             TO BE PUBLISHED IN THE OFFICIAL REPORTS


                  OFFICE OF THE ATTORNEY GENERAL

                        State of California


                        DANIEL E. LUNGREN

                         Attorney General


             ______________________________________

            OPINION            :

                               :        No. 91-103

               of              :

                               :

       DANIEL E. LUNGREN       :        OCTOBER 8, 1991

        Attorney General       :

                               :

       RONALD M. WEISKOPF      :

    Deputy Attorney General    :

                               :

_________________________________________________________________
_______________

           THE HONORABLE MICHAEL D. BRADBURY, DISTRICT ATTORNEY,

COUNTY OF VENTURA, has requested an opinion on the following

question:


          May a county grand jury limit the district attorney to a

period of ten days each month for the presentation of criminal

matters to the grand jury?



                            CONCLUSION


          A county grand jury may not limit the district attorney

to a period of ten days each month for the presentation of criminal

matters to the grand jury.



                             ANALYSIS


          Article I, section 14 of the California Constitution

provides in part: "Felonies shall be prosecuted as provided by

law, either by indictment or, after examination and commitment by

a magistrate, by information." An "indictment" is "an accusation

in writing, presented by the grand jury to a competent court,

charging a person with a public offense." (Pen. Code, § 889.) 1


    1
     All section references are to the Penal Code unless otherwise

specified.

                                1.                            91-103

Unlike the situation with the filing of an information, a

preliminary hearing before a magistrate is not required when

prosecution proceeds on a grand jury indictment. (Cal. Const., art

I, § 14.1; cf. Raven v. Deukmejian (1990) 52 Cal.3d 336, 341;

Greenberg v. Superior Court (1942) 19 Cal.2d 319, 321; Hurtado v.

California (1884) 110 U.S. 516.)


          Indictments are "usually initiated by the district

attorney who is authorized by section 935 to present evidence of

crime ... to the grand jury."       (67 Ops.Cal.Atty.Gen. 58, 61

(1984).)   With the passage of Proposition 115 in June 1990, part

of which obviated the need for a preliminary hearing following a

grand jury indictment as had been mandated by Hawkins v. Superior

Court (1978) 22 Cal.3d 584, 592-593, an increased use of grand jury

indictments for initiating prosecutions may be expected, especially

in cases where the speed and secrecy of the grand jury process are

well suited. 


          California grand juries perform civil as well as criminal

functions. (§ 888.) While a grand jury indicts persons for crimes

(§§ 888, 917; cf. § 15) and presents accusations against local

officers for willful misconduct in office (Gov. Code, § 3060), it

also performs a "watchdog" function of investigating and making

reports on specified matters of local government (§§ 888, 914.1,

919, 925-933.6). (See People v. Superior Court (1973 Grand Jury)

(1975) 13 Cal.3d 430, 433, 436; 72 Ops.Cal.Atty.Gen. 128, 129

(1989); 70 Ops.Cal.Atty.Gen. 28, 28 (1987); 67 Ops.Cal.Atty.Gen.

58, supra, 59-61.)      Needless to say, an increased use of

indictments to commence prosecutions may encroach on the time a

grand jury has to devote to its civil duties and functions. The

question presented for resolution is whether a grand jury may limit

the district attorney's presentation of criminal matters before the

grand jury to a period of ten days each month. We conclude that it

may not.


          Although the grand jury is constitutionally founded (Cal.

Const., art. I, § 23), and is a "judicial body" and "an

instrumentality of the courts of this state" ( People v. Superior

Court (1973 Grand Jury) , supra, 13 Cal.3d at 438; 70

Ops.Cal.Atty.Gen. 28, supra, 28; 25 Ops.Cal.Atty.Gen. 259, 259

(1955)), its attributes and powers are controlled by the

Legislature (cf. People v. Superior Court (1973 Grand Jury), supra

at 437; Fitts v. Superior Court (1936) 6 Cal.2d 230, 241; Allen v.

