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Filed 8/20/19; on transfer

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(San Joaquin)

----

DARREN WILLIAMS,

Petitioner,

v.

THE SUPERIOR COURT OF SAN JOAQUIN 

COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

C083126

(Super. Ct. No. 

STKCRFE20160006123)

ORIGINAL PROCEEDING in mandate. Petition granted. Stephen G. Demetras, 

Judge.

Miriam T. Lyell, Public Defender, Robert G. Remlinger, Nelson C. Lu, Sarah L. 

White, and Jonathan W. Fattarsi, Deputy Public Defenders for Petitioner.

No appearance for Respondent.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Stephen G. 

Herndon, Paul E. O’Connor, and Darren K. Indermill, Deputy Attorneys General for Real 

Party in Interest.
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On October 5, 2016, petitioner Darren Williams sought extraordinary writ relief in 

this court from the superior court’s order denying his Penal Code section 995 motion to 

dismiss an indictment issued by a grand jury charging him with a series of cell phone 

store robberies.

1

 Petitioner moved to dismiss the indictment on the basis that the deputy 

district attorney’s excusal of a juror for hardship violated the grand jury’s independence 

and rendered it improperly constituted. Petitioner also challenged the sufficiency of the 

evidence with respect to the gang allegations and counts regarding a March 10, 2014,

robbery. In a published opinion, we concluded the superior court should have granted the 

motion to dismiss the indictment because the deputy district attorney’s exercise of 

authority he did not have over the grand jury, in front of the grand jurors, substantially 

impaired the independence and impartiality of the grand jury. As such, we did not reach 

the sufficiency of the evidence claims. We issued a peremptory writ of mandate vacating 

the superior court’s order denying petitioner’s motion to dismiss the indictment and 

directing the court to enter a new order granting the motion. 

The Supreme Court granted review and deferred the matter pending consideration 

and disposition of a related issue in Avitia v. Superior Court, S242030, or pending further 

order of the court. 

In December 2018, our Supreme Court issued Avitia v. Superior Court (2018) 6 

Cal.5th 486 (Avitia), a case that discussed whether an indictment must be set aside 

because of a prosecutor’s dismissal of a juror during grand jury proceedings. The court 

held 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 

 

1

 Undesignated statutory references are to the Penal Code.
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the error reasonably might have had an adverse effect on the impartiality or independence 

of the grand jury.” (Id. at pp. 488-489.)

On April 24, 2019, the California Supreme Court transferred the matter back to 

this court, with directions to vacate our decision and reconsider the cause in light of 

Avitia. We vacated our opinion on April 26, 2019. The parties have filed supplemental 

briefs.

After consideration of Avitia, we will again issue a peremptory writ of mandate 

vacating the superior court’s order denying petitioner’s motion to dismiss the indictment 

and directing the court to enter a new order granting the motion. 

I. BACKGROUND

A. Grand Jury Proceedings

On August 6, 2015, the San Joaquin County District Attorney’s Office filed a 

complaint charging petitioner and codefendants Jordan Ferguson and William Mayfield 

with multiple counts of robbery and other charges. The People filed an amended 

complaint on April 15, 2016, that included 26 charges and additional factual allegations. 

Petitioner in particular was charged with 15 counts of robbery, two counts of attempted 

robbery, one count of conspiracy to commit a crime, one count of kidnapping to commit 

robbery, and one count of possession of an assault weapon. 

The transcript of the grand jury proceedings provided by petitioner begins on April 

25, 2016, with the deputy district attorney introducing himself to the jurors. Next, the 

deputy district attorney excused Juror No. 15 from service: “Before I get any further, I 

have been informed that one of our potential jurors who was designated as Juror Number 

15 learned over the break that she will not get paid for the full five days and that she has 

informed us that that will cause her an economic hardship as stated in the statute. [¶] So 

I’m going to release her from her service at this time. [¶] And that was—and just for the 

record, Juror Number 15; is that correct?

“THE JURORS: Yes.
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“[Deputy District Attorney]: Thank you. [¶] You can leave your materials there 

and I will pick them up again.” (Italics added.) 

The proceedings continued with 18 jurors, and witness testimony began the 

following day. At the beginning of the second day of testimony, the deputy district 

attorney made the following record:

“Grand Juror Number 10 approached me yesterday at the conclusion of testimony 

for the day and let me know that one of the witnesses she recognized. She did not 

recognize that person when we read the witness list. They’re not a close relationship of 

any real kind, and she assured me that that relationship wouldn’t affect her ability to be 

impartial and impartially judge the facts of this case and deliberate.

“Is that correct?

“JUROR NO. 10: Yes.

