BILL ANALYSIS �
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|SENATE RULES COMMITTEE | AB 1763|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 1763
Author: Davis (D)
Amended: 8/6/12 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/26/12
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
SENATE APPROPRIATIONS COMMITTEE : 7-0, 8/16/12
AYES: Kehoe, Walters, Alquist, Dutton, Lieu, Price,
Steinberg
ASSEMBLY FLOOR : 78-0, 5/30/12 - See last page for vote
SUBJECT : Grand jury proceedings: Attorney General:
powers and
duties
SOURCE : Office of the Attorney General
DIGEST : This bill allows 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.
ANALYSIS : 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
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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.)
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.
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(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 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 when impaneling a special statewide
grand jury, the Attorney General shall use an existing
regularly-impaneled criminal grand jury within the period
of its regular impanelment 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 state in order to obtain evidence to
present to the special grand jury.
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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 court in any county in which 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
convened pursuant to this bill 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 Attorney General
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 jury.
This bill provides that if a defendant makes a timely and
successful challenge to the Attorney General's right to
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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 upon certification by the Attorney
General, a statement of the costs directly related to the
impanelment and activities of the grand jury 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 or courts.
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.
Related Legislation
This bill is identical to SB 1474 (Hancock) which passed
the Senate on 5/30/12 (38-0) and is currently in Senate
Appropriations Committee.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Ongoing costs, potentially in excess of $150,000 (General
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Fund) for costs to the Department of Justice (DOJ) to
reimburse the county and courts for special statewide
grand jury activities, including jury selection and
training, as well as grand jury reimbursement for per
diem and mileage. Total annual costs would be dependent
upon the number, duration and location of special
statewide grand juries convened.
Potential cost savings to various counties and courts to
the extent fewer grand juries are impaneled in individual
counties for financial crimes than otherwise would have
been impaneled under existing law.
SUPPORT : (Verified 8/16/12)
Office of the Attorney General (source)
American Federation of State, County and Municipal
Employees, AFL-CIO
California District Attorneys Association
California Nurses Association
California Professional Firefighters
California State Council of Service Employees International
Union
Center for Elders' Independence
Greenlining Institute
National Asian American Coalition
Western Center on Law and Poverty
ARGUMENTS IN SUPPORT : 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
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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 that attend the preliminary hearing process.
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.
ASSEMBLY FLOOR : 78-0, 5/30/12
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Beall,
Bill Berryhill, Block, Blumenfield, Bonilla, Bradford,
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Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Cedillo, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fong, Fuentes, Furutani, Beth
Gaines, Galgiani, Garrick, Gatto, Gordon, Gorell, Grove,
Hagman, Halderman, Hall, Harkey, Hayashi, Roger
Hern�ndez, Hill, Huber, Hueso, Huffman, Jeffries, Jones,
Knight, Lara, Logue, Bonnie Lowenthal, Ma, Mansoor,
Mendoza, Miller, Mitchell, Monning, Morrell, Nestande,
Nielsen, Norby, Olsen, Pan, Perea, V. Manuel P�rez,
Portantino, Silva, Skinner, Smyth, Solorio, Swanson,
Torres, Wagner, Wieckowski, Williams, Yamada, John A.
P�rez
NO VOTE RECORDED: Fletcher, Valadao
RJG:n 8/20/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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