        IN THE SUPREME COURT OF
               CALIFORNIA

                 LEO BRIAN AVITIA,
                     Petitioner,
                         v.
    THE SUPERIOR COURT OF SAN JOAQUIN COUNTY,
                    Respondent;

                       THE PEOPLE,
                    Real Party in Interest.

                           S242030

                   Third Appellate District
                          C082859

             San Joaquin County Superior Court
             STKCRFE2016881, GJ20164112415



                      December 24, 2018

Justice Liu authored the opinion of the court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Cuéllar,
Kruger and Rubin* concurred.
Justice Chin filed a concurring opinion in which Chief Justice
Cantil-Sakauye concurred.

*
      Presiding Justice of the Court of Appeal, Second Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
                AVITIA v. SUPERIOR COURT
                            S242030


                Opinion of the Court by Liu, J.


       After a prosecutor questioned and dismissed a grand juror
outside the presence of other jurors and the trial court, the
resulting grand jury returned an indictment against defendant
Leo Brian Avitia. Before trial, Avitia moved to set aside the
indictment under Penal Code section 995 on the ground that the
prosecutor’s dismissal violated his constitutional and statutory
rights to an impartial and independent grand jury. (All
undesignated statutory references are to the Penal Code.) The
trial court denied the motion, and the Court of Appeal found no
error. We consider whether an indictment must be set aside
because of a prosecutor’s dismissal of a juror during grand jury
proceedings.
      We hold that a prosecutor’s dismissal of a grand juror
violates section 939.5; only the grand jury foreperson may
dismiss a grand juror. We further hold that a defendant may
seek dismissal of an indictment on the ground that the
prosecutor violated section 939.5 by filing a pretrial motion
under section 995, subdivision (a)(1)(A). In order to prevail on
such a motion, the defendant must show that the error
reasonably might have had an adverse effect on the impartiality
or independence of the grand jury.
      In this case, a grand juror explicitly acknowledged that he
could not fairly evaluate the case, and the prosecutor dismissed
that juror outside the presence of other jurors. Because Avitia


                   SEE CONCURRING OPINION
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


has not shown that the error reasonably might have had an
adverse effect on the impartiality or independence of the grand
jury, the motion here fails.
                                  I.
      Avitia was allegedly driving under the influence of alcohol
when he crashed into another driver and killed him. The San
Joaquin County District Attorney’s Office filed a complaint
charging Avitia on six counts: second degree murder (§ 187),
gross vehicular manslaughter while intoxicated with gross
negligence and prior convictions (§ 191.5, subd. (d)), resisting an
executive officer (§ 69), driving under the influence of alcohol or
drugs causing injury (Veh. Code, § 23153, subd. (a)), driving
with a blood-alcohol content level of 0.08 percent or more
causing injury (id., § 23153, subd. (b)), and driving when the
privilege has been suspended or revoked (id., § 14601.2,
subd. (a)).
      The trial court impaneled a grand jury of 19 members. At
a grand jury proceeding, the prosecutor said to the jurors, “I’m
asking if anybody here, after listening to the charges, or
listening to the witnesses, has the state of mind which will
prevent him or her from acting impartially and without
prejudice to the substantial rights of parties.” The prosecutor
also asked, “Does anyone have any bias as a result of the
charges, or as a result of the witnesses that were read?” Grand
Juror No. 6, the foreperson, responded, “Yeah.” Grand Juror
No. 18 responded, “I’ve arrested people for 148.” The prosecutor
then said, “What we’re going to do now, everybody is going to get
out of the jury room and we’re going to talk to Juror Number 6,
the jury foreman. So can everybody leave?”



