BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1906
                                                                  Page  1

          Date of Hearing:   March 25, 2008
          Counsel:        Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                  AB 1906 (Cook) - As Introduced:  February 16, 2010
                       As Proposed to be Amended in Committee
           

          SUMMARY  :  Authorizes the Presiding Judge of the Superior Court  
          of the County of San Bernardino, or the judge appointed by the  
          presiding judge to supervise the grand jury, to impanel an  
          additional civil grand jury, for a term to be determined by the  
          presiding or supervising judge, in accordance with specified  
          procedures.  Specifically,  this bill  :  

          1)States that, notwithstanding specified existing law, in the  
            County of San Bernardino the presiding judge of the superior  
            court, or the judge appointed by the presiding judge to  
            supervise the grand jury, may, upon the request of the  
            Attorney General (AG) or the district attorney or upon his or  
            her own motion, order and direct the impanelment of an  
            additional civil grand jury pursuant to this section.

          2)States that the presiding judge or the judge appointed by the  
            presiding judge to supervise the civil grand jury shall select  
            persons, at random, from the list of trial jurors in civil and  
            criminal cases and shall examine them to determine if they are  
            competent to serve as civil grand jurors.  When a sufficient  
            number of competent persons have been selected, they shall  
            constitute an additional civil grand jury.

          3)Provides that any additional civil grand jury that is  
            impaneled pursuant to this section may serve for a term as  
            determined by the presiding judge or the judge appointed by  
            the presiding judge to supervise the civil grand jury, but may  
            be discharged at any time within the set term by order of the  
            presiding judge or the judge appointed by the presiding judge  
            to supervise the grand jury. In no event shall more than one  
            additional grand jury be impaneled pursuant to this section at  
            the same time.

          4)Provides that whenever an additional civil grand jury is  








                                                                  AB 1906
                                                                  Page  2

            impaneled pursuant to this section, they may inquire into  
            matters of oversight, conduct investigations, and may issue  
            reports and make recommendations except for any matters that  
            the regular grand jury is inquiring into at the time of its  
            impanelment.  Any additional civil grand jury impaneled  
            pursuant to this section shall not have jurisdiction to issue  
            indictments.   

          5)States legislative intent that in the County of San Bernardino  
            all persons qualified for jury service shall have an equal  
            opportunity to be considered for service as criminal grand  
            jurors within the county, and that they have an obligation to  
            serve when summoned for that purpose.  All persons selected  
            for an additional criminal grand jury shall be selected at  
            random from a source or sources reasonably representative of a  
            cross section of the population that is eligible for jury  
            service in the county.

           EXISTING LAW  :

          1)Provides that one or more grand juries shall be drawn and  
            summoned at least once a year in each county.  [California  
            Constitution Article I, Section 23.]

          2)Provides that in any county, or city and county, the presiding  
            judge of the superior court, or the judge appointed by the  
            presiding judge to supervise the grand jury may, upon the  
            request of the AG or the district attorney, or upon his or her  
            own motion, order and direct the impanelment of one additional  
            grand jury.  [Penal Code Section 904.6(a).]

          3)States that in any county having a population of more than  
            370,000 but less than 400,000, as established by the  
            Government Code, the presiding judge of the superior court,  
            upon application by the district attorney, may order and  
            direct the drawing and impanelment at any time of one  
            additional grand jury.  [Penal Code Section 904.4(a).]

          4)Provides that the presiding judge may select persons at random  
            from the list of trial jurors in civil and criminal cases and  
            shall examine them to determine if they are competent to serve  
            as grand jurors.  When a sufficient number of competent  
            persons have been selected, they shall constitute the  
            additional grand jury.  [Penal Code Section 904.4(b).]  









                                                                  AB 1906
                                                                  Page  3

          5)States that in no event shall more than one additional grand  
            jury be impaneled pursuant to this section at the same time.   
            [Penal Code Section 904.4(b).]  

          6)Provides that whenever an additional grand jury is impaneled  
            pursuant to this section, it shall inquire into any matters  
            that are subject to grand jury inquiry and shall have the sole  
            and exclusive jurisdiction to return indictments, except for  
            any matters that the regular grand jury is inquiring into at  
            the time of its impanelment.  [Penal Code Section 909.4(d).]

          7)States that if an additional grand jury is also authorized by  
            another section, the county may impanel the additional grand  
            jury authorized by this section, or by the other section, but  
            not both.  [Penal Code Section 904.4(e).]

          8)Requires that in all counties there shall be at least one  
            grand jury drawn and impaneled in each year.  [Penal Code  
            Section 905.]

          9)Provides that any person summoned as a grand juror, who  
            willfully and without reasonable excuse fails to attend, may  
            be attached and compelled to attend and the court may also  
            impose a fine not exceeding $50.  States that if the grand  
            juror was not personally served, the fine shall not be imposed  
            until an order to show cause has been offered to the grand  
            juror to be heard.  [Penal Code Section 907.]

          10)Specifies the procedures to summoning a sufficient number of  
            grand jurors, and the procedures to be followed if membership  
            in the grand jury is reduced for any reason by vacancies.   
            [Penal Code Section 908 and 908.1.]

          11)Provides that when the grand jury is impaneled and sworn, it  
            shall be charged by the court and the court shall give the  
            grand jurors such information as it deems proper, or as is  
            required by law, as to their duties, and as to any charges for  
            public offenses returned to the court or likely to come before  
            the grand jury.  [Penal Code Section 914(a).]

          12)States that, to assist the grand jury in the performance of  
            its statutory duties regarding civil matters, the court, in  
            consultation with the district attorney, the county counsel,  
            and at least one former grand juror, shall ensure that a grand  
            jury that considers or takes action on civil matters receives  








                                                                  AB 1906
                                                                  Page  4

            training that at a minimum addresses, report writing,  
            interviews, and the scope of the grand jury's responsibility  
            and statutory authority.  [Penal Code Section 914(b).]    
            Provides that any costs incurred by the court shall be  
            absorbed by the court or the county from existing resources.  

          13)Provides that the grand jury may inquire into all public  
            offenses committed or triable within the county and present  
            them to the court by indictment.  [Penal Code Section 917.]

          14)States that the grand jury may inquire into the case of every  
            person imprisoned in the county jail on a criminal charge and  
            not indicted; that the grand jury shall inquire into the  
            condition and management of the public prisons within the  
            county; and, the grand jury shall inquire into the willful or  
            corrupt misconduct in office of public officers of every  
            description within the county.  [Penal Code Section 919(a)(b)  
            and (c).]

          15)Provides that whenever the AG considers that the public  
            interest requires, he or she may, with or without the  
            concurrence of the district attorney, direct the grand jury to  
            convene for the investigation and consideration of those  
            matters of a criminal nature that he or she desires to submit  
            to it.  Provides that he or she may take full charge of the  
            presentation of the matters to the grand jury, issue  
            subpoenas, prepare indictments, and do all other things  
            incident thereto, to the same extent as the district attorney  
            may do.   [Penal Code Section 923(a).]

