Can a California DA force a court to impanel a criminal grand jury, and do Brady disclosure rules apply to grand jury materials?

Question

(1) Does Penal Code § 904.6 require a court to impanel a grand jury upon a district attorney's request? (2) Do prosecutors' disclosure obligations under Brady v. Maryland (1963) 373 U.S. 83 and Penal Code § 1054.1 encompass materials from criminal grand jury proceedings, despite the fact that those proceedings are conducted in secret?

Conclusion

(1) No. Section 904.6 provides that a court "may" impanel a grand jury upon a DA's request, but does not require it. The court retains discretion. (2) Yes. Brady and § 1054.1 disclosure obligations encompass materials from criminal grand jury proceedings even though grand jury proceedings are conducted in secret.

Official Citation: 106 Ops.Cal.Atty.Gen. 41

Plain-English summary

The Yolo County District Attorney asked two questions about California criminal grand juries.

On impanelment: California has at least one regular grand jury per county per year (Cal. Const. art. I, § 23; Pen. Code § 905). Penal Code § 904.6 lets the superior court impanel a SECOND grand jury, the "criminal grand jury," to handle all new criminal matters when one is convened. The statute reads: "may, upon the request of the Attorney General or the district attorney or upon his or her own motion, order and direct the impanelment, of one additional grand jury." The DA wanted to know whether "may" means the court must impanel one when the DA asks. The AG concluded no: "may" is permissive in this context. Three textual clues:
- The word "request" itself implies the recipient has discretion to grant or deny.
- Section 904.6 mixes "may" (subdivisions (a), (c), (d)) and "shall" (subdivisions (b), (c), (d), (e)) in close proximity, and Brennon B. v. Superior Court (2022) makes clear that when a statute mixes the two, "may" is ordinarily discretionary.
- The court can also impanel "upon his or her own motion," confirming the court's independent authority.

On Brady and § 1054.1: California grand jury proceedings are generally held in secret (Pen. Code §§ 911, 915, 924.2, 924.6, 929-930, 938-938.1, 939). But Brady v. Maryland (1963) 373 U.S. 83 imposes a constitutional disclosure obligation on prosecutors to give defendants exculpatory and impeachment evidence material to guilt or punishment. California's reciprocal-discovery statute § 1054.1 imposes parallel statutory disclosure. The AG concluded that grand jury secrecy yields to those constitutional and statutory obligations. Secrecy under § 939.1 has limited exceptions; due process and the integrity of the criminal trial outweigh general grand jury secrecy when the grand jury contains evidence material to guilt or punishment.

The combined effect is: a DA cannot force criminal grand jury impanelment; the court decides. But once a grand jury indicts, prosecutors must apply normal Brady and statutory disclosure rules to the grand jury record on equal footing with other prosecution evidence.

What this means for you

California district attorneys

You can request a § 904.6 criminal grand jury, but the court is not required to grant it. The court considers the request alongside its own assessment (case load, judicial resources, the DA's stated rationale, public-interest factors). When you do obtain a grand jury indictment, your normal Brady and § 1054.1 disclosure obligations apply to the grand jury record. The grand jury secrecy rules do not insulate exculpatory or impeachment material from disclosure. Plan your discovery process to cover grand jury transcripts, witness lists, exhibits, and any related materials.

Criminal defense attorneys

If a § 904.6 criminal grand jury indicts your client, request the grand jury record under Brady and § 1054.1. Argue the AG opinion as support for the proposition that grand jury secrecy does not block disclosure of material exculpatory or impeachment evidence. Specific items to demand: full grand jury transcripts (witness testimony, prosecutor statements), exhibits presented to the grand jury, any witness statements that conflict with grand jury testimony, and evidence of cooperation agreements or impeachment material affecting any grand jury witness.

Superior court judges presiding over grand juries

Section 904.6 commits the impanelment decision to your discretion. The DA's request is a starting point, not a command. The opinion's textual and structural reading of the statute supports denying or granting impanelment based on case-specific factors.

Criminal defendants indicted by grand jury

Brady and § 1054.1 apply to the materials presented to the grand jury that indicted you. Through counsel, request that record on those bases.

Prosecutors and public defenders outside California considering parallel rules

The disclosure analysis is grounded in Brady (federal constitutional law) and the parallel California statutory § 1054.1 framework. Other states with discovery statutes that mirror § 1054.1 face the same secrecy / disclosure tension; this opinion is persuasive authority on how to resolve it.

Common questions

Can my DA force a court to impanel a special criminal grand jury?
No. Section 904.6 commits the impanelment decision to the court's discretion. The DA can request, but the court decides.

Why did the AG conclude "may" is permissive here?
Three reasons: (a) "request" implies discretion in the recipient; (b) the statute mixes "may" and "shall" in close proximity (Brennon B. v. Superior Court teaches that this mix supports a permissive reading of "may"); (c) the court can impanel on its own motion, confirming independent authority.

