BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1763 (Davis) 3
As Amended June 19, 2012
Hearing date: June 26, 2012
Penal Code
MK:mc
GRAND JURY PROCEEDINGS:
ATTORNEY GENERAL: POWERS AND DUTIES
HISTORY
Source: California Attorney General's Office
Prior Legislation: AB 1854 (Garrick) - not heard Senate Public
Safety, 2008
SB 796 (Runner) - Chapter 82, Statutes of 2007
SB 416 (Ackerman) - 2005-2006, Ch. 25, Statutes of
2005
SB 607 (Cannella) - 1991-1992, Ch. 464, Statutes of
1991
Support: Greenlining Institute; Center for Elders' Independence;
California State Council of Service Employees
International Union; California Professional
Firefighters; American Federation of State, County and
Municipal Employees (AFSCME), AFL-CIO; National Asian
American Coalition; California District Attorneys
Association; California Nurses Association; Western
Center on Law and Poverty; Center for Elder's
Independence; National Asian American Coalition
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Opposition:None known
Assembly Floor Vote: Ayes 78 - Noes 0
KEY ISSUE
SHOULD THE LAW ALLOW THE ATTORNEY GENERAL TO CONVENE A SPECIAL GRAND
JURY IN SPECIFIED COUNTIES TO INVESTIGATE, CONSIDER OR ISSUE
INDICTMENTS IN MATTERS IN WHICH THERE ARE MULTIPLE ACTIVITIES, IN
WHICH FRAUD OR THEFT IS A MATERIAL ELEMENT, THAT OCCURRED IN MORE
THAN ONE COUNTY AND WERE CONDUCTED EITHER BY A SINGLE DEFENDANT OR
MULTIPLE DEFENDANTS ACTING IN CONCERT?
PURPOSE
The purpose of this bill is to allow the Attorney General to
convene a grand jury in cases of theft or fraud where the same
actor or actors committed the offenses in multiple counties.
Existing law provides that a grand jury is a body of the
required number of persons returned from the citizens of the
county before the court of competent jurisdiction, and sworn to
inquire of public offenses committed or triable within the
county. (Penal Code § 888.)
Existing law sets forth the number of grand jurors required by
the size of a county. (Penal Code § 888.2.)
Existing law sets forth the qualifications of grand jurors.
(Penal Code § 893.)
Existing law provides that a prosecutor shall inform the grand
jury of the nature and existence of any exculpatory evidence.
(Penal Code § 939.71.)
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Existing law sets forth the number of grand jurors necessary for
an indictment. (Penal Code
§ 940.)
Existing law provides that every superior court, whenever in its
opinion the public interest so requires, shall draw a grand
jury. (Penal Code § 904.)
Existing law authorizes the presiding judge of the superior
court, or the judge appointed by the presiding judge to
supervise the grand jury to, upon the request of the Attorney
General or the district attorney or upon his or her own motion,
order and direct the impanelment of one additional grand jury,
as specified. (Penal Code § 904.6.)
Existing law provides that whenever the Attorney General
considers that the public interest requires, he or she may, with
or without 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. 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 §
923 (a).)
Existing law provides that whenever the Attorney General
considers that the public interest requires, he or she may, with
or without concurrence of the district attorney, petition the
court to impanel a special grand jury to investigate, consider,
or issue indictments for Medi-Cal fraud and sets forth duties
and scope of such a grand jury. (Penal Code § 923(b).)
Existing law provides that upon certification by the Attorney
General, a statement of costs directly related to the
impanelment and activities of the grand jury for the purposes of
prosecuting Medi-Cal fraud from the presiding judge of the
superior court where the grand jury was impaneled shall be
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submitted for state reimbursement of the costs to the county.
(Penal Code § 923 (c).)
This bill would also allow the Attorney General to convene a
grand jury, without the concurrence of the district attorney, to
impanel a special statewide grand jury to investigate, consider
or issue indictments in matters in which there are two or more
activities in which fraud or theft is a material element that
have occurred in more than one county and were conducted either
by a single defendant or multiple defendants acting in concert.