          16)States that whenever the AG considers that the public  
            interest requires, he or she may, with or without the  
            concurrence of the district attorney, petition the court to  
            impanel a special grand jury to investigate, consider, or  
            issue indictments for any activities subject to fine,  
            imprisonment, or asset forfeiture under a specified section of  
            the Welfare and Institutions Code.  Provides that if the  
            evidence shows the commission of an offense for which  
            jurisdiction would be in a county other than the county in  
            which the grand jury is impaneled, the AG, with or without the  
            concurrence of the district attorney in the county with  
            jurisdiction over the offense(s), may petition the court to  
            impanel a grand jury in that county.  [Penal Code Section  
            923(b).]









                                                                  AB 1906
                                                                  Page  5

          17)Requires that each grand juror shall keep secret whatever he  
            or she or any other grand juror has said or in what manner any  
            grand juror has voted on a matter before them.  [Penal Code  
            Section 924.2.]

          18)Provides that the grand jury shall investigate and report on  
            the operations, accounts, and records of the officers,  
            departments or functions of the county or of any special  
            legislative district or other district in the county created  
            pursuant to state law, as specified.  Allows the  
            investigations to be conducted on a selective basis each year,  
            but states that the grand jury may not duplicate any  
            examination of financial records that has been performed for  
            the board of supervisors, as specified.  Allows the grand jury  
            to enter into a joint contract with the board of supervisors  
            to employ the services of an expert, as specified and approved  
            by the court.  [Penal Code Section 925 and 926.]

          19)Requires each grand jury to submit to the presiding judge of  
            the superior court a final report of its findings and  
            recommendations that pertain to county government matters  
            during the fiscal or calendar year.  [Penal Code Section  
            933(a).]

          20)Establishes special procedures for a county with a population  
            of 20,000 persons or less with respect to the submission of a  
            final grand jury report by a grand jury with fewer than 12  
            remaining grand jurors.  [Penal Code Section 933.06(a).]

          21)States that all expenses of the grand jurors shall be paid by  
            the county treasurer out of the county's general fund.  [Penal  
            Code Section 931.]

          22)Requires each grand jury to submit to the presiding judge of  
            the superior court a final report of its findings and  
            recommendations that pertain to county government matters  
            during the fiscal or calendar year.  Provides that for 45 days  
            after the end of the term, the foreperson and or her is or  
            designees shall, upon reasonable notice, be available to  
            clarify the recommendations of the report.  [Penal Code  
            Section 933(a).]

          23)States that as used in connection with the term grand jury,  
            the "required number means 23 in a county having a population  
            exceeding four million; 11 in a county having a population of  








                                                                  AB 1906
                                                                  Page  6

            20,000 or less, on approval of the board of supervisors; and  
            19 in all other counties.  [Penal Code Section 888.2.]

          24)Defines "grand jury" as 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 in the county.  [Penal Code  
            Section 888.]

          25)Provides that each grand jury, or, if more than one has been  
            duly impaneled as specified, one grand jury in each county  
            shall be charged and sworn to investigate or inquire into  
            county matters of civil concern, such as the needs of county  
            officers or the performing of the duties of the agencies  
            subject to investigation.  [Penal Code Section 888.]

          26)Defines "indictment" as an accusation in writing presented by  
            the grand jury to a competent court, charging a person with a  
            public offense.  [Penal Code Section 889.]

          27)States that all felonies shall be prosecuted by indictment or  
            information, except as otherwise specified.  [Penal Code  
            Section 737.]

          28)Provides that when a defendant has been examined and  
            committed, it is the duty of the district attorney to file,  
            within 15 days after the commitment, an information against  
            the defendant which may charge the defendant with either the  
            offense or offenses named in the order of commitment or any  
            offense or offenses shown by the evidence taken before the  
            magistrate to have been committed.  Further states that the  
            Information shall be in the name of the People of the State of  
            California and subscribed by the district attorney.  [Penal  
            Code Section 739.]

          29)States that if it appears from the examination that a public  
            offense has been committed and there is sufficient cause to  
            believe the defendant is guilty, the magistrate shall order  
            that the defendant be held to answer on the charge(s).  [Penal  
            Code Section 872(a).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   









                                                                  AB 1906
                                                                  Page  7

           1)Author's Statement  :  According to the author, "This bill is  
            essential to the County of San Bernardino and, more  
            importantly, essential for the residents and taxpayers who  
            live there.  Oversight and investigation of government goes  
            hand-in-hand with the basic democratic principals we hold so  
            dear.  Unfortunately, the County of San Bernardino has a great  
            need for the work of a grand jury, and one grand jury is not  
            adequate.  Alternatives, such as establishing an Ethics  
            Commission, are much more expensive and infeasible during this  
            time of strained budgets.  AB 1906 provides the best solution  
            to a difficult problem." 

           2)Background  :  According to the background submitted by the  
            author, "AB 1906 authorizes two additional Grand Juries in San  
            Bernardino County.  Upon the request of the AG, the district  
            attorney, the presiding judge of the superior court, or the  
            judge appointed by the presiding judge to supervise the grand  
            jury, may order and direct the empanelment of two additional  
            grand juries.  This bill would allow for a maximum of three  
            Grand Juries in San Bernardino County."

          "California Constitution, Article I, Section 23, provides that,  
            'One or more grand juries shall be drawn and summoned at least  
            once a year in each county.'  The law governing grand jury  
            formation, authority, powers, and proceedings, is found in  
            Part 2, Title 4, of the California Penal Code, Sections 888 -  
            939.91.  Each county is required by law to impanel a body of  
            19 or 23 members, depending on county population, to serve for  
            a term of one year, from July 1 to June 30.  Grand Jurors  
            devote an average of three full days a week to grand jury  
            service.  The Grand Jury examines all aspects of county and  
            special district governments to ensure that the best interest  
            of county citizens is being served.

          "Single-year terms do not afford grand juries, as they exist,  
            sufficient time to fulfill the vital role assigned to protect  
            the public interest through critical and scrupulous  
            governmental oversight.  Time dedicated to orientation,  
            training, and report writing dissipates limited, valuable time  
            required and necessary for thorough investigations of  
            increasingly complex government processes and issues.  The  
            heavy caseload in San Bernardino necessitates the ability to  
            impanel two additional Grand Juries when deemed appropriate.  
            Increasing the number of Grand Juries will increase the  
            capability to conduct thorough investigations into civil and  








                                                                  AB 1906
                                                                  Page  8

            criminal proceedings as it has done for Los Angeles County." 

           3)Committee Amendments :  The author has agreed to amend this  
            bill in Committee to limit the grand jury's authority to  
            matters of a civil nature.  The additional grand jury shall be  
            authorized to inquire into matters of oversight, conduct  
            investigations, issue reports and make recommendations.   
            Additionally, the amendments specify that the additional civil  
            grand jury shall not have jurisdiction to issue criminal  
            indictments.   
           
           4)Preliminary Hearings vs. Grand Juries  :  California has two  
            procedural methods for determining if probable cause exists  
            prior to filing of felony charges that entitle a defendant to  
            jury trial.  The vast majority of cases proceed by preliminary  
            hearing.  Preliminary hearings afford the accused of a public  
            hearing before a neutral magistrate and defense counsel.   
            Grand juries are not adversarial in nature, meaning the  
            defense attorney nor the accused are present, and they are  
            held in secret.  Additionally, when grand juries are utilized,  
            witnesses are not subject to cross-examination and evidence  
            presented is not subject to objection on issues of  
            admissibility.  

              a)   Preliminary Hearings  :  The prosecution begins a felony  
               case either by filing a grand jury indictment in the trial  
               court or by filing a complaint with a magistrate.  [Cal.  
               Const., art. I, section 14.]  If a complaint is filed, a  
               preliminary hearing must be held before a magistrate to  
               endure that there is enough evidence to hold the defendant  
               to answer in the trial court.  (Penal Code Section 872.)   
               When a grand jury indictment is filed, there is no right to  
               a preliminary hearing.  [Bowens v. Superior Court (1991) 1  
               Cal 4th 36.]