Does grand jury secrecy block disclosure of exculpatory evidence to the defendant?
No. Brady is a constitutional rule that overrides general grand jury secrecy when the material is exculpatory or impeachment evidence material to guilt or punishment. Section 1054.1 imposes parallel statutory disclosure.

What about the rule that grand jury proceedings are confidential?
California grand jury proceedings are generally held in secret (Pen. Code §§ 911, 915, 924.2, 924.6, 929-930, 938-938.1, 939). Section 939.1 allows limited public sessions. Brady and § 1054.1 disclosure are exceptions to general secrecy. Disclosure to a defendant whose case the grand jury indicted is required when the materials meet the Brady or § 1054.1 standards.

What is the difference between a regular grand jury and a § 904.6 criminal grand jury?
A "regular" grand jury (selected by superior court judges under § 896 et seq.) handles all three traditional functions: criminal indictments, accusations against local officials, and civil watchdog reporting. A § 904.6 grand jury is randomly drawn from the civil/criminal jury pool and handles ONLY criminal matters when impaneled. When a § 904.6 grand jury is in place, it (not the regular grand jury) handles new criminal matters.

Can a defendant cross-examine grand jury witnesses?
No. Grand jury proceedings are conducted outside the defendant's presence (McGill v. Superior Court). The defendant's recourse for confronting witnesses comes at the trial stage, not the grand jury stage.

What is Brady v. Maryland?
Brady v. Maryland, 373 U.S. 83 (1963), is the foundational U.S. Supreme Court decision holding that the Due Process Clause requires the prosecution to disclose to the defense any evidence favorable to the defendant that is material to either guilt or punishment.

Background and statutory framework

Grand jury structure:
- Cal. Const. art. I, § 23: at least one grand jury per county per year.
- Pen. Code § 905: corollary statutory requirement.
- Pen. Code § 904.6: court may impanel an additional grand jury for criminal matters.

Grand jury functions:
- Indictment (Pen. Code § 917).
- Accusation against local officials for removal (Pen. Code §§ 919, 925 et seq.).
- Civil watchdog (Pen. Code §§ 911, 915, 924.2, 924.6, 929-930, 938-938.1, 939).

Grand jury secrecy:
- Pen. Code §§ 911, 915, 924.2, 924.6, 929-930, 938-938.1, 939 establish general secrecy.
- Pen. Code § 939.1 allows limited public sessions.

Disclosure obligations:
- Brady v. Maryland (1963) 373 U.S. 83 (constitutional disclosure of exculpatory and impeachment material).
- Cal. Pen. Code § 1054.1 (statutory reciprocal discovery, parallels Brady scope).

Statutory interpretation:
- Brennon B. v. Superior Court (2022) 13 Cal.5th 662 (intent + statutory context).
- People v. Ledesma (1997) 16 Cal.4th 90 (may/shall distinction).
- Halo Electronics, Inc. v. Pulse Electronics, Inc. (2016) 579 U.S. 93; Fogerty v. Fantasy, Inc. (1994) 510 U.S. 517 (federal "may" as discretion).

Citations

• Cal. Const. art. I, § 23
• Cal. Pen. Code §§ 904.6, 905, 911, 915, 917, 919, 922, 924.2, 924.6, 925 et seq., 929-930, 938-938.1, 939, 939.1, 1054.1
• Brady v. Maryland (1963) 373 U.S. 83
• McGill v. Superior Court (2011) 195 Cal.App.4th 1454
• McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162
• People v. Garcia (2011) 52 Cal.4th 706
• People v. Burney (2009) 47 Cal.4th 203
• Brennon B. v. Superior Court (2022) 13 Cal.5th 662
• People v. Ledesma (1997) 16 Cal.4th 90

Source

• Landing page: https://oag.ca.gov/opinions/yearly-index
• Original PDF: https://oag.ca.gov/system/files/opinions/pdfs/22-701.pdf

Original opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General

OPINION
of
ROB BONTA
Attorney General
CATHERINE BIDART
Deputy Attorney General

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No. 22-701
August 24, 2023

The HONORABLE JEFF W. REISIG, DISTRICT ATTORNEY OF YOLO
COUNTY, has requested an opinion on questions relating to grand juries.
QUESTIONS PRESENTED AND CONCLUSIONS
1. Does Penal Code section 904.6 require a court to impanel a grand jury upon a
district attorney’s request?
No. Penal Code section 904.6 provides that a court may impanel a grand jury
upon a district attorney’s request, but does not require it.
2. Do prosecutors’ disclosure obligations under Brady v. Maryland (1963) 373
U.S. 83 and Penal Code section 1054.1 encompass materials from criminal grand jury
proceedings, despite the fact that those proceedings are conducted in secret?
Yes. Prosecutors’ disclosure obligations under Brady and Penal Code section
1054.1 encompass materials from criminal grand jury proceedings, despite the fact that
those proceedings are conducted in secret.

