California Attorney General Opinion 23-201 ( 2024 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 23-201
of :
: June 26, 2024
ROB BONTA :
Attorney General :
:
RYAN B. McCARROLL :
Deputy Attorney General :
The HONORABLE JEFF W. REISIG, DISTRICT ATTORNEY OF YOLO
COUNTY, has requested an opinion on two questions relating to grand jury indictments:
QUESTIONS PRESENTED AND CONCLUSIONS
1. Does the probable cause standard for a grand jury criminal indictment state a
lesser standard of proof than preponderance of the evidence?
Yes. The probable cause standard for a grand jury criminal indictment, which
requires the prosecution to present evidence that warrants a strong suspicion of guilt,
states a lesser standard of proof than preponderance of the evidence, which requires proof
that a particular fact is more likely than not to be true.
2. Must the word “shall” as used in Penal Code section 939.8—which states that
the grand jury “shall find an indictment” upon a determination of probable cause—be
construed and stated as “should” when the statutory language is used to instruct a grand
jury?
No. Penal Code section 939.8 requires a grand jury to return an indictment if the
grand jury concludes that there is probable cause, and a grand jury may be instructed to
that effect.
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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.’” 4
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. 6
Since 1959, Penal Code section 939.8 has provided that the grand jury “shall find
an indictment when all the evidence before it, taken together, if unexplained or
1
Cal. Const., art. I, § 23 (“One or more grand juries shall be drawn and summoned at
least once a year in each county”), art. XI, § 1, subd. (b) (“The Legislature shall provide
for . . . an elected district attorney . . . in each county”), art XI, § 4, subd. (c) (“County
charters shall provide for . . . an elected district attorney”).
2
Dix v. Superior Court (1991) 53 Cal.3d 442, 451; see People v. Ramirez (2022) 13
Cal.5th 997, 1139 (the district attorney “has broad discretion to prosecute a defendant for
a particular crime so long as there is probable cause to believe that the defendant is guilty
and the prosecution is not motivated by vindictiveness or invidious discrimination); see
also Bordenkircher v. Hayes (1978) 434 U.S. 357, 364 (prosecutorial discretion generally
includes “the decision whether or not to prosecute”).
3
Johnson v. Superior Court (1975) 15 Cal.3d 248, 254, quoting In re Tyler (1884)
64 Cal. 434, 437.
4
Stark v. Superior Court (2011) 52 Cal.4th 368, 406.
5
Cal. Const., art I, § 14 (“Felonies shall be prosecuted as provided by law, either by
indictment or, after examination and commitment by a magistrate, by information”); see
People v. Henson (2022) 13 Cal.5th 574, 588; see also Bowens v. Superior Court (1991)
1 Cal.4th 36, 43 (“We perceive an abundance of legitimate justifications for the state’s
discretionary use of the indictment procedure to initiate felony prosecutions”).
6
See McGill v. Superior Court (2011) 195 Cal.App.4th 1454, 1467.
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uncontradicted, would, in its judgment, warrant a conviction by a trial jury.” 7 Similarly,
Penal Code section 872(a) states that a magistrate “shall” issue an order holding the
defendant to answer if “it appears from the examination that a public offense has been
committed, and there is sufficient cause to believe that the defendant is guilty.” Although
the statutory language in sections 872(a) and 939.8 differs, both provisions are subject to
section 995, which allows a defendant to challenge an indictment or information based on
a lack of “reasonable or probable cause.” 8
We considered the meaning of section 939.8 in a 1978 opinion issued in response
to a request from then-Los Angeles County District Attorney John Van de Kamp. That
request asked, “What is the standard of proof a grand jury must use to indict in light of
Penal Code section 939.8?” 9 We answered that “the standard of proof required to support
a grand jury indictment is that of probable cause; that is, whether the evidence presented
to the grand jury, if unexplained or uncontradicted, would warrant them in entertaining a
strong suspicion of the guilt of the accused.” 10
The California Supreme Court reached the same conclusion in Cummiskey v.
Superior Court, holding that “the standard of proof under section 939.8 for returning an
indictment is ‘probable cause.’” 11 In other words, the prosecution must establish “a state
of facts as would lead a man of ordinary caution or prudence to believe, and
conscientiously entertain a strong suspicion of the guilt of the accused.” 12
Our requestor here, the Yolo County District Attorney, asks us to elaborate on the
meaning of section 939.8 in two respects. First, he asks us to compare the probable cause
standard for securing a grand jury indictment under section 939.8 with the standard of
proof by a preponderance of the evidence. 13 Second, he asks whether the statement in
7
Pen. Code, § 939.8, enacted by Stats. 1959, ch. 501, § 2, p. 2454. To “find” an
indictment under § 939.8 is the same as to “return” an indictment. (See McGill v.