                                  2
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


      The prosecutor questioned Juror No. 6 outside the
presence of the grand jury. Juror No. 6 said to the prosecutor,
“I just want to divulge that my religion, we don’t believe in
drinking at all. I do acknowledge people have their agency to do
what they want. But I’m morally opposed to drinking, period.
But I realize other people don’t feel that way.” The prosecutor
asked, “You do know that it is not against the law to drink and
then drive a car?” Juror No. 6 said yes. The prosecutor then
asked, “Do you have a problem finding that there’s not probable
cause just because you have these religious beliefs?” Juror No. 6
said no. The prosecutor then asked, “So you can follow the law?”
Juror No. 6 responded, “Yeah.” The prosecutor did not dismiss
Juror No. 6.
      The prosecutor then questioned Juror No. 18, also outside
the presence of the grand jury. Juror No. 18 said to the
prosecutor, “I am a peace officer. I work for the Department of
Alcohol Beverage Control, and I have arrested subjects for 148
PC.” The prosecutor asked, “Aren’t you exempt from jury duty?”
Juror No. 18 responded, “I’m not. I’m 830.2. We don’t follow the
exemption.” The prosecutor then asked, “The fact that you
arrested people for resisting arrest before, do you think that’s
going to affect your impartiality in this case?” Juror No. 18 said,
“Yes.” The prosecutor asked, “You do?” Juror No. 18 said, “I do,
in addition to the fact that I’m currently conducting an
investigation that’s very similar to these charges.” The
prosecutor asked, “So you don’t think you can be fair?” Juror
No. 18 answered, “No, I don’t think so.” The prosecutor then
concluded, “What I’m going to ask you to do is go down to the
basement, let them know that you were excused.” Juror No. 18
followed the prosecutor’s instruction and did not serve on the
grand jury. After three days of proceedings, the grand jury

                                  3
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


returned an indictment on all six counts as well as an additional
count of vehicular manslaughter while intoxicated with
ordinary negligence while operating a vehicle (§ 191.5,
subd. (b)).
       Avitia moved to dismiss the grand jury’s indictment by
way of a nonstatutory motion to the trial court. The trial court
granted permission for Avitia to include the nonstatutory
motion as part of a section 995 motion to dismiss the indictment
either entirely or at least as to count 6 on resisting an executive
officer. But the trial court ultimately denied the motion. In a
written ruling, the court concluded that there was no evidence
that the dismissal impacted the mindset of the grand jury panel
or led it to believe that the prosecutor’s judgment ultimately
controlled the operation and functions of the grand jury.
Furthermore, the court concluded that a violation of section
939.5 does not require a per se finding of a due process violation,
and Avitia had not shown actual bias or prejudice. The court
refrained from deciding whether Avitia had a due process right
to an unbiased grand jury, instead concluding that Avitia had
failed to establish that any of the grand jurors were in fact
biased. The court similarly concluded that because Avitia had
not demonstrated that the error reasonably might have affected
the outcome of the grand jury proceedings, Avitia had not shown
any denial of a substantial right.
      Avitia filed a petition for a writ of mandate seeking relief
from the trial court’s denial. The Court of Appeal denied the
petition in an unpublished opinion. Section 995 provides that
an “indictment . . . shall be set aside by the court” either
“[w]here it is not found, endorsed, and presented as prescribed
in this code” (§ 995, subd. (a)(1)(A) (hereafter section
995(a)(1)(A))) or when “the defendant has been indicted without
                                  4
                     AVITIA v. SUPERIOR COURT
                     Opinion of the Court by Liu, J.


reasonable or probable cause” (id., subd. (a)(1)(B) (hereafter
section 995(a)(1)(B))). The Court of Appeal rejected Avitia’s
argument under section 995(a)(1)(A) that the indictment was
“not found, endorsed, and presented as prescribed in this code.”
But the court said Avitia had properly raised a due process
challenge to the indictment, whether under section 995(a)(1)(B)
or through a nonstatutory motion.
       Evaluating this claim, the Court of Appeal observed “two
parallel standards:       (1) Whether the error substantially
impaired the independence and impartiality of the grand jury,
or (2) whether the error constituted the denial of a substantial
right.” The court said “it does not matter which analysis is used
because . . . neither standard was met.” The court held that
Avitia had made no showing that the improper dismissal
substantially impaired the independence and impartiality of the
grand jury, or that it otherwise reasonably might have impacted
the outcome of the proceedings to constitute a denial of a
substantial right. The court also held that the dismissal did not
constitute structural error and that the grand jury was properly
constituted. The court said “the prosecutor’s violation of
statutory requirements is troubling, [but] the trial court’s
decision to deny petitioner’s motion was not error.”
      We granted review.
                                  II.
        “ ‘Under the ancient English system . . . the most valuable
function of the grand jury was not only to examine into the
commission of crimes, but to stand between the prosecutor and
the accused, and to determine whether the charge was founded
upon credible testimony or was dictated by malice or personal ill
will.’ [Citation.] [¶] . . . . [¶] The grand jury’s ‘historic role as a