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INTRODUCTION AND BACKGROUND
The questions before us primarily relate to the function of a grand jury in
determining whether probable cause exists to indict a criminal defendant for trial. 1 This
occurs when a prosecutor seeks an indictment by grand jury, in secret and outside of the
defendant’s presence, rather than proceeding by preliminary hearing. 2 A second grand
jury function is to assess alleged misconduct by local officials and make a formal
accusation to remove them from office. 3 The third grand jury function is to investigate
and report on local government as a civil “watchdog.” 4 Although grand jury indictments
and reports may eventually be disclosed, the grand jury operates in secret. 5
The California Constitution and the Penal Code provide that at least one grand
jury shall be drawn and impaneled in each year in each county. 6 Penal Code section
904.6 provides that the court may impanel an additional grand jury upon the request of
the Attorney General or the district attorney or upon the court’s own motion. 7 When a
second grand jury is formed under section 904.6, this grand jury—instead of the preexisting “regular” grand jury—handles all new criminal matters, and only criminal
matters. 8 We will refer to this second grand jury as a “section 904.6 grand jury” or
“criminal grand jury.”
A section 904.6 grand jury must be randomly selected from sources “reasonably
representative of a cross section of the population which is eligible for jury service in the
See Pen. Code, § 917; McGill v. Superior Court (2011) 195 Cal.App.4th 1454, 14671470.

1

McGill v. Superior Court, supra, 195 Cal.App.4th at pp. 1467-1470; Williams v.
Superior Court (2019) 38 Cal.App.5th 1022, 1028-1029.
2

McClatchy Newspapers v. Superior Court (1988) 44 Cal.3d 1162, 1170; Pen. Code,
§ 922.

3

McClatchy Newspapers v. Superior Court, supra, 44 Cal.3d at p. 1170; Pen. Code,
§§ 919, 925 et seq.

4

People v. Garcia (2011) 52 Cal.4th 706, 729-730; see, e.g., Pen. Code, §§ 911, 915,
924.2, 924.6, 929-930, 938-938.1, 939; but see id., § 939.1 (limited public sessions).

5

6

Cal. Const., art. I, § 23; Pen. Code, § 905.

All further statutory references in the text are to the Penal Code. Other statutes
authorize an additional grand jury, but those are not before us. (See, e.g., Pen. Code,
§§ 904.4 [in county of specific size], 904.7 [in San Bernardino], 904.8 [two in Los
Angeles].)

7

8

See 76 Ops.Cal.Atty.Gen. 181, 187 (1993); Pen. Code, § 904.6, subd. (d).
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county”—specifically, from the jury pool for civil and criminal cases. 9 In contrast, the
regular grand jury is generally selected by superior court judges. 10 Regardless of the type
of grand jury, the accused is constitutionally entitled to a grand jury drawn from a
representative cross-section of the community. 11
In this opinion we consider (1) whether section 904.6 requires a court to impanel a
criminal grand jury whenever a district attorney requests one, and (2) whether evidence
required to be disclosed under Brady or under section 1054.1 may include materials from
criminal grand jury proceedings despite the fact that such proceedings are conducted in
secret.
ANALYSIS
1. Section 904.6(a) Does Not Require the Court to Impanel a Grand Jury upon a
District Attorney’s Request
We are first asked whether section 904.6 requires a court to impanel a criminal
grand jury upon the district attorney’s request. We conclude that it does not because the
statutory language, context, and history reveal that the Legislature intended for courts to
have discretion regarding whether to impanel a criminal grand jury.
Statutory Language and Context
As the California Supreme Court has explained, the fundamental task in statutory
interpretation “is to determine the Legislature’s intent so as to effectuate the law’s
purpose,” by examining the statutory language and “giving it a plain and commonsense
meaning.” 12 The statutory language should be examined “in the context of the entire
statute and the statutory scheme,” and in a manner that gives “significance to every word,
phrase, sentence, and part of an act.” 13
Section 904.6(a) provides that a judge “may” impanel a second grand jury upon
request or upon the judge’s own motion, as follows:

9

Penal Code, § 904.6, subds. (b), (e).

People v. Garcia, supra, 52 Cal.4th at p. 730 (Legislature vested superior court with
responsibility for selecting grand jurors); Pen. Code, § 896 et seq. (selection procedures).
10

11

People v. Burney (2009) 47 Cal.4th 203, 225.

12

Brennon B. v. Superior Court (2022) 13 Cal.5th 662, 673.

