Filed 10/18/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

BRANDON ANDRES 

RUIZ-MARTINEZ,

Petitioner,

v.

THE SUPERIOR COURT OF SANTA 

CRUZ COUNTY,

Respondent,

THE PEOPLE,

Real Party in Interest.

 No. H044349

 (Santa Cruz

 Super. Ct. No. 16CR02326)

A grand jury returned an indictment against Brandon Andres Ruiz-Martinez, 

charging him with, among other offenses, two counts of murder (counts 1 & 2) and 

alleging, among other special allegations, that each murder was committed for a criminal 

street gang, namely the “Norteno/Northside Watsonville Chicos.” (See Pen. Code, 

§ 190.2, subd. (a)(22).)1 The indictment further charged him with street terrorism (count 

3), assault with a deadly weapon and by means likely to produce great bodily injury 

(count 4), and conspiracy to commit murder (count 5), and it set forth multiple special 

allegations.

In the trial court, Ruiz-Martinez moved to dismiss the indictment pursuant to

section 995. He argued that the indictment had to be dismissed for three reasons, 

including that the People improperly dismissed three grand jurors in violation of 

 

1 All further statutory references are to the Penal Code unless otherwise stated.
2

section 939.5, the separation of powers doctrine, and Ruiz-Martinez’s due process rights.

2

He asserted that the prosecutor’s dismissal of grand jurors in violation of section 939.5 

resulted in an indictment “not found, endorsed, and presented as prescribed in [the Penal 

Code]” (§ 995, subd. (a)(1)(A)) and that no showing of prejudice was required to obtain 

dismissal of the indictment because Ruiz-Martinez had been denied a substantial right.

The trial court denied the motion.

Ruiz-Martinez (hereinafter petitioner) filed a petition for writ of mandate and/or 

prohibition in this court to obtain review of the trial court’s denial of his section 995 

motion. In support of the petition, he argued, as he had below, that (1) the unauthorized 

dismissal of three grand jurors resulted in an indictment “not found, endorsed, and 

presented as prescribed in [the Penal Code]” (§ 995, subd. (a)(1)(A)) and (2) no showing 

of prejudice was required to obtain dismissal of the indictment because he had been

denied a substantial right. Petitioner further contended that in any case, dismissal of the 

indictment was necessary because (1) the improper dismissals of jurors created structural 

error in the grand jury proceedings and (2) the improper dismissal of a grand juror who 

was favorable to petitioner “reasonably might have affected the outcome of the 

proceeding” since “the juror’s service (perhaps upon rehabilitation by the foreperson) 

would have undoubtedly affected the deliberations process and the ultimate vote for 

indictment.” Lastly, it was asserted that the indictment was required to be dismissed 

because the prosecutor’s violations of section 939.5 also infringed the separation of 

powers and violated petitioner’s due process rights.

After this court summarily denied the petition, the California Supreme Court 

granted review (S241068). The Supreme Court decided Avitia v. Superior Court (2018) 

 

2

In support of the section 995 motion, it was further argued that the indictment 

had to be dismissed because (1) the People dissuaded the grand jury from considering 

exculpatory evidence and (2) the evidence was insufficient to support each count.
3

6 Cal.5th 486 (Avitia) and then transferred this matter back to this court with directions to 

vacate our decision and issue an order to show cause (OSC) in light of Avitia.

As directed, we vacated our order denying the petition and issued an OSC. The 

respondent superior court was ordered to show cause why petitioner was not entitled to 

relief in light of Avitia. The Attorney General filed a return to the OSC on behalf of the 

People, the real party in interest. Petitioner filed a reply to that return.

After thoroughly considering both Avitia and the record, we conclude that the 

record does not show that the prosecutor’s improper actions during the grand jury 

proceedings reasonably might have adversely affected the grand jury’s impartiality or 

independence or violated the separation of powers doctrine or petitioner’s rights to due 

process. Accordingly, the petition is denied.

I

The Prosecutor’s Dismissal of Three Grand Jurors Before Indictment

The record reflects that at the outset of the grand jury proceedings, there were 

25 grand jurors. The assistant district attorney (prosecutor) told the grand jurors: “[T]he 

job of the grand jury is to be a neutral fact finder. Your role is to issue an indictment if 

probable cause has been found.” The prosecutor told the jurors that they could rely on 

only admissible evidence and that it was her job to make sure the evidence presented was 

admissible and to make them aware of any exculpatory evidence. She informed the 

jurors that they could subpoena more witnesses or evidence that they wished to hear. The 

prosecutor told the jury that there would be 19 jurors deliberating, and an indictment 

required 12 votes.