“[Deputy District Attorney]: Thank you.” 

After that, testimony continued. The last witness testified and jury instructions 

were read on April 29, 2016. The prosecutor finished reading the jury instructions 

sometime after 1:30 p.m. and then gave a closing argument. The grand jury deliberated

and returned a 68-page indictment later that same day. At least 12 of the grand jurors 

concurred in the finding of the indictment. With respect to petitioner, the indictment 

included all the offenses and allegations that appeared in the amended complaint. 

B. Motion to Dismiss the Indictment

On July 15, 2016, petitioner filed a motion to dismiss the indictment against him 

under section 995. He argued that, by dismissing a previously qualified grand juror for 

hardship, the prosecutor exceeded his authority, “usurped a judicial branch function,” and 

“invaded the independent role of the grand jury.” This, he argues, left an improperly 

constituted jury of less than the required 19 grand jurors and rendered the indictment 

fatally defective. Petitioner argued these allegations were “compounded by other actions 

of the Deputy District Attorney” but did not specify any. Additionally, petitioner raised 
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challenges to the sufficiency of the evidence with regard to the gang allegations and his 

involvement in the March 10, 2014, robbery. 

The People’s opposition attached as an exhibit a ruling by the Honorable Brett 

H. Morgan denying a motion to dismiss an indictment in an unrelated grand jury 

proceeding in which a different San Joaquin County deputy district attorney exceeded his 

authority by excusing a biased juror outside the presence of the other jurors.

2

 As 

discussed below, this action violated sections 910 and 939.5. 

Borrowing from this earlier ruling, the court denied petitioner’s motion. With 

respect to the excusal of Juror No. 15, the court explained, “[E]verybody agrees [the 

deputy district attorney] kicked off a juror improperly, although, [the juror] probably 

would have been excused by a judicial officer in some fashion. But it’s not clear what 

the remedy is here. Judge Morgan felt, I think, his cases that he cites are correct, that 

there is no automatic prejudice by having 18 versus 19 when you have the declaration 

that 12 or more returned the indictment. That’s what you are entitled to. So what’s the 

best that could have happened here? This 19th juror could have voted against a voting 

order or the indictment. Still would have had 12 or more.

“So with that state, I don’t think there is any automatic prejudice, and I don’t see 

that the defendant has shown any actual prejudice here. Twelve or more grand jurors

voted for the indictment and that’s all that’s required.

“So while there was a technical violation of that statute, I don’t think it rises to a 

due process violation and its displayed prejudice here on behalf of any of the defendants.

So I would overrule the 995 on those grounds.” 

Petitioner sought review in this court by filing a petition for writ of mandate or 

prohibition. We requested that the People file an opposition, and they did.

 

2

 This was the proceeding that would give rise to Avitia.
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On December 1, 2016, we issued an order to show cause why the relief prayed for 

in this proceeding should not be granted and issued a stay of all further proceedings, 

including the trial. The People subsequently indicated their earlier opposition to the 

petition may be deemed their return.

II. DISCUSSION

A. The Grand Jury Process

In the prosecution of a felony, the People may proceed either by indictment or 

information. (Cal. Const., art. I, § 14; §§ 682, 737.) “An indictment is an accusation in 

writing, presented by the grand jury to a competent court, charging a person with a public 

offense.” (§ 889.) “Thus, under the statutory scheme, it is the grand jury’s function to 

determine whether probable cause exists to accuse a defendant of a particular crime.” 

(Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1026.) “Prior to the authorization 

of informations, the chief function of the grand jury was to hear evidence of felonies and 

to bring indictments.” (4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) 

Introduction to Criminal Procedure, § 33, p. 58.) While this is no longer so (ibid.), in 

determining whether probable cause exists to accuse a defendant of a particular crime, 

“[t]he grand jury’s ‘historic role as a 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.” (Johnson v. Superior Court of San Joaquin 

County (1975) 15 Cal.3d 248, 253-254.) A grand jury is “ ‘ “a constitutional fixture in its 

own right.” ’ [Citations.] In fact the whole theory of its function is that it belongs to no 

branch of the institutional Government, serving as a kind of buffer or referee between the 

Government and the people. [Citations.] Although the grand jury normally operates, of 

course, in the courthouse and under judicial auspices, its institutional relationship with 

the Judicial Branch has traditionally been, so to speak, at arm’s length.” (United States v. 

Williams (1992) 504 U.S. 36, 47 [118 L.Ed. 2d 352].) 
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The grand jury originates from the common law, but “the California Legislature 

has codified extensive rules defining it and governing its formation and proceedings, 

including provisions for implementing the long-established tradition of grand jury 

secrecy.” (Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1122.) For 

instance, “[d]eliberations of the grand jury are completely private; no person other than 

the grand jurors themselves may be present during ‘the expression of the opinions of the 

grand jurors, or the giving of their votes’ on any criminal matter before them. (§ 939.)” 