13

Ibid.
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In any county or city and county, the presiding judge of the superior court,
or the judge appointed by the presiding judge to supervise the grand jury,
may, upon the request of the Attorney General or the district attorney or
upon his or her own motion, order and direct the impanelment, of one
additional grand jury pursuant to this section.[14]
To determine whether this language requires a grand jury to be impaneled upon a
district attorney’s request, we begin by examining whether the word “may” as used here
is mandatory or discretionary.
As the California Supreme Court has explained, “judicial authorities have
construed ‘may’ as both discretionary and mandatory” depending on the statutory context
in which the word is used. 15 To be sure, it is “well-settled . . . that the word ‘may’ is
ordinarily construed as permissive.” 16 But when “may” is considered in isolation, “it is
impossible to conclude with sufficient certainty what the Legislature intended,” so there
must be a “focus more broadly on the language, context, and history of the statute.” 17
We begin that inquiry here by focusing on the language of section 904.6(a). The
word “may” prefaces the reference to a district attorney’s “request.” Like “may,” the
term “request” generally connotes discretion: a “request” refers to something that may
either be granted or denied. Taken together, the language that a court “may” impanel a
criminal grand jury upon “request” weighs in favor of reading the statute to mean that the
court retains discretion over whether to grant the request. In addition, the statute provides
that the judge “may” impanel a grand jury “upon his or her own motion,” establishing
that the court has discretion to impanel a grand jury whether or not the district attorney
makes a request.
Turning to section 904.6 as a whole, it is noteworthy that the Legislature used both
“may” and “shall” in this section. Although “shall” does not appear in subdivision (a), it
appears three times in subdivision (b), once in subdivision (c), once in subdivision (d),
and twice in subdivision (e). These subdivisions address grand jury selection procedures,
length of service, jurisdiction, and legislative intent for grand jury selection, respectively.
14

Pen. Code, § 904.6, subd. (a).

15

People v. Ledesma (1997) 16 Cal.4th 90, 95.

Andrews v. Metropolitan Transit System (2022) 74 Cal.App.5th 597, 605; see also
Halo Electronics, Inc. v. Pulse Electronics, Inc. (2016) 579 U.S. 93, 103, citing Martin v.
Franklin Capital Corp., 546 U.S. 132, 136 (2005) (quoting Fogerty v. Fantasy, Inc., 510
U.S. 517, 533 (1994) (observing that the “word ‘may’ clearly connotes discretion”).
16

17

People v. Ledesma, supra, 16 Cal.4th at p. 95.
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Apart from the single occurrence of “may” in subdivision (a), the word “may” appears in
the statute three other times—twice in subdivision (c) and once in subdivision (d).
This combined use of “may” and “shall” in section 904.6 weighs in favor of
reading “may” as discretionary. As the California Supreme Court has explained, “[w]hen
the Legislature has, as here, used both ‘shall’ and ‘may’ in close proximity in a particular
context, we may fairly infer the Legislature intended mandatory and discretionary
meanings, respectively.” 18 Because “shall” appears throughout section 904.6—but not in
subdivision (a)—“we may fairly infer the Legislature intended” the word “may” as used
in subdivision (a) to have a discretionary meaning. 19
Moreover, the word “shall,” with its apparent mandatory meaning, also appears in
a nearby statute on grand jury impanelment. Specifically, section 913 provides that a
grand jury “shall” be impaneled upon “demand” by the Attorney General. In apparent
furtherance of the requirement for at least one grand jury in each county, that statute
provides that “[i]f a grand jury is not in existence, the Attorney General may demand the
impaneling of a grand jury by those charged with the duty to do so, and upon such
demand by him, it shall be their duty to do so.” 20 The Legislature could have easily used
similar mandatory language in section 904.6(a), but did not. 21
Another neighboring statutory provision regarding grand jury impanelment also
supports a discretionary reading of section 904.6(a). Section 904 provides that a court
has discretion when to impanel a grand jury, stating that “[e]very superior court,
whenever in its opinion the public interest so requires, shall make and file with the jury
commissioner an order directing a grand jury to be drawn.” 22 Section 904 has been
consistently interpreted over the years as giving a court discretion to decide when to
Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542; see also
Andrews v. Metropolitan Transit System, supra, 74 Cal.App.5th at p. 605 (“It is a wellsettled principle of statutory construction that the word ‘may’ is ordinarily construed as
permissive, whereas ‘shall’ is ordinarily construed as mandatory, particularly when both
terms are used in the same statute.”).
18

19

See Tarrant Bell Property, LLC v. Superior Court, supra, 51 Cal.4th at p. 542.

20

Pen. Code, § 913, italics added; see Cal. Const., art. I, § 23; Pen. Code, § 905.

See Paul Blanco’s Good Car Company Auto Group v. Superior Court (2020) 56
Cal.App.5th 86, 113 (“[I]f the Legislature had intended” something to be a requirement
“it easily could have said so”).
21

Pen. Code, § 904. We note that this statute is not mandatory despite containing the
word “shall,” because the command applies only after the court has made a discretionary
finding (“whenever in its opinion . . .”).
22