                                   5
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


protective bulwark standing solidly between the ordinary
citizen and an overzealous prosecutor’ [citation] is as well-
established in California as it is in the federal system. . . . A
grand jury should never forget that it sits as the great inquest
between the State and the citizen, to make accusations only
upon sufficient evidence of guilt, and to protect the citizen
against unfounded accusation, whether from the government,
from partisan passion, or private malice.’ [Citation.] [¶] The
protective role traditionally played by the grand jury is
reinforced in California by statute.” (Johnson v. Superior Court
(1975) 15 Cal.3d 248, 253–254 (Johnson).)
      Several provisions of the Penal Code establish procedures
to select and dismiss grand jurors. Regarding initial selection,
section 909 provides: “Before accepting a person drawn as a
grand juror, the court shall be satisfied that such person is duly
qualified to act as such juror. When a person is drawn and found
qualified he shall be accepted unless the court, on the
application of the juror and before he is sworn, excuses him from
such service for any of the reasons prescribed in this title or in
Chapter 1 (commencing with Section 190), Title 3, Part 1 of the
Code of Civil Procedure.” Section 910 provides: “No challenge
shall be made or allowed to the panel from which the grand jury
is drawn, nor to an individual grand juror, except when made by
the court for want of qualification, as prescribed in Section 909.”
      After selection, the dismissal of a grand juror must also
follow certain procedures. Section 935 provides: “The district
attorney of the county may at all times appear before the grand
jury for the purpose of giving information or advice relative to
any matter cognizable by the grand jury, and may interrogate
witnesses before the grand jury whenever he thinks it
necessary.” But the statute confers no authority on a prosecutor
                                  6
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


to dismiss a grand juror. Rather, section 939.5 provides: “Before
considering a charge against any person, the foreman of the
grand jury shall state to those present the matter to be
considered and the person to be charged with an offense in
connection therewith. He shall direct any member of the grand
jury who has a state of mind in reference to the case or to either
party which will prevent him from acting impartially and
without prejudice to the substantial rights of the party to retire.
Any violation of this section by the foreman or any member of
the grand jury is punishable by the court as a contempt.” These
statutes serve to ensure the impartiality and independence of
the grand jury.
      The parties agree, and we also agree, that a prosecutor’s
dismissal of a grand juror violates section 939.5. During
selection of the grand jury, section 909 authorizes “the court” to
“excuse[] [a juror] from such service” for lacking certain
qualifications. After selection, section 939.5 authorizes “the
foreman of the grand jury” to “direct any member of the grand
jury who has a state of mind in reference to the case or to either
party which will prevent him from acting impartially and
without prejudice to the substantial rights of the party to retire.”
Section 935 authorizes the prosecutor to “give[] information or
advice relative to any matter cognizable by the grand jury.” But
no provision authorizes a prosecutor to dismiss a grand juror, as
the prosecutor did here. The prosecutor could have made his
concerns about Juror No. 18 known to the foreperson, who in
turn could have directed the juror to retire in accordance with
section 939.5. But the prosecutor’s dismissal of Juror No. 18
exceeded his authority.




                                  7
                   AVITIA v. SUPERIOR COURT
                   Opinion of the Court by Liu, J.


                                III.
      We next consider whether an indictment must be set aside
because of a prosecutor’s violation of section 939.5. That
provision says: “Any violation of this section by the foreman or
any member of the grand jury is punishable by the court as a
contempt.” But the provision does not say what remedy is
available for a violation by the prosecutor. Avitia argues that
an indictment can nonetheless be set aside under section 995.
We agree that a defendant may seek a remedy under section
995(a)(1)(A) when a prosecutor dismisses a grand jury member
in violation of section 939.5.
      In two early cases, we said that a grand jury foreman’s
noncompliance with section 907, the precursor to section 939.5,
was not grounds for dismissing an indictment under section 995.
In People v. Kempley (1928) 205 Cal. 441 (Kempley), two
defendants appealed from their convictions for accepting bribes
and moved for a new trial under section 995(a)(1)(A). (Kempley,
at p. 444.) The defendants offered to prove that several
members of the grand jury personally interviewed individuals
outside those named in the proceedings, used private funds to
employ detectives to obtain evidence, and had already decided
to indict without having heard any evidence. (Id. at p. 446.) We
understood the defendants’ claim as a challenge to “the
individual members of the grand jury on the ground of bias or
prejudice” (ibid.), and we observed that section 907 provides the
proper recourse to address such defects (Kempley, at p. 447).
Rejecting the defendants’ claim, we said: “The provisions of
[section 907] were not complied with; but the neglect or failure
of the foreman to comply therewith is not made a ground for
setting aside the indictment by section 995 of the Penal Code
and section 907 contains within itself the penalty for the
                                 8
                   AVITIA v. SUPERIOR COURT
                   Opinion of the Court by Liu, J.