             At a preliminary hearing, the prosecution must present  
               sufficient evidence to convince the magistrate that  
               probable cause exists to believe that a crime has been  
               committed and that the defendant committed it.  (Penal Code  
               Sections 872 and 995.)  If the prosecution shows probable  
               cause, the magistrate will hold the defendant to answer to  
               the charge in the trial court.  The prosecution must then  
               file an information in the court within 15 days.  [Penal  
               Code Sections 739 and 1382(a)(1).]  









                                                                  AB 1906
                                                                  Page  9

             Due to the fact that the vast majority of felony cases settle  
               before trial, the preliminary hearing may be the sole  
               proceeding in the case at which evidence is taken.  [San  
               Jose Mercury News v. Municipal Court (1982) 30 Cal 3d 498,  
               511.]  The original purpose of the hearing was to eliminate  
               at an early stage changes that could be substantiated, thus  
               saving the accused the personal and financial hardship of  
               defending groundless charges, and the state the expense of  
               prosecuting.   

             Prior to preliminary hearings, defense counsel and  
               prosecution are entitled to all discovery materials.  Both  
               sides have a clear picture of what the evidence in the case  
               is and can fairly evaluate the weight of that evidence and  
               often settle the matter prior to preliminary hearing.  

             At a preliminary hearing, the prosecution may present live  
               witnesses, hearsay from qualified law enforcement  
               witnesses, or a combination of the two.  [Penal Code  
               Section 872(b); Cal. Const., art. I, section 30(b); Whitman  
               v. Superior Court (1991) 54 Cal 3d 1063.]  The preliminary  
               hearing transcript, like a civil deposition transcript, can  
               provide a basis for later impeaching a witness at trial if  
               the witness testifies inconsistently.  [Evidence Code  
               Section 1235; California v. Green (1970) 399 US 149].   
               Furthermore, the preliminary hearing transcript, because it  
               is subject to cross-examination, may be used at trial when  
               a witness is later unavailable.  [Evidence Code Sections  
               240(a)(4) and 1291; California v. Green, supra.]

             At preliminary hearings, the defense may cross-examine  
               witnesses for purposes of raising affirmative defenses,  
               negating an element of the offense, or impeaching a  
               witness.  [Jennings v. Superior Court (1967) 66 C2d 867;  
               Alford v. Superior Court (1972) 29 Cal App 3d 724.]   
               Cross-examination for the purpose of discovery is not  
               allowed.  [Penal Code Section 866(b).]  Similarly, the  
               presentation of defense evidence is limited to that which,  
               if believed, is reasonably likely to establish an  
               affirmative defense; negate an element of a crime charged;  
               or impeach a prosecution witness or declarant.  [Penal Code  
               Section 866(a).]  

             At a preliminary hearing, defense counsel may move to  
               suppress illegally seized evidence introduced at the  








                                                                  AB 1906
                                                                  Page  10

               hearing by making a written notice.  A favorable ruling on  
               a motion to suppress evidence may result in the discharge  
               of part or all of the complaint.  [People v. Belknap (1974)  
               41 Cal App 3d.]  

              b)   Grand Juries :  A grand jury investigates civil and  
               criminal matters in proceedings closed to the public.  A  
               civil grand jury investigates the operation, management,  
               and fiscal affairs of the county and the cities in the  
               county.  A criminal grand jury has constitutional authority  
               to indict a suspect after finding probable clause that he  
               or she committed an offense.  

             Prosecutors present a case before a grand jury in the form of  
               testimony and other evidence and may answer questions that  
               members of the grand jury have concerning the law.  A grand  
                                             jury is not supposed to receive evidence that would be  
               inadmissible over objection at trial.  However, even if the  
               grand jury hears evidence that would be inadmissible at  
               trial, the indictment is not void if there is sufficient  
               competent evidence to support the indictment.  [Penal Code  
               Section 939.6(b).]  Furthermore, since the defense is not  
               involved in the proceedings in any manner, they are not  
               permitted to see the evidence against the accused.  Unlike  
               preliminary hearings, since defense counsel is not present,  
               no motions to suppress illegal seized evidence are heard or  
               ever made and that evidence is submitted to the grand jury  
               with no knowledge on their part that the evidence was  
               illegally obtained.  

             Once the presentation of evidence is completed by the  
               prosecutor, the grand jury deliberates in secret.  A  
               19-member grand jury brings an indictment when 12 or more  
               jurors conclude that the evidence presented established  
               probable cause to believe that the accused committed the  
               offense.  A 23-member grand jury requires the concurrence  
               of at least 14 jurors; an 11-member grand jury requires the  
               concurrence of at least eight jurors.  

             Probable cause is the same standard used by a magistrate at a  
               preliminary hearing: "whether the evidence would lead a  
               person of ordinary caution or prudence to believe and  
               conscientiously entertain a strong suspicion of guilt of  
               the accused."  [Cumminskey v. Superior Court (1992) 3 C4th  
               1018, 1027; Penal Code Section 939.8.] 








                                                                  AB 1906
                                                                  Page  11


             Unlike a preliminary hearing, no notice is given to the  
               accused prior to the arrest of the now defendant once an  
               indictment is returned. 

           5)Grand Juries Were Always Intended to be Used Sparingly in  
            California  :  The California Constitution was adopted in 1879.   
            At that time, the Constitution stated in Article I, Section 8:  
             "Offenses heretofore required to be prosecuted by indictment  
            shall be prosecuted by information, after examination and  
            commitment by a Magistrate, or by indictment, with or without  
            such examination and commitment, as may be prescribed by law.   
            A Grand Jury shall be drawn and summoned at least one a year  
            in each county."  The term "indictment" refers to a grand jury  
            indictment and the term "information" refers to a filing  
            before the court which proceeds by preliminary hearing.  

          According to a California Attorney General Opinion (1989)  
            Opinion No. 88-703, "This provision was the subject of  
            considerable debate in the [constitutional] convention.  Those  
            who wanted to abolish the grand jury and substitute the  
            information system compromised with those who wanted to retain  
            the grand jury system by agreeing to a provision which  
            authorized both systems.  The requirement that a grand jury be  
            drawn once a year in each county was a part of that  
            compromise."  The purpose for keeping the grand jury and  
            requiring it to be drawn once per year was to put a check on  
            public officials.   
           
           6)Grand Juries Vary from County to County  :  In California,  
            counties have implemented widely varying practices with  
            respect to the use of their grand juries.  For example,  
            according to the County of San Luis Obispo's Web site, "There  
            is no such thing in California law as a 'civil' grand jury.   
            California has historically had only 'regular' grand juries  
            and every county is required by the California Constitution to  
            have one every year.  The regular grand juries have always had  
            two different functions: criminal and civil.

