Untitled California Attorney General Opinion ( 1989 )

OFFICE OF THE ATTORNEY GENERAL
State of California
JOHN K. VAN DE KAMP
Attorney General
______________________________________
OPINION :
: No. 88-703
of :
: AUGUST 3, 1989
JOHN K. VAN DE KAMP :
Attorney General :
:
JACK R. WINKLER :
Assistant Attorney General :
RONALD M. WEISKOPF, Deputy :
______________________________________________________________________________
THE HONORABLE DENNIS L. MYERS, COUNTY COUNSEL OF THE
COUNTY OF MERCED, has requested an opinion on the following questions:
1. May a California county have more than one grand jury at the same time?
2. When does a grand jury end and to what extent may it function after it ends?
3. What information may a grand jury pass on to its successor?
CONCLUSIONS
1. A California County may lawfully have only one grand jury at any one time
except as additional grand juries are expressly authorized for the county by statute.
2. A grand jury ends when its successor is impaneled and sworn unless it is sooner
discharged by order of the court and it cannot perform any function after it ends.
3. A grand jury may transmit information or evidence acquired during the course of
any investigation conducted by it to the succeeding grand jury except any information which relates
to a criminal investigation or which could form part or all of the basis for issuance of an indictment.
ANALYSIS
I. Background
A grand jury is a body of the required number of persons returned from the citizens
of the county before a court of competent jurisdiction, and sworn to inquire of public offenses
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committed or triable within the county. (§ 888.)1 The required number is 23 in Los Angeles County
and 19 in other counties. (§ 888.2.)
The grand jury developed under the common law.2 Article 1, section 8 of the 1849
California Constitution provided in part: "No person shall be held to answer for a capital or
otherwise infamous [3] crime . . . unless on presentment or indictment of a Grand Jury; . . ." The
initiation of criminal proceedings by indictment or presentment in the more serious criminal cases
was the principal function of the early grand juries. However, it was not their only function.
California grand juries have always been authorized to investigate wilful or corrupt misconduct of
local public officers and to initiate, by an accusation, court proceedings leading to the removal of
the accused officer. (Ch. 119, Stats. 1850, §§ 73-84; see now Gov. Code, § 3060 et seq.)
In addition to their accusatorial functions California grand juries have been given
authority to investigate specified matters and to make reports of these investigations. This has
become known as the grand jury's civil or "watchdog" function. (See People v. Superior Court
(1973 Grand Jury) (1975) 13 Cal. 3d 430, 433.) While we will not attempt to catalog all of these
watchdog functions they include inquiring into the condition and management of public prisons
within the county (§ 919); investigating and reporting on the operations, accounts and records of
county officers and special districts in the county (§ 925); examining and reporting on the books and
records of any city in the county (§ 925a); investigating and reporting upon the needs of all county
officers (§ 928); and examining and reporting on the books and records of redevelopment agencies
(§ 933.1). After the Constitution of 1879 authorized the use of informations following examination
by a magistrate as an alternative to a grand jury indictment to initiate criminal prosecutions and the
decision in Hawkins v. Superior Court (1978) 22 Cal. 3d 584, requiring an examination by a
magistrate following an indictment by the grand jury the use of indictments has diminished and the
civil investigation and reporting role has become the principal function of modern California grand
juries.
Under the Constitution of 1849, as amended in 1862, trial jurisdiction of criminal
cases was vested in the district courts, the county courts and in the justices' courts. Jurisdiction of
the justices' courts was limited to misdemeanors punishable by fine not exceeding $500 or
imprisonment not exceeding 6 months or both. The county court had jurisdiction to try all
indictments for public offenses except for treason and homicide. Indictment for treason, murder and
manslaughter were tried in the district courts. (See ch. 260, Stats. 1863.) All crimes in the district
courts and in the county courts had to be prosecuted by indictment. (See ch. 130, Stats. 1863, § 5.)
Misdemeanors prosecuted in the justices' courts were tried on the complaint without any indictment.
(See ch. 29, Stats. 1851, § 608 et seq.) Thus before 1879 all crimes, except those tried in the
justices' courts, had to be examined by the grand jury before the defendant could be tried.
Under the 1849 Constitution the business of the district courts and the county courts
was conducted during periods of time called "terms" which were fixed by statute. There were
several terms of court each year which commenced on the first Monday of specified months and
continued until the business of the court was completed or until the commencement of the next term.
Section 241 of the Penal Code adopted in 1872 provided:
1
Section references are to the Penal Code unless otherwise indicated.
