dissenting.
¶22 The issue in this special action is whether a grand jury may (not must) find aggravating factors that would expose a defendant indicted for first degree murder to the death penalty. Reasoning that a grand jury serves the same purpose as what has come to be known as a Chronis hearing under Rule 13.5(e) of the Arizona Rules of Criminal Procedure, the majority concludes a grand jury may do so. With respect, I disagree.
¶ 23 First, although the majority discusses the history of Rule 13.5(c), it fails to appreciate the significance of that history. As our supreme court explained in Chronis v. Steinle, 220 Ariz. 559, 562, ¶¶ 14-15, 208 P.3d 210, 213 (2009), at the State’s request, the court adopted Rule 13.5(c) to implement a procedure whereby the State would first notify a defendant of its intent to seek the death penalty and the aggravating factors it believed would warrant such a sentence, and the defendant would then be given an opportunity before trial to contest the “legal sufficiency” of the aggravators. The supreme court adopted this system as a compromise to avoid “certain constitutional issues.” Id. at 562, ¶ 14, 208 P.3d at 213. The majority’s decision upsets this compromise and allows the State to evade it.
¶ 24 Second, the majority’s decision flies in the face of the explicit procedures established by the Legislature and our supreme court for alleging capital aggravators. In Arizona Revised Statutes (“A.R.S.”) section 13-752 (Supp. 2012), the Legislature directed the prosecution to, before trial, “notice one or more of the aggravating circumstances” that must be found by the trier of fact before deciding whether the death penalty should be imposed. A.R.S. § 13-752(B) and (C). Consistent with this directive, Rule 15.1(i)(2) of the Arizona Rules of Criminal Procedure requires the State to allege aggravating circumstances in a notice to seek the death penalty. Rule 15.1(i)(2) states that “[i]f the prosecutor files notice of intent to seek the death penalty, the prosecutor shall at the same time provide the defendant with a list of aggravating circumstances the state will rely on----” If, as the majority reasons, these requirements really do not establish the governing procedures for alleging capital aggravators, then one can only wonder why the Legislature and the supreme court phrased these requirements in mandatory, not optional terms.
¶ 25 Third, by allowing a grand jury to find capital aggravators, the majority deprives a defendant of the right to challenge the legal sufficiency of the alleged aggravating factors by motion filed under Rule 16 of the Arizona Rules of Criminal Procedure. According to the majority, even though Rule 13.5(c) specifically authorizes the defendant to bring this challenge, the State can preempt the defendant’s right to do so by asking the grand jury to find the capital aggravators. The majority reasons that because the “purpose” of a grand jury finding of aggravators and a Chronis hearing is essentially the same, *21there is no reason to grant a defendant a hearing to “redetermine” probable cause. See supra ¶¶ 12, 17.3 But, although a grand jury proceeding in this context and a Chronis hearing both concern probable cause, they are functionally very different.
¶ 26 As the supreme court explained in Chronis, and consistent with Rule 5.3 of the Arizona Rules of Criminal Procedure, at a Chronis hearing, a defendant has the right to cross-examine the witnesses testifying against him or her, is entitled to review the witnesses’ previous written statements before cross-examination, and is entitled to make a specific offer of proof and present the offered evidence, unless the magistrate determines it would be insufficient to rebut the finding of probable cause. In a grand jury proceeding, however, a defendant has none of these rights.
¶ 27 Further, a defendant has only a very limited right to challenge a grand jury proceeding. Indeed, a defendant cannot challenge the legal sufficiency of the evidence presented to the grand jury. See State ex rel. Preimsberg v. Rosenblatt, 112 Ariz. 461, 462, 543 P.2d 773, 774 (1975) (“trial court has no power to inquire into or weigh the legal sufficiency of the evidence presented to the grand jury from which an indictment resulted”); see also Ariz. R. Crim. P. 12.9 (grand jury proceedings may be challenged only by motion for new finding of probable cause, which alleges defendant was denied a substantial procedural right or an insufficient number of qualified grand jurors concurred in the finding of the indictment).
¶28 Through Rule 13.5(e) and a Chronis hearing, the supreme court granted a defendant the right to challenge the legal sufficiency of aggravating factors that would expose him or her to the death penalty. The majority’s decision takes that right away.
¶ 29 Finally, I cannot square the majority s decision with the statutory role of a grand jury. A grand jury decides whether probable cause exists to believe a criminal offense has been committed and whether the defendant committed it. AR.S. § 21-413 (2013) (“grand jury shall return an indictment charging the person under investigation with the commission of a public offense if ... it is convinced that there is probable cause to believe the person under investigation is guilty” of the offense); see also State v. Baumann, 125 Ariz. 404, 408, 610 P.2d 38, 42 (1980). Although for sentencing, aggravating factors are viewed as the functional equivalent of elements of an offense, our supreme court held in McKaney v. Foreman ex rel. County of Maricopa, 209 Ariz. 268, 100 P.3d 18 (2004), that they are not part of the “essential elements” of the crime for inclusion in a grand jury indictment. Id. at 271, ¶ 15, 100 P.3d at 21. And, as the court in McKaney further explained, if a grand jury were required to find capital aggravators, that would “expand the statutory role of the grand jury.” Id. at 272, ¶ 21, 100 P.3d at 22.
¶30 The same expansion problem is presented here, although the State is not arguing that only a grand jury can find capital aggravators. But, that is a distinction without a difference. The majority has expanded the statutory role of the grand jury by approving what happened here as if the supreme court had never decided McKaney.
¶ 31 For these reasons, I respectfully dissent. Accordingly, I would grant the relief Sanchez has requested and order the superi- or court to conduct a Rule 13.5(c)/Chronis hearing.
. In making this argument, the majority cites case law that recognizes the purpose of a preliminary hearing and a grand jury proceeding is the same-to determine whether there is probable cause to believe an individual committed an offense-and the State can employ either method without running afoul of the constitution. Those principles, however, are not at issue here. Instead, the issue is whether, by allowing a grand jury to find capital aggravators, the State can deprive a capital defendant of his or her right to challenge the legal sufficiency of the alleged aggravating factors before trial.