Superior Court, supra, 195 Cal.App.4th at p. 1470, fn. 13.) We use the terms “find” and
“return” interchangeably here.
8
Pen. Code, § 995, subds. (a)(1)(B) & (a)(2)(B).
9
61 Ops.Cal.Atty.Gen. 441 (1978) (“1978 Opinion”).
10
Id. at p. 451; accord, 74 Ops.Cal.Atty.Gen 170 (1991).
11
Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1029; see Lorenson v. Superior
Court (1950) 35 Cal.2d 49, 56-57.
12
Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1029, internal quotation marks
omitted, italics added in Cummiskey.
13
The requestor phrased the first question as being “whether probable cause for a grand
jury indictment is less than a preponderance of evidence, just as it is with preliminary
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section 939.8 that the grand jury “shall” return an indictment upon finding the requisite
standard of proof raises serious constitutional issues that might invalidate an indictment if
the grand jury were instructed in those terms. 14
These questions are significant in light of the unique position that the district
attorney occupies in grand jury proceedings. When the grand jury is empaneled and
sworn, the court gives the jurors “such information as it deems proper, or as is required
by law, as to their duties, and as to any charges for public offenses returned to the court
or likely to come before the grand jury.” 15 Thereafter, the judge “shall not be present
during the sessions of the grand jury,” unless the grand jury requests advice from the
judge. 16 But the district attorney “may at all times appear before the grand jury for the
purpose of giving information or advice relative to any matter cognizable by the grand
jury.” 17
ANALYSIS
Question One
The requestor asks us to confirm that the standard for securing a grand jury
indictment under section 939.8 is “less[]” than the standard of proof by a preponderance
of the evidence. 18 We agree that a prosecutor seeking a grand jury indictment under
section 939.8 is obliged to show probable cause rather than to prove guilt by a
preponderance of the evidence, and that probable cause is a less demanding standard than
proof by a preponderance of the evidence.
examinations and other probable cause situations, and whether probable cause for
indictment is the same as probable cause for preliminary examinations and other probable
cause situations.” (Letter from Yolo County District Attorney (Feb. 8, 2023) (“Requestor
Letter”).) We have modified the question for ease of discussion.
14
The requestor phrased the second question as being “whether the [word] ‘shall’ in
Penal Code section 939.8 must be construed as ‘should’ in order to avoid possible
constitutional infirmity.” (Requestor Letter, supra, at p. 1.) Again, we have rephrased
the question for ease of discussion.
15
Pen. Code, § 914, subd. (a).
16
Pen. Code, § 934, subd. (a).
17
Pen. Code, § 935; but see Pen. Code, § 939 (“No persons other than grand jurors shall
be permitted to be present during the expression of the opinions of the grand jurors, or the
giving of their votes, on any criminal or civil matter before them”).
18
Requestor Letter, supra, at pp. 2-3.
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As mentioned, section 939.8 requires the prosecution to establish reasonable or
probable cause. 19 That means there must be “a state of facts as would lead a man of
ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion
of the guilt of the accused.” 20 In contrast, the preponderance of the evidence standard
asks whether “the existence of a fact is more probable than its nonexistence.’” 21 That
means a party bearing the burden of proof by a preponderance of the evidence must
persuade the factfinder that a particular fact “is more likely to be true than not true.” 22
The requestor points to several cases that compare the two standards of proof in
situations that are analogous to the one at issue here. 23 The closest case appears to be
People v. Abelino (2021) 62 Cal.App.5th 563, which described the “sufficient cause”
standard that a magistrate must apply at a preliminary examination under section
872(a). 24 The court explained that “sufficient cause” means “reasonable and probable
cause,” which involves “‘a level of proof below that of proof beyond a reasonable doubt,
or even proof by a preponderance of the evidence.’” 25 The court also observed that “‘the
showing required at a preliminary hearing is exceedingly low.’” 26
We have not found any authority to suggest that the comparison would be any
different when considering the standard of proof required to support a grand jury
indictment. Indeed, we have previously equated the standard that a grand jury applies
under section 939.8 with the standard that a magistrate applies under section 872(a). 27
And the California Supreme Court has done the same. 28 So we may confidently conclude
19
See Cummiskey v. Superior Court, supra, 3 Cal.4th at pp. 1027, 1029; Lorenson v.
