What is the test for prejudice when a prosecution fails to disclose material exculpatory evidence to a grand jury?

"In evaluating prejudice, one relevant consideration is the extent to which the prosecution's disclosure deficiency interfered with the grand jury's independent investigatory function. Because the grand jury is expected to act independently and prevent unwarranted prosecutions and yet must rely on the prosecution to present the evidence without participation by the defense, the prosecution is statutorily required to inform the grand jury of the existence of material exculpatory evidence. If the prosecution fails to comply with its disclosure duty and its failure undermines the grand jury's ability to perform an independent investigation, this may be a significant indication that the disclosure error affected the grand jury's finding. [Citations.]" (Berardi v. Superior Court (2007) 149 Cal.App.4th 476, 494.)

Petitioners have carried their burden to demonstrate that they were prejudiced by the failure of the prosecution to present Resolution No. 2002-17-1808 and the 2002 memorandum to the grand jury, because those factors are probative as to whether petitioners believed that they were acting lawfully. For a charge of embezzlement, the taking must be fraudulent: "'"The essential elements of embezzlement are the fiduciary relation arising where one intrusts property to another, and the fraudulent appropriation of the property by the latter."'" (People v. Talbot (1934) 220 Cal. 3, 15.) '"[F]raudulent

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intent is an essential element of the offense of embezzlement . . . .'" (Id. at p. 13.)