TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 91-103
of :
:
DANIEL E. LUNGREN : OCTOBER 8, 1991
Attorney General :
:
RONALD M. WEISKOPF :
Deputy Attorney General :
:
_________________________________________________________________
_______________
THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY,
COUNTY OF VENTURA, has requested an opinion on the following
question:
May a county grand jury limit the district attorney to a
period of ten days each month for the presentation of criminal
matters to the grand jury?
CONCLUSION
A county grand jury may not limit the district attorney
to a period of ten days each month for the presentation of criminal
matters to the grand jury.
ANALYSIS
Article I, section 14 of the California Constitution
provides in part: "Felonies shall be prosecuted as provided by
law, either by indictment or, after examination and commitment by
a magistrate, by information." An "indictment" is "an accusation
in writing, presented by the grand jury to a competent court,
charging a person with a public offense." (Pen. Code, § 889.) 1
1
All section references are to the Penal Code unless otherwise
specified.
1. 91-103
Unlike the situation with the filing of an information, a
preliminary hearing before a magistrate is not required when
prosecution proceeds on a grand jury indictment. (Cal. Const., art
I, § 14.1; cf. Raven v. Deukmejian (1990) 52 Cal.3d 336, 341;
Greenberg v. Superior Court (1942) 19 Cal.2d 319, 321; Hurtado v.
California (1884) 110 U.S. 516.)
Indictments are "usually initiated by the district
attorney who is authorized by section 935 to present evidence of
crime ... to the grand jury." (67 Ops.Cal.Atty.Gen. 58, 61
(1984).) With the passage of Proposition 115 in June 1990, part
of which obviated the need for a preliminary hearing following a
grand jury indictment as had been mandated by Hawkins v. Superior
Court (1978) 22 Cal.3d 584, 592-593, an increased use of grand jury
indictments for initiating prosecutions may be expected, especially
in cases where the speed and secrecy of the grand jury process are
well suited.
California grand juries perform civil as well as criminal
functions. (§ 888.) While a grand jury indicts persons for crimes
(§§ 888, 917; cf. § 15) and presents accusations against local
officers for willful misconduct in office (Gov. Code, § 3060), it
also performs a "watchdog" function of investigating and making
reports on specified matters of local government (§§ 888, 914.1,
919, 925-933.6). (See People v. Superior Court (1973 Grand Jury)
(1975) 13 Cal.3d 430, 433, 436; 72 Ops.Cal.Atty.Gen. 128, 129
(1989); 70 Ops.Cal.Atty.Gen. 28, 28 (1987); 67 Ops.Cal.Atty.Gen.
58, supra, 59-61.) Needless to say, an increased use of
indictments to commence prosecutions may encroach on the time a
grand jury has to devote to its civil duties and functions. The
question presented for resolution is whether a grand jury may limit
the district attorney's presentation of criminal matters before the
grand jury to a period of ten days each month. We conclude that it
may not.
Although the grand jury is constitutionally founded (Cal.
Const., art. I, § 23), and is a "judicial body" and "an
instrumentality of the courts of this state" ( People v. Superior
Court (1973 Grand Jury) , supra, 13 Cal.3d at 438; 70
Ops.Cal.Atty.Gen. 28, supra, 28; 25 Ops.Cal.Atty.Gen. 259, 259
(1955)), its attributes and powers are controlled by the
Legislature (cf. People v. Superior Court (1973 Grand Jury), supra
at 437; Fitts v. Superior Court (1936) 6 Cal.2d 230, 241; Allen v.
Payne (1934) 1 Cal.2d 607, 608-609; Clinton v. Superior Court
(1937) 23 Cal.App.2d 342, 345). "Although [its] powers are broad,
they are carefully defined and limited by statute, and the grand
jury has no inherent ... powers beyond those granted by the
Legislature." ( Board of Trustees v. Leach (1968) 258 Cal.App.2d
281, 285; see also Clinton v. Superior Court, supra, 23 Cal.App.2d
2. 91-103
at 345.) We therefore examine the statutes governing the grand
jury to see whether it may limit the district attorney's
presentations of criminal matters to it.
After a grand jury has been impaneled, sworn, and
charged, it retires "to a private room" to "inquire into the
offenses and matters of civil concern cognizable by it." (§ 915.)
Section 916 provides: "Each grand jury shall choose its officers,
except the foreman, and shall determine its rules of proceeding."
In 59 Ops.Cal.Atty.Gen. 633 (1976) we implied that the authority to
"determine its rules of proceeding" would permit a grand jury to
determine when it would meet.
It is now suggested that section 916 also permits a grand
jury to impose the contemplated limitation on the district
attorney's presentation of criminal matters. In support of the
suggestion we are directed to the case of In re Peart (1935) 5
Cal.App.2d 469, 473, where the court said:
"The grand jury is not an adjunct of the ...
district attorney but is an independent judicial body,
members of which are officers of the court. Upon them
alone is placed the responsibility of inquiring into all
public offenses committed or triable within the county
and of presenting them to the court. Inasmuch,
therefore, as that responsibility is placed upon the
grand jury it appears that the law left with that body
the power to institute and initiate such inquiries as
well as the management and control thereof. [¶] In
examining the duties of the district attorney as
enumerated in section 4153 of the Political Code [now,
Gov. Code, § 26501] we do not find him charged with
instituting proceedings before the grand jury, but merely
to attend upon and give advice to them upon pending
matters."