The prosecutor described the evidence that the grand jury could expect to hear. 

She indicated that in 2014 a double murder had occurred “in the parking lot area of the 

Fish House restaurant and the Valley Inn [m]otel in Watsonville” and that “almost all of 

it was caught on surveillance video.” She told the grand jurors that they would hear 

about eight individuals who were “all northern affiliated gang members,” seven of whom 
4

belonged to “a very specific subset gang in Watsonville known as North Side [sic]

Watsonville Chicos.”

The prosecutor also told the jurors: “[T]he things that I say are not evidence. So 

the evidence is the sworn testimony of the witnesses. I’m giving you an overview, but 

you are not to consider what I say about this case as evidence in this case.”

In accordance with section 939.5, the grand jury foreman then told the jury: “Any 

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

persons involved which will prevent him or her from acting impartially and without 

prejudice to the substantial rights of the persons involved shall retire from this hearing.” 

The foreman also admonished: “During the pendency of this hearing . . . and until the 

grand jury has . . . completely finished with this case, you are instructed that no media 

accounts concerning this matter and no other sources of information other than that which 

is presented to you within this hearing room when the jury is in session can be used by 

you against any potential defendants in reaching a decision in this matter.” The foreman 

asked, “Is there anyone who feels unable to disregard any information they may have 

heard or read?”

One grand juror immediately spoke up. The grand juror indicated that he or she 

had family members involved in the case on the side of the Northside gang. The juror did 

not think he or she could be fair. The prosecutor excused the grand juror.

Another grand juror then expressed concern that he or she already felt inclined to a 

decision. After a further exchange with the prosecutor, the grand juror indicated that he 

or she was willing to do the job of issuing an indictment only if the evidence established

“probable cause,” even if he or she had personal feelings about it.

A different grand juror then disclosed that he or she had evicted a man who was 

affiliated with the Norteños from a property and that the juror had learned about the 

incident from this man. But the grand juror also indicated that he or she could set aside 
5

“anything related to the situation,” do the job of being a grand juror, and issue an 

indictment only if the prosecutor presented evidence establishing probable cause.

Next, a grand juror indicated that he or she was needed to take care of a grandson 

for the next three weeks while his or her daughter went to work and that it would be a 

hardship to continue to sit on the grand jury. The prosecutor excused this grand juror

since service would impose hardship on the grand juror and his or her family.

The prosecutor instructed the jurors on the probable cause standard and told them 

that they must decide all factual questions based on the evidence received in the 

proceeding and “not from any other source.” She told the jurors that her remarks were 

not evidence. The prosecutor instructed the jurors that they “must judge the testimony of 

each witness by the same standards, setting aside any bias or prejudice [they might] 

have.”

Two alternates were seated on the grand jury, bringing the total number of jurors 

seated on the grand jury to 19. The total number of grand jurors at the proceedings was 

23.

Much later in the proceedings, during the presentation of evidence, a grand juror 

indicated that he or she knew the DJ in a video being shown to the jury and that the DJ

was the person whom the juror had mentioned earlier and from whom the juror had heard 

about the incident. Then, outside the presence of the other grand jurors, the grand juror—

apparently the same grand juror who had spoken up at the beginning of the 

proceedings—further explained that he or she had gone “through an eviction process with 

him” and knew that he was affiliated with the Norteños. The grand juror told the 

prosecutor: “My heart rate totally jumped and it makes me way more uncomfortable than 

I was. I was totally comfortable this whole time. . . . [I]t kind of weirds me out a little 

bit.” The prosecutor asked whether the grand juror could consider only “the competent 

evidence, which is the sworn testimony of witnesses and these exhibits . . . , in reaching 

[his or her] determination.” The grand juror indicated that he or she might be affected by 
6

“having gone through the eviction process and knowing his [gang] affiliation” and that it 

would be hard to set that aside. The prosecutor excused the grand juror, explaining that 

she “need[ed] people who can separate everything and be impartial.”