          "One function, the criminal one, is to hear evidence to  
            determine whether in the grand jury's view it is sufficient to  
            warrant making an accused stand trial.  Typically, the  
            District Attorney's office decides whom to accuse, on what  
            charges and what evidence to bring to the attention of the  
            grand jury.  The District Attorney guides and advises the  








                                                                  AB 1906
                                                                  Page  12

            grand jury during its receipt of the evidence.  The grand jury  
            determines whether or not to issue an indictment. 

          "As discussed below, this indictment function has fallen into  
            disuse in some, but not all, counties.  In addition to  
            standard criminal indictment activity, potentially included  
            within the criminal function is the obligation of every  
            regular grand jury to investigate 'willful or corrupt  
            misconduct in office of public officers of every description  
            within the county . . . . '  Whether or not a grand jury's  
            indictment function has fallen into disuse, this is a  
            mandatory obligation and obviously may uncover criminal  
            activity.

          "The other function, the civil one, is to investigate local  
            government agencies and officials to form a view as to whether  
            they are acting properly.  If a grand jury determines they are  
            not, it has various options open to it.  The most frequently  
            used option is the presentation of a report outlining the  
            grand jury's findings and recommendations in the matter.  Such  
            reports are public and frequently attract media attention.   
            They must be responded to in specific ways by the agencies or  
            elected officials reported upon.  Except where an  
            investigation is mandated, the grand jury in its sole  
            discretion decides whether and what to investigate when  
            performing its civil function.

          "Depending on the nature and severity of any wrongdoing a grand  
            jury finds in its investigations, it can, in addition to  
            releasing a report, request the District Attorney to pursue  
            the matter criminally, issue its own Accusation to start a  
            court.  [PC901: Standards of Judicial Administration 17(a)  
            Cal. Const. Art. 1, Sec. 23.3; PC919(c) Generally;  
            PC925-933.6; PC933.05; and PC919(b).]  (See  
            .)

           7)California Rules of Court Regarding Selection of Grand Juries   
            ():

              a)   "Standard 10.50.  Selection of regular grand jury  :

               i)     "Definition:  'Regular grand jury' means a body of  
                 citizens of a county selected by the court to investigate  
                 matters of civil concern in the county, whether or not  








                                                                  AB 1906
                                                                  Page  13

                 that body has jurisdiction to return indictments. "

              b)   Regular grand jury list  :  "The list of qualified  
               candidates prepared by the jury commissioner to be  
               considered for nomination to the regular grand jury should  
               be obtained by one or more of the following methods (Subd  
               (b) amended effective January 1, 2007):

               i)     "Names of members of the public obtained at random  
                 in the same manner as the list of trial jurors. However,  
                 the names obtained for nomination to the regular grand  
                 jury should be kept separate and distinct from the trial  
                 jury list, consistent with Penal Code section 899. 

               ii)Recommendations for grand jurors that encompass a  
                 cross-section of the county's population base, solicited  
                 from a broad representation of community-based  
                 organizations, civic leaders, and superior court judges,  
                 referees, and commissioners. 

               iii)"Applications from interested citizens solicited  
                 through the media or a mass mailing. 

              c)   Carryover grand jurors  :  "The court is encouraged to  
               consider carryover grand jury selections under Penal Code  
               section 901(b) to ensure broad-based representation. 

              d)   Nomination of grand jurors  :  "Judges who nominate  
               persons for grand jury selection under Penal Code section  
               903.4 are encouraged to select candidates from the list  
               returned by the jury commissioner or to otherwise employ a  
               nomination procedure that will ensure broad-based  
               representation from the community.  (Subd (d) amended  
               effective January 1, 2007.)"

           8)Unless Statute Intent is Modified, Additional Grand Juries are  
            Limited to Criminal Matters  :  In 1993, the AG addressed the  
            functions that may be performed by the second grand jury [76  
            Op. Atty. Gen. 181 (No. 93-505)] and stated, "The issue  
            presented for resolution is whether, pursuant to subdivision  
            (d) of section 904.6, the additional grand jury may inquire  
            into civil oversight matters, or whether it is restricted to  
            criminal matters.  We conclude that the function of the  
            additional grand jury is restricted to criminal matters."









                                                                  AB 1906
                                                                  Page  14

          The AG's opinion continued, "An examination of the legislative  
            history of section 904.6 discloses the Legislature's intent to  
            authorize the additional grand jury as a criminal grand jury  
            only.  At the time the statute was amended in 1991 to include  
            all counties throughout the state, with the specific statutes  
            governing the six counties being repealed, the committee  
            reports concerning the proposed legislation refer to the  
            additional grand jury as performing only a criminal function.   
            For example, the Senate Committee on Judiciary report for the  
            committee hearing on July 16, 1991, provided the following  
            analysis:

          "Existing law provides for the establishment of a grand jury in  
            each county.  This body of citizens is 'sworn to inquire of  
            public offenses committed or triable within the county.'   
            (Penal Code Section 888.)  The grand jury also serves in a  
            civil 'watchdog' capacity over local government, investigating  
            the performance of agencies and officials within its venue and  
            recommending such changes as may be in the public interest.

          "The long-standing right of grand juries to issue indictments  
            was qualified by Hawkins v. Superior Court (22 Cal.3d 572) in  
            1978 wherein the court opined that 'due process requires that  
            an indicted defendant is entitled on his timely motion to a  
            post-indictment preliminary hearing.'  Thus, as a preliminary  
            hearing was required to follow a grand jury proceeding, the  
            indictment was generally abandoned in favor of a preliminary  
            hearing on the charges in municipal court, and the function of  
            the grand jury was limited to governmental oversight and the  
            occasional criminal action in cases of official malfeasance.

          "Last year, the voters adopted Proposition 115, the 'Crime  
            Victims Justice Initiative,' which overruled Hawkins by  
            permitting an indictment as the initiation of criminal  
            proceedings without a requirement of subsequent preliminary  
            hearing.  District attorneys were free to choose indictment,  
            rather than hearing, as the course of action in pursuing a  
            case.  Some have chosen to exercise this option freely,  
            therefore imposing a significant criminal workload on grand  
            juries still responsible for their civil obligations.

          "[The bill being considered by the AG in this opinion] would  
            bifurcate the institution of the grand jury into two forms,  
            civil and criminal, authorizing counties to combine both  
            functions in a single grand jury, or to establish independent  








                                                                  AB 1906
                                                                  Page  15

            criminal grand juries upon the decision of the presiding judge  
            of the superior court or at the request of the district  
            attorney or the AG.  The civil grand jury would be authorized  
            to inquire into county matters or return accusations of  
            misconduct by public officials in the manner such juries  
            functioned prior to Proposition 115 and pursuant to Hawkins;  
            the criminal grand jury would be authorized to return  
            indictments for public offenses pursuant to Proposition 115.   
            Individuals serving in the capacity of criminal grand jurors,  
            whether on an independent panel or a unified body bringing an  
            indictment in a criminal case, would be required to meet  
            standards specified for criminal grand jury service.

          "The purpose of this measure is to permit counties to establish  
            additional grand juries to handle criminal indictments as  
            authorized by Proposition 115, composed in a manner to  
            preclude challenge for the 'technicality' of an  
            unrepresentative panel.

          "Recently, this committee heard SB 672 (Davis), which proposed  
            an additional criminal grand jury for Ventura County alone.   
            In the analysis, it was suggested that if the authorization  
            for a criminal grand jury were to be extended to one county it  
            should be extended universally, considering the anticipated  
            impact of Proposition 115 on caseload.  This bill would seem  
            responsive to that suggestion.