As for reliance upon the Peart decision, we do not find
the language persuasive because it has been overtaken by subsequent
events. First, its context was whether the district attorney could
issue subpoenas to compel the attendance of witnesses before the
grand jury when it did not direct him to do so. The court held
that under former section 1326 [a subpoena may be signed and issued
by a district attorney "for such witnesses as the grand jury, upon
investigation pending before them, may direct"], a district
attorney could not issue grand jury subpoenas unless so directed by
the grand jury. (5 Cal.App.2d at 473-474.) Section 1326, however,
was immediately amended to "overrule" Peart and provide a district
attorney with such authority. (Stats. 1937, ch. 215, § 1 [district
attorney may issue subpoenas "for those witnesses whose testimony,
in his opinion, is material in an investigation before the grand
jury...."]; see now, § 939.2.)
3. 91-103
Secondly, since the Peart decision in 1935, the role of
the District Attorney in instituting criminal proceedings has been
more forcefully declared by statute. The Legislature has enacted
section 26500 of the Government Code, specifically stating that the
district attorney, as public prosecutor, "shall initiate ... all
prosecutions for public offenses." Under this statute, the duty of
the district attorney to prosecute "is mandatory, and not
discretionary." ( City of Merced v. County of Merced (1966) 240
Cal.App.2d 763, 766.) Also since Peart it has been held that "no
one may institute criminal proceedings without the concurrence,
approval, or authorization of the district attorney [citations]."
(Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, 241.)
In any event, section 916 must be read in conjunction
with other statutes dealing with the duties and authority of a
grand jury, and those accord the district attorney a special status
vis-à-vis that body. (See Hawkins v. Superior Court, supra, 22
Cal.3d at 589-591; 67 Ops.Cal.Atty.Gen. 58, supra, 62.)
Grand jury proceedings are generally "secret," and the
Legislature has carefully provided who may be present during their
sessions. (Cf. § 939.) In so doing it has said that unlike the
judge of the court (or county counsel) who may only be present when
asked by the grand jury for advice (§ 934, cf. Michaels v.
Superior Court (1960) 184 Cal.App.2d 820, 825),2 "[t]he 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 [it], and may interrogate witnesses ...
whenever he thinks it necessary." (§ 935, emphasis added.)
A district attorney thus has a right under section 935 to
present information to a grand jury "at all times." (Cf. McFarland
v. Superior Court (1948) 88 Cal.App.2d 153, 160.) We believe this
statutory language prohibits a grand jury from limiting to 10 days
each month the presentation of information relating to criminal
offenses. This is confirmed when we examine the purposes for the
grand jury and the inherent limitations on its capabilities.
The traditional purpose for the grand jury's existence
has been to "inquire into public offenses committed or triable
within the county." (§ 888; cf. § 917.) Grand jurors have a duty
to make that inquiry, as is expressed in the oath they take. (See
2
Section 934 provides: "The grand jury may, at all times, ask
the advice of the court, or the judge thereof, or of the district
attorney, or of the county counsel. Unless such advice is asked,
the judge of the court, or county counsel as to civil matters,
shall not be present during the sessions of the grand jury."
4. 91-103
§ 911.)3 As was stated in Samish v. Superior Court (1938) 28
Cal.App.2d 685, 689:
"[W]hen grand jurors ... are furnished with reliable
information indicating that a crime has been committed by
someone within the borders of the county, it is [their]
duty ... to fearlessly and fairly investigate the charges
and indict the culpable party if the evidence warrants
that finding. [Citations.]"
While grand jurors have a duty to investigate criminal
matters, they have no authority to hire investigators to do so, but
instead must rely on the resources of the district attorney and
others. In Allen v. Payne, supra, 1 Cal.2d at 608, the Supreme
Court explained:
"From the time of the adoption of our Constitution
to the present, the accepted practice has been to leave
the detection of crime in the hands of sheriffs and
district attorneys, and in our opinion the departure from
that practice finds no support in authority or
legislative policy. The ferreting out of evidence of
crime is a statutory duty expressly imposed upon certain
officers, having the equipment and qualified personnel to
perform it. This being so, there is no reason to resort
to the very vague justification of `inherent' or
`implied' powers. The existence of the power in other
competent agencies tends to negative an implied power in
the grand jury which is obviously not equipped to
exercise it."
Thus, although a grand jury is a separate entity and
independent from the district attorney (cf. People v. Gordon (1975)
47 Cal.App.3d 465, 476; Monroe v. Garrett (1971) 17 Cal.App.3d 280,
284), in order to fulfill its duty to diligently "inquire into all
public offenses committed or triable within the county and present
them to the court by indictment" (§ 917; cf., §§ 888, 911), a grand
jury must necessarily use the services and efforts of the district
attorney in its investigation of criminal matters. As we said in
67 Ops.Cal.Atty.Gen. 58, supra, 62:
"A grand jury would be well advised to call upon the
district attorney for his assistance and advice in its
review of the information it has received .... The
3
Section 911 provides in part: "The following oath shall be
taken by each member of the grand jury: `I do solemnly swear (or
affirm) that I ... will diligently inquire into, and true
presentment make, of all public offenses against the people of this
state, committed or triable within this county, of which the grand
jury shall have or can obtain legal evidence.'"
5. 91-103
district attorney's assistance will be essential in the
conduct of any formal investigation of the matter and if
an indictment ... is found it is the district attorney
who must prosecute the case in the trial court." (See
also Hicks v. Board of Supervisors, supra, 69 Cal.App.3d
at 241.)
While a grand jury may control its schedule in order to
accommodate both its civil and criminal functions, its restriction
of criminal presentations to a rigid ten days each month would be
inconsistent with the foregoing statutory scheme and contemplated
working relationship with the district attorney. We therefore
conclude that a county grand jury may not limit the district
attorney to a period of ten days each month for the presentation of
criminal matters to the grand jury.
* * * * *
6. 91-103
Untitled California Attorney General Opinion
Combined Opinion