Superior Court, supra, 35 Cal.2d at pp. 56-57; 61 Ops.Cal.Atty.Gen., supra, at pp. 450-
451.
20
Cummiskey v. Superior Court, supra, 3 Cal.4th at pp. 1027, 1029, 1037.
21
In re Angelia P. (1981) 28 Cal.3d 908, 918, quoting In re Winship (1970) 397 U.S.
358, 371-372 (conc. opn. of Harlan, J.).
22
CACI No. 200.
23
Requestor Letter, supra, at pp. 2-4.
24
People v. Abelino, supra, 62 Cal.App.5th at p. 573.
25
Ibid., quoting People v. Hurtado (2002) 28 Cal.4th 1179, 1189.
26
Ibid., quoting Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.
27
61 Ops.Cal.Atty. Gen., supra, at pp. 441, 450-451.
28
Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1027.
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that both statutes involve “‘a level of proof below that of . . . proof by a preponderance of
the evidence.’” 29
Question Two
The second question involves the meaning of the statement in section 939.8 that
the grand jury “shall” return an indictment when it is satisfied that the prosecution has
established probable cause. The requestor and a comment submitted in support of the
request posit that, although the word “shall” ordinarily connotes a lack of discretion, its
meaning here is advisory or otherwise permissive. 30 In other words, the requestor
suggests that despite its use of the term “shall,” section 939.8 gives the grand jury
discretion not to return an indictment despite a finding of probable cause. 31 He reasons
that instructing the grand jury in the apparently mandatory terms of section 938.9 might
erroneously lead the grand jury to believe it lacked such discretion, creating the potential
for constitutional error. This in turn leads the requestor to recommend that prosecutors
advise the grand jury that it “should” return an indictment upon a finding of probable
cause. We disagree.
Instead, we conclude for the reasons discussed below that the California Supreme
Court was correct when it stated in Cummiskey that “section 939.8 requires the grand jury
to return an indictment” if—but only if—the prosecution has established probable
cause. 32 That description is faithful to the ordinary meaning of the statement in section
939.8 that the grand jury “shall” return an indictment when it finds that there is probable
cause. And, even to the extent that the statutory text might be ambiguous, there is no
extrinsic evidence of legislative intent indicating that the grand jury should have
discretion to withhold an indictment in a case supported by probable cause. For example,
the legislative history of section 939.8 does not suggest any intent to give the grand jury
29
People v. Abelino, supra, 62 Cal.App.5th at p. 573, quoting People v. Hurtado, supra,
28 Cal.4th at p. 1189.
30
Requestor Letter, supra, at p. 5-7; see Memorandum from Patrick O’Toole (Nov. 27,
2023) (“O’Toole Memo”).
31
The discretion not to return an indictment despite the existence of probable cause is
sometimes known as grand jury nullification. It has “historically served causes both good
and ill.” (United States v. Navarro-Vargas (9th Cir. 2005) 408 F.3d 1184, 1199.)
32
Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1027; see also People v. Arroyo
(2016) 62 Cal.4th 589, 595 (implying that a “properly instructed” grand jury would know
that it “shall find” an indictment if the prosecution has made the necessary showing);
McGill v. Superior Court, supra, 195 Cal.App.4th at pp. 1469-1470 (grand jury “must”
find an indictment if it concludes that there is probable cause).
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such discretion unrelated to its core purpose of determining whether the prosecution has
shown probable cause. Moreover, contrary to the suggestion of the requestor, requiring
the grand jury to return an indictment in cases supported by probable cause does not raise
substantial constitutional questions under the separation of powers doctrine or principles
of due process. We therefore conclude that the word “shall”—as used in Penal Code
section 939.8 pertaining the grand jury’s issuance of a criminal indictment upon a finding
of probable cause—need not be construed and stated as “should” when instructing a
grand jury.
Ordinary Meaning of the Statutory Text
The first step in interpreting a statute is to consider the ordinary meaning of the
text in light of the statute as a whole and the overall legislative scheme. 33 If the text is
clear and unambiguous, a court will “presume the Legislature meant what it said and the
plain meaning of the statute governs.” 34 “Only when the statute’s language is ambiguous
or susceptible of more than one reasonable interpretation, may the court turn to extrinsic
aids to assist in interpretation.” 35 As such, we begin by considering the ordinary meaning
of the statement in section 939.8 that the grand jury “shall” return an indictment if it finds
that there is probable cause.