          "Similarly, the report of the Assembly Committee on Public  
            Safety for the committee hearing on April 9, 1991, stated in  
            part:

          "This bill will leave the selection process and powers of the  
            civil grand jury intact with the exception of the power to  
            issue criminal indictments.  That function will reside  
            exclusively with the criminal grand jury.

          "Since this bill extends the authority to impanel a criminal  
            grand jury to all counties, it repeals the existing specific  
            authority of Los Angeles, San Mateo, Contra Costa, and Marin  
            counties to impanel an additional grand jury.

          "The report of the Assembly Committee on Ways and Means for the  
            committee hearing on May 1, 1991, stated:  'This bill would  
            authorize counties to impanel criminal grand juries with the  
            power to indict.'








                                                                  AB 1906
                                                                  Page  16


          "Not only does the legislative history of Penal Code Section  
            904.6 support the conclusion that the additional grand jury is  
            to be restricted to a criminal function, so do other  
            provisions of the statutory scheme.  Standing alone, the  
            language of Penal Code Section 904.6(d) suggests that both  
            criminal and civil functions may be performed by the  
            additional grand jury.  This is particularly true when it is  
            seen that the Legislature, whenever restricting the additional  
            grand jury to either civil matters or criminal matters in the  
            past, did so in no uncertain terms.  (See former Penal Code  
            Section 904.5, 904.7, 904.8.)

          "However, we do not believe that Penal Code Section 904.6 may be  
            read in isolation, especially in light of its legislative  
            history.  Specifically, Penal Code Section 904.6 must be  
            construed in conjunction with Penal Code Section 888.  Penal  
            Code Section 888 provides:

          "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.

          "Each grand jury or, if more than one has been duly impaneled  
            pursuant to Penal Code Sections 904.5 to 904.9, inclusive, one  
            grand jury in each county, shall be charged and sworn to  
            investigate or inquire into county matters of civil concern,  
            such as the needs of county officers, including the abolition  
            or creation of offices for, the purchase, lease, or sale of  
            equipment for,   or changes in the method or system of,  
            performing the duties of the agencies subject to investigation  
            pursuant to Section 914.1. 

          "Additionally, Penal Code Section 914.1 provides, 'When a grand  
            jury is impaneled, for purposes which include the  
            investigation of, or inquiry into, county matters of civil  
            concern, the judge of the superior court of the county, in  
            addition to other matters requiring action, shall call its  
            attention to the provisions of Chapter 1 (commencing with  
            Section 23000) of Division 1 of Title 3, and Sections 24054  
            and 26525 of the Government Code, and instruct it to ascertain  
            by a careful and diligent investigation whether such  
            provisions have been complied with, and to note the result of  
            such investigation in its report.  At such time the judge  








                                                                  AB 1906
                                                                  Page  17

            shall also inform and charge the grand jury especially as to  
            its powers, duties, and responsibilities under Article 1  
            (commencing with Section 888) of Chapter 2, and Article 2  
            (commencing with Section 925), Article 3 (commencing with  
            Section 934) of this chapter, Article 3 (commencing with  
            Section 3060) of Chapter 7 of Division 4 of Title 1 of the  
            Government Code, and Section 17006 of the Welfare and  
            Institutions  Code.'

          "An examination of the provisions which must be called to the  
            grand jury's attention pursuant to section 914.1 with respect  
            to 'county matters of civil concern' include all matters of  
            civil oversight within the grand jury's jurisdiction, whether  
            there is a single grand jury in the county, or whether these  
            are two grand juries.

          "Accordingly, the provisions of sections 888, 904.6, and 914.1,  
            when construed together, lead to the inevitable conclusion  
            that the grand jury authorized by section 904.6 is restricted  
            to criminal matters and may not perform civil oversight  
            functions.  Section 888 specifically refers to Section 904.6  
            and contemplates that when there are two grand juries in a  
            county empanelled under the provisions of the latter statute,  
            only one grand jury may be charged and sworn to inquire into  
            civil matters.  This of necessity would exclude the additional  
            grand jury impaneled pursuant to Section 904.6 since that  
            grand jury has 'sole and exclusive jurisdiction to return  
            indictments.  If the additional grand jury of section 904.6  
            was the one charged with civil oversight functions as well,  
            that would leave the county with a regular grand jury having  
            no civil oversight functions and no power to return  
            indictments.  We may not interpret section 904.6 to produce  
            such an absurd result.

          "Accordingly, we believe that the additional grand jury  
            authorized by section 904.6 is to be a criminal grand jury and  
            the other grand jury within the county is to be the civil  
            grand jury. This conclusion is supported by the statute's  
            legislative history, the provisions of sections 888 and 914.1,  
            and the language of section 904.6(e) in which the jurors are  
            referred to as 'criminal grand jurors' and the grand jury is  
            referred to as the 'additional criminal grand jury.'

          "In summary, we conclude that the additional grand jury  
            authorized by section 904.6 is restricted to criminal matters  








                                                                  AB 1906
                                                                  Page  18

            only and may not perform civil oversight functions."  

          Applying the above AG's opinion to this bill, it appears that if  
            an additional grand jury is authorized for San Diego County,  
            that additional grand jury would be limited to performing  
            criminal functions.  

           9)Judicial Council Committee Study on Diversity in Grand Juries  :  
             A Judicial Council Committee has studied the issues of racial  
            and ethnic diversity in the grand juries, and concluded that,  
            "The committee . . . believes sufficient research has been  
            conducted to support a rule aimed at gathering certain  
            demographic information about grand jurors.  At least three  
            in-depth studies of the civil grand juror system in California  
            have been conducted during the last decade.  (Executive  
            Summary, Final Report of the Judicial Council Advisory  
            Committee on Racial and Ethnic Bias in the Courts;  
            .)

          "The studies concluded that California grand juries are not  
            representative of the populations they serve.  Further, the  
            committee's investigation of this issue was not in response to  
            external pressure from any organization or group, but from a  
            council-adopted recommendation from the 1992 Advisory  
            Committee on Race and Ethnic Bias in the Courts.  The  
            committee's examination of representative civil grand juries  
            was also reflected in its 2002-2003 work plan. Focus groups  
            supported the project at that time.  During its final review  
            of this proposal, there were offered two recommendations.   
            First, it recommended clarification of the terms 'eligible'  
            and 'qualified,' as used in subdivisions (a)(3), (b)(2), and  
            in the advisory committee comment, to eliminate any confusion  
            those terms might cause. The committee agreed and incorporated  
            those changes.  The committee clarified the terms 'eligible to  
            serve' and 'qualified' by adding a definition of 'eligible to  
            serve' that references the requirements for regular grand jury  
            service set forth in Penal Code section 893.  The added  
            definition also clarifies that courts are to collect the data  
            after prospective jurors indicate their interest in regular  
            grand jury service and are determined by the court to meet the  
            eligibility requirements.