2
Fitts v. Superior Court (1936) 6 Cal. 2d 230, 240; Kennedy & Briggs, Historical and Legal
Aspects of the California Grand Jury System (1955) 43 Cal.L.Rev. 251.
3
All felonies were infamous crimes. In re Westenberg (1914) 167 Cal. 309, 319.
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"At the opening of each regular term of the county court (unless otherwise
directed by the judge), and as often thereafter as to the judge may seem proper, a
grand jury may be impaneled."
After the grand jury was sworn and charged by the court a statute provided:
"The grand jury must then retire to a private room and inquire into the
offenses cognizable by them. On the completion of the business before them, they
must be discharged by the court; but whether the business is completed or not, they
are discharged by the final adjournment of the court." (§ 906 of the Pen. Code as
adopted in 1872; derived from Stats. 1850, ch. 119, § 216.)
The offenses cognizable by a grand jury were those which were to be tried in the county and district
courts. Most criminal cases were commenced (then as now) by a complaint alleging the commission
of the crime by the defendant laid before a magistrate, who could issue a warrant for the arrest of
the defendant. When the defendant was arrested he was brought before the magistrate who was then
required to hold an examination at which evidence of guilt and innocence was presented. If the
evidence was not sufficient the defendant was discharged but if the magistrate determined there was
sufficient cause to believe the defendant was guilty of the offense he ordered the defendant held to
answer the charge. The grand jury would then inquire into the offenses in which defendants had
been held to answer by magistrates in the county. A grand jury could initiate a criminal
investigation without a prior examination before a magistrate but this was rarely done.
The California Constitution adopted in 1879 changed the provision on indictments
and the grand jury to read in article I as follows:
"Sec. 8. Offenses heretofore required to be prosecuted by indictment shall
be prosecuted by information, after examination and commitment by a Magistrate,
or by indictment, with or without such examination and commitment, as may be
prescribed by law. A Grand Jury shall be drawn and summoned at least once a year
in each county."
This provision was the subject of considerable debate in the convention. Those who wanted to
abolish the grand jury and substitute the information system compromised with those who wanted
to retain the grand jury system by agreeing to a provision which authorized both systems. The
requirement that a grand jury be drawn once a year in each county was part of that compromise. 4
4
The proceedings of the convention are recorded in the official reports of the Debates and
Proceedings of the Constitutional Convention of the State of California, Convened at the City of
Sacramento September 28, 1878 by E. B. Willis and P. K. Stockton, Official Stenographers, referred
to herein as the "Debates". The Committee on Preamble and Bill of Rights reported out a provision
which made little change in the grand jury system. (Debates, p. 231) The provision was referred to
the Judiciary Committee. (Debates, pp. 259, 261) The Judiciary Committee recommended a section
creating a dual system which was adopted by the convention. The Chairman of the Judiciary
Committee made a speech (Debates, pp. 309-311) indicating that while he favored abolition of the
grand jury the committee recommended a dual system. He said: "That portion of it which requires
that Grand Juries should be summoned in each county once a year, was adopted in deference to the
judgment of some gentlemen who seem to think that there was some use in the system, and that it
formed a good check upon public officers, and therefore that we should retain the Grand Jury once
a year at least." He voiced a number of objections to the grand jury system including its expense,
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II. Number of Grand Juries in a County.
Article I, section 23 of the California Constitution provides: "One or more grand
juries shall be drawn and summoned at least once a year in each county." This constitutional
requirement originated as the second sentence in section 8 of article I of the 1879 Constitution
providing: "A grand jury shall be drawn and summoned at least once a year in each county." The
provision was amended in 1974 to change the first word from "a" to "one or more." The only other
reference to grand juries in the California Constitution is in article I, section 14, providing that
felonies shall be prosecuted by "indictment" [of a grand jury] or by information following
examination and commitment by a magistrate.
The constitutional requirement is that there be at least one grand jury drawn and
summoned each year in each county. Even before the 1974 amendment the constitution did not bar
the impaneling of more than one grand jury in a county during a year. The actual number of grand
juries and the periods for which they were to serve were matters left to the Legislature. In Fitts v.
Superior Court (1936) 6 Cal. 2d 230, 241 the court held that "the [constitutional] convention of 1879,
like the convention of 1849, . . . left to the Legislature all questions affecting the grand jury not
expressly covered by the Constitution."