Back in the presence of the remaining grand jurors, the prosecutor told them: 

“What ended up happening is some information came up obviously as we were watching 

this that raised some concerns for one of the grand jurors about their ability to set aside 

things that they’d maybe heard about this case. And I’ll just remind everybody that it’s 

your job as grand jurors to evaluate this case based only on what’s considered competent 

evidence, which is the evidence of the sworn testimony of the witnesses and the exhibits 

that have been introduced.” 

Later in the proceedings and outside the presence of the other grand jurors, another 

grand juror told the prosecutor that he or she knew a Sureño and had “friended him on 

Facebook” but had not actually spoken to him since high school. The juror had not 

previously heard about this case and had no reason to believe that the person, who the 

grand juror thought was in jail at that time, was involved in this case. The juror stated, “I 

only keep him friended on Facebook because it’s kind of funny, it amuses me when he 

gets out of jail.” The juror did not think the relationship would affect his or her ability to 

make a decision regarding an indictment based on only the evidence.

The grand jury returned an indictment charging petitioner with the following 

crimes: two counts of murder (§ 187, subd. (a)) (counts 1 & 2); street terrorism 

(§ 186.22, subd. (a)) (count 3); assault with a deadly weapon and by means of force likely 

to produce great bodily injury (§ 245, subd. (a)) (count 4); and conspiracy to commit 

murder (§ 182, subd. (a)(1)) (count 5). The indictment alleged special circumstances 

with respect to counts 1 and 2, including the circumstance under section 190.2, 

subdivision (a)(22), which states: “The defendant intentionally killed the victim while 

the defendant was an active participant in a criminal street gang, as defined in 

subdivision (f) of Section 186.22, and the murder was carried out to further the activities 
7

of the criminal street gang.” With respect to counts 1, 2, 4, and 5, the indictment alleged 

that the crimes were committed for the benefit of, at the direction of, and in association 

with a criminal street gang (§ 186.22, subd. (b)(1)). With respect to counts 1, 2, and 5, 

the indictment set forth various firearm enhancement allegations under section 12022.53. 

A corrected indictment, filed the same day, reflected the deletion of the multiple-murder 

special circumstances allegation (§ 190.2, subd. (a)(3)) attached to count 2 and the 

retention of the multiple-murder special circumstances allegation attached to count 1.

In denying the motion to dismiss pursuant to section 995, the trial court found 

among other things that although the prosecutor had violated section 939.5 by excusing 

or dismissing three grand jurors, there was an insufficient showing of prejudice to compel 

a dismissal. The court noted the unanimous vote in favor of indictment (19 to zero).

II

Discussion

A. Law Governing Grand Jury Proceedings and the Avitia Decision

“During selection of the grand jury, section 909 authorizes ‘the court’ to ‘excuse[] 

[a juror] from such service’ for lacking certain qualifications.”3 (Avitia, supra, 6 Cal.5th 

 

3 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.” (Italics added.) Section 

909 states: “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.” (Italics added; see § 893 [competency to act as grand juror].) “An eligible 

person may be excused from jury service only for undue hardship, upon themselves or 

upon the public, as defined by the Judicial Council.” (Code Civ. Proc., § 204, subd. (b); 

see Cal. Rules of Court, rule 2.1008(d).) One reason for excusing a juror based on undue 

hardship is that “[t]he prospective juror has a personal obligation to provide actual and 

necessary care to another, including sick, aged, or infirm dependents, or a child who 

requires the prospective juror’s personal care and attention, and no comparable substitute 

care is either available or practical without imposing an undue economic hardship on the 
8

at p. 492; see § 910.) “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 ‘giv[e] information or advice relative to any matter cognizable by the grand 

jury.’ But no provision authorizes a prosecutor to dismiss a grand juror . . . .”4 (Avitia, 

supra, 6 Cal.5th at p. 492.) Thus, although “mere influence over the composition of the 

grand jury is not impermissible” (id. at p. 498), “a prosecutor’s dismissal of a grand juror 

violates section 939.5.” (Id. at p. 492.)

In Avitia, a prosecutor had “questioned and dismissed a grand juror outside the 

presence of other jurors and the trial court” (Avitia, supra, 6 Cal.5th at p. 488), and “the 

resulting grand jury [had then] returned an indictment against [Avitia].” (Ibid.) “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” (ibid.), and the trial court denied the motion. 

(Ibid.)

