Leo Brian Avitia, Petitioner v. the Superior Court of San Joaquin County, Respondent; the People, Real Party In…

Summary

The court held that a prosecutor violates Penal Code section 939.5 by dismissing a grand juror because only the grand jury foreperson has authority to direct a biased juror to retire. A defendant may seek dismissal of the indictment under section 995, subdivision (a)(1)(A), but must show that the violation reasonably might have adversely affected the grand jury's impartiality or independence. Avitia failed to make that showing because the dismissed juror expressly acknowledged bias, was removed outside the presence of the other jurors, and there was no indication that the prosecutor otherwise influenced the grand jury.