BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 1168 (Cedillo) 8
As Introduced February 18, 2010
Hearing date: April 20, 2010
Penal Code
MK:mc
LOS ANGELES:
MISDEMEANOR CRIMINAL GRAND JURY AUTHORITY
HISTORY
Source: Los Angeles City Attorney's Office
Prior Legislation: SB 796 (Runner) - Ch. 82, Stats. 2007
SB 416 (Ackerman) - Ch. 25, Stats. 2005
SB 607 (Cannella) - Ch. 464, Stats. 1991
Support: Unknown
Opposition:California Attorneys for Criminal Justice
KEY ISSUE
SHOULD THE CITY ATTORNEY OF LOS ANGELES BE PERMITTED TO ASK THE
COURT TO IMPANEL A GRAND JURY TO INQUIRE INTO MISDEMEANOR OFFENSES?
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PURPOSE
The purpose of this bill is to permit the City Attorney of Los
Angeles to ask the court to impanel a grand jury to inquire into
misdemeanor cases.
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 in Los Angeles 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 Attorney General or the district attorney or upon his or
her own motion, order and direct the impanelment of up to two
additional grand juries. (Penal Code 904.8.)
Existing case law provides that "a grand jury indictment
charging only misdemeanors cannot be returned." ( People v.
Lukenbill , 234 Cal. App. 3d Supp. 1, 3 (Cal. App. Dep't Super.
Ct. 1991).)
This bill provides that in addition to the above, in Los Angeles
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 prosecuting city attorney of any city
within the county having a population in excess of 3,000,000
people, order and direct the impanelment of one additional grand
jury.
This bill provides the presiding judge 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
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serve as grand jurors.
This bill provides that any additional grand jury that is
impaneled may serve for a period of one year from the date of
impanelment, but may be discharged at any time within the
one-year period by the presiding judge. In no event shall more
than one additional grand jury be impaneled pursuant to this
section at one time.
This bill provides that whenever an additional grand jury is
impaneled pursuant to the section created in this bill, it may
inquire into any matters involving misdemeanor offenses, but is
not authorized to inquire into any matters that the regular
grand jury is inquiring into at the time of its impanelment and
has no jurisdiction to return indictments.
This bill provides that whenever the prosecuting city attorney
of any city within the County of Los Angeles having a population
in excess of 3,000,000 people considers that the public interest
requires, he or she may direct the grand jury impaneled to
convene for the investigation and consideration of those matters
involving misdemeanor offense that he or she desires to submit
to it. He or she may take full charge of the presentation of
matters to the grand jury, issue subpoenas, and do all other
things incident thereto to the same extent as the Attorney
General or district attorney may do, except that the prosecuting
attorney may not prepare indictments.
This bill provides that upon certification by the prosecuting
attorney of the grand jury, a statement of the costs directly
related to the impanelment and activities of the grand jury from
the superior court where the grand jury was impaneled shall be
submitted to the prosecuting city attorney for reimbursement of
the costs to the county out of the prosecuting city attorney's
own budget.
Existing law provides that the grand jury or district attorney
may require by subpoena the attendance of any person before the
grand jury as interpreter. (Penal Code 937.)
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This bill provides that the prosecuting attorney of any city
within the County of Los Angeles having a population in excess
of 3,000,000 people may also require by subpoena the attendance
of any person before the grand jury as an interpreter and that
the prosecuting attorney shall be liable for the costs of the
interpreter in those cases.
Existing law provides that a subpoena requiring the attendance
of a witness before the grand jury may be signed and issued by
the district attorney, the district attorney's investigator, or
upon request of the grand jury, by any judge of the superior
court, for witnesses in the state, in support of the
prosecution, for those witnesses whose testimony, in the judge's
opinion is material in an investigation before the grand jury,
and for such other witnesses as the grand jury, upon an
investigation pending before them may direct. (Penal Code
939.2.)