violation of its provisions,” i.e., the foreman’s violation is
punishable as a contempt. (Ibid., italics added.) In People v.
Jefferson (1956) 47 Cal.2d 438 (Jefferson), we applied Kempley
to reject another motion to set aside an indictment under section
995(a)(1)(A) where the grand jury foreperson again did not
comply with former section 907.
      Kempley and Jefferson are distinguishable because they
concerned violations of section 939.5 (former section 907) by the
grand fury foreperson and not, as here, by a prosecutor. Section
939.5 specifies a penalty of contempt for violations by the
foreperson but provides no comparable mechanism to deter
violations by a prosecutor. (Kempley, supra, 205 Cal. at pp. 447–
448.) Nor does such a violation fall within the coverage of
section 995(a)(1)(B), which requires setting aside an indictment
where the defendant “has been indicted without reasonable or
probable cause.” (Cf. Stark v. Superior Court (2011) 52 Cal.4th
368, 407 (Stark) [setting aside an indictment under section
995(a)(1)(B) “when a grand jury is not asked to consider the
mental state required for the commission of the offense”];
Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1029
[refusing to set aside an indictment under section 995(a)(1)(B)
because a challenged instruction on probable cause was
adequate and there was sufficient evidence to find probable
cause]; People v. Backus (1979) 23 Cal.3d 360, 385–391 [refusing
to set aside an indictment under section 995(a)(1)(B) because
there was sufficient evidence to find probable cause].) Avitia
does not claim that the prosecutor’s dismissal of Juror No. 18
resulted in a grand jury that indicted him without reasonable or
probable cause.
      Section 995(a)(1)(A)’s directive to set aside an indictment
“not found, endorsed, and presented as presented in this code”
                                 9
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


may provide a remedy in certain cases when procedural rights
of the accused have been violated. In the related context of
setting aside an information under section 995, we have
explained that “ ‘[a]n information . . . will not be set aside merely
because there has been some irregularity or minor error in
procedure in the preliminary examination. [Citation.] But
where it appears that, during the course of the preliminary
examination, the defendant has been denied a substantial right,
the commitment is unlawful within the meaning of section 995,
and it must be set aside upon timely motion.’ ” (Jennings v.
Superior Court (1967) 66 Cal.2d 867, 874.) Because the text of
section 939.5 also addresses substantial rights, we see no reason
why a similar rule should not apply to ensure the procedural
integrity of an indictment when a prosecutor violates this
section. (§ 939.5 [“[the foreperson] shall direct any member of
the grand jury who has a state of mind in reference to the case
or to either party which will prevent him from acting impartially
and without prejudice to the substantial rights of the party to
retire”] (italics added).) In this context, section 995(a)(1)(A)
allows a defendant to pursue a motion to set aside an indictment
where the defendant alleges that a prosecutor’s violation of
section 939.5 has prejudiced a substantial right.
      The Attorney General relies on Jefferson’s observation
that section 995(a)(1)(A) “has been interpreted as applying only
to those sections in part 2, title 5, chapter 1, of the Penal Code
beginning with section 940.” (Jefferson, supra, 47 Cal.2d at
p. 442, citing Kempley, supra, 205 Cal. at p. 447.) But this dicta
was only an observation about how our precedent had
interpreted section 995(a)(1)(A) up to that point. Neither
Kempley nor Jefferson contemplated the availability of a section


                                  10
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


995(a)(1)(A) remedy when a prosecutor, rather than the grand
jury foreperson, was responsible for a section 939.5 violation.
       We next address whether a section 939.5 violation by a
prosecutor can amount to the violation of a substantial right.
Although we have focused our analysis on “substantial rights”
in some contexts (People v. Standish (2006) 38 Cal.4th 858, 882
(Standish)) and “due process” in others (Stark, supra, 52 Cal.4th
at p. 417), we understand the inquiries to be one and the same
in this context: a right is substantial when denial of the right
results in a denial of due process. In Stark, we said that a
prosecutor’s conflict of interest — there it was alleged that the
district attorney’s office was “financially impacted” by the
defendant’s misconduct and that the prosecutor was “personally
involved” in the events under investigation (id. at p. 414) — can
result in a denial of due process if it is shown that the conflict
“substantially impaired the independence and impartiality of
the grand jury” (id. at p. 417). A prosecutor’s violation of section
939.5 likewise can threaten the basic function of the grand jury
as “ ‘a protective bulwark standing solidly between the ordinary
citizen and an overzealous prosecutor.’ ” (Johnson, supra, 15
Cal.3d at p. 253.) A prosecutor’s improper dismissal of a grand
juror may result in a grand jury that is skewed in its
composition. It also risks creating a perception in the jurors’
minds that the prosecutor exercises control over the operation
and functions of the grand jury, beyond the authority vested in
the foreperson and the jurors themselves. Section 939.5’s
conferral of authority on the foreperson to dismiss a biased juror
is an important safeguard to ensure that the grand jury remains
impartial and independent of the prosecutor.
      Although not every prosecutorial violation of section 939.5
is reason to set aside an indictment, an indictment must be set
                                  11
                   AVITIA v. SUPERIOR COURT
                   Opinion of the Court by Liu, J.