This bill provides that a special grand jury convened, pursuant
to this bill, may be impaneled in the counties of Fresno, Los
Angeles, Sacramento, San Diego, or San Francisco, at the
Attorney General's discretion.
This bill provides that a special grand jury impaneled, pursuant
to this bill, shall serve for a term of 18 months unless
dismissed earlier by the Attorney General. The bill provides
that the special grand jury's term can be extended by up to six
months.
This bill provides that when impaneling a special statewide
grand jury, the Attorney General shall use an existing
regularly-impaneled grand jury to serve as the special statewide
grand jury and work with the grand jury coordinator in that
county to ensure coordination of the use of time of the grand
jury.
This bill provides that whenever the Attorney General impanels a
special statewide grand jury, the prosecuting attorney
representing the Attorney General shall inform the special
statewide grand jury at the outset of the case that the special
grand jury is acting as a special statewide grand jury with
statewide jurisdiction.
This bill provides that for special grand juries impaneled
pursuant to this subdivision, the Attorney General may issue
subpoenas for documents and witnesses located anywhere in the
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state in order to obtain evidence to present to the special
grand jury.
This bill provides that the special statewide grand jury may
hear all evidence in the form of testimony or physical evidence
presented to them, irrespective of the location of the witness
or physical evidence prior to the subpoena.
This bill provides that the special statewide grand jury may
indict a person or persons with charges for crimes that occurred
in counties other than where the special grand jury is impaneled
and that the indictment shall then be submitted to the
appropriate court in any of the counties where any of the
charges could otherwise have been properly brought.
This bill provides that the court where the indictment is filed
under this subdivision shall have proper jurisdiction over all
counts in the indictment.
Existing law provides that an indictment, when found by the
grand jury, must be presented by their foremen, in their
presence, to the court, and must be filed by the clerk. No
recommendation as to the dollar amount of bail to be fixed shall
be made to any court by any grand jury. (Penal Code § 944.)
This bill provides that notwithstanding Penal Code Section 944,
an indictment found by a special statewide grand jury and
endorsed as a true bill by the special grand jury foreperson,
may be presented to the appropriate court solely by the
prosecutor within five days of the endorsement of the
indictment. For indictments presented to the court in this
manner, the prosecutor shall also file with the court clerk, at
the time of the presenting indictment, an affidavit signed by
the special grand jury foreperson attesting that all the jurors
who voted on the indictment heard all of the evidence presented
and the proper of number of jurors voted for the indictment.
This bill provides that the Attorney General's Office shall be
responsible for prosecuting any indictment produced by the grand
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jury.
This bill provides that if a defendant makes a timely and
successful challenge to the Attorney General's right to convene
a special grand jury by clearly demonstration that the charges
brought are not encompassed by this subdivision, the court shall
dismiss the indictment without prejudice to the Attorney
General, who may bring the same or other charges against the
defendant at a later date via another special grand jury
properly convened, or by a regular grand jury or by any other
procedure available.
This bill specifies that this special grand jury must comply
with the provision requiring the prosecutor to present
exculpatory evidence to the grand jury.
This bill provides that the special grand jury under this
provision shall be in addition to any other grand juries
authorized.
This bill provides that the costs charged the Attorney General
for the activities related to the grand jury shall be no more
than what would be charged to a regularly impaneled grand jury
convened by the county, unless an alternative payment
arrangement is agreed upon by the county and the Attorney
General.
Existing law provides that when a public offense is committed in
part in one jurisdictional territory and in part in another, or
the acts or effects thereof constituting or requisite to the
consummation of the offense occur in two or more jurisdictional
territories, the jurisdiction of such offense is in any
competent court within either jurisdictional territory. (Penal
Code § 781.)
This bill provides that the special grand jury created by this
bill is an exception to the above general rule regarding
jurisdiction when an offense occurs in more than one county.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
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court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
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According to the author:
The existing methods of indicting large-scale financial
crimes under existing California statues are
inadequate. For example, deadlines required by the
preliminary hearing process are too short to allow for
an adequate presentation of the extensive documentary
evidence that typically accompanies a major financial
criminal investigation. Additionally under existing
law, a grand jury has authority only over crimes
occurring within its county of jurisdiction. This is a
serious impediment to prosecutions of crimes that occur
over multiple jurisdictions.