In Avitia, the California Supreme Court held that “a prosecutor’s dismissal of a 

grand juror violates section 939.5 [because] only the grand jury foreperson may dismiss a 

grand juror.” (Avitia, supra, 6 Cal.5th at p. 488) The court also determined 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)” (ibid.) 

and that “[i]n order to prevail on such a motion, the defendant must show that the error 

 

prospective juror or person cared for.” (Cal. Rules of Court, rule 2.1008(d)(7).) All 

further references to rules are to the California Rules of Court.

4

“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.” (§ 935; see § 934.)
9

reasonably might have had an adverse effect on the impartiality or independence of the 

grand jury.” (Id. at pp. 488-489.)

The Supreme Court in Avitia concluded that the section 995 motion had been 

properly denied “[b]ecause Avitia ha[d] not shown that the error reasonably might have 

had an adverse effect on the impartiality or independence of the grand jury.” (Avitia, 

supra, 6 Cal.5th at p. 489) The grand juror who was ultimately dismissed by the 

prosecutor “explicitly acknowledged that he could not fairly evaluate the case, and the 

prosecutor dismissed that juror outside the presence of other jurors.” (Ibid.)

In Avitia, the Supreme Court explained that section 995, subdivision (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.” 

(Avitia, supra, 6 Cal.5th at p. 494.) It declared that “a right is substantial when denial of 

the right results in a denial of due process.” (Ibid.) The court observed that “[a] 

prosecutor’s violation of section 939.5 . . . can threaten the basic function of the grand 

jury as ‘ “a protective bulwark standing solidly between the ordinary citizen and an 

overzealous prosecutor.” ’ [Citation.]” (Id. at p. 495.) It made clear that “[a]lthough not 

every prosecutorial violation of section 939.5 is reason to set aside an indictment, an 

indictment must be set aside where the violation results in the denial of a substantial 

right. [Citations.]” (Ibid.) The court explicitly held 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.” 

(Ibid.) But the burden was on the defendant to “show that the section 939.5 violation 

reasonably might have had an adverse effect on the impartiality or independence of the 

jury.” (Ibid.)

Accordingly, “[w]hen 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 
10

reasonably might have had an adverse effect on the independence or impartiality of the 

grand jury.” (Avitia, supra, 6 Cal.5th at pp. 497-498.) The Supreme Court explained: 

“[O]utside 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.’ [Citation.] 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. [Citation.]” (Id. at p. 497.) The court explicitly 

stated, however, that “a section 939.5 violation is ‘not inherently prejudicial.’ ” (Ibid.)

With respect to petitioner Avitia, the Supreme Court found that he had not made 

the requisite showing. It determined that the prosecutor’s dismissal of a juror “helped to 

ensure the grand jury’s impartiality by removing a potential juror who said he could not 

be impartial.” (Avitia, supra, 6 Cal.5th at p. 498.) It distinguished the case from other 

cases “where the prosecutor was actively involved in the selection of grand jurors or 

excused a grand juror in the presence of other grand jurors.” (Ibid.) The court stated: “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. 2013) 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’].)” (Ibid.)

As to grand jury independence, the Supreme Court found that the prosecutor’s 

dismissal of the juror outside the other grand jurors’ presence “reduced the likelihood that 

the independence of the remaining grand jury was impaired.” (Avitia, supra, 6 Cal.5th at 
11

p. 499.) The court further reasoned: “The other members had no reason to think that the 

prosecutor, as opposed to the foreperson, dismissed [the juror]. On the record before us, 

the foreperson was the only grand juror who could have known that he was not the one 

who removed [the juror], and even the foreperson did not necessarily know it was the 

prosecutor who had done so.” (Ibid.) Consequently, the court concluded that Avitia had 

“not shown that the error reasonably might have affected the impartiality or independence 

of the grand jury in an adverse manner.” (Ibid.)

The Supreme Court emphasized in Avitia that “prosecutors must be mindful of the 

dictates of section 939.5 and conform their conduct accordingly.” (Avitia, supra, 6 

Cal.5th at p. 499.) The court agreed “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 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.)” (Ibid.) The Supreme Court 

had stated in an earlier case: “ ‘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.]” (Johnson v. 