Payne (1934) 1 Cal.2d 607, 608-609; Clinton v. Superior Court

(1937) 23 Cal.App.2d 342, 345). "Although [its] powers are broad,

they are carefully defined and limited by statute, and the grand

jury has no inherent ... powers beyond those granted by the

Legislature." ( Board of Trustees v. Leach (1968) 258 Cal.App.2d

281, 285; see also Clinton v. Superior Court, supra, 23 Cal.App.2d




                                2.                            91-103

at 345.) We therefore examine the statutes governing the grand

jury to see whether it may limit the district attorney's

presentations of criminal matters to it.


          After a grand jury has been impaneled, sworn, and

charged, it retires "to a private room" to "inquire into the

offenses and matters of civil concern cognizable by it." (§ 915.)

Section 916 provides: "Each grand jury shall choose its officers,

except the foreman, and shall determine its rules of proceeding."

In 59 Ops.Cal.Atty.Gen. 633 (1976) we implied that the authority to

"determine its rules of proceeding" would permit a grand jury to

determine when it would meet. 


          It is now suggested that section 916 also permits a grand

jury to impose the contemplated limitation on the district

attorney's presentation of criminal matters. In support of the

suggestion we are directed to the case of In re Peart (1935) 5

Cal.App.2d 469, 473, where the court said:


          "The grand jury is not an adjunct of the ...

     district attorney but is an independent judicial body,

     members of which are officers of the court. Upon them

     alone is placed the responsibility of inquiring into all

     public offenses committed or triable within the county

     and of presenting them to the court.            Inasmuch,

     therefore, as that responsibility is placed upon the

     grand jury it appears that the law left with that body

     the power to institute and initiate such inquiries as

     well as the management and control thereof.        [¶] In

     examining the duties of the district attorney as

     enumerated in section 4153 of the Political Code [now,

     Gov. Code, § 26501] we do not find him charged with

     instituting proceedings before the grand jury, but merely

     to attend upon and give advice to them upon pending

     matters." 


          As for reliance upon the Peart decision, we do not find

the language persuasive because it has been overtaken by subsequent

events. First, its context was whether the district attorney could

issue subpoenas to compel the attendance of witnesses before the

grand jury when it did not direct him to do so. The court held

that under former section 1326 [a subpoena may be signed and issued

by a district attorney "for such witnesses as the grand jury, upon

investigation pending before them, may direct"], a district

attorney could not issue grand jury subpoenas unless so directed by

the grand jury. (5 Cal.App.2d at 473-474.) Section 1326, however,

was immediately amended to "overrule" Peart and provide a district

attorney with such authority. (Stats. 1937, ch. 215, § 1 [district

attorney may issue subpoenas "for those witnesses whose testimony,

in his opinion, is material in an investigation before the grand

jury...."]; see now, § 939.2.)


                                3.                            91-103

          Secondly, since the Peart decision in 1935, the role of

the District Attorney in instituting criminal proceedings has been

more forcefully declared by statute. The Legislature has enacted

section 26500 of the Government Code, specifically stating that the

district attorney, as public prosecutor, "shall initiate ... all

prosecutions for public offenses." Under this statute, the duty of

the district attorney to prosecute "is mandatory, and not

discretionary." ( City of Merced v. County of Merced (1966) 240

Cal.App.2d 763, 766.) Also since Peart it has been held that "no

one may institute criminal proceedings without the concurrence,

approval, or authorization of the district attorney [citations]."

(Hicks v. Board of Supervisors (1977) 69 Cal.App.3d 228, 241.) 


          In any event, section 916 must be read in conjunction

with other statutes dealing with the duties and authority of a

grand jury, and those accord the district attorney a special status

vis-à-vis that body. (See Hawkins v. Superior Court, supra, 22

Cal.3d at 589-591; 67 Ops.Cal.Atty.Gen. 58, supra, 62.)


          Grand jury proceedings are generally "secret," and the

Legislature has carefully provided who may be present during their

sessions. (Cf. § 939.)     In so doing it has said that unlike the

judge of the court (or county counsel) who may only be present when

asked by the grand jury for advice (§ 934, cf.         Michaels v.