Chapter 35, Statutes of 1880, revised many Code of Civil Procedure sections
following replacement of the former district and county courts by a superior court in each county
under the 1879 Constitution. Section 241 of that code provided for the impaneling of grand juries
in part as follows:
"241. Every Superior Court, whenever in the opinion of the Court the public
interests may require it, must make and file with the County Clerk of their respective
counties an order directing a jury to be drawn, and designating the number which,
in case of a grand jury, shall not be less than twenty-five nor more than thirty. In all
counties having less than three Superior Judges there shall be one grand jury drawn
and impaneled in each year, and in all counties having three or more Superior Judges
there shall be two grand juries drawn and impaneled in each year. Such order must
designate the time at which the drawing will take place. . . ."
The first sentence of this statute gives the court the discretion to make an order directing the drawing
of a grand jury panel "whenever in the opinion of the Court the public interests may require it."
However, the second sentence is categorical in its requirement that two grand juries be drawn and
impaneled each year in certain counties and that one grand jury be drawn and impaneled in all other
counties. Harmonizing these sentences we construe the discretion given the court in the first as
limited by the second. This means that the court did not have discretion not to make an order for
the drawing of a grand jury during the year as required by the second sentence (and the
constitutional requirement). The court's discretion was limited to determining at what time during
the year the order was to be made.
This statute was amended by chapter 137, Statutes of 1905, to read in part:
its secrecy, and that it was subject to control by men of influence. The principal objection was the
prolonged delay between the commitment of defendants and action by the grand jury particularly
in the more populous counties. He said that at one point there were 200 men in the San Francisco
jail awaiting action by the grand jury and that cases had been accumulating for months awaiting
action by the grand jury in Sacramento.
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"241. Every superior court, whenever in the opinion the court the public
interest requires it, must make and file with the county clerk, an order directing a
jury to be drawn, and designate the number, which, in case of a grand jury, shall not
be less than twenty-five nor more than thirty. In all counties there shall be at least
one grand jury drawn and impaneled in each year. Such order must designate the
time at which the drawing will take place. . . ."
The principal change was in the second sentence. Instead of the categorical requirement for a
specified number of grand juries to be drawn each year in each county the 1905 amendment
provided that "at least one" grand jury shall be drawn and impaneled in each year in all counties.
If the words "at least" are to have any meaning it must be because the legislature contemplated that
there would be circumstances when the more that one grand jury should be drawn. Who was to
decide if there was to be more than one grand jury for the year? Clearly it was not the legislature
because the amendment did away with the prior legislative determination of the number of grand
juries to be drawn each year in each county. Who then did the 1905 legislature intend to make that
determination? The preceding sentence provides the answer. It directs the court to make an order
directing that a grand jury be drawn "whenever in the opinion of the court the public interest requires
it." The effect of the amendment of the second sentence to include the words "at least" was to
expand the discretion granted to the court by the first sentence to determine whether and when the
public interest required the impaneling of more than one grand jury for the year.
This construction does not resolve the question whether two or more grand juries may
exist at the same time in the same county.5 On this point the supreme court's language in Halsey v.
Superior Court (1907) 152 Cal. 71 is instructive. In that case the defendant had been indicted in
1907 by a grand jury impaneled in 1906 and he claimed that said grand jury had expired by
operation of law at the end of 1906. The court rejected the claim on other grounds but did state in
its opinion (at p. 74) that when in obedience to the requirement that at least one grand jury be
impaneled in each year a new grand jury is impaneled, "the life of the former grand jury must
necessarily end." While this language is dicta (see People v. Snyder (1958) 50 Cal. 2d 190, 193) it
stated the supreme court's view that the law did not authorize more than one grand jury at the same
time in a county.
In People v. Snyder, supra, 50 Cal. 2d 190 the defendant made a similar contention.
The 1955 grand jury presented its final report on February 6, 1956 but the court ordered it to remain
operative until March 5, 1956. The 1956 grand jury was impaneled on February 6, 1956 but the
court ordered that the oath not be administered until the tenure of the 1956 grand jury ended. The
1955 grand jury indicted the defendant on March 21, 1956. Thereafter the oath was administered
to the 1956 grand jury. The court held that since the 1956 grand jury was not sworn until after
return of the indictment the 1955 grand jury had not ceased to be an official body at the time it
returned the indictment. The court disagreed with the language in Halsey that the life of the former
grand jury must necessarily end when a new grand jury is impaneled but only to the extent that it
was the oath to the new grand jury that signaled the demise of the former grand jury, not its
impanelment. The court in Snyder thus reiterated the view of the Halsey court that two grand juries
would not exist at the same time.
