BILL NUMBER: AB 1763 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 11, 2012
AMENDED IN ASSEMBLY MARCH 22, 2012
INTRODUCED BY Assembly Member Davis
FEBRUARY 17, 2012
An act to amend Section Sections 781 and
923 of the Penal Code, relating to grand jury proceedings.
LEGISLATIVE COUNSEL'S DIGEST
AB 1763, as amended, Davis. Grand jury proceedings: Attorney
General: powers and duties.
Existing law authorizes the Attorney General to convene the grand
jury to investigate and consider certain criminal matters. The
Attorney General is authorized to 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. Existing law authorizes
the Attorney General to empanel a special grand jury to investigate,
consider, or issue indictments for specified activities relating to
Medi-Cal fraud.
This bill also would authorize the Attorney General to convene a
special grand jury, as prescribed, for cases involving fraud
or theft of public moneys, impairment of the collection of public
money, fraud or theft that occurs in more than one county
and where all potential charges could not otherwise be brought in a
single county , and charges that could reasonably result in
a sentencing enhancement for aggravated white collar crime
and were conducted by a single defendant or multiple
defendants acting in concert . The bill would establish the
Attorney General's Special Grand Jury Fund in the State Treasury and
would require each defendant convicted of charges brought by a
special grand jury to pay a fine of $500 into that fund to be used
upon appropriation of the Legislature.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 781 of the Penal
Code is amended to read:
781. When Except as provided in Section
923, 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 the offense is in
any competent court within either jurisdictional territory.
SECTION 1. SEC. 2. Section 923 of
the Penal Code is amended to read:
923. (a) Whenever the Attorney General 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. 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.
(b) Whenever the Attorney General 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 of the
activities set forth in subdivision (c). The petition may be
presented under seal and shall set forth, in general terms, the
grounds justifying the request as set forth in subdivision (c). The
court shall grant the petition if the petition generally demonstrates
the Attorney General's belief that a crime addressed under
subdivision (c) has been committed. The Attorney General 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.
(c) The following activities are subject to indictment by a
special grand jury impaneled pursuant to subdivision (b):
(1) Activities subject to fine, imprisonment, or asset forfeiture
under Section 14107 of the Welfare and Institutions Code.
(2) Activities that involve, in whole or in part, fraud or theft
that result in the direct or indirect loss of one hundred thousand
dollars ($100,000) or more in public money. For purposes of this
subdivision, "public money" means fees or taxes of any kind collected
by a state governmental agency or political subdivision of the
state, or collected by a county or city governmental agency in the
state.
(3) Fraud or theft that occurs in more than one county and where
all the potential charges against a defendant, or defendants acting
in concert, cannot otherwise be brought in a single county.
(4) An activity that could result, upon conviction of potential
charges reasonably contemplated by the Attorney General to be
included in the proposed indictment, in a sentencing enhancement
under Section 186.11.
(d) A special grand jury requested by the Attorney General
pursuant to subdivision (b) may be impaneled in the Counties of
Fresno, Los Angeles, Sacramento, San Diego, or San Francisco, at the
Attorney General's discretion. A special grand jury impaneled under
this section shall serve for a term of 18 months unless dismissed
earlier by the Attorney General. Upon notice by the Attorney General
to the grand jury coordinator or presiding judge of the county where
the special grand jury is impaneled, the special grand jury's term
can be extended by up to six months.
(e) For special grand juries impaneled pursuant to subdivision
(b), and notwithstanding Section 1200 or 1401 of the Evidence Code,
the Attorney General may establish a foundation for documentary
evidence in order to introduce that evidence to the special grand
jury for consideration, if the documents were acquired through a
grand jury subpoena or a court-approved search warrant, and a law
enforcement officer or investigator testifies that the documents were
obtained in that manner.
(1) For documents that were obtained by a grand jury subpoena and
which the Attorney General seeks to introduce under this subdivision,
a law enforcement officer or investigator shall inform the grand
jury if the custodian of records for the documents supplied an
affidavit attesting to the manner in which the records were
maintained. The absence of an affidavit, however, shall not preclude
their introduction for the grand jury to consider.