Superior Court (1975) 15 Cal.3d 248, 254 (In bank); see id. at p. 255 [holding that “when 

a district attorney seeking an indictment is aware of evidence reasonably tending to 

negate guilt, he is obligated under section 939.7 to inform the grand jury of its nature and 
12

existence, so that the grand jury may exercise its power under the statute to order the 

evidence produced”]; see also § 939.71.)

B. Analysis

Similar to the actions of the prosecutor in Avitia, the prosecutor in this case 

affected the composition of the grand jury by excusing three jurors. Those actions clearly 

violated section 939.5. (Avitia, supra, 6 Cal.5th 486, 488, 492.) As to any juror who 

appeared to be partial, the prosecutor should have instead “made [her] concerns about 

[the juror] known to the foreperson, who in turn could have directed the juror to retire in 

accordance with section 939.5.” (Id. at p. 492; see § 935.) Further, the prosecutor had no 

authority to excuse a juror for hardship. (See §§ 909, 939.5; see also ante, fn. 3.) Thus, 

the question is whether the indictment was required to be set aside because of the 

prosecutor’s actions.

As to the two jurors who were excused after they indicated that they could not 

necessarily be fair or impartial—one juror because he or she had Norteño family 

members involved in the case and the other because he or she had had to evict a Norteño 

gang member who later appeared in an evidentiary video shown to the jurors—there is a 

high probability that the foreperson ultimately would have removed them upon advice

from the prosecutor to do so. (See Avitia, supra, 6 Cal.5th at p. 498.) Moreover, their 

removal helped to ensure the grand jury’s impartiality. (Ibid.)

Petitioner complains that the first grand juror who was dismissed “may have been 

partial in [his] favor and thus [the] dismissal was to [the] Real Party’s benefit.” The 

juror’s potential bias in petitioner’s favor does not demonstrate that the improper 

dismissal “reasonably might have had an adverse effect on the impartiality or 

independence of the grand jury.” (Avitia, supra, 6 Cal.5th at p. 489; see id. at pp. 495, 

497-498.) To the contrary, the dismissal served to ensure the impartiality of the grand 

jury.
13

Although it was the trial court, not the prosecutor, who was empowered to excuse 

a grand juror from service for undue hardship (see ante, fn. 3), we see no indication that 

the prosecutor’s action of excusing a juror on that ground, in and of itself, reasonably 

might have had an adverse effect on the independence or impartiality of the grand jury as 

ultimately constituted. An improper juror excusal is not inherently prejudicial. (See 

Avitia, supra, 6 Cal.5th at p. 497.)

In support of his argument that his section 995 motion should have been granted, 

petitioner cites Williams v. Superior Court (2017) 15 Cal.App.5th 1049 (Williams I), 

review granted December 13, 2017, S245314 and further action deferred pending 

decision in Avitia, supra, 6 Cal.5th 486, S245314. (See rule 8.1115(e).) After deciding 

Avitia, the Supreme Court did not dismiss review in Williams I (see rule 8.528(b)), which 

would have made the appellate court’s issuance of a peremptory writ of mandate the final 

decision. (See rule 8.528(b)(2); cf. Jackson v. Superior Court (2018) 25 Cal.App.5th 

515, 544 [denying writ petition] (Jackson), review granted September 19, 2018, S250995, 

held for Avitia, and review dismissed April 24, 2019, S250995.) Rather, the Supreme 

Court transferred the matter to the appellate court with directions to vacate its decision in 

William I, supra, S245314 and reconsider the cause in light of Avitia.

(<https://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=22362

13&doc_no=S245314&request_token=NiIwLSIkTkw4W0BJSCI9TE9IQEg0UDxTJyN

OSztSMCAgCg%3D%3D> [as of Oct. 9, 2019], archived at: <https://perma.cc/5GUBZ3ZK>; see rule 8.528(d).) The appellate court has now vacated Williams I and issued its 

superseding opinion, Williams v. Superior Court (2019) 38 Cal.App.5th 1022 (Williams

II). Williams I is no longer citable.

In Williams II, the Third District Court of Appeal again issued a peremptory writ 

of mandate, directing the superior court to vacate its order denying the petitioner’s 

motion to dismiss the indictment and enter a new order granting the motion. (Williams II, 

supra, 38 Cal.App.5th at p. __ [251 Cal.Rptr.3d 287, 296].) The appellate court 
14

concluded that the deputy district attorney’s improper excusal of a juror for economic 

hardship and the “corresponding reduction of the required number of jurors reasonably 

might have had an adverse effect on the impartiality or independence of the jury.” (Id. at 

p. ___ [251 Cal.Rptr.3d 287, 296].)