5
In O'brien v. State (1890) 8 So. 559, the Supreme Court of Alabama held that a statute
authorizing the impaneling of a grand jury "whenever the judge of this court shall deem it expedient
to do so" did not authorize the judge to organize successively two grand juries, with general powers,
at any one term of any court.
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Chapter 501, Statute of 1959, moved the provisions of section 241 of the Code of
Civil Procedure to the Penal Code. The first sentence became Penal Code section 904 which now
reads:
"904. Every superior court, whenever in its opinion the public interest so
requires, shall make and file with the county clerk an order directing a grand jury to
be drawn. Such order shall designate the number of grand jurors to be drawn, which
shall not be less than 29 nor more than 40 in counties having a population exceeding
four million and not less than 25 nor more than 30 in other counties.
The second sentence became Penal Code section 905 which reads:
"905. In all counties there shall be at least one grand jury drawn and
impaneled in each year."
That no substantive change was intended in 1959 is made clear by section 20 of chapter 501 which
reads:
"Sec. 20. In enacting this act, the Legislature intends to recodify the laws
relating to grand juries for the purpose of collecting such laws under one title of the
Penal Code and of providing a more logical arrangement of such laws. It is not the
intent of the Legislature to make any substantive change in the laws affected by this
act. The sections of law added or amended by this act insofar as they are
substantially the same as existing statutory provisions relating to the same subject
matter shall be construed as restatements and continuations and not as new
enactments."
In 1970 section 904.5 was added to the Penal Code authorizing a second grand jury
for Los Angeles County. Thereafter sections 904.6, 904.7, 904.8 and 904.9 were added authorizing
a second grand jury for the counties of San Francisco, San Mateo, Contra Costa and Marin. Each
of these new sections makes specific provisions for impaneling a second grand jury to serve
simultaneously with the first and prescribes the jurisdiction it is to exercise.
We conclude that a California county may not lawfully have more than one grand
jury at any one time except as additional grand juries are expressly authorized for the county by
statute.
III. Termination of a Grand Jury.
Penal Code Section 915 provides:
"When the grand jury has been impaneled, sworn, and charged, it shall retire
to a private room, except when operating under a finding pursuant to Section 939.1,
and inquire into the offenses and matters of civil concern cognizable by it. On the
completion of the business before the grand jury or expiration of the term of
prescribed service of one or more grand jurors, the court shall discharge it or the
affected individual jurors."
In People v. Superior Court (1973 Grand Jury) (1975) the court observed that "There
is no doubt that a grand jury is part of the court by which it is convened, and that it is under the
control of the court . . . ." The court then added (at pp. 438-439) "In this regard, it is well established
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that the convening court may at any time, in the exercise of its jurisdiction, order the grand jury to
be discharged" citing In re Gannon (1886) 69 Cal. 541, 547 and Penal Code section 915.
Penal Code section 915 was derived from former Penal Code section 906, enacted
in 1872, which read:
"The grand jury must then [after being charged by the court] retire to a
private room and inquire into the offenses cognizable by them. On completion of the
business before them, they must be discharged by the court; but whether the business
is completed or not, they are discharged by the final adjournment of the court."
A grand jury cannot discharge itself and when a grand jury is not impaneled for any
particular time prescribed by law and has not been discharged by the court, it still exists as an
original body, with power to perform its duties. (In re Gannon (1886) 69 Cal. 541, 547.) In that
case Gannon was indicted in March, 1886 by a grand jury impaneled in July, 1885 from a list of
names placed in the grand jury box in January, 1885. He sought release on habeas corpus claiming
that the grand jury had terminated by operation of law and therefore had no authority to indict him.
The court rejected his claim stating that "while the statutory law fixes the time within the year for
the court to order the selection and return of grand jurors liable to serve in the capacity of a grand
jury, and limits the time in which they shall serve for the purpose of the drawing and impanelment
of a grand jury, it prescribes no specific time for the drawing of the grand jury, or for its official
existence after it has been drawn and impaneled."
In Halsey v. Superior Court (1907) 152 Cal. 71 the 1906 grand jury indicted Halsey
in 1907 and he sought a writ of prohibition to prevent his trial claiming the 1906 grand jury ended
by operation of law upon the listing of new names for the grand jury box in 1907. The court rejected
the claim reiterating its holding in Gannon. In its opinion the court noted the words: "but whether
the business is completed or not, they are discharged by the final adjournment of the court" in Penal
Code section 906. The court said (p. 74):
"This section was adopted at a time when we had terms of court. As under
the constitution of 1879 we now have no such terms of court, and the superior court
is always open for business, there is no such thing as a final adjournment of the
court, and the quoted portion of the section is no longer effectual."