The word “shall” ordinarily connotes a non-discretionary mandate or command,
and is synonymous with the word “must.” 36 Because a non-discretionary mandate or
command is more forceful that a mere preference or recommendation, the word “shall” is
not typically understood to be synonymous with the word “should.” 37
33
See People v. Rojas (2023) 15 Cal.5th 561, 568; People v. Curiel (2023) 15 Cal.5th
433, 461; People v. Valencia (2017) 3 Cal.5th 347, 360.
34
People v. Snook (1997) 16 Cal.4th 1210, 1215; see Lungren v. Deukmejian (1988)
45 Cal.3d 727, 735.
35
Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.
36
See People v. Standish (2006) 38 Cal.4th 858, 869 (“Ordinarily, the term ‘shall’ is
interpreted as mandatory and not permissive”); Common Cause v. Board of Supervisors
(1989) 49 Cal.3d 432, 443 (“It is a well-settled principle of statutory construction that the
word ‘may’ is ordinarily construed as permissive, whereas ‘shall’ is ordinarily construed
as mandatory . . .”); see, e.g., Cal. Rules of Court, rule 1.5(b)(1) (“‘Must’ is mandatory”);
cf. De Martinez v. Lamagno (1995) 515 U.S. 417, 432, fn. 9 (“Though ‘shall’ generally
means ‘must,’ legal writers sometimes use, or misuse, ‘shall’ to mean ‘should,’ ‘will,’ or
even ‘may’”).
37
See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 75 (“Case
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Consistent with that ordinary meaning of the word “shall,” courts have used non-
discretionary language when describing the statement in section 939.8 that the grand jury
shall return an indictment if it finds that there is probable cause. As noted, the California
Supreme Court stated in Cummiskey that section 939.8 “requires” the grand jury to return
an indictment when the prosecution has satisfied its burden of proof. 38 The Court of
Appeal similarly said in McGill v. Superior Court that the grand jury “must” return an
indictment if the prosecution has satisfied its burden. 39 Although the meaning of the
word “shall” was not at issue in either Cummiskey or McGill, we “do not lightly disregard
dictum” from either of those courts. 40
But the United States Supreme Court has recognized that “legal writers sometimes
use, or misuse, ‘shall’ to mean ‘should.’” 41 And California courts have likewise observed
that “statutes containing ‘shall’ language are sometimes interpreted as directory or
permissive,” especially if “discretion is inherent in the activity concerned.” 42 As such,
we will proceed to consider whether extrinsic indicia of legislative intent suggest that the
word “shall” does not carry its ordinary meaning when it is used in section 939.8.
Legislative History
In our view, the history of section 939.8 does not reveal a legislative intent to
depart from the ordinary meaning of the word “shall.” Prior to the adoption of section
939.8, the Legislature provided that the grand jury “ought” to find an indictment when
there is probable cause. 43 The California Supreme Court described that language as
law has defined ‘should’ generally to mean a moral obligation or recommendation”);
Cal. Rules of Court, rule 1.5(b)(5) (“‘Should’ expresses a preference or a nonbinding
recommendation”).
38
Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1027.
39
McGill v. Superior Court, supra, 195 Cal.App.4th at pp. 1454, 1469-1470 (“After the
investigation, the grand jury must ‘find an indictment’ if ‘all the evidence before it, taken
together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction
by a trial jury’”) (italics added).
40
Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 330.
41
De Martinez v. Lamagno, supra, 515 U.S. at p. 432, fn. 9; see, e.g., Nat. Federation of
Independent Business v. Sebelius (2012) 567 U.S. 519.
42
Fox v. County of Fresno (1985) 170 Cal.App.3d 1238, 1242; see Wilson v. Sharp
(1954) 42 Cal.2d 675, 678-679.
43
Stats. 1851, ch. 29, § 212, p. 235; former Pen. Code, § 921; see also Stats. 1850,
ch. 119, § 233, p. 292; People v. Tinder (1862) 19 Cal. 539, 539.