(2) For documents that were obtained by a court-approved search
warrant and which the Attorney General seeks to introduce under this
subdivision, a law enforcement officer or investigator shall describe
the manner in which the documents were kept at the site of the
search warrant. The testifying law enforcement officer or
investigator may obtain this information from another officer or
investigator that was present at the search warrant site when the
documents were obtained. The manner in which the documents were kept
at the site where they were obtained shall have no bearing on the
Attorney General's ability to introduce the documents to the grand
jury.
(3) A law enforcement officer or investigator testifying in order
to establish the foundation for documentary evidence under this
subdivision shall either have five years of law enforcement
experience or have completed a training course certified by the
Commission on Peace Officer Standards and Training that includes
training in investigation and reporting of cases at preliminary
hearings or for grand juries.
(f) For special grand juries impaneled pursuant to subdivision
(b), where the Attorney General, in his or her discretion, reasonably
believes there are more than 10 victims of a crime attributable to
the same defendant, or defendants acting in concert, and indictable
by a special grand jury pursuant to subdivision (b), the victims need
not testify to the special grand jury in order for the prosecutor to
establish a count or charge in the indictment if a peace officer or
investigator, certified in the same manner as in paragraph (3) of
subdivision (e), testifies with respect to the dollar loss amount
suffered by each victim and any other related information with
respect to each victim. Nothing in this subdivision shall prevent the
prosecutor from calling some or all of the victims to testify for
the grand jury.
(g) For special grand juries impaneled pursuant to subdivision
(b), the Attorney General may issue subpoenas for documents and
witnesses located anywhere in the state in order to obtain evidence
to present to the special grand jury. The special 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 subpoena. The special grand jury impaneled pursuant
to subdivision (b) may indict a person or persons with charges for
crimes that occurred in counties other than where the special grand
jury is impaneled. 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.
(h) Notwithstanding Section 944, an indictment found by a special
grand jury and endorsed as a true bill by the special grand jury
foreperson, may be presented to the appropriate court, as set forth
in subdivision (g), solely by the prosecutor within five court days
of the endorsement of the indictment. For indictments presented to
the court in this manner, the prosecutor shall also file with the
court or court clerk, at the time of presenting the 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 by the prosecutor, and that a proper number of jurors voted
for the indictment pursuant to Section 940.
(i) If a defendant makes a timely and successful challenge to the
Attorney General's right to convene a special grand jury by clearly
demonstrating that the charges brought are not addressed by
subdivision (c), 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 a regular grand jury, or by any
other procedure available.
(j) Unless otherwise set forth in this section, a law applying to
a regular grand jury impaneled pursuant to Section 23 of Article I of
the California Constitution shall apply to a special grand jury
unless the application of the law to a special grand jury would
substantially interfere with the execution of one or more of the
provisions of this section. If there is substantial interference, the
provision governing the special grand jury will govern.
(b) Whenever the Attorney General 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 of the
activities subject to fine, imprisonment, or asset forfeiture under
Section 14107 of the Welfare and Institutions Code. 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.
If the evidence presented to the grand jury shows the commission of
an offense or offenses for which jurisdiction would be in a county
other than the county where the grand jury is impaneled, the Attorney
General, with or without the concurrence of the district attorney in
the county with jurisdiction over the offense or offenses, may
petition the court to impanel a special grand jury in that county.
Notwithstanding any other provision of law, upon request of the
Attorney General, a grand jury convened by the Attorney General
pursuant to this subdivision may submit confidential information
obtained by that grand jury, including, but not limited to documents
and testimony, to a second grand jury that has been impaneled at the
request of the Attorney General pursuant to this subdivision in any
other county where venue for an offense or offenses shown by evidence
presented to the first grand jury is proper. All confidentiality
provisions governing information, testimony, and evidence presented
to a grand jury shall be applicable except as expressly permitted by
this subdivision. The Attorney General shall inform the grand jury
that transmits confidential information and the grand jury that
receives confidential information of any exculpatory evidence, as
required by Section 939.71. The grand jury that transmits information
to another grand jury shall include the exculpatory evidence
disclosed by the Attorney General in the transmission of the
confidential information. The Attorney General shall inform both the
grand jury transmitting the confidential information and the grand
jury receiving that information of their duties under Section 939.7.
A special grand jury convened pursuant to this subdivision shall be
in addition to the other grand juries authorized by this chapter or
Chapter 2 (commencing with Section 893).
(c) Whenever the Attorney General considers that the public
interest requires, he or she may, with or without the concurrence of
the district attorney, impanel a special grand jury to investigate,
consider, or issue indictments in matters in which there are multiple
activities, in which fraud or theft is a material element, that have
occurred in more than one county and conducted either by a single
defendant or multiple defendants acting in concert.
(1) This special grand jury may be impaneled in the Counties of
Fresno, Los Angeles, Sacramento, San Diego, or San Francisco, at the
Attorney General's discretion. A special grand jury impaneled under
this section shall serve for a term of 18 months unless dismissed
earlier by the Attorney General. Upon notice by the Attorney General
to the grand jury coordinator or presiding judge of the county where
the special grand jury is impaneled, the special grand jury's term
can be extended by up to six months. This special grand jury is
subject to the requirements of Sections 888.2, 893 and 940.
(2) For special grand juries impaneled pursuant to this
subdivision, the Attorney General may issue subpoenas for documents
and witnesses located anywhere in the state in order to obtain
evidence to present to the special grand jury. The special grand jury
may hear all evidence in the form of testimony or physical evidence
presented to the special grand jury, irrespective of the location of
the witness or physical evidence prior to subpoena. The special grand
jury impaneled pursuant to this subdivision may indict a person or
persons with charges for crimes that occurred in counties other than
where the special grand jury is impaneled. 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. The
court where the indictment is filed under this subdivision shall have
proper jurisdiction over all counts in the indictment.
(3) Notwithstanding Section 944, an indictment found by a special
grand jury and endorsed as a true bill by the special grand jury
foreperson, may be presented to the appropriate court, as set forth
in paragraph (2), solely by the prosecutor and within five court days
of the endorsement of the indictment. For indictments presented to
the court in this manner, the prosecutor shall also file with the
court or court clerk, at the time of presenting the 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 by the prosecutor, and that a proper number of jurors voted
for the indictment pursuant to Section 940. The Attorney General's
Office shall be responsible for prosecuting an indictment produced by
the special grand jury.
(4) If a defendant makes a timely and successful challenge to the
Attorney General's right to convene a special grand jury by clearly
demonstrating 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 by way of another special grand
jury, properly convened, or a regular grand jury, or by any other
procedure available.
(5) The provisions of Section 939.71 shall apply to the special
grand jury.
(6) Unless otherwise set forth in this section, a law applying to
a regular grand jury impaneled pursuant to Section 23 of Article I of
the California Constitution shall apply to a special grand jury
unless the application of the law to a special grand jury would
substantially interfere with the execution of one or more of the
provisions of this section. If there is substantial interference, the
provision governing the special grand jury will govern.
(7) A special grand jury convened pursuant to this subdivision
shall be in addition to the other grand juries authorized by this
chapter or Chapter 2 (commencing with Section 893).
(k)
(d) (1) Upon certification by the
Attorney General, a statement of the costs directly related to the
impanelment and activities of the grand jury pursuant to
subdivision subdivisions (b) and (c)
from the presiding judge of the superior court where the grand jury
was impaneled shall be submitted for state reimbursement of the costs
to the county. To be reimbursed, the costs shall be itemized, and be
no more than what would be charged to a regularly impaneled grand
jury convened by the county pursuant to Section 23 of Article I of
the California Constitution, unless an alternative payment
arrangement is agreed upon by the county and the Attorney General.
(l)
(2) A defendant convicted on charges brought by a
special grand jury pursuant to this section shall pay a fine of five
hundred dollars ($500), which shall be assessed by the court and
transmitted to the Attorney General's Special Grand Jury Fund, which
is hereby established in the State Treasury to be used upon
appropriation of the Legislature.