Superior Court (1960) 184 Cal.App.2d 820, 825),2 "[t]he district

attorney of the county may at all times appear before the grand

jury for the purpose of giving information or advice relative to

any matter cognizable by [it], and may interrogate witnesses ...

whenever he thinks it necessary." (§ 935, emphasis added.) 


          A district attorney thus has a right under section 935 to

present information to a grand jury "at all times." (Cf. McFarland

v. Superior Court (1948) 88 Cal.App.2d 153, 160.) We believe this

statutory language prohibits a grand jury from limiting to 10 days

each month the presentation of information relating to criminal

offenses. This is confirmed when we examine the purposes for the

grand jury and the inherent limitations on its capabilities. 


          The traditional purpose for the grand jury's existence

has been to "inquire into public offenses committed or triable

within the county." (§ 888; cf. § 917.) Grand jurors have a duty

to make that inquiry, as is expressed in the oath they take. (See





    2
     Section 934 provides: "The grand jury may, at all times, ask

the advice of the court, or the judge thereof, or of the district

attorney, or of the county counsel. Unless such advice is asked,

the judge of the court, or county counsel as to civil matters,

shall not be present during the sessions of the grand jury." 

                                4.                            91-103

§ 911.)3 As was stated in     Samish v. Superior Court (1938) 28

Cal.App.2d 685, 689:


          "[W]hen grand jurors ... are furnished with reliable

     information indicating that a crime has been committed by

     someone within the borders of the county, it is [their]

     duty ... to fearlessly and fairly investigate the charges

     and indict the culpable party if the evidence warrants

     that finding. [Citations.]" 


          While grand jurors have a duty to investigate criminal

matters, they have no authority to hire investigators to do so, but

instead must rely on the resources of the district attorney and

others. In Allen v. Payne, supra, 1 Cal.2d at 608, the Supreme

Court explained:


          "From the time of the adoption of our Constitution

     to the present, the accepted practice has been to leave

     the detection of crime in the hands of sheriffs and

     district attorneys, and in our opinion the departure from

     that practice finds no support in authority or

     legislative policy.    The ferreting out of evidence of

     crime is a statutory duty expressly imposed upon certain

     officers, having the equipment and qualified personnel to

     perform it. This being so, there is no reason to resort

     to the very vague justification of `inherent' or

     `implied' powers. The existence of the power in other

     competent agencies tends to negative an implied power in

     the grand jury which is obviously not equipped to

     exercise it." 


          Thus, although a grand jury is a separate entity and

independent from the district attorney (cf. People v. Gordon (1975)

47 Cal.App.3d 465, 476; Monroe v. Garrett (1971) 17 Cal.App.3d 280,

284), in order to fulfill its duty to diligently "inquire into all

public offenses committed or triable within the county and present

them to the court by indictment" (§ 917; cf., §§ 888, 911), a grand

jury must necessarily use the services and efforts of the district

attorney in its investigation of criminal matters. As we said in

67 Ops.Cal.Atty.Gen. 58, supra, 62:


          "A grand jury would be well advised to call upon the

     district attorney for his assistance and advice in its

     review of the information it has received ....        The


     3
      Section 911 provides in part: "The following oath shall be

taken by each member of the grand jury: `I do solemnly swear (or

affirm) that I ... will diligently inquire into, and true

presentment make, of all public offenses against the people of this

state, committed or triable within this county, of which the grand

jury shall have or can obtain legal evidence.'"

                                5.                            91-103

     district attorney's assistance will be essential in the

     conduct of any formal investigation of the matter and if

     an indictment ... is found it is the district attorney

     who must prosecute the case in the trial court." (See

     also Hicks v. Board of Supervisors, supra, 69 Cal.App.3d

     at 241.)


          While a grand jury may control its schedule in order to

accommodate both its civil and criminal functions, its restriction

of criminal presentations to a rigid ten days each month would be

inconsistent with the foregoing statutory scheme and contemplated

working relationship with the district attorney.      We therefore

conclude that a county grand jury may not limit the district

attorney to a period of ten days each month for the presentation of

criminal matters to the grand jury.


                            * * * * *





                                6.                            91-103