(People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th 403, 415.) “A grand 

jury is a body of the required number of persons returned from the citizens of the county 

before a court of competent jurisdiction, and sworn to inquire of public offenses 

committed or triable within the county.” (§ 888.) At least one grand jury is impaneled in 

each county every year.3(§ 905; Cummiskey v. Superior Court, supra, 3 Cal.4th at 

p. 1024.) It is undisputed that the “required number” of jurors in San Joaquin County is 

19. (§ 888.2, subd. (c).) Of these, at least 12 must concur in an indictment. (§ 940.) 

“When so found it shall be endorsed, ‘A true bill.’ ” (Ibid.)

“The qualifications for service as a grand juror in California are prescribed by 

statute and relate to matters such as citizenship, age, mental competency, intelligence, 

and character. [Citation.] The trial court determines these qualifications by personal 

interview and examination.” (Packer v. Superior Court (2011) 201 Cal.App.4th 152, 

163, fn. omitted (Packer).) Of particular relevance to this petition, “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 

 

3

 It appears this case involves the impanelment of an “additional grand jury” under 

section 904.6 specifically impaneled to hear criminal matters. 
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the Code of Civil Procedure.” (§ 909.) Included in this chapter is an excusal for “undue 

hardship.” (Code Civ. Proc, § 204, subd. (b).) “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.” (§ 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 . . . .” (Avitia, supra, 6 Cal.5th 

at p. 492.)

The Penal Code also provides a mechanism, not utilized here, by which vacancies 

on the grand jury may be filled by the jury commissioner in the presence of the court. 

(§ 908.1.) 

B. Grand Juror No. 10

In this original proceeding, petitioner claims broadly that the deputy district 

attorney violated the grand jury’s independence and rendered it improperly constituted by 

choosing who to excuse. Specifically, petitioner’s expanded claim now encompasses the 

assertion that the deputy district attorney “elected not to remove Grand Juror [No.] 10.” 

The People argue this issue was forfeited because petitioner did not raise it earlier. They

rely on Packer, in which the defendant argued his indictment should have been dismissed 

because of grand juror bias (Packer, supra, 201 Cal.App.4th at pp. 156-157) and also, for 

the first time in the court of appeal, “that the prosecutor ‘may have violated the separation 

of powers’ by deciding that Juror No. 2 was unbiased instead of allowing the court to do 

so” (id. at p. 171). The appellate court held that it did not need to address the separation 

of powers claim because it was not raised in the superior court. (Ibid.) Petitioner argues 

that here the issue regarding Juror No. 10 was not forfeited because it was part of his 
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claim in his motion to dismiss, and also because it is a constitutional claim. On the 

question of forfeiture, the People have the better argument. Packer also involved a 

constitutional claim, and here the petitioner’s claim in the superior court was limited to 

the excusal of Juror No. 15. Even if we were to reach this issue, the allegations regarding 

Juror No. 10 do not add meaningfully to petitioner’s writ petition. While the deputy 

district attorney discussed the possible bias of Juror No. 10, he did not dismiss her. 

While we are troubled by the implication he had authority over this issue, his actions did 

not technically go beyond making a record of the facts relevant to whether the foreman 

had a duty to direct Juror No. 10 to retire. (§ 939.5.) We will therefore decide this 

petition based solely on the deputy district attorney’s erroneous excusal of Juror No. 15.

C. Prosecutor’s Excusal of Juror No. 15

We now address petitioner’s claim that the deputy district attorney’s excusal of 

Juror No. 15 violated the grand jury’s independence.4 

Section 995, subdivision (a)(1) sets forth two categories of error that can provide a 

basis for granting a motion to set aside an indictment: 

“(A) Where it is not found, endorsed, and presented as prescribed in [the Penal] 

code.

“(B) That the defendant has been indicted without reasonable or probable cause.” 

In Avitia, our Supreme Court held that “a defendant can proceed by a section 995[, 

subdivision ](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.” (Avitia, supra, 6 Cal.5th at p. 495.) We conclude this is also true of a similar 

 

4

 In light of the recent guidance from our Supreme Court and our conclusions in this 

opinion, we need not address petitioner’s claim that the excusal of Juror No. 15 also 

rendered the grand jury improperly constituted.
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claim based on a prosecutor’s improper excusal of a juror for hardship. As relevant to 

this appeal, the court explained that “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.” (Id. at p. 