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being “‘plainly only [a] matter of advice to the [grand] jury.’” 44 In 1959, the Legislature
recodified the grand jury statutes into a single title of the Penal Code. 45 As part of that
recodification, the Legislature repealed former section 921 and enacted current section
939.8, changing the word “ought” to “shall.” 46
In the 1978 opinion discussed above, we observed that the 1959 recodification had
changed the statutory language, and we described the current language in section 939.8 as
being “mandatory.” Specifically, we observed that the 1959 recodification “changed the
directory ‘ought’ to the mandatory ‘shall.’” 47 It might have been more accurate to
describe the prior language as being advisory or otherwise permissive rather than
directory. 48 But the point remains that the Legislature replaced that language with the
“mandatory” language in section 939.8 stating that the grand jury “shall” return an
indictment if it finds that there is probable cause.
Admittedly, our 1978 opinion also said that the 1959 recodification had been
“substantially without change” to the law. 49 But our focus there was less on the shift to
“mandatory” language than on the unchanged standard of proof. 50 We explained that
“[f]or many years the question of the standard of proof before a grand jury was only of
academic interest” because “grand jury proceedings were not subject to judicial review
regarding the sufficiency of the evidence received by that body.” 51 Although “review of
the sufficiency of the evidence before the grand jury has [since] become possible,” a
decision not to find an indictment remains unreviewable. 52 As such, our prior description
44
In re Kennedy (1904) 144 Cal. 634, 638, quoting State v. Boyd (S.C. App. L. & Eq.
1834) 20 S.C.L. 288, 289.
See M.B. v. Superior Court (2002) 103 Cal.App.4th 1384, 1391; Cal. Law Revision
45
Com. Annual Rep. (1959) p. 20.
46
Stats. 1959, ch. 501, § 2, p. 2454.
47
61 Ops.Cal.Atty.Gen., supra, at p. 447.
48
See In re Kennedy, supra, 144 Cal. at p. 638; see also People v. McGee (1977) 19
Cal.3d 948, 958-959 (comparing the “mandatory-directory duality with the linguistically
similar, but analytically distinct, ‘mandatory-permissive’ dichotomy”).
49
61 Ops.Cal.Atty.Gen., supra, at p. 450; see id. at p. 447 (“Essentially . . . the statute has
remained unaltered since 1851”).
50
See id. at p. 441.
51
See id. at p. 447.
52
See ibid.
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of the 1959 recodification as having been “substantially without change” does not negate
our observation in the same opinion that the language in section 939.8 is mandatory.
We have received comments suggesting that the change from “ought” to “shall” as
part of the 1959 recodification might have been unintentional, especially given
contemporaneous statements disclaiming any intent to make a substantive change in the
law. 53 These comments also suggest that the issue has largely escaped legislative and
judicial attention over the last 65 years because some prosecutors depart from the
statutory language by advising the grand jury that it “should” return an indictment if there
is probable cause. 54 But those observations do not explain the relative silence in all of the
other cases where courts and prosecutors have tracked the current language in section
939.8 by instructing the grand jury that it “shall” return an indictment if it finds probable
cause. 55 We can see no persuasive reason to reconsider our prior statement that the
language in section 939.8 is mandatory.
Separation of Powers
The requestor argues that the ordinary meaning of the word “shall” raises
substantial questions regarding the constitutionality of the statement in section 939.8 that
the grand jury “shall” return an indictment if it finds that there is probable cause. 56
Specifically, he argues that requiring the grand jury to return an indictment raises
questions regarding the separation of powers, even in cases that are supported by
probable cause. 57 To avoid those questions, he suggests that the Legislature presumably
53
O’Toole Memo, supra, at pp. 1-3; see Stats. 1959, ch. 501, § 20, p. 2458 (“It is not the
intent of the Legislature to make any substantive change in the laws affected by this
act”); Cal. Law Revision Com. Annual Rep. (1959) p. 20 (drafters of the recodification
bill “refrained from recommending any change which might be construed to be
substantive in nature, even in instances where it considered that the particular change was
desirable and noncontroversial”); see also Cal. Law Revision Com. Annual Rep. (1960)
p. 10 (same).
54
O’Toole Memo, supra, at p. 3, fn. 4 (“There has not been a legal challenge to section
939.8’s ‘shall’ language, either because ‘shall’ is not always used in such instructions, or
the issue has not been recognized”); see, e.g., Cummiskey v. Superior Court, supra, 3
Cal.4th at p. 1025 (trial court instructed grand jury that “an indictment should be found”
when there is sufficient cause”) (italics added).