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impanel an additional grand jury under section 904.6. During a previous era when grand
jury statutes including section 904.6 provided for criminal grand juries in specified
counties only, the California Supreme Court explained that “the court determines when a
grand jury should be empaneled,” citing section 904, alongside statutes providing for a
criminal grand jury such as section 904.6. 23 During that same era, an Attorney General
opinion similarly recognized that section 904 gives the court discretion to determine
whether to impanel an additional grand jury. 24 And once the Legislature extended
section 904.6 to apply in every county, a legislative committee report summarized and
cited section 904 in explaining laws relevant to section 904.6. 25
If the Legislature had intended section 904.6(a) to override the established
discretion of a court, we believe that intent would have been expressed in a more
straightforward way, such as by using the word “shall.” 26 But the Legislature did not use
any such language. Indeed, as discussed below, section 904.6(a)’s legislative history
reveals that the Legislature actively considered—but then expressly rejected—the use of
“shall” in this provision.
The requestor advances a markedly different interpretation of section 904.6(a). He
suggests that the statute confers discretion on the court to impanel a criminal grand jury
on its own motion, but imposes a mandatory obligation on the court to impanel a criminal
grand jury if a district attorney requests one. 27 On that reading, section 904.6(a)’s single
use of the word “may” denotes two different and opposing meanings—mandatory if the
district attorney requests the grand jury; discretionary if the judge impanels the grand jury
on the judge’s own motion. We are not persuaded. We do not normally attribute
different meanings to the same word in the same statutory sentence. The requester does
not identify any authority supporting the proposition that the single use of the word
“may” in section 904.6(a) would allow the word to simultaneously carry two different
23

People v. Superior Court (1973 Grand Jury) (1975) 13 Cal.3d 430, 438, fn. 8.

72 Ops.Cal.Atty.Gen. 128, 131-134 (1989) (construing legislative history of section
904 to expand court discretion from what time of year to impanel to “whether and when
the public interest required the impaneling of more than one grand jury for the year”).
24

Assem. Comm. on Public Safety Analysis, Sen. Bill No. 416, as amended March 29,
2005, pp. 1-2.
25

See First Street Plaza Partners v. City of Los Angeles (1998) 65 Cal.App.4th 650, 663
(specified action “plainly mandate[d]” by using “classic mandatory verb ‘shall’”).
26

Yolo County District Attorney Jeff W. Reisig, letter to Senior Assistant Attorney
General Mollie Lee, July 14, 2022, p. 1 (“Requestor letter”) p. 4, fn. 13; accord,
Riverside County District Attorney Michael Hestrin, letter to Deputy Attorney General
Catherine Bidart, Oct. 17, 2022, p. 2 (“Riverside letter”).
27

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and opposing meanings. 28 And the other textual and contextual cues discussed above all
point in a different direction.
Legislative History
The Legislature enacted section 904.6(a) in 1972, then amended it in 1991 and
again in 2005 to read as it does today. Since its first enactment, the statute has provided
that a judge “may” impanel an additional grand jury. 29 The statute first applied in San
Francisco only, but the Legislature expanded it in 1991 to apply in all counties, due to an
anticipation that more prosecutors would use grand juries after an initiative eliminated a
requirement for a post-indictment preliminary hearing. 30 In 2005, the Legislature
amended the statute to read as it does today. 31 The 2005 amendments added the language
before us that refers to a district attorney’s request to impanel a 904.6 grand jury. 32
In 2005, the bill initially considered by the Legislature would have replaced the
word “may” and directed that a judge “shall” impanel a criminal grand jury upon a
district attorney’s request. 33 Ultimately, however, the Legislature rejected the proposed
change to “shall,” leaving “may” intact. That history is powerful evidence that the word
“may” in the current statute should not be read to mean “shall” or “must.” As the Court
of Appeal has explained, “[t]he Legislature’s rejection of a specific provision which
Cf. Reno v. Bossier Parish School Bd. (2000) 528 U.S. 320, 329 (rejecting “a
construction that would attribute different meanings to the same phrase in the same
sentence, depending on which object it is modifying”); Paul Blanco’s Good Car
Company Auto Group v. Superior Court, supra, 56 Cal.App.5th at p. 107 (in limited
circumstances, multiple meanings could apply to same word used in different places of
statute).
28

Former Pen. Code, § 904.6, subd. (a), as enacted by Stats. 1972, ch. 896, § 1 (“In any
city and county, the presiding judge of the superior court may order and direct the
impanelment, at any time, of one additional grand jury pursuant to this section”).
29

Compare ibid. with Stats. 1991, ch. 464, § 2 (“In any county or city and county, the
presiding judge of the superior court may order and direct the impanelment, at any time,
of one additional grand jury pursuant to this section”); see Cal. Const., art. I, § 14.1,
added by Prop. 115, June 5, 1990; Governor’s Office of Planning and Research, Enrolled
Bill Rep. on Assem. Bill No. 607 (1991-1992 Reg. Sess.), Sept. 26, 1991, p. 3; see also
note 42, infra (enrolled bill report as legislative history).
30

31

Stats. 2005, ch. 25, § 1.

Compare Pen. Code, § 904.6(a) with former Pen. Code, § 904.6(a), as enacted by Stats.
1991, ch. 464, § 2; see note 31, ante.