We pointed out above that in People v. Snyder (1958) 50 Cal. 2d 190 the supreme
court rejected the defendant's claim that the 1955 grand jury which indicted him in March, 1956 had
no authority to act because it ceased to be an official body when the 1956 grand jury was impaneled
in February, 1956. The court rejected the claim pointing out that the court which impaneled the
1956 grand jury had ordered that the oath not be administered until after the tenure of the 1955 grand
jury had ended. The court held that since the oath had not been administered to the 1956 grand jury
"the 1955 grand jury had not ceased to be a official body at the time it returned the indictment" (p.
193). The clear implication is that a grand jury ceases to exist when its successor is sworn. It would
therefore appear that following the Snyder case a regularly impaneled grand jury remained in
existence until its successor was sworn or the court made an order discharging it.
Chapter 428, Statutes of 1973, added section 905.5 to the Penal Code to read:
"905.5. The grand jury shall be impaneled and serve during the fiscal year
of the county."
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[This section has since been amended to authorize the board of supervisors to change
the period from the county's fiscal year to a calendar year. See chapter 1408,
Statutes of 1982 and chapter 344, Statutes of 1984.]
By providing that the grand jury "shall be impaneled and serve during the fiscal year
of the county" (or calendar year if the board of supervisors has changed the period) the Legislature's
intention that the grand jury should serve for a fixed term commensurate with the fiscal (calendar)
year is apparent. However, the Legislature's intention regarding the consequences on the existence
and powers of the grand jury when the fiscal (calendar) year ends is not apparent. Does one grand
jury automatically cease to exist at midnight on June 30 (December 31) or does it carry over until
its successor is impaneled and sworn? May a grand jury which is in the midst of an investigation
on June 30 complete that investigation during the next fiscal year? If a grand jury may carry over
after the fiscal year may it initiate a new investigation in the following fiscal year? These questions
are not answered by the statutes.
In an effort to answer these questions we examined the legislative history of section
905.5. It began as AB 802 in the 1973 Session. As first introduced Section 3 of AB 802 provided:
"Any grand jury impaneled on the effective date of this act shall serve until another grand jury is
impaneled and sworn pursuant to law." Section 3 was amended in the Senate on June 28, 1973 to
delete the underlined language and substitute the date June 30, 1974. This effectively terminated
all grand juries which were impaneled on January 1, 1974, the effective date of AB 802, on June 30,
1974 regardless of the time the successor grand juries were impaneled and sworn. The Legislature,
by its amendment of Section 3, evidenced its intention that grand juries impaneled on January 1,
1974 were not to hold over after the end of that fiscal year, June 30, 1974. But Section 3 applied
only to grand juries impaneled on January 1, 1974 and says nothing about subsequent grand juries.
When the Legislature directed in section 905.5 that "the grand jury shall be impaneled
and serve during the fiscal year of the county" did it mean that the court must swear in the new grand
jury immediately after midnight on June 30 and that the grand jury ceased to exist at midnight on
June 30? In Edwards v. Steele (1979) 25 Cal. 3d 406, 410 the court stated:
"We have held that, generally, requirements relating to the time within which
an act must be done are directory rather than mandatory or jurisdictional, unless a
contrary intent is clearly expressed."
We believe California courts would hold that the reference to fiscal (calendar) year in section 905.5
is directory rather than mandatory or jurisdictional. This means that the power of the court to
impanel or discharge a grand jury is not limited by the fiscal (calendar) year language of the statute,
nor is the power of a grand jury to exercise the authority of a grand jury limited to the fiscal
(calendar) year. We think the fiscal (calendar) year language in section 905.5 was intended to create
a regular annual term for the grand jury in the same way that statutes establish a term for a public
office. It was not intended to authorize a grand jury to function until it was sworn by the court or
to prevent it from acting after its term was over and before its successor was sworn to take its place.
The Legislature is presumed to have been aware of the Supreme Court's decision in
People v. Snyder, supra, recognizing the authority of the court to continue a grand jury in existence
to permit it to complete an investigation by delaying the swearing of the successor grand jury.
(Buckley v. Chadwick (1955) 45 Cal. 2d 183, 200.) We don't think that the annual term language of
section 905.5 was intended to remove that authority. We also note that in 1974, a year after the
enactment of section 905.5, the Legislature amended section 933 to require that grand jury reports
on county fiscal matters be filed within three months after the end of the county fiscal year. This
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was a recognition by the Legislature that the grand jury remained in existence after June 30, at least
for the purpose of preparing and filing reports.