          "Second, it was recommended that the committee consider whether  
            'demographic' as used in the title is too broad a term, in  








                                                                  AB 1906
                                                                  Page  19

            view of the specific data to be collected.  It also  
            recommended that the committee consider adding two demographic  
            categories ? specifically, 'range of household income' and  
            'highest level of educational attainment.'  It was suggested  
            that collecting this data, as well as the data currently  
            outlined in the proposed rule, would assist the courts in  
            obtaining a more complete view of the demographic composition  
            of the prospective and seated jurors, to compare with county  
            demographics. 

          "After hearing the committee's concerns, it was recommended that  
            the committee instead clarify that the rule is limited to the  
            collection of certain demographic data; that the advisory  
            committee report back with an analysis of the data collected  
            within one to two years after the rule is implemented; and  
            that the committee submit its recommendations regarding  
            additional demographic categories at that time.  The committee  
                                                agreed, and it inserted 'certain' before 'demographic' in the  
            title of the rule to clarify that limited data will be  
            collected, and the committee will consider adding other  
            demographic categories to the rule and report back with its  
            recommendations and analysis within two years of  
            implementation.

          "In an Advisory Committee comment, it was stated that this rule  
            is intended to facilitate the courts' continued efforts to  
            achieve the goals stated . . . in the Standards of Judicial  
            Administration, which encourage courts to employ various  
            methods of soliciting prospective candidates to serve on  
            regular grand juries that reflect a representative  
            cross-section of the community they serve. 

          "Those methods include obtaining recommendations for grand  
            jurors who encompass a cross-section of the county's  
            population base, solicited from a broad representation of  
            community-based organizations, civic leaders, and superior   
            court judges, referees, and commissioners subdivision (b)(2));  
            having the court consider carry-over grand jury selections  
            under Penal Code section 901(b) to ensure broad-based  
            representation (subd. 6 (c)); and encouraging judges who  
            nominate persons for grand jury service under Penal Code  
            section  903.4 to select candidates from the list returned by  
            the jury commissioner or otherwise employing a nomination  
            procedure to ensure broad-based representation from the  
            community.   








                                                                  AB 1906
                                                                  Page  20


          "This rule is also intended to assist the courts in establishing  
            a formal mechanism whereby they can monitor the extent to  
            which they achieve the goal of seating representative regular  
            grand juries through a process comparable to that stated in  
            Penal Code section 904.6(e), which requires that persons  
            selected for the "criminal grand jury shall be selected at  
            random from a source or sources reasonably representative of a  
            cross section of the population which is eligible for jury  
            service in the county."

           10)Secrecy of the Grand Jury  :  According to "The Grand Jury, A  
            Brief Historical Overview" by Dr. Marianne Jameson, California  
            Grand Jurors' Association, 2004, "Secrecy has long been a  
            hallmark of grand juries.  In modem times, the California  
            Supreme Court has summarized the reasons for grand jury  
            secrecy as follows:  (1) to prevent the escape of those whose  
            indictment may be contemplated; (2) to ensure the utmost  
            freedom to the grand jury in its deliberations and to prevent  
            persons subject to indictment or their friends from  
            importuning the grand jurors; (3) to prevent subornation of  
            perjury or tampering with the witnesses who may testify before  
            the grand jury and later appear at the trial of those indicted  
            by it; (4) to encourage free and untrammeled disclosures by  
            persons who have information with respect to the commission of  
            crime; (5) to protect the innocent accused who is exonerated  
            from disclosure of the fact that he has been under  
            investigation and from the expense of standing trial where  
            there was probably no guilt."

          In Copley Press, Inc. v. Superior Court, (2006) 39 Cal. 4th  
            1272, 1285, the California Supreme Court considered a  
            provision prohibiting disclosure of information that would  
            identify grand jury witnesses, and held that it "reaffirms the  
            general legislative concern to safeguard grand jury secrecy."   
            In discussing the legislative history of safeguards to grand  
            jury secrecy, the Court stated that it confirmed the  
            Legislature's intent to "prohibit any information identifying  
            the individuals involved from being released, in an effort to  
            protect the personal rights of both citizens and officers."   
            [Assembly Committee on Public Safety, Republican Analysis, AB  
            2222 (1989-90 Legislative Session) Sept. 2, 1989, p. 2; see  
            also Assembly Committee on Ways and Means, Analysis of AB 2222  
            (1989-90 Legislative session) as amended May 17, 1989  
            (exception allows release of summary data "as long as the  








                                                                  AB 1906
                                                                  Page  21

            information does not identify the officers involved").]  Given  
            the statutory language and the legislative history, the court  
            of appeal erred in ordering disclosure of the name of the  
            deputy involved in this case. 

          The exclusionary rule is inapplicable in grand jury proceedings,  
            with the result that a witness called before a grand jury may  
            be questioned on the basis of knowledge obtained through the  
            use of illegally-seized evidence.  Thus, allowing the use of  
            evidence obtained in violation of the Fourth Amendment, courts  
            nonetheless restated the principle that, while free of many  
            rules of evidence that bind trial courts, grand juries are not  
            unrestrained by constitutional consideration.  [Indictment by  
            Grand Jury; .]

           11)The Operation of the Grand Jury  :  According to "Indictment by  
            Grand Jury" (),  
            "The prescribed constitutional function of grand juries in  
            federal courts is to return criminal indictments, but the  
            juries serve a considerably broader series of purposes as  
            well.  Principal among these is the investigative function,  
            which is served through the fact that grand juries may summon  
            witnesses by process and compel testimony and the production  
            of evidence generally.  Operating in secret, under the  
            direction but not control of a prosecutor, not bound by many  
            evidentiary and constitutional restrictions, such juries may  
            examine witnesses in the absence of their counsel and without  
            informing them of the object of the investigation or the place  
            of the witnesses in it. 

          "A witness called before a grand jury is not entitled to be  
            informed that he may be indicted for the offense under inquiry  
            and the commission of per jury by a witness before the grand  
            jury is punishable, irrespective of the nature of the warning  
            given him when he appears and regardless of the fact that he  
            may already be a putative defendant when he is called."  (Id.)

          According to an article in Wikipedia, "Grand juries are today  
            virtually unknown outside the United States.  The United  
            Kingdom abandoned grand juries in 1933 and instead uses a  
            committal procedure, as do all Australian jurisdictions.  In  
            Australia, although the State of Victoria maintains provisions  
            for a grand jury in the Crimes Act 1958 under section 354  








                                                                  AB 1906
                                                                  Page  22

            Indictments, it has been used on rare occasions by individuals  
            to bring other persons to court seeking them to be committed  
            for trial on indictable offences.  New Zealand abolished the  
            grand jury in 1961.  Canada abolished it in the 1970s. 

          "Today approximately half of the states in the U.S. employ  
            [grand juries], and only twenty-two require their use, to  
            varying extents. Most jurisdictions have abolished grand  
            juries, replacing them with the preliminary hearing at which a  
            judge hears evidence concerning the alleged offenses and makes  
            a decision on whether the prosecution can proceed.

          "A grand jury is part of the system of checks and balances,  
            preventing a case from going to trial on a prosecutor's bare  
            word.  The grand jury, as an impartial panel of ordinary  
            citizens, must first decide whether there exists reasonable  
            suspicion or probable cause to believe that a crime has been  
            committed.  The grand jury can compel witnesses to testify  
            before them.  Unlike the trial itself, the grand jury's  
            proceedings are secret; the defendant and his or her counsel  
            are generally not present for other witnesses' testimony.  The  
            grand jury's decision is either a 'true bill' (meaning that  
            there is a case to answer) or 'no true bill'.  Jurors  
            typically are drawn from the same pool of citizens as a petit  
            jury, and participate for a specific time period.