32

33

Sen. Bill No. 416 (Reg. Sess. 2005-2006) as introduced Feb. 17, 2005.
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appeared in the original version of an act supports the conclusion that the act should not
be construed to include the omitted provision,” 34 and “[t]he deletion of a specific
provision contained in legislation as originally introduced is most persuasive that the
enactment should not be interpreted to include what was omitted.” 35
Moreover, we presume that, when the Legislature left “may” intact, it was aware
of existing opinions interpreting that term as discretionary. 36 Indeed, multiple sources
support the inference that the Legislature knew that existing law gave the judge discretion
over whether to impanel a criminal grand jury—and that the continued use of “may” in
the statute would preserve that state of affairs.
We begin with the Legislative Counsel’s Digest. 37 The Digest explained that the
proposed change from “may” to “shall” in 2005 would change an existing authorization
to a requirement:
Existing law authorizes the presiding judge of the superior court in any
county or city and county to empanel an additional grand jury, as specified.
This bill would instead require the presiding judge or the judge appointed
by the presiding judge to supervise the grand jury to empanel an additional
grand jury upon the request of the Attorney General or the District
Attorney.
By imposing additional burdens on local governments in connection with
the grand jury, this bill would impose a state-mandated local program.[38]

34

People v. Tingcungco (2015) 237 Cal.App.4th 249, 256.

35

Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87, 99.

People v. Tingcungco, supra, 237 Cal.App.4th at p. 257 (rejection of provision from
earlier bill version has “extra significance” when viewed with “another rule of statutory
construction: The Legislature is deemed to be aware of judicial decisions already in
existence and to have enacted or amended a statute in light of those decisions”); Burden
v. Snowden (1992) 2 Cal.4th 556, 564 (Legislature presumed to know Attorney General
opinions affecting subject matter of proposed legislation); see notes 23 & 24, ante.
36

See Center for Local Government Accountability v. City of San Diego (2016) 247
Cal.App.4th 1146, 1154-1155 (Legislative Counsel’s Digest prefaces each bill to assist
Legislature and is entitled to great weight in determining legislative intent).
37

38

Legis. Counsel’s Dig., Sen. Bill No. 416 (2005-2006 Reg. Sess.), as introduced.
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When “shall” was rejected and changed back to “may,” the Digest explained that
this removed the requirement, and no longer imposed a state-mandated local program. 39
The Court of Appeal has described a similar situation—when the text of a bill changed
from “shall” to “may,” and the Digest changed its description of the bill from “require” to
“authorize”—as demonstrating “with reasonable certainty that, although the bill as
originally proposed would have created a mandatory duty . . . , the bill as amended
provided only for discretionary” action. 40 Here too, the Legislature’s rejection of “shall,”
coupled with the interpretive statements contained in the Legislative Counsel’s Digest,
provide reasonable certainty that the Legislature intended the statute to be discretionary.
Other sources from 2005 provide further evidence of that legislative intent. A
legislative committee analysis describing the bill (after “may” had been restored)
explained that existing law authorized judges to impanel an additional grand jury, and
that the bill “[p]ermits a judge . . . upon the request of the . . . district attorney, or his or
her own motion, to impanel an additional grand jury.” 41 And an enrolled bill report
explained that the bill “would let a district attorney ask for a second grand jury,” would
“allow” district attorneys to request an additional grand jury, and would “grant . . .
authority” to a district attorney to request a second grand jury. 42
Based on the above, the text of section 904.6(a) and its history lead us to conclude
that judges retain discretion to decide whether to impanel a criminal grand jury in
response to a request from a district attorney. We address opposing views below.

Legis. Counsel’s Dig., Sen. Bill No. 416 (2005-2006 Reg. Sess.), as amended March
29, 2005 (stating “[t]his bill would instead require provide that the presiding judge or the
judge appointed by the presiding judge to supervise the grand jury to may empanel an
additional grand jury upon the request of the Attorney General or the District Attorney,”
italics and strike-out text in original, and removing language on state-mandated local
program).
39

40

Woodbury v. Brown-Dempsey (2003) 108 Cal.App.4th 421, 434-436.

Sen. Assem. Com. on Public Safety Analysis, Rep. on Sen. Bill No. 416 (2005-2006
Reg. Sess.), as amended March 29, 2005, p. 1, italics added; see Mt. Hawley Ins. Co. v.
Lopez (2013) 215 Cal.App.4th 1385, 1401 (“In construing a statute, legislative committee
reports, bill reports, and other legislative records are appropriate sources from which
legislative intent may be ascertained”).
41

Governor’s Office of Planning and Research, Enrolled Bill Rep. on Sen. Bill No. 416
(2005-2006 Reg. Sess.), June 20, 2005, pp. 1-2, italics added; see UFCW & Employers
Benefit Trust v. Sutter Health (2015) 241 Cal.App.4th 909, 926, fn. 12 (enrolled bill
report as legislative history).