aside where the violation results in the denial of a substantial
right. (See Stark, supra, 52 Cal.4th at p. 417 [“the manner in
which the grand jury proceedings are conducted may result in a
denial of defendant’s due process rights, requiring dismissal of
the indictment”]; cf. Beck v. Washington (1962) 369 U.S. 541;
Packer v. Superior Court (2011) 201 Cal.App.4th 152.) We hold
that a defendant can proceed by a section 995(a)(1)(A) motion to
set aside an indictment on the ground that a section 939.5
violation substantially impaired the impartiality and
independence of the grand jury.
                                IV.
      Next, we consider what standard applies in determining
whether a prosecutor’s violation of section 939.5 amounts to the
denial of a defendant’s substantial right to an impartial and
independent grand jury. Avitia argues that no showing of
prejudice is required because he is seeking dismissal of the
indictment in a pretrial motion.         The Attorney General
disagrees. We hold that the defendant, when proceeding by way
of a section 995(a)(1)(A) motion, must show that the section
939.5 violation reasonably might have had an adverse effect on
the impartiality or independence of the jury.
      “[S]ome errors such as denial of the right to counsel by
their nature constitute a denial of a substantial right.”
(Standish, supra, 38 Cal.4th at p. 882; see, e.g., People v.
Gamache (2010) 48 Cal. 4th 347, 396 [“[S]tructural errors not
susceptible to harmless error analysis are those that go to the
very construction of the trial mechanism — a biased judge, total
absence of counsel, the failure of a jury to reach any verdict on
an essential element.”]; Vasquez v. Hillery (1986) 474 U.S. 254,
263–264 [“[D]iscrimination in the grand jury undermines the

                                 12
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


structural integrity of the criminal tribunal itself, and is not
amenable to harmless-error review.”].) In certain instances, we
have set aside informations because of procedural defects
without conducting a prejudice analysis. (See People v. Elliot
(1960) 54 Cal.2d 498, 504 (Elliot) [defendant was denied the
right under “section 868 of the Penal Code, to require that all
unauthorized persons be excluded from the courtroom during
the preliminary examination”]; People v. Napthaly (1895) 105
Cal. 641, 644–645 [defendant was denied the right to counsel];
see also Harris v. Superior Court (2014) 225 Cal.App.4th 1129,
1144 [defendant was denied effective assistance of counsel
because counsel “had a material conflict of interest with him at
the time of his preliminary hearing”].)
      More recently, we have explained that “whether a showing
of prejudice is required depends on the stage of the proceedings
at which the claim is raised in the reviewing court.” (People v.
Booker (2011) 51 Cal.4th 141, 157.) In People v. Pompa-Ortiz
(1980) 27 Cal.3d 519 (Pompa-Ortiz), we considered a defendant’s
request, on appeal from a judgment of conviction, to set aside an
information under section 995 because his preliminary
examination had been closed to the public. (Pompa-Ortiz, at
p. 522.) We said “[i]t is settled that denial of a substantial right
at the preliminary examination renders the ensuing
commitment illegal and entitles a defendant to dismissal of the
information on timely motion.” (Id. at p. 523.) Applying this
interpretation of section 995, we held that a defendant “has a
statutory right to a public preliminary examination and that
denial of the right renders the commitment unlawful within the
meaning of Penal Code section 995[(a)(2)(A)].” (Id. at p. 522.)
But we also held that “such illegality can be successfully urged
as a ground of reversal on appeal only if it in some way