In Williams II, the appellate court explained that in its “previous opinion, [it had] 

stated that by deciding that Juror No. 15 should be excused for hardship, the deputy 

district attorney used authority of the judicial branch.” (Id. at p. ___ [251 Cal.Rptr.3d 

287, 295].) It pointed out that “the prosecutorial overreach occurred in the presence of 

the grand jurors and allowed the remaining jurors to mistakenly believe the prosecutor 

had legal authority to approve a hardship request.” (Id. at p. ___ [251 Cal.Rptr.3d 287, 

295].) The appellate court stated that it was “unclear from the limited record before [the 

court] whether Juror No. 15 should have been excused for ‘undue hardship,’ assuming 

that was a permissible result at this stage in the proceedings. (See Code Civ. Proc., § 204, 

subd. (b).)” (Id. at p. ___ [251 Cal.Rptr.3d 287, 295].) The court found that the 

prosecutor had “asserted direct control over the composition of the grand jury” (ibid.) and 

that “[t]he fact the excused juror was not replaced suggests the court was not made aware 

of what happened, effectively preventing the drawing of another grand juror who might 

have impacted deliberations.” (Ibid. [251 Cal.Rptr.3d 287, 295].) Although aware that a 

prosecutor’s mere influence over a grand jury’s composition is not impermissible 

(Williams II, supra, 38 Cal.App.5th at p. ___ [251 Cal.Rptr.3d 287, 295]), the appellate 

court determined that that “[t]he deputy district attorney’s improper display of authority 

over the grand jury went to the very structure the Legislature has provided to keep these 

constitutional fixtures necessarily independent. [Citation.]” (Id. at p. ___ [251 

Cal.Rptr.3d 287, 296].)
15

In this case, unlike Williams II, before presentation of the evidence began, two 

alternates were seated as members of the grand jury, replacing the two excused jurors.

5

 It 

also appears that the third juror excused during the presentation of evidence was replaced

with an alternate since the trial court observed that all 19 grand jurors voted for 

indictment.

6

Although “[a]n indictment cannot be found without the concurrence of at least”

the statutory minimum number of grand jurors (§ 940; see also § 888.2), there has been 

no showing that the indictment was defective for failing to meet this requirement. There 

is nothing in the record to suggest that the grand jury as ultimately composed was not 

properly constituted or contained any jurors who were possibly biased or partial. Nothing 

in the record indicates that the prosecutor might have skewed the grand jury’s ultimate 

composition in favor of the prosecution by excusing the three jurors (see Avitia, supra, at 

p. 495) or improperly affected the grand jury’s subsequent decisionmaking process. (See 

id. at p. 498.)

Petitioner nevertheless maintains that the prosecutor’s conduct resulted in the 

jurors’ having the perception that she exercised control over the operation and functions 

 

5 The number of persons constituting a grand jury is established by statute. (See 

§§ 888.2, 908.) Section 908 provides in pertinent part: “If the required number of the 

persons summoned as grand jurors are present and not excused, the required number shall 

constitute the grand jury. If more than the required number of persons are present, the 

jury commissioner shall write their names on separate ballots, which the jury 

commissioner shall fold so that the names cannot be seen, place them in a box, and draw 

out the required number of them. . . . If more of the persons summoned to complete a 

grand jury attend than are required, the requisite number shall be obtained by writing the 

names of those summoned and not excused on ballots, depositing them in a box, and 

drawing as provided above.” As applied to a grand jury, the “ ‘required number’ ” means 

(1) 23 “in a county having a population exceeding 4,000,000” (§ 888.2, subd. (a)); (2) 11 

“in a county having a population of 20,000 or less, upon the approval of the board of 

supervisors” (§ 888.2, subd. (b)); and 19 “in all other counties.” (§ 888.2, subd. (c).)