42

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Other Views
Our view, while shared by some district attorneys, as seen in a court filing and a
legislative committee report, conflicts with the views of other district attorneys, such as
the requestor and the Riverside County District Attorney. 43 Those who favor a
mandatory interpretation contend that “nothing in the statutory language” or “in the
legislative history” suggests that a district attorney’s request for “a 904.6 criminal grand
jury is conditioned on the Court’s discretion.” 44 But this overlooks the strong textual and
historical evidence of legislative intent discussed above. 45
The requestor asserts that the Legislature has expressed a preference for section
904.6 grand juries to be used in criminal matters. 46 But there is reason to doubt that
characterization: For example, the Legislature rejected providing a proposed further
additional criminal grand jury in San Diego County, but approved providing an additional
civil grand jury in San Bernardino County. 47 A legislative committee analysis stated that
the civil grand jury bill did not have the “same faults” as the rejected bill. The analysis
explained that “[c]riminal grand juries are designed for use in exceptional cases, with
most criminal cases being processed through preliminary hearings,” and cited concerns

See, e.g., Appellant’s Reply Brief in City of Woodlake, et al. v. Tulare County Grand
Jury, 2011 WL 1248736 (Cal.App. 5 Dist.), pp. 1-2 (Tulare County District Attorney
explaining that “nothing requires a court” to impanel second grand jury upon request
under section 904.6(a)); Assem. Com. on Public Safety, Analysis of Assem. Bill No.
1854 (2007-2008 Reg. Sess.), April 8, 2008, p. 11 (quoting then San Diego District
Attorney, regarding language mirroring section 904.6(a), that it “will allow” court to
impanel “at its discretion,” and upon district attorney’s request “but at the discretion o[f]
the Court and only with its authorization”); cf. Requestor letter, supra, p. 4, fn. 13;
Riverside letter, supra, pp. 2-4.
43

44

Requestor letter, supra, p. 10.

We do not address letters cited by the requestor that are not cognizable legislative
history. (See Requestor letter, supra, p. 6, fn. 16; id. at p. 8, fn. 20; K.M. v. Grossmont
Union High School Dist. (2022) 84 Cal.App.5th 717, 740.)
45

46

Requestor letter, supra, p. 9, fn. 21.

See Penal Code, § 904.7, enacted by Stats. 2010, ch. 87, § 1 (Assem. Bill No. 1906);
Sen. Judiciary Com., Analysis of Assem. Bill No. 1906 (2009-2010 Reg. Sess.), as
amended April 6, 2010, hearing date June 15, 2010, p. 5 (discussing rejected San Diego
bill); see also Assem. Bill No. 1854 (2007-2008 Reg. Sess.), as introduced (rejected San
Diego bill).
47

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that “defendants are not allowed to attend the grand jury and are therefore unable to
confront witnesses or challenge evidence.” 48
The requester also invokes language from the California Constitution, stating that
“Felonies shall be prosecuted as provided by law, either by indictment or, after
examination and commitment by a magistrate, by information.” 49 Because the
Constitution describes the authority of prosecutors to choose whether to proceed by
indictment or information, the requester appears to reason that section 904.6(a) must be
understood as creating a mandatory obligation for judges to impanel a section 904.6
grand jury when a prosecutor requests one. 50 That does not follow: The option of
proceeding by indictment simply does not confer a right to a section 904.6 grand jury
instead of a regular grand jury.
In addition, the requestor asserts that construing the statute as discretionary
“would result in an absurd consequence” of “compelled use of a [regular] grand jury that
would not give county citizens an equal opportunity to serve” and that is “less
representative and diverse.” 51 In a similar vein, the requestor asserts that the Legislature
made section 904.6 apply in each county due to “concern about possible legal challenges
to indictments” returned by regular grand juries, and thus intended that a section 904.6
grand jury would necessarily be impaneled upon request. 52
We disagree that a discretionary reading would result in any absurd consequences.
Any concern regarding the selection and representativeness of a particular regular grand
jury considering charges for an indictment may be raised in a request for a section 904.6
grand jury. Moreover, judges surely consider constitutional standards regarding selection
Sen. Judiciary Com., Analysis of Assem. Bill No. 1906 (2009-2010 Reg. Sess.), as
amended April 6, 2010, hearing date June 15, 2010, p. 5.

48

49

Cal. Const., art. I, § 14.

50

Requestor letter, supra, pp. 1, 7-11, fn. 23.

51

Id. at p. 9.

Id. at p. 8 & fn. 20, citing, e.g., 76 Ops.Cal.Atty.Gen. 181, supra; Sen. Com. on
Judiciary, Analysis of Assem. Bill 607, July 16, 1991 (purpose of 1991 amendments to
section 904.6 was to permit counties to establish additional grand juries to handle
criminal indictments as authorized by Proposition 115 without post-indictment
preliminary hearings, composed to preclude challenge for unrepresentative panel) &
Senate Com. on Judiciary, Analysis of Assem. Bill No. 607, August 27, 1991 (criminal
grand juries may afford court opportunity to select panel more representative of general
population, immunizing future challenge and reducing risk of successful appeal); see also
Requestor letter, supra, pp. 5-7.