          "Some argue that the grand jury is unjust as the defendant is  
            not represented by counsel and/or does not have the right to  
            call witnesses.  Intended to serve as a check on prosecutors,  
            the opportunity it presents them to compel testimony can in  
            fact prove useful in building up the case they will present at  
            the final trial.

          "In practice, a grand jury rarely acts in a manner contrary to  
            the wishes of the prosecutor. Judge Sol Wachtler, the  
            disbarred former Chief Judge of New York State, was quoted as  
            saying that a prosecutor could persuade a grand jury to  
            'indict a ham sandwich.'  As such, many jurisdictions in the  
            United States have replaced the formality of a grand jury with  
            procedure in which the prosecutor can issue charges by filing  
            an information (also known as an accusation) which is followed  
            by a preliminary hearing before a judge at which both the  
            defendant and his or her counsel are present.  New York has  
            amended procedures governing the formation of grand juries  
            such that grand jurors are no longer required to have previous  








                                                                  AB 1906
                                                                  Page  23

            jury experience.

          "In some rare instances, the grand jury does break with the  
            prosecutor. It can even exclude the prosecutor from its  
            meetings and subpoena witnesses and issue indictments on its  
            own.  This is called a 'runaway grand jury.'  Runaway grand  
            juries sometimes happen in government corruption or organized  
            crime cases, if the grand jury comes to believe that the  
            prosecutor himself has been improperly influenced.  Such cases  
            were common in the 19th century, but have become infrequent  
            since the 1930s. 

          "In all U.S. jurisdictions retaining the grand jury, the  
            defendant has the right under the Fifth Amendment not to give  
            self-incriminating testimony.  However, the prosecutor can  
            call the defendant to testify and require the defendant to  
            assert the right on a question-by-question basis, which is  
            prohibited in jury trials unless the defendant has voluntarily  
            testified on his own behalf.  Other evidentiary rules  
            applicable to trials (such as the hearsay rule) are generally  
            not applicable to grand jury proceedings."   
            (.)  (Citations omitted.)

           12)Nature and Function of the Preliminary Examination  :  In  
            "Grand Jury Indictment Versus Prosecution by Information - An  
            Equal Protection-Due Process Issue", by Richard Alexander and  
            Sheldon Portman  
            (), the  
            authors stated, "The due process clauses of both the  
            Fourteenth Amendment and the California Constitution require  
            that the state adopt a procedure which will insure that no  
            person is required to stand trial at the whim or caprice of  
            the prosecuting attorney.  The form is not mandated to be  
            either a grand jury or a preliminary examination but rather a  
            procedure which effectively secures to the accused the  
            substance of due process:  an independent judicial  
            determination of the reasonableness of the charge.

          "Two methods for initiating a felony prosecution are authorize  
            under the California Constitution in the following language:

          "Offenses heretofore required to be prosecuted by indictment  
            shall be prosecuted by indictment without such examination and  
            commitment, as may be prescribed by law.  








                                                                  AB 1906
                                                                  Page  24


          "The California Penal Code authorizes prosecution by either  
            information or indictment with the overwhelming majority of  
            all criminal prosecutions being initiated by information  
            pursuant to Penal Code Section 858.  Under this procedure, an  
            accused is entitled to a preliminary examination before a  
            magistrate and is afforded the right to representation by  
            counsel and the right to present witnesses in his own behalf. 

          "The California Supreme Court has described these provisions  
            being declaratory of fundamental procedural rights and has  
            stressed the earlier view of the United States Supreme Court  
            that the preliminary examination process 'carefully considers  
            and guards the substantial interest of the prisoner' and thus  
            constitutes due process of law. 

          "In [one cited case] the purpose of the preliminary examination  
            process was described in the following language:  'The  
            preliminary examination is not merely a pre-trial hearing.   
            The purpose of the preliminary hearing is to weed out  
            groundless or unsupported charges of grave offenses, and to  
            relieve the accused of the degradation and the expense of a  
            criminal trial.  Many an unjustifiable prosecution is stopped  
            at that point, where the lack of probable cause is clearly  
            disclosed.

          " 'In [another case] this constitutional and statutory purpose  
            was held to require that the defendant "be permitted, if he  
            chooses, to elicit testimony or introduce evidence tending to  
            overcome the prosecution's case or establish an affirmative  
            defense." '

          "The critical nature of the preliminary hearing and its  
            constitutional concomitant assistance of counsel, during that  
            stage were established recently in Coleman v. Alabama [399  
            U.S. 1 (1970.)  ]   Although Alabama law forbade the use at trial  
            of anything that occurred at a preliminary hearing held  
            without counsel, nevertheless, the Court ruled:

          "[I]t does not follow that the Alabama preliminary hearing is  
            not a 'critical stage' of the State's criminal process.  The  
            determination whether the hearing is a 'critical stage'  
            requiring the provision of counsel depends, as noted, upon an  
            analysis 'whether potential substantial prejudice to  
            defendant's rights inheres in the . . . confrontation and the  








                                                                  AB 1906
                                                                  Page  25

            ability of counsel to help avoid that prejudice.'  [United  
            States v. Wade, 388 U.S. 218, 227 (1967).]  Plainly, the  
            guiding hand of counsel at the preliminary hearing is  
            essential to protect the indigent accused against an erroneous  
            or improper prosecution. 

             a)   "First, the lawyer's skilled examination and  
               cross-examination of witnesses expose fatal weaknesses in  
               the State's case that may lead the magistrate to refuse to  
               bind the accused over. 

             b)   "Second, in any event, the skilled interrogation of  
               witnesses by an experienced lawyer can fashion a vital  
               impeachment tool for use in cross-examination of the  
               State's witnesses at the trial. 

             c)   "Third, trained counsel can more effectively discover  
               the case the State has against his client and make possible  
               the preparation of a proper defense to meet that case at  
               the trial. 

             d)   "Fourth, counsel can also be influential at the  
               preliminary hearing in making effective arguments for the  
               accused on such matters as the necessity for an early  
               psychiatric examination or bail.  The inability of the  
               indigent accused on his own to realize these advantages of  
               a lawyer's assistance compels the conclusion that the  
               Alabama preliminary hearing is a 'critical stage' of the  
               State's criminal process at which the accused is 'as much  
               entitled to such aid [of counsel] . . . as at the trial  
               itself.' "  [Powell v. Alabama (1932) 287 U.S. 45, 57.] 

             "Of equal, if not greater, import to our citizens is the fact  
               that a preliminary examination provides them protection  
               from the ignominy and expense of going to trial unless  
               there has been an evidentiary hearing and a holding that  
               sufficient evidence exists to justify trial."  (Citations  
               omitted.) 

           13)Concurrence of Grand Jurors for Indictment  :  An indictment  
            cannot be found without the concurrence of at least 14 grand  
            jurors in a county in which the number of grand jurors is 23;  
            the concurrence of at least eight grand jurors in a county in  
            which the number of grand jurors in 11, and at least 12 grand  
            jurors in all other counties.  [Penal Code Section 940.]








                                                                  AB 1906
                                                                  Page  26


           14)Should the Grand Jury System Be Studied in California  ?  Given  
            the wide variances among counties as to the use of the  
            criminal grand jury, should the continuing viability of a  
            criminal grand jury system be studied by an agency equipped to  
            do so, such as the Law Revision Commission or the Little  
            Hoover Commission?  According to the American Bar Association,  
            only about one-half of the states currently make use of  
            criminal grand juries.  This bill proposes that two counties  
            establish additional criminal grand juries within their  
            jurisdictions.  At the same time, many other counties in  
            California do not make use of the criminal grand jury; many  
            are pointedly critical of it on their Internet Web sites.   
            Given the wide divergence of opinion as to the  
            constitutionality and fundamental fairness of the criminal  
            grand jury system, is this an appropriate time to expand its  
            use?  Should consideration be given to amending this bill to  
            include a sunset date, with a report required from each county  
            as to the efficacy of the extra grand jury?

          According to the American Bar Association, "The Fifth Amendment  
            to the U.S. Constitution requires a grand jury indictment for  
            federal criminal charges.  Only about half the states now use  
            grand juries."  The American Bar Association further states,  
            "The grand jury is independent in theory, and although the  
            instructions given to the grand jurors inform them they are to  
            use their judgment, the practical realities of the situation  
            mitigate against it. 

          "The grand jury hears only cases brought to it by the  
            prosecutor. The prosecutor decides which witnesses to call.  
            The prosecutor decides which witnesses will receive immunity.   
            The basic questioning is done by the prosecutor on a theory he  
            or she articulates.  The grand jury members are generally  
            permitted to ask questions at the end of a witness's  
            testimony.  The prosecutor generally decides if he or she has  
            enough evidence to seek an indictment.  Occasionally the grand  
            jurors may be asked whether they would like to hear any  
            additional witnesses, but since their job is only to judge  
            what the prosecutor has produced, they rarely ask to do so.

          "The prosecutor drafts the charges and reads them to the grand  
            jury.  There is no requirement that the grand jury be read any  
            instructions on the law, and such instructions are rarely  
            given."  (.)  








                                                                 AB 1906
                                                                  Page  27

           
           15)Argument in Support  :  According to the  County of San  
            Bernardino  , "As you are aware, each county in California is  
            constitutionally required to have at lease one grand jury  
            impaneled at all times.  The major functions of county grand  
            juries are divided into criminal indictments and civil  
            investigations.  The grand jury plays an integral role in  
            county government, providing autonomous oversight over  
            governmental operations.  

          "In San Bernardino County, the same panel executes both criminal  
            and civil functions.  The grand jury is charged and sworn to  
            investigate or inquire into county matters of civil concern,  
            such as the needs of county officers, including the abolition  
            or creation of offices, purchases, leases, or changes in the  
            method of system of performing the duties of the agencies  
            subject to the investigation, focusing on governmental  
            oversight, ensuring the county is governed honestly and  
            efficiently, and county monies are appropriated properly.  In  
            San Bernardino County the civil investigation portion consumes  
            the majority of juror time.  

          "The grand jury is charged with the distinguished and arduous  
            role of 'watchdog' of public office, with the potential to  
            uncover substantive opportunities for improvements in public  
            operations each year.  Grand jury responsibilities associated  
            with overseeing San Bernardino county, the largest  
            geographical county, with 18,000 employees and two million  
            residents, is difficult under current conditions.  Foremen of  
            recent grand juries have described their involvedness as  
            'impossible to do a thorough investigation of this massive  
            operation,' 'laborious and exhaustive' and requiring time  
            spent during 'evenings and off-days.'  

          "AB 1906 would allow for the impanelment of up to two additional  
            grand juries, augmenting necessary and independent  
            governmental oversight over county operations, allowing for  
            more thorough investigations, exposing opportunities for the  
            betterment of public service and alleviating the burden of  
            grand jury service.  For these reasons, the San Bernardino  
            County Board of Supervisors is pleased to sponsor AB 1906."  

           16)Argument in Opposition:   According to the  California  
            Attorneys for Criminal Justice (CACJ)  , [c]riminal grand juries  
            are intended to be used sparingly and only when highly  








                                                                  AB 1906
                                                                  Page  28

            sensitive information is at issue since these proceedings are  
            closed to the public and the defendant.  For these reasons  
            CACJ is opposed to this measure.

          "As you know, California's felony process requires a prosecutor  
            to present her evidence and witnesses before a judge during a  
            preliminary hearing.  This process is open to the public.  The  
            defendant is permitted to a limited cross-examination of the  
            witness.  This to enhances the ability of the judge to  
            determine whether the case should proceed or be dismissed for  
            lack of evidence.  

          "By contrast, the public is excluded from the grand jury  
            proceedings, eliminating a critical check on our judicial  
            process.  Additionally, defendants are denied an opportunity  
                                                                       to cross-examine witnesses who testify before a grand jury.   
            Cross-examination may produce exculpatory evidence to  
            exonerate wrongfully accused individuals.  

          "CACJ is also concerned that grand jury proceedings lack  
            sufficient checks on illegally-obtained evidence.  For  
            example, furing a preliminary hearing an accused has the  
            opportunity to ask the judge to determine whether the search  
            of someone's home violates the Fourth Amendment's protection  
            against unreasonable searches and seizures.  A grand jury  
            proceeding denies the accused the ability to make this  
            inquiry.  

          "CACJ is concerned grand juries that are cloaked in secrecy are  
            no longer restricted to the unusual case, but are instead  
            emerging as a strategy to avoid the heightened scrutiny of a  
            preliminary hearing.  In December 2009 the Ventura County Star  
            reported the local district attorney's office exponentially  
            increased its grand jury request for routine criminal cases.   
            The Ventura County DA's office expects to seek nearly 500 jury  
            indictments in this coming year.  By contrast, the Los Angeles  
            County DA uses the criminal grand jury in only 15 cases a  
            year.  

          "AB 1906 would allow San Bernardino's District Attorney's Office  
            to circumvent the preliminary hearing in hundreds of cases  
            that would otherwise deserve public scrutiny and should permit  
            a defendant to question his accusers.  

          "Any criminal proceeding which does not afford a defendant  








                                                                  AB 1906
                                                                  Page  29

            essential constitutional rights should be used sparingly.   
            Unfortunately your measure allows the San Bernardino District  
            Attorney to call upon the criminal grand jury without  
            restriction; its use is not reserved for cases involving  
            public sensitivity which necessitates a secret proceeding and  
            the waiver of a defendant's rights."  

           17)Prior Legislation  :  

             a)   AB 1854 (Garrick), of the 2007-08 Legislative Session,  
               authorized the presiding judge of the San Diego County  
               Superior Court, or the judge appointed by the presiding  
               judge to supervise the grand jury, to impanel one  
               additional grand jury in San Diego County.  AB 1854 failed  
               passage in Senate Public Safety Committee.

             b)   SB 796 (Runner), Chapter 82, Statutes of 2007,  
               authorized the presiding judge of the Superior Court of the  
               County of Los Angeles, or the judge appointed by the  
               presiding judge to supervise the grand jury, to impanel an  
               additional grand jury in that county, as specified.
           
          REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          County of San Bernardino 

           Opposition 
           
          California Attorneys for Criminal Justice
           

          Analysis Prepared by  :    Gabriel Caswell / PUB. S. / (916)  
          319-3744