What is the test of substantial prejudice in the context of a motion for dismissal of an allegation of sexual assault brought by a defendant in a criminal case?

"When applying this test [of substantial prejudice], the court should evaluate the record as a whole, taking into consideration such factors as the extent to which the lack of disclosure interfered with the grand jury's independence, and the strength and nature of the undisclosed exculpatory evidence as compared to the evidence supporting the grand jury's finding of probable cause to indict. If the accused shows it is reasonably probable that the grand jury would not have found probable cause to indict absent the disclosure error, the accused is entitled to dismissal of the indictment at the pretrial stage." (Berardi v. Superior Court, supra, 149 Cal.App.4th at p. 481.)

"[N]ot all cases involving some deficiency in disclosure and interference with the grand jury's independence will support dismissal. Rather, the court must evaluate the record as a whole, taking into consideration all relevant factors. These factors include the strength and nature of both the undisclosed exculpatory evidence and the probable cause evidence that was presented. Regarding the disclosure errors, pertinent inquiries include the extent of the impact on the grand jury's independence and the extent to which the material could 'explain away the charge.' If the record shows that sufficient evidence of probable cause remains even after considering the undisclosed evidence, this does not end the analysis. The court must still determine if there is '"'such an equal balance of reasonable probabilities as to leave the court in serious doubt'"' as to whether a properly informed jury would have declined to find probable cause to indict had it known of the omitted evidence. [Citation.] If so, the defendant has established the requisite substantial prejudice and is entitled to dismissal of the indictment." (Berardi v. Superior Court, supra, 149 Cal.App.4th at p. 495, fn. omitted.)

"Typically, appellate courts evaluate issues pertaining to fundamental fairness by deferring to the trial court's factual resolutions and then independently reviewing whether the rule of law as applied to the established facts was violated. [Citations.] Additionally, irregularities 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. Accordingly, [the appellate court] will independently review the undisputed facts to determine whether [the petitioners'] rights were

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substantially prejudiced." (Berardi v. Superior Court, supra, 149 Cal.App.4th at pp. 495-496.)

"[T]he fact that the record can support a finding of probable cause does not mean there is no reasonable probability the jury would have rejected such a finding. The bolstering of the prosecution's evidence at the expense of the available defense evidence shows a reasonable probability that the jury would not have found probable cause had it been properly informed." (Berardi v. Superior Court, supra, 149 Cal.App.4th at p. 498.)