Prosecutor erred by dismissing potential grand juror in manslaughter case, high court rules

The California Supreme Court ruled Monday against a criminal defendant who challenged his indictment for driving under the influence and killing another driver, establishing new case law on the scope of a prosecutor's role in grand jury selection.

In a unanimous opinion authored by Justice Goodwin Liu, the high court said a prosecutor's decision to dismiss a prospective juror, rather than the foreman, violated California law, but concluded the error did not substantially affect the defendant's rights.

A San Joaquin County prosecutor dismissed an officer who worked for the Department of Alcohol Beverage and Control from sitting on the grand jury, outside the presence of those already selected to serve.

The defendant, Leo Brian Avitia, challenged his indictment on the grounds the dismissal, not conducted by the jury foreman, violated California law.

The justices said Monday that Avitia was right about the mandates of California's grand jury system. Avitia v. Superior Court (People), 2018 DJDAR 12214 (Cal. Dec. 24, 2018).

Liu described the foreman's role as an "important safeguard to ensure that the grand jury remains impartial and independent of the prosecutor."

But Avitia's indictment had not likely been tainted because of the circumstances of the dismissal, Liu wrote.

"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." Liu wrote. "But it reduced the likelihood that the independence of the remaining grand jury was impaired."

In his conclusion, Liu advised district attorneys to be mindful of statutory provisions concerning the grand jury system.

"The prosecutor ... is expected to know the law and to follow it," Liu wrote.

Justice Ming Chin, joined by Chief Justice Tani Cantil-Sakauye, authored a separate concurrence noting that the prosecutor dismissed a potential juror who would have likely been unsympathetic to the defendant.

David J. Cohen, an attorney at Bay Area Criminal Lawyers PC, represented Avitia before the justices. Catherine B. Chatman argued for the Attorney General's office.