55
See Requestor Letter, supra, at p. 6 (acknowledging that “some courts and district
attorney offices instruct the grand jury using section 939.8”).
56
Id. at pp. 5-7 & fn. 5.
57
Id. at pp. 6-7.
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intended to give the grand jury at least some discretion not to return an indictment despite
a finding of probable cause. And he posits that the best way to convey that presumed
intent is to construe section 939.8 as meaning that the grand jury “should” return an
indictment if it finds that there is probable cause. 58
In making these arguments, the requestor relies on the precept that “a statute is to
be construed where fairly possible so as to avoid substantial constitutional questions.” 59
The California Supreme Court has explained that the avoidance canon applies when “a
statute is susceptible of two constructions, one of which will render it constitutional and
the other unconstitutional in whole or in part, or raise serious and doubtful constitutional
questions.” 60 In those instances, a court “will adopt the construction which, without
doing violence to the reasonable meaning of the language used, will render it valid in its
entirety, or free from doubt as to its constitutionality, even though the other construction
is equally reasonable.” 61 The rule is based on “the presumption that the Legislature
intended, not to violate the Constitution, but to enact a valid statute within the scope of its
constitutional powers.” 62
As relevant here, the California Constitution provides that “[t]he powers of state
government are legislative, executive, and judicial. Persons charged with the exercise of
one power may not exercise either of the others except as permitted by this
Constitution.” 63 But the separation of powers doctrine also “‘recognizes that the three
branches of government are interdependent, and it permits actions of one branch that may
“significantly affect those of another branch.”’” 64 As such, the separation of powers “is
violated only when the actions of a branch of government defeat or materially impair the
inherent functions of another branch.” 65
58
Id. at p. 7.
59
Requestor Letter, supra, at p. 7, fn. 5, quoting United States v. X-Citement Video, Inc.
(1994) 513 U.S. 64, 69; O’Toole Memo, supra, at pp. 5-6.
60
Miller v. Municipal Court of City of Los Angeles (1943) 22 Cal.2d 818, 828.
61
Ibid.62
Ibid.; see People v. Gutierrez (2014) 58 Cal.4th 1354, 1373; People v. Superior Court
(Romero) (1996) 13 Cal.4th 497, 509.
63
Cal. Const., art. III, § 3.
64
In re Rosenkrantz (2002) 29 Cal.4th 616, 662, quoting Carmel Valley Fire Protection
Dist. v. State of California (2001) 25 Cal.4th 287, 298.
65
Ibid.; see People ex rel. Pierson v. Superior Court (2017) 7 Cal.App.5th 402, 414
(“Strictly speaking, it would not appear that the doctrine of separation of powers would
apply to a constitutional body outside our triptych form of government, but the concept
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We conclude that requiring the grand jury to return an indictment in a case
supported by probable cause does not raise substantial questions regarding the
constitutional principles described above. The California Supreme Court has long
described the grand jury as protecting the accused from “‘the trouble, expense, and
disgrace of being arraigned and tried in public on a criminal charge for which there is no
sufficient cause.’” 66 The grand jury performs this function by returning an indictment
“only when the evidence presented to it indicates that [the defendant] has committed a
public offense.” 67 In other words, “it is the grand jury’s function to determine whether
probable cause exists to accuse a defendant of a particular crime.” 68
In our view, the ordinary meaning of the word “shall” as used in section 939.8
does not raise significant concerns regarding the grand jury’s ability to assess probable
cause, even when the word appears in instructions to the grand jury. Although the
ordinary meaning requires the grand jury to return an indictment, that requirement plainly
applies if and only if the grand jury has determined that there is probable cause. 69 And
the statute does not compel the grand jury to conclude that there is probable cause in any
particular case.
To support his argument that an essential function of the grand jury is to serve as a
check on the prosecution’s charging decisions—even where those decisions are supported
by probable cause—the requestor points to a statement in Vasquez v. Hillery (1986) 474
U.S. 254. In that case, the Supreme Court observed that the grand jury “‘is not bound to
indict in every case where a conviction can be obtained.’” 70 To understand that
statement, we look to the underlying authority, which explained that a grand jury’s
would be the same. The Legislature thus cannot act to defeat or materially impair the
inherent constitutional power of another entity”).
66
Johnson v. Superior Court, supra, 15 Cal.3d at p. 254, quoting In re Tyler, supra, 64
Cal. at p. 437, italics added.
67
Greenberg v. Superior Court (1942) 19 Cal.2d 319, 321.
68
Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1026; see Stark v. Superior Court,
supra, 52 Cal.4th at p. 406 (“The role of the grand jury in an indictment proceeding is to
‘determine whether probable cause exists to accuse a defendant of a particular crime’”).
69
Pen. Code, § 939.8 (the grand jury shall find an indictment “when” it determines that
there is probable cause).
70
Requestor Letter, supra, at pp. 6-7, citing Vasquez v. Hillery, supra, 474 U.S. at p. 263,
quoting United States v. Ciambrone (2nd Cir. 1979) 601 F.2d 616, 629 (dis. opn. of
Friendly, J.); see also Hawkins v. Superior Court (1978) 22 Cal.3d 584, 589 (grand jurors
are “legally free to vote as they please”), abrogated by the voters on other grounds as
stated in Bowens v. Superior Court, supra, 1 Cal.4th at p. 46.
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decision not to return an indictment is “‘unchallengeable,’” even if the grand jury has
succumbed to “‘the whims of the jurors or their conscious or subconscious response to
community pressures.’” 71
We do not read Hillery as stating a constitutional rule protecting the grand jury’s
ability to refuse to indict notwithstanding a finding of probable cause. Rather, the more
persuasive reading of the statement is that it recognizes the practical reality that, if the
grand jury decides not to return an indictment, the prosecution has no way to challenge
that decision. That type of decision is similar to a trial jury’s decision to acquit despite
proof beyond a reasonable doubt: in both instances, the decision is “without recourse by
the prosecution.” 72 But the unchallengeable nature of those decisions does not mean that
it would defeat or materially impair any essential functions of the trial jury or the grand
jury, respectively, to instruct them accurately about their duties under controlling law. 73
The requestor also points to United States v. Navarro-Vargas, in which the Ninth
Circuit considered whether a grand jury’s ability to withhold an indictment despite a
finding of probable cause was an “irreducible element of what it means to have a grand
jury” under the Fifth Amendment of the United States Constitution. 74 At issue there was
the model grand jury charge used in federal court, which states that the grand jury
“should” return an indictment upon a finding of probable cause, but “cannot” judge the
wisdom of the laws enacted by Congress. 75
A majority of the Ninth Circuit panel concluded that the model charge did not
violate the grand jury clause of the Fifth Amendment. 76 The majority explained that it
was unaware of any practice “to advise grand juries that they may stand in judgment of
the wisdom of the laws before them.” 77 It reasoned that “[i]f a grand jury can sit in
71
United States v. Ciambrone, supra, 601 F.2d at p. 629 (dis. opn. of Friendly, J.),
quoting United States v. Cox (5th Cir. 1965) 342 F.2d 167, 189-190 (con. opn. of
Wisdom, J.).
72
People v. Williams (2001) 25 Cal.4th 441, 449.
73
See People v. Engelman (2002) 28 Cal.4th 436, 440-441.
74
Requestor Letter, supra, at pp. 6-7; see United States v. Navarro-Vargas, supra, 408
F.3d at pp. 1189-1190; see also U.S. Const., 5th Amend. (“No person shall be held to
answer for a capital, or otherwise infamous crime, unless on a presentment or indictment
of a Grand Jury”).
75
United States v. Navarro-Vargas, supra, 408 F.3d at p. 1187; see Federal Judicial
Center, Benchbook for U.S. District Court Judges, supra, § 7.04, pp. 249, 252, ¶¶ 9, 25.
76
United States v. Navarro-Vargas, supra, 408 F.3d at pp. 1189-1190.
77
Id. at p. 1202.