497.) It also held when a defendant seeks to set aside an indictment before trial 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.” (Avitia, supra, at p. 498.) 

This is the standard we now apply to the prosecutor’s improper excusal of Juror No. 15.

Petitioner argues the prosecutor’s interference with the grand jury’s independence 

requires dismissal. In Avitia, the court held the petitioner did not show that the 

prosecutor’s improper dismissal of a juror outside the presence of the other grand jurors

after he had expressed concern about his own bias reasonably might have affected the 

impartiality or independence of the grand jury in an adverse manner. (Id. at pp. 498-

499.) The court referred to our vacated opinion in this case to explain, “The facts [in 

Avitia] are different from 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. 

In those cases, the prosecutor’s actions could have led grand jurors to believe they were 

beholden to the prosecutor during the decision[-]making process.” (Id. at p. 498.)

Here, as Avitia noted, the prosecutor’s actions could have led grand jurors to 

believe they were beholden to the prosecutor during the decision-making process. In our 

previous opinion, we stated that by deciding that Juror No. 15 should be excused for 

hardship, the deputy district attorney used authority of the judicial branch. In their 

supplemental brief, the People challenge this conclusion. The People note that the Court 

has authority to rule on a hardship request before the grand jury is sworn, and no statute 

addresses hardship requests made after the grand jurors are sworn. After the grand jury is 
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sworn and charged, it retires to a private room and the court is not present during the 

grand jury’s sessions unless the grand jury requests its advice as provided by section 934. 

(§ 915.) The People conclude from this statutory scheme that it is not error for the 

prosecutor to respond to hardship requests if a grand juror asks for assistance. 

As our Supreme Court explained in Avitia, “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.’ ” 

(Avitia, supra, 6 Cal.5th at p. 498.) However, “no provision authorizes a prosecutor to 

dismiss a grand juror.” (Id. at p. 492.) Here, the prosecutor did more than give

information or advice. He ruled on a hardship request in a way that the grand jury would 

have only previously seen the court do: “I’m going to release her from her service at this 

time.” In Avitia, the prosecutor dismissed a grand juror outside the presence of other 

jurors. (Id. at p. 498.) This “reduced the likelihood that the independence of the 

remaining grand jury was impaired.” (Id. at p. 499.) Here, unlike Avitia, 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. The prosecutor asserted direct control over the composition of the 

grand jury. Another difference between this case and Avitia is that the juror who was 

removed in that case had stated unequivocally he would not be able to fairly review the 

case, and his dismissal helped ensure the grand jury’s impartiality. (Id. at p. 498.) It is 

unclear from the limited record before us 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).) The 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. 

If this case involved a petit jury instead of a grand jury, we are confident these 

same facts would produce justifiable outrage by the court and opposing counsel. But 
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here, the possibility of an objection was structurally foreclosed: The court was not 

present and grand jury proceedings necessarily exclude defense counsel. In denying 

petitioner’s motion to dismiss the indictment, the superior court focused its analysis on 

the missing 19th juror, but our concern is with the impact the deputy district attorney’s 

actions had on the grand jurors that remained. “[I]rregularities at grand jury proceedings 

should be closely scrutinized because protection of the defendant’s rights is entirely 

under the control of the prosecution without participation by the defense.” (Berardi v. 

Superior Court (2007) 149 Cal.App.4th 476, 495-496.) The 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. 

(Cf. De Leon v. Hartley (N.M. 2013) 2014-NMSC 005 [316 P.3d 896, 899] [holding that 

permitting district attorney to take over the court’s role of deciding who shall serve as 

grand jurors “is to sacrifice any perception that the grand jury is an entity distinct from 

the prosecutor that is capable of serving as a barrier against unwarranted accusations”].) 

We must, therefore, conclude that the deputy district attorney’s improper excusal of Juror 

No. 15 and corresponding reduction of the required number of jurors reasonably might 

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

prosecutor’s actions could have led grand jurors to believe they were beholden to the 

prosecutor generally and during the decision-making process. For these reasons, 

petitioner’s motion to dismiss the indictment against him based on the improper excusal 

of Juror No. 15 should have been granted.
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III. DISPOSITION

Let a peremptory writ of mandate issue vacating respondent court’s order denying 

petitioner’s motion to dismiss the indictment and directing the superior court to enter a 

new order granting the motion as to the charges and allegations against petitioner. The 

writ shall issue without prejudice to the People continuing to prosecute these charges by 

seeking another indictment free of the charged defects or by filing another complaint. 

This court’s stay order is vacated upon finality of this opinion.

/S/

 

RENNER, J.

We concur:

/S/

 

BUTZ, Acting P.J.

/S/

 

DUARTE, J.