                                  13
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


prejudiced defendant at his subsequent trial.” (Ibid., citing Cal.
Const., art. VI, § 13.) Because the defendant made “no showing
that he was denied a fair trial or otherwise suffered prejudice
from the closure of the preliminary examination,” we affirmed
the judgment of conviction. (Id. at p. 530.) In reaching this
conclusion, we held that “irregularities in the preliminary
examination procedures which are not jurisdictional in the
fundamental sense shall be reviewed under the appropriate
standard of prejudicial error and shall require reversal only if
defendant can show that he was deprived of a fair trial or
otherwise suffered prejudice as a result of the error at the
preliminary examination.” (Id. at p. 529.) We added, “The right
to relief without any showing of prejudice will be limited to
pretrial challenges of irregularities.” (Ibid.) We have since said
“[t]he reasoning of Pompa-Ortiz applies with equal force in the
grand jury context.” (People v. Towler (1982) 31 Cal.3d 105,
123.)
      Pompa-Ortiz involved a posttrial motion and did not
provide an occasion for application of its language concerning
“pretrial challenges of irregularities.” (Pompa-Ortiz, supra, 27
Cal.3d at p. 529.) We clarified in Standish, which involved a
pretrial motion to set aside an information, that Pompa-Ortiz
did not mean that “any and all irregularities that precede or
bear some relationship to the preliminary examination require
that the information be set aside pursuant to section 995.”
(Standish, supra, 38 Cal.4th at p. 885.) We recognized that
certain errors, even if challenged before trial, will be considered
a denial of a substantial right “only if the error ‘reasonably
might have affected the outcome.’ ” (Id. at p. 882, quoting People
v. Konow (2004) 32 Cal.4th 995, 1024–1025.) We distinguished
two pretrial cases where we presumed prejudice in light of

                                  14
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


statutory violations because “they were based in large part on
the circumstance that the relevant statute required dismissal as
the proper remedy when, without a showing of good cause, the
defendant had not been brought to trial within the statutory
period.” (Id., at p. 886, citing Serna v. Superior Court (1985) 40
Cal.3d 239, 263 [“Prejudice is presumed when relief is sought on
section 1382 grounds pretrial because the statute commands
that the court ‘must order the action to be dismissed.’ ”]; People
v. Wilson (1963) 60 Cal.2d 139, 151 [“[S]ection 1382, subdivision
2, is mandatory . . . ; hence—there being no sufficient showing
of good cause for delay in the case at bench—defendant then had
the right to have the action dismissed on his motion.”].) The
violation of other statutes that “do[] not implicate a core right at
the preliminary examination itself” or “call[] for dismissal” are
“subject to the general test for prejudice because . . . the error is
not inherently prejudicial.” (Standish, supra, 38 Cal.4th at
p. 883.)
       In light of this case law, we hold that outside a narrow
category of errors that “by their nature constitute a denial of a
substantial right” and hence require dismissal “without any
showing of prejudice,” a defendant seeking to set aside an
indictment before trial must show that an error “reasonably
might have affected the outcome.” (Standish, supra, 38 Cal.4th
at pp. 882, 886.) This showing is less onerous than the
“reasonably probable” showing required to prevail on a similar
motion after trial, when interests in finality are greater. (See
id., at pp. 882–883 [“By this language, we do not mean that the
defendant must demonstrate that it is reasonably probable he
or she would not have been held to answer in the absence of the
error. Rather, the defendant’s substantial rights are violated
when the error is not minor but ‘reasonably might have affected

                                  15
                   AVITIA v. SUPERIOR COURT
                   Opinion of the Court by Liu, J.


the outcome’ in the particular case.”].) We agree with the Court
of Appeal in this case that a section 939.5 violation is “not
inherently prejudicial.” When a defendant seeks to set aside an
indictment before trial under section 995(a)(1)(A) on the ground
that the prosecutor violated section 939.5, the indictment must
be set aside only when the defendant has shown that the
violation reasonably might have had an adverse effect on the
independence or impartiality of the grand jury.
                                 V.
      We now apply this inquiry to the facts of this case. As
noted, the prosecutor’s dismissal of Juror No. 18 was unlawful
under section 939.5. But Juror No. 18 had said he thought he
would be biased in evaluating the case, and the prosecutor
appeared to dismiss the juror on that basis. We cannot be
certain what the foreperson would have done if not for the
prosecutor’s actions or how the grand jury would have otherwise
proceeded. But in light of Juror No. 18’s unequivocal statement
that he would not be able to fairly review the case, there is a
high probability that the foreperson ultimately would have
removed the juror. In any event, the dismissal of Juror No. 18
helped to ensure the grand jury’s impartiality by removing a
potential juror who said he could not be impartial.
      As for the independence of the grand jury, the prosecutor
unquestionably influenced the composition of the grand jury by
removing Juror No. 18. But mere influence over the composition
of the grand jury is not impermissible; section 935 provides that
the prosecutor may “giv[e] information or advice relative to any
matter cognizable by the grand jury.” The facts here are
different from cases where the prosecutor was actively involved
in the selection of grand jurors or excused a grand juror in the