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judgment of [the] wisdom of the policy behind a law, then the power to return a no bill in
such cases is the clearest form of ‘jury nullification.’” 78 Indeed, the “prospect of a grand
jury here and there deciding for itself that a law lacked ‘wisdom’” would be “an
invitation to lawlessness and something less than the equal protection of the laws.” 79
And the majority also observed that the model charge “does not state that the jury
‘must’ or ‘shall’ indict, but merely that it ‘should’ indict if it finds probable cause. As a
matter of pure semantics, it does not ‘eliminate discretion on the part of the grand jurors,’
leaving room for the grand jury to dismiss even if it finds probable cause.” 80 So “[e]ven
assuming that the grand jury should exercise something akin to prosecutorial discretion,”
the majority reasoned that “the instruction does not infringe upon that discretion.” 81
The requestor reads Navarro-Vargas as implying that the model grand jury charge
would have violated the Fifth Amendment if it had stated that the grand jury “shall”
return an indictment upon a finding of probable cause. We are uncertain whether
Navarro-Vargas stands for that proposition, as the semantical discussion was not the only
basis for the majority’s holding. But even accepting the requestor’s reading of Navarro-
Vargas, it would not dictate the result under California law. It is well established that the
grand jury clause of the Fifth Amendment at issue in Navarro-Vargas is one of the few
provisions of the Bill of Rights that does not apply to the States. 82 Indeed, the Navarro-
Vargas majority itself described California’s use of mandatory terminology in section
939.8 as part of its survey of how the matter had been addressed in different States—
without suggesting that such mandatory language was constitutionally impermissible
when used by California and other States. 83
Furthermore, the meaning of the grand jury clause of the Fifth Amendment does
not necessarily inform the meaning of the indictment clause of the California
Constitution. Indeed, the indictment clause of the California Constitution is part of a
pretrial screening process that differs significantly from its federal counterpart. Most
significantly, in the federal system, “a felony prosecution simply cannot proceed without
78
Id. at p. 1203.
79
Ibid.
80
Id. at p. 1205, quoting United States v. Marcucci (9th Cir. 2002) 299 F.3d 1156, 1159.
81
Ibid.People v. Henson, supra, 13 Cal.5th at p. 589 (“It has long been held that the Fifth
82
Amendment’s guarantee of indictment by grand jury does not apply to the states”); see
Hurtado v. California (1884) 110 U.S. 516, 538.
83
United States v. Navarro-Vargas, supra, 408 F.3d at p. 1197.
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the approval of the grand jury.” 84 This makes the federal grand jury an effective shield
from prosecution. 85 In stark contrast, the California Constitution gives the district
attorney discretion to bypass the grand jury by submitting the case to a magistrate for a
preliminary examination. 86
For these reasons, Navarro-Vargas does not cause us to question the
constitutionality of the statement in section 939.8 that the grand jury “shall” return an
indictment if it concludes that there is probable cause, nor our conclusion that the grand
jury may be instructed to that effect.
Due Process
The requestor also states that instructing a grand jury based on the ordinary,
mandatory reading of section 939.8 would raise substantial questions regarding the grand
jury’s “independence.” 87 This arguably implicates the rule that, as a matter of due
process, there must be a pretrial screening process that is impartial and independent of the
prosecution. 88 We therefore consider whether requiring the grand jury to return an
indictment upon a showing of probable cause might lead the grand jury to believe that it
is “beholden to the prosecutor during the decisionmaking process.” 89 We conclude that
the ordinary meaning of the word “shall” as used in section 939.8 does not impair the
impartial and independent nature of the grand jury.
As previously discussed, the statement in section 939.8 that the grand jury “shall”
find an indictment applies if and only if the grand jury has already determined that there
is probable cause. 90 And the statute does not in any way suggest that the grand jury must
conclude that there is probable cause in a particular case. Nor does it suggest that
negative consequences might befall the grand jurors individually or collectively if they do
not conclude that there is probable cause. We therefore conclude that instructing a jury
on the ordinary and mandatory meaning of the word “shall” as used in section 939.8—
and in any instruction to the grand jury that tracks the statute’s terminology—does not
84
United States v. Navarro-Vargas, supra, 408 F.3d at p. 1213 (dis. opn. of Hawkins, J.).
85
See ibid.
86
Cal. Const. art I, § 14; see Bowens v. Superior Court, supra, 1 Cal.4th at pp. 43-44; see
also Sherwood v. Superior Court (1979) 24 Cal.3d 183, 187.
87
Requestor Letter, supra, at p. 5.
88
Avitia v. Superior Court (2018) 6 Cal.5th 486, 494-495.
89
Id. at p. 498.
90
Pen. Code, § 939.8 (the grand jury shall find an indictment “when” it determines that
there is probable cause).
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raise significant concerns about the defendant’s “substantial right to an impartial and
independent grand jury.” 91
In sum, we conclude that Penal Code section 939.8 requires a grand jury to return
an indictment if the grand jury concludes that there is probable cause, and that the grand
jury may be so instructed.
91
Avitia v. Superior Court, supra, 6 Cal.5th at p. 495.
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