52

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and representation both when impaneling regular grand juries and when determining
whether it would serve the public’s interest to impanel a section 904.6 grand jury. 53
We also disagree with the requestor’s contention that the Legislature’s decision to
expand section 904.6 to all counties compels a mandatory interpretation. When the
Legislature enacted this expansion in 1991, it did not reference the provision authorizing
a district attorney to request a criminal grand jury. Nor could it have, since that provision
did not appear in the statute until 2005. It would defy the statute’s chronology to
interpret the 1991 expansion as conveying an intent for a request provision added
fourteen years later to create a mandatory obligation for judges to impanel a criminal
grand jury. We acknowledge that an earlier and un-enacted version of the 1991
expansion bill included language referencing a district attorney’s request for a criminal
grand jury. In doing so, however, that bill used language consistent with a discretionary
reading, stating that “the presiding judge of the superior court shall have the power to
impanel a criminal grand jury whenever the public interest so requires or when requested
to do so by the district attorney . . . .” 54 If enacted, that language would have simply
reflected long-standing judicial discretion regarding whether to impanel a grand jury,
which, as set forth in section 904, is appropriate “whenever in [the court’s] opinion the
public interest so requires.”
The requestor also raises a concern that, if a section 904.6 grand jury were not
available whenever a prosecutor demanded one, prosecutors might “monopolize” the
regular grand jury, thereby interfering with its civil work as a watchdog. 55 We believe
that the Legislature intended to address this concern by authorizing the impanelment of a
second grand jury—the criminal grand jury—in each county. As mentioned above, the
Legislature made the criminal grand jury under section 904.6 available in each county, in
anticipation that more prosecutors would proceed by grand jury instead of by preliminary
hearing, since the post-indictment requirement to hold a preliminary hearing anyway had
See Pen. Code, § 904; People v. Burney, supra, 47 Cal.4th at p. 225 (constitutional
entitlement to “jury drawn from a representative cross-section of the community”
requires that “pools from which juries are drawn must not systematically exclude
distinctive groups in the community”); see, e.g., People v. Garcia, supra, 52 Cal.4th at
p. 739 (inferring from regular grand jury form that “Los Angeles Superior Court was
evidently aware of its constitutional duties in selecting grand jurors”).
53

See Assem. Bill No. 607, proposing Penal Code section 902.5 (as amended April 18,
1991), emphasis added.
54

As support, the requestor cites a prior Attorney General opinion, which concluded that
the grand jury could not limit the prosecution’s appearance time to ten days per month.
(See Requestor letter, supra, p. 8; 76 Ops.Cal.Atty.Gen. 181, supra.)
55

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been eliminated. 56 Rather than require judges to impanel a second grand jury every time
a prosecutor requested one, however, the Legislature expected that judges would consider
the regular grand jury’s workload and other relevant considerations before deciding
whether it would serve the public interest to impanel a criminal grand jury. That
discretionary understanding of the statute allows judges to consider and address the
policy concern raised by the requestor.
Lastly, we consider the requestor’s argument that the statute must create a
mandatory obligation for judges to impanel a criminal grand jury in response to a district
attorney’s request because otherwise the reference to such a request would be
“superfluous in that it would be the Court’s sole decision regardless.” 57 We cannot agree.
The legislative history reveals that the references to the district attorney’s request and the
court’s own motion were enacted together, and a committee report indicates that the latter
reference was included “to preserve the superior court’s ability under current law to
empanel an additional grand jury if the court deems it necessary.” 58 The Legislature
plainly intended that courts would have discretion to grant a district attorney’s request for
a criminal grand jury, where appropriate, and that courts would also have discretion to
impanel a criminal grand jury on their own motion, even if the district attorney does not
request one. There is no surplusage.
2. Brady and Penal Code Section 1054.1 Do Not Exempt from Disclosure
Materials from Grand Jury Proceedings Considering Criminal Charges
The second question refers to both a criminal defendant’s federal constitutional
right to the disclosure of certain exculpatory evidence under Brady v. Maryland (1963)
373 U.S. 83, and the defendant’s statutory right to evidentiary disclosures, as set forth in
Penal Code section 1054.1, a provision within California’s criminal discovery statute. 59
We are asked whether the disclosures required by Brady and section 1054.1 may include
materials from criminal grand jury proceedings, or whether such materials are excluded
from disclosure on the theory that such proceedings are held in secret. We agree with the
requestor that neither Brady nor section 1054.1 provides an exception that would allow
for those materials to be withheld from the defendant. 60

56

See note 30 and accompanying text, ante.

57

Requestor letter, supra, p. 10.

Sen. Judiciary Com., Analysis of Sen. Bill No. 416 (2005-2006 Reg. Sess.), as
amended March 29, 2005, pp. 2-3; see Stats. 2005, ch. 25, § 1.

58

59

See Brady v. Maryland (1963) 373 U.S. 83, 87; Pen. Code, § 1054.1.

60

Requestor letter, supra, pp. 1, 11, 15.
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Legal Background
We begin by reviewing the relevant legal principles. To protect a criminal
defendant’s federal constitutional right to a fair trial, the United States Supreme Court
held in Brady v. Maryland that “the suppression by the prosecution of evidