California Attorney General Opinion 23-401

BACKGROUND

The California Constitution and the Penal Code provide that at least one grand jury shall be drawn and impaneled each year in each county. 1 Penal Code section 904.

1 See Cal. Const., art. I, § 23; Pen. Code, § 905; see generally Pen. Code, pt. 2, tit. 4, § 888 et seq. (grand jury proceedings).

1 23-401 provides that the superior court in each county may also impanel a second grand jury, upon the request of the Attorney General or the District Attorney, or on the court’s own motion. When a second grand jury is formed pursuant to section 904.6, it has “sole and exclusive jurisdiction” to return criminal indictments. 2 A criminal grand jury’s functions include reviewing evidence presented by prosecutors, hearing testimony from witnesses, and determining whether probable cause exists to indict a defendant on criminal charges.

Our requestor is the El Dorado County District Attorney. He informs us that in his county, the superior court has elected not to have a standing section 904.6 criminal grand jury, but instead to impanel a criminal grand jury for limited times, as needed. In response, the district attorney’s office plans several criminal grand jury matters in…