedural statutes may be saidto protect due process and other constitutional safeguards. Nevertheless, most procedural shortcomings constitute trial error’ and notstructural error.” (/d. at pp. 178-179,citation omitted.) There is “a difference betweena failure to comply with a statutory requirement that mayserve to protect a constitutional right, and a violation of the underlying constitutional right itself.” (/d. at p. 184.) The error in this case involved a rule of procedure that does not create a right but rather servestoprotect the right to an impartial grand jury. “The error does not implicate a core right at the [grand jury proceeding]. itself.” | (Standish, supra, 38 Cal.4th at p. 883.) Noris the error “inherently prejudicial.” ([bid.) A violation of section 939.5 is not the type of error for 52 which the effects “are simply too hard to measure.” (Weaver, supra, 137 S.Ct. at p. 1908.) This case is a perfect example. The record showsthat the retirement of Grand Juror No. 18 preserved the impartiality of the grand jury, regardless of who excused her. The record also shows that what the other grand jurors observed of the event could not have underminedtheir sense of independence. For the same reason, noncompliance with section 939.5 will not “always result in fundamental unfairness,” unlike the total deprivation of counsel. (See Weaver,at p- 1908.) The dictum in Pompa-Ortiz is inconsistent not only with this Court’s decisions in Standish, Konow,and Reilly, and the United States Supreme Court’s decision in Bank ofNova Scotia, but to the extentit is understood to treatall errors in preliminary hearings and grandjury proceedingsas structuralerrors, it is also inconsistent with the principles discussed above. 4, The Pompa-Ortiz dictum remains a problem The holding the People request would bring welcomeclarity to the law, because the Pompa-Ortiz dictum endures, though mostly as dicta, in other cases. For example, in People v. Booker, this Court commented, | “Pompa-Ortiz did not require a showing of prejudice during a pretrial challenge to irregularities in the preliminary examination. ... [T]he need for a showing of prejudice depends on the stage of the proceedings at which a defendantraises the claim in a reviewing court... ” (People v. Booker, supra, 51 Cal.4th at pp. 156-157.) The foregoing was dictum in Booker because this Court actually held: “because this is a posttrial challenge to grand jury proceedings, any irregularity in the proceedings requires reversal only if the defendant has been prejudiced.” (Id. at pp. 157-158.) As another example, in People v. Stewart, this Court referenced Pompa-Ortiz: “when a defendant presents, by way of a pretrial writ petition, claims that establish irregularities in preliminary hearing procedures, the court will grant relief... ‘without any showing ofprejudice.’ (/d., at p. 529.)” 53 (People v. Stewart, supra, 33 Cal.4th at p. 461, quoting Pompa—Oritiz, | supra, 27 Cal.3d at p. 529.) The Court required Stewart to show prejudice because his claim had been presented forthe first time on appeal. (Id.at pp. 461-462.) And the Court of Appealin this case incorrectly stated that Pompa-Ortiz created a “presumption ofprejudice” for pretrial challenges to. informations. (Avitia, supra, 2017 WL 1382115at p. *6.) Yet, it found “unclear whether a substantial rights analysis applies” to a pretrial due process challenge to an indictment. (fd.at p. *7.) In Harris v. Superior Court, the Court of Appeal actually applied a presumption of prejudice, reasoningthat “[i]f the issue is raised beforetrial, the court reaffirmed in Pompa-Ortiz, ‘prejudice is presumed and the information is dismissed’ without any affirmative showing.” (Harris v. Superior Court (2014) 225 Cal.App.4th 1129, 1147, quoting Pompa-Ortiz, at pp. 529-530.) 5. Dustin involves a death penalty statute andits reliance on Pompa-Ortiz was mistaken Avitia strives to analogize his case to Dustin v. Superior Court (2002) 99 Cal.App.4th 1311 (Dustin). (OB 22-23, 26, 33.) In that case, a capital case before the Court of Appeal on a pretrial writ petition, the court ordered that an indictment must be dismissed without a showing of prejudice where a defendant was deprivedof his right to a complete transcript of grand jury proceedings. (Dustin, at pp. 1326, 1328.) To the extent that Dustin relied on the dicta in Pompa-Ortiz whenit recited that prejudice is always presumedforpretrial challenges to indictments and informations, it does not accurately state the law. (See id. at p. 1325.) But Dustin is also very different from this case. For one thing, Dustin’s right did not arise only from the grand jury statutes, but also from the death penalty statutes. (Id. at p. 1323.) For another, the court also said that the error “precluded any effective review”(ibid.) and that “it is difficult to imagine how a defendant could ever show prejudice”(id. at p. 1326) on the facts presented there. 