                                 16
                   AVITIA v. SUPERIOR COURT
                   Opinion of the Court by Liu, J.


presence of other grand jurors. In those cases, the prosecutor’s
actions could have led grand jurors to believe they were
beholden to the prosecutor during the decisionmaking process.
(See De Leon v. Hartley (N.M. 2014) 316 P.3d 896, 901 (De Leon)
[setting aside an indictment where the district court permitted
the prosecutor to select the grand jury without the court’s
involvement]; Williams v. Superior Court (2017) 15 Cal.App.5th
1049, 1061 [setting aside an indictment where “[t]he
prosecutor’s actions supplanted the court’s role in the
proceedings and, because the excusal colloquy took place in front
of the other jurors, allowed the remaining jurors to mistakenly
believe the prosecutor had legal authority to approve a hardship
request”].)
      In this case, nothing in the record suggests that the
prosecutor was improperly involved in the selection of the grand
jurors or in the grand jury’s subsequent decisionmaking process.
Instead, the record indicates that the prosecutor dismissed
Juror No. 18 outside the presence of other grand jurors after the
grand jury heard Juror No. 18 express concern about his own
bias. The fact that the prosecutor dismissed Juror No. 18
outside the presence of the other grand jurors does not make the
dismissal any less unlawful. But it reduced the likelihood that
the independence of the remaining grand jury was impaired.
The other members had no reason to think that the prosecutor,
as opposed to the foreperson, dismissed Juror No. 18. On the
record before us, the foreperson was the only grand juror who
could have known that he was not the one who removed Juror
No. 18, and even the foreperson did not necessarily know it was
the prosecutor who had done so. Avitia therefore has not shown
that the error reasonably might have affected the impartiality
or independence of the grand jury in an adverse manner.

                                 17
                    AVITIA v. SUPERIOR COURT
                    Opinion of the Court by Liu, J.


      Dustin v. Superior Court (2002) 99 Cal.App.4th 1311 is
distinguishable. The court there held “it was error for the trial
court to have placed the burden on defendant to show prejudice
as a result of the denial of his right to a transcript of the entire
grand jury proceedings.” (Id. at p. 1326.) But the court did so
where “[i]n the absence of a transcript, coupled with the fact that
no judge or defense representative was present, it is difficult to
imagine how a defendant could ever show prejudice.” (Ibid.)
Further, the court said the prosecutor apparently excluded a
court reporter “for the express purpose of precluding discovery
by the defendant of his opening statement and closing
argument” and that “the prosecutor’s behavior is relevant in
addressing whether dismissal is an appropriate remedy for the
failure to provide a complete transcript of the grand jury
proceedings.” (Id. at pp. 1323–1324.) No similar circumstance
is present here.
        Although we conclude that Avitia’s motion fails on the
facts before us, we emphasize that prosecutors must be mindful
of the dictates of section 939.5 and conform their conduct
accordingly. We agree with the New Mexico high court’s
admonition that the “entity charged with the actual selection
and excusal of grand jurors is of paramount importance to the
process. As such, the statutory provisions assigning that role
. . . should be seen as mandatory, not directory, because they are
critical to ensuring that the process of impaneling a grand jury
is impartial and free of unfair influences. [Citations.] [¶] . . . .
[¶] The manner in which grand jurors are selected and excused
goes to the very heart of how the public views the integrity of
the grand jury system. [¶] . . . . [¶] And if the integrity of the
grand jury is called into question, there is little hope that the
public at large, or the accused in particular, will view the grand

                                  18
                   AVITIA v. SUPERIOR COURT
                   Opinion of the Court by Liu, J.


jury as capable of returning well-founded indictments or serving
as a realistic barrier to an overzealous prosecution.” (De Leon,
supra, 316 P.3d at pp. 900–901.) Section 939.5 makes clear that
the foreperson, not the prosecutor, has authority to dismiss
grand jurors. The prosecutor, who “ ‘ “is in a peculiar and very
definite sense the servant of the law” ’ ” (People v. Eubanks
(1996) 14 Cal.4th 580, 589), is expected to know the law and to
follow it.
                          CONCLUSION
      We affirm the judgment of the Court of Appeal and vacate
the stay we previously imposed.