This bill provides that the prosecuting city attorney of any
city within the County of Los Angeles having a population in
excess of 3,000,000 people and the prosecuting city attorney's
investigator may also sign a subpoena for witnesses to appear
before a grand jury.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
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the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
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has brought California's prisons to the breaking
point. The
state of emergency declared by Governor Schwarzenegger
almost three years ago continues to this day,
California's prisons remain severely overcrowded, and
inmates in the California prison system continue to
languish without constitutionally adequate medical and
mental health care.<1>
The court stayed implementation of its January 12, 2010, ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. That appeal, and the final outcome of this litigation,
is not anticipated until later this year or 2011.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
COMMENTS
1. Need for This Bill
According to the Author:
Although current law allows for the Attorney General and
District Attorney's to empanel grand juries for the
purpose of conducting criminal investigations, because
the numbers of cases is steadily increasing and the
criminal grand jury has not been able to schedule enough
hearings to meet the needs, cases consequently fall
through the cracks.
The Los Angeles City Attorney's Office in some instances
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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has pursued significant cases that are not handled
elsewhere. In these types of cases, grand juries are
preferable in order to avoid potential media attention
that may negatively impact the case or the entity being
investigated. However, the Los Angeles City Attorney
does not have the authority to impanel a criminal grand
jury.
Without the authority to impanel a criminal grand jury
to determine whether evidence is sufficient for the
matter to be taken to trial, these cases often end up
costing hundreds of thousands of dollars more and many
years of investigating to get to the point where charges
could be filed. In the interim, the alleged violation
of the law continues.
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2. Grand Juries Generally
The California Constitution requires that counties have one
regular grand jury a year. The grand jury has two functions,
one criminal and one civil. While counties differ slightly,
generally the grand jury's civil function includes investigating
local government agencies for misconduct. This includes
auditing operations, accounts and records of officers and
departments that are under investigation. The criminal function
generally includes investigating and hearing evidence to
determine whether the evidence is sufficient for the matter to
be taken to trial.
Under current law, a county may request to have an additional
grand jury for criminal purposes. Therefore, if a county
impanels a second grand jury, the regular grand jury takes on
the civil functions and the additional grand jury takes on the
criminal. SB 796 (Runner) Ch. 82, Stats. 2007, granted the
presiding judge of Los Angeles County authority to impanel up to
two additional grand juries.
3. Grand Jury for Misdemeanors
This bill would allow the City Attorney of the City of Los
Angeles to request that the presiding judge of Los Angeles
County impanel a grand jury for the purpose of inquiring into
matters involving misdemeanor offenses. Under exiting law,
grand juries cannot return indictments when the only charges are
misdemeanors so generally do not look into cases where the only
crimes in question are misdemeanors. (See People v. Lukenbill ,
234 Cal. App. 3d Supp. 1, 3 (Cal. App. Dep't Super. Ct. 1991).)
This bill specifically provides that the grand jury created at
the request of the prosecution has no jurisdiction to return
indictments.
According to the sponsor of this bill:
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For years, the Office of the Los Angeles City Attorney
has acted as the state's "little Attorney General's
office." It is the largest municipal law office in the
state representing the largest city in the state. The
prosecutors in this Office protect Californians by
handling significant cases that are not handled
elsewhere. Unlike District Attorneys or the Attorney
General, however, the Los Angeles City Attorney does not
have the legal authority to compel testimony or the
production of records through a criminal grand jury.
This increases both the length of time and the amount of
money needed to properly conduct an investigation. In
the interim, the bad actors are able to continue
violating the law.
The sponsor's intent is that a grand jury created through this
bill would handle significant cases and not routine
misdemeanors.
SHOULD THE CITY ATTORNEY OF LOS ANGELES BE PERMITTED TO REQUEST
THAT THE COURT IMPANEL A GRAND JURY FOR THE PURPOSE OF HEARING
MISDEMEANOR CASES?
4. Cost of the Grand Jury
It is unclear what the cost of seating the grand jury will be.
The sponsor argues that it will save money because some complex
cases the office has had in recent years took a lot of time and
had high investigative costs. The City Attorney was, however,
able to get favorable results in these cases without a grand
jury. While a grand jury would save some investigative costs,
the City Attorney's Office would still have to incur some of the
costs pre and post grand jury to put together the case. Without
knowing how much a grand jury will cost, it is impossible to
know how much savings the office really would have.
5. Sunset
Because having a grand jury investigate misdemeanor cases is a
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new concept, should this bill include a sunset clause to make
sure it is working and that there have been no abuses?
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