54 That is manifestly not the case here. Dustin cannot compel dismissal for Avitia. C. The Prosecutor’s Error in Taking on the Task of Retiring a Grand Juror for Bias Did Not Violate the Separation of Powers Doctrine and Did Not Result in an Improperly Constituted Grand Jury Finally, Avitia suggests that the prosecutor’s error under section 939.5 violated the constitutional principle of separation of powers and resulted in an improperly constituted grand jury. The People cannotagree. | 1. The grand jury was not improperly constituted In arguing that the grand jury was improperly constituted, Avitia relies on Bruner v. Superior Court (1891) 92 Cal. 239 (Bruner). (OB 39.) In Bruner, the court appointed an “elisor” to summon persons to form a grand jury, completely outside of the statutory procedure fordoingso. (Bruner, at p. 241.) This Court found that the superior court had no jurisdiction to appointan elisorto this task, the resulting grand jury was not a “legal body,” and the indictment was “void.” (Id. at p. 252.) As the Court of Appeal explained (Avitia, supra, 2017 WL 1382115atp. *8),this Court long ago limited Brunertoits facts. (Fitts v. Superior Court (1935) 4 Cal.2d 514, 520.) “Mere irregularities, as distinguished from jurisdictional defects, occurring in the formation of a grand jury, will not justify a court declaring an indictment a nullity.” (/d. at p. 521.) Theirregularity in this case obviously did not adversely affect the composition of the grand jury. It would have violated section 939.5 for Grand Juror No. 18 to stay on the grand jury. It was necessary for her to retire, one wayor another. Perfect compliance with section 939.5 would _ have resulted in exactly the samegrandjury. 55 2. Theprinciple of separation of powers was not implicated Avitia’s argumentthat the prosecutor infringed on the separation of powersfares nobetter. “The powers ofstate governmentarelegislative, executive, and judicial. Persons charged with the exercise of one power - may not exercise either of the others except as permitted bythis Constitution.” (Cal. Const., art. Il, § 3.) | Avitia does not direct this Court’s attention to any case in which an individual’s violation of a valid statute implicated the doctrine of separation of powers. Generally, the doctrine applies whenstatutes, regulations, executive orders, and thelike are challenged. (See, e.g., Pierson, supra, 7 Cal.App.5th 402; and see generally, Witkin, Summary of Cal. Law (10th ed. 2005) Separation of Powers, §§ 137-176.) In any event, the grand jury “belongs to no branchofthe institutional Government, serving as a kind of buffer or referee between the Government and the people.” (United States v. Williams (1992) 504 U.S. 36, 47; accord, Pierson, supra, 7 Cal.App.Sth at p. 414.) A criminal grand jury’s roleis accusatory, not adjudicatory. (Cummiskey, supra, 3 Cal.4th at p. 1026.) The separation of powers doctrine accommodates relationships among the branches of government, andsoit is with the grand jury and the prosecutor. They share a function, but the grand jury servesas a check on prosecutorial overreaching. (Packer, supra, 201 Cal.App.4th at p. 167.) So long as the grandjury retains its independence to decide whetherto indict, the| separation of powersis intact. (See ibid.) A violation of section 939.5 does not necessarily destroy the grand jury’s independence, and certainly did not do so here. 56 CONCLUSION The People respectfully request that the judgmentbe affirmed. Dated: November15, 2017 Respectfully submitted, XAVIER BECERRA Attorney General of California GERALD A. ENGLER Chief Assistant Attorney General MICHAEL P. FARRELL Senior Assistant Attorney General RACHELLE A. NEWCOMB Deputy Attorney General CATHERINE CHATMAN Supervising Deputy Attorney General Attorneys for Real Party in Interest $A2017305817 33134669.doc 57 CERTIFICATE OF COMPLIANCE I certify that the attached ANSWER BRIEF ON THE MERITSuses a 13 point Times New Romanfont and contains 13,353 words. Dated: November 15, 2017 XAVIER BECERRA Attorney General of California Ochee hos CATHERINE CHATMAN Supervising Deputy Attorney General Attorneys for Real Party in Interest 58 DECLARATION OF SERVICE BY U.S. MAIL Case Name: Avitia v. Superior Court No.: S$242030 I declare: I am employedin the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and nota party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondencefor mailing with the United States Postal Service. In accordance with that practice, correspondence placedin the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. . On November 16, 2017, I served the attached ANSWER BRIEF ON THE MERITSbyplacing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: David J. Cohen Third Appellate District Bay Area Criminal Lawyers, PC 914 Capitol Mall, 300 MontgomeryStreet, Suite 660 Sacramento, CA 95814 San Francisco, CA 94101 (served via this Court’s TrueFiling system) (Attorneys for Petitioner) (2 copies) The Honorable Tori Verber Salazar San Joaquin Co. District Attorney Alexander P. Guilmartin -P.O. 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