                                             LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
RUBIN, J.*




*
      Presiding Justice of the Court of Appeal, Second Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

                                 19
                AVITIA v. SUPERIOR COURT
                            S242030


              Concurring Opinion by Justice Chin


      I agree that Penal Code section 995, subdivision (a)(1)(A),
permits a motion to dismiss the grand jury indictment on the
ground that the prosecutor violated Penal Code section 939.5. I
also agree that the superior court correctly denied the motion in
this case. But the prosecutor’s action in dismissing the grand
juror is not as pernicious as the majority opinion makes it
appear.
      Although the majority barely acknowledges it, the
prosecutor excused a grand juror who was biased against
defendant, Leo Brian Avitia. Excusing a grand juror who was
biased against a defendant does not violate that defendant’s
substantial rights. Nor does it call into question “ ‘the integrity
of the grand jury.’ ” (Maj. opn., ante, at p. 18.)
       As a result, I do not read today’s opinion as answering the
question that both the high court and our state courts have
previously avoided answering — whether defendants have a due
process right to enforce procedures that ensure the impartiality
of a grand jury under pain of dismissal. (Beck v. Washington
(1962) 369 U.S. 541, 546; Jackson v. Superior Court (2018) 25
Cal.App.5th 515, 530, review granted Sept. 19, 2018, S250995;
Packer v. Superior Court (2011) 201 Cal.App.4th 152, 168-169.)
Like those cases, and to an even greater extent here, it is
sufficient to state that defendant failed to show he was judged
by a biased grand juror.


                                1
                    AVITIA v. SUPERIOR COURT
                         Chin, J., concurring


      This is an odd case. Decades ago, we noted with approval
that the Court of Appeal in the case had “held that the obligation
of the prosecutor to assure independence, procedural regularity,
and fairness in grand jury proceedings is compelled by due
process . . . .” (People v. Backus (1979) 23 Cal.3d 360, 392, italics
added.) The prosecutor might have had that admonition in mind
when excusing a grand juror who was biased against defendant.
      A credible argument exists that the prosecutor has
inherent authority under People v. Backus, supra, 23 Cal.3d 392,
to excuse a grand juror who is biased against the defendant.
Arguably, doing so would be necessary to ensure fairness. To
say that the prosecutor is obligated to ensure fairness implies
that the prosecutor also has the authority to do so. The law
cannot obligate a prosecutor to do something and
simultaneously prohibit the prosecutor from doing that same
something. If the biased juror had not been excused, defendant
might now be contending, with more credibility than his actual
contention, that his substantial right to an unbiased grand jury
was violated.
      But no party is arguing that, as part of his obligation to
ensure fairness, the prosecutor had inherent authority to excuse
the biased juror. Accordingly, I accept that the prosecutor erred;
only the foreperson may excuse a grand juror. But it was a
technical error. Rather than excuse the juror himself, the
prosecution could have advised the foreperson to excuse the
juror. Certainly, the prosecutor had the authority to do that.
“The district attorney of the county may at all times appear
before the grand jury for the purpose of giving information or
advice relative to any matter cognizable by the grand jury . . . .”
(Pen. Code, § 935, italics added.) In turn, the foreperson



                                  2
                   AVITIA v. SUPERIOR COURT
                        Chin, J., concurring


probably would have excused the juror, and perhaps would have
been required to do so to ensure fairness.
     The difference between excusing the biased juror directly
and advising the foreperson to do so could not have affected any
substantial right of the defendant. Either way, a juror biased
against him would have been removed.
      I do not suggest that an indictment can never be set aside
because of a Penal Code section 939.5 violation. In some
situations, such a violation could infringe a defendant’s
substantial right — for example, if the prosecutor manipulated
excusals and selections to keep as grand jurors only those
perceived to be favorable to the prosecution, and to remove those
perceived to be favorable to the defendant. But this case is not
remotely similar.


                                               CHIN, J.
I Concur:
CANTIL-SAKAUYE, C. J.




                                 3
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Avitia v. Superior Court
__________________________________________________________________________________

Unpublished Opinion NP opn. filed 4/18/17 – 3d Dist.
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S242030
Date Filed: December 24, 2018
__________________________________________________________________________________

Court: Superior
County: San Joaquin
Judge: Brett H. Morgan and Seth Hoyt

__________________________________________________________________________________

Counsel:

David J. Cohen and Alexander P. Guilmartin for Petitioner.

No appearance for Respondent.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Rachelle A. Newcomb and Catherine Chatman, Deputy Attorneys General, for
Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):

David J. Cohen
300 Montgomery Street, Suite 660
San Francisco, CA 94104
(415) 398-3900

Catherine Chatman
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 210-7699
