California Attorney General Opinion 23-201

BACKGROUND

The California Constitution provides that each county shall have an elected district attorney and shall empanel at least one grand jury at least once per year. 1 In criminal cases, the district attorney “ordinarily has sole discretion to determine whom to charge, what charges to file and pursue, and what punishment to seek.” 2 The grand jury checks that discretion by protecting the defendant from “‘the trouble, expense, and disgrace of being arraigned and tried in public on a criminal charge for which there is no sufficient cause.’” 3 In particular, the grand jury must “‘determine whether probable cause exists to accuse a defendant of a particular crime.’”

But the district attorney is not obliged to submit every case to the grand jury. Even in felony cases, the California Constitution gives the district attorney discretion either to prosecute a case by grand jury indictment or instead to prosecute the case by information after preliminary examination and commitment by a magistrate. 5 Indeed, the “vast majority” of felony cases in California are now prosecuted by information rather than by indictment.

Since 1959, Penal Code section 939.8 has provided that the…