6 Section 908.1 provides that “[a] person selected as a grand juror to fill a vacancy 

pursuant to this section may not vote as a grand juror on any matter upon which evidence 

has been taken by the grand jury prior to the time of the person’s selection.”
16

of the grand jury (see Avitia, supra, 6 Cal.5th at p. 495) and that “any semblance of 

independence crumbled as she exercised her unbridled authority.” Even if the prosecutor

exceeded her authority, nothing in the prosecutor’s colloquies with the grand jurors or the 

prosecutor’s comments to the jury after excusing the third juror during the presentation of 

evidence could have reasonably led any juror who remained on the grand jury to believe 

that he or she was beholden to the prosecution during the decisionmaking process. (See 

Avitia, supra, 6 Cal.5th at p. 498.) The prosecutor’s consistent theme was that the jurors 

could consider only the evidence presented and must be impartial. (Cf. Jackson, supra, 

25 Cal.App.5th at p. 542, fn. omitted [“the prosecutor emphasized to the grand jury that 

any indictment required probable cause and the grand jury had to act independently and 

impartially in reaching its own determination on that issue”].)

This case is not like the New Mexico case of De Leon, cited in Avitia. In that 

case, “[a]fter the initial orientation and swearing in of the grand jurors [once a court jury 

clerk had deleted some names on a list of 100 potential grand jurors based on hardship

reports that she had received], the process of selecting and excusing jurors for individual 

grand jury sessions was transferred to the district attorney’s office with no apparent 

further involvement by the district court.” (De Leon, supra, 316 P.3d at pp. 897-898.) 

“[T]here was virtually no record made of the informal excusal process . . . apparently 

used [by the prosecutor.]” (Id. at p. 901.) “[T]he list of those grand jurors who were 

called for the session of the grand jury that indicted [p]etitioner [De Leon] reflects that 

several grand jurors were excused—though by whom is unclear. Indeed, the list of grand 

jurors used by the district attorney’s office contains many notations suggesting active 

involvement by someone within the district attorney’s office in deciding who would 

ultimately serve at the session of the grand jury that indicted [the] [p]etitioner.” (Id. at 

p. 898.) In De Leon, the Supreme Court of New Mexico held that “when undeniable 

irregularities in the grand jury process are brought to the court’s attention well in advance 
17

of trial, . . . a grand jury indictment resulting from that flawed process must be quashed.” 

(Id. at p. 901.) No showing of prejudice was required. (Ibid.)

Unlike De Leon, we have a record of what occurred. In addition, unlike De Leon, 

the California Supreme Court concluded in Avitia that “a section 939.5 violation is ‘not 

inherently prejudicial[]’ ” (Avitia, supra, 6 Cal.5th at p. 497) and held that “[w]hen 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.” (Id. at pp. 497-498, see id. 

at p. 495.) We do not agree that in this case, the prosecutor’s actions reasonably might 

have had an adverse effect on the independence or impartiality of the grand jury. The 

record does not suggest that her conduct undermined the grand jury’s integrity or its 

protective role against an overzealous prosecutor.

In light of our conclusions, we cannot say that the prosecutor’s actions materially 

impaired the core function of the grand jury in violation of the doctrine of separation of 

powers. (See In re Rosenkrantz (2002) 29 Cal.4th 616, 662 [“the separation of powers 

doctrine is violated only when the actions of a branch of government defeat or materially 

impair the inherent functions of another branch.”]; see Loving v. United States (1996) 517 

U.S. 748, 757 [“one branch of the Government may not intrude upon the central 

prerogatives of another”].) In addition, we do not find that petitioner’s due process rights 

were violated since it was not shown that he reasonably might have been deprived of a 

properly constituted, independent, and impartial grand jury.

The section 995 motion was properly denied.

DISPOSITION

The petition for writ of mandate and/or prohibition is denied.
_________________________________

ELIA, ACTING P. J.

WE CONCUR:

_______________________________

BAMATTRE-MANOUKIAN, J.

_______________________________

MIHARA, J.

Ruiz-Martinez v. Superior Court

H044349
Trial Court: Santa Cruz County Superior Court

Superior Court No.: 16CR02326

Trial Judge: The Honorable Timothy R. Volkmann

Attorneys for Petitioner: David J. Cohen 

Alexander P. Guilmartin

No appearance for Respondent:

Attorneys for Real Party in Interest: Xavier Becerra,

Attorney General

Gerald A. Engler,

Chief Assistant Attorney General

Jeffrey M. Laurence,

Senior Assistant Attorney General

Laurence K. Sullivan,

Supervising Deputy Attorney General

René A. Chacón,

Supervising Deputy Attorney General

Ruiz-Martinez v. Superior Court

H044349