We conclude that a grand jury does not terminate automatically at the end of its
regular annual term but carries over until its successor is sworn unless it is previously discharged
by order of the court.
We are also asked whether, and to what extent a grand jury could function after it
ends. We noted above that in 1974 the Legislature amended section 933 to require reports on county
fiscal matters within three months after the end of the fiscal year and reports on other county
government matters within one month after the end of the fiscal year. (Stats. 1974, ch. 1396.) This
amendment contemplated that a grand jury for a fiscal year would remain in existence for the
purpose of preparing and submitting these reports. However, chapter 1297, Statutes of 1988 again
amended section 933 by moving up the times grand jury reports must be submitted and by providing
that the presiding judgment to whom the reports were submitted must find that the report complies
with the law6 before the report is filed. Subdivisions (a) and (b) of section 933 read:
"(a) No later than the end of each fiscal or calendar year of a county, each
grand jury impaneled during that fiscal or calendar year shall submit to the presiding
judge of the superior court a final report of its findings and recommendations that
pertain to county government matters other than fiscal matters during the fiscal or
calendar year. Final reports on any appropriate subject may be submitted to the
presiding judge of the superior court at any time during the term of service of a grand
jury. A final report may be submitted for comment to responsible officers, agencies,
or departments, including the county board of supervisors, when applicable, upon
finding of the presiding judge that the report is in compliance with this title. One
copy of each report found to be in compliance with this title shall be placed on file
with the county clerk and remain on file in the office of the county clerk.
"(b) No later than the end of each fiscal or calendar year, each grant jury
impaneled during that fiscal or calendar year shall submit to the presiding judge of
the superior court a final report of its findings and recommendations that pertain to
fiscal matters of county government during the fiscal or calendar year of the county."
These provisions establish time requirements for the submission of grant jury reports to the presiding
judge prior to the time the grand jury ends and also provides that the grand jury reports are not
"placed on file" with the county clerk or submitted for comment to responsible officers, agencies
or departments until a comment to responsible officers, agencies or departments until a "finding of
the presiding judge that the report is in compliance with this title [Title 4]" is made. Since section
933(a) and (b) now provide that the final reports shall be submitted to the presiding judge "[n]o later
than the end of each fiscal or calendar year" the presiding judge could not find that a final report
submitted after the end of the fiscal or calendar year "is in compliance with this title." This finding
is a prerequisite to submitting the report to responsible officers and agencies for comment and to its
being placed on file in the office of the county clerk. Since final reports may no longer be submitted
6
The scope of the presiding judge's reviewing role is strictly confined to ensuring that the report
does not extend beyond the legal boundaries of the grand jury's broad reportorial power and the
judge has no authority to edit a report simply because he or she disagrees with its conclusions or
believes that its recommendations were hastily reached or were not justified. (People v. Superior
Court of Santa Barbara County (1975) 13 Cal. 3d 430.)
9. 88-703
after the fiscal year term of the grand jury ends we conclude that there are no functions which a
grand jury may perform after it ends.
IV. Passing Grand Jury Information to Succeeding Grand Jury.
The third question asks what, if any, information a grand jury may pass to its
successor. This question is answered by Penal Code section 924.4 which provides as follows:
"Notwithstanding the provisions of Sections 924.1 and 924.2, any grand jury,
or if the grand jury is no longer empaneled, the presiding or sole judge of the
superior court, may provide the succeeding grand jury with any information or
evidence acquired by the grand jury during the course of any investigation conducted
by it during its term of service, except any information or evidence which relates to
a criminal investigation or which could form part or all of the basis for issuance of
an indictment. Transcripts of testimony reported during any session of the grand jury
shall be made available to the succeeding grand jury upon its request."
The exception implements section 940 which provides that an indictment cannot be found without
the concurrence of at least 12 grand jurors (14 in Los Angeles County with 23 grand jurors). Section
940 has been construed to require that the minimum number of grand jurors concurring in an
indictment must have heard all of the evidence presented to the grand jury thereon. (People v. Fujita
(1974) 43 Cal. App. 3d 454, 477.)
We conclude that a grand jury may transmit information or evidence acquired during
the course of any investigation conducted by it to the succeeding grand jury except any information
which relates to a criminal investigation or which could form part or all of the basis for issuance of
an indictment.
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