AB 1763 would grant authority to the Attorney General
to impanel a grand jury with state-wide jurisdiction
for the investigation and indictment of
multi-jurisdictional financial crimes involving
multiple victims.
Each county in the state must empanel a grand jury at
least once a year. (CA Const., Article I, Section 23.)
These grand juries have dual roles. First, the grand
jury is a public watchdog, charged with exposing
corruption or negligence with respect to public
governmental functions. Second, the grand jury is as a
vehicle by which a prosecutor can bring a criminal
indictment.
The vast majority of criminal charges in California,
however, are brought not by using the grand jury, but
rather by preliminary hearings in court. This is
because most crimes involve acts of bodily violence or
crimes like the simple theft of tangible property;
crimes that can easily be charged with the testimony of
a single officer. In contrast, preliminary hearings
are not as well-suited for financial crimes to
indicting financial crimes due to the short timelines
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that attend the preliminary hearing process.
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Financial crimes are typically complex, and involve
substantial documentary evidence. Significant time is
often needed to investigate and indict such crimes. The
preliminary hearing process is not well-suited to the
indictment of such crimes, and the existing grand jury
process is limited to the investigation and indictment
of crimes occurring within the grand jury's county of
jurisdiction.
The Attorney General's Office is engaged in the
investigation of significant financial crimes of
statewide scope and impact. Yet the preliminary
hearing process and existing grand jury authority are
not well aligned to the needs of these cases.
2. Statewide Grand Jury for Multiple Jurisdiction Fraud
Under existing law, the Attorney General may ask a district
attorney to convene a grand jury for the Attorney General's use
to bring a case; or, in cases of Medi-Cal fraud, the Attorney
General may convene a grand jury without the consent of the
District Attorney. This bill would allow the Attorney General
to convene a grand jury without the consent of the District
Attorney in cases of fraud or theft that have occurred in more
than one county and are conducted by either a single defendant
or multiple defendants acting in concert. The intent is to
allow the Attorney General the ability to seek an indictment in
the type of complex fraud cases where there is one actor or
group of actors who defraud people in various counties thus
making it difficult to prosecute in one particular county.
a. Location of the grand jury.
This bill would allow the special grand jury authorized under
this bill to be impaneled in Fresno, Los Angeles, Sacramento,
San Diego or San Francisco Counties at the Attorney General's
discretion. There is no requirement that the county chosen be
close to the greatest number of witnesses to the cases,
however, given the cost and difficulty of getting witnesses
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present. However, the flexibility of the location allows the
Attorney General to take the location of witnesses into
consideration when determining in which county to impanel the
grand jury.
b. Use of existing grand jury.
This bill would allow the Attorney General to use the existing
grand jury in the county. The grand jury would be informed
that for these purposes it is acting as a special grand jury.
The Attorney General would work with the grand jury
coordinator in the county to "ensure an orderly coordination
and use of the grand jurors' time for both regular grand jury
duties and special statewide grand jury duties."
c. Evidence before the grand jury.
A grand jury impaneled under this bill would have the ability
to seek and hear evidence from all over the state. The bill
also specifically states that the Attorney General must follow
the general rule of submitting any exculpatory evidence to the
grand jury.
d. Place of indictment.
This bill provides that the indictment can be submitted to the
appropriate court in any of the counties where the charges
would otherwise be properly brought. The court where the
indictment is filed under this subdivision shall have proper
jurisdiction over all the counts in the indictment. While it
may make sense to join all the counts brought in the
indictment in one county, traditionally there have been
concerns when "forum shopping" is a possibility. Is there a
way to still allow the Attorney General to bring all the
counts in one county without giving rise to the possibility of
accusations of forum shopping?
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e. Costs of the grand jury.
As with the existing Medi-Cal grand jury, a statement of costs
directly related to the impanelment and activities of this
special grand jury from the presiding judge of the superior
court in the county in which the jury has been impaneled shall
be submitted to the state for reimbursement to the county or
courts.
3. SB 1474 (Hancock)
This bill is identical to SB 1474 (Hancock) which passed this
Committee 7-0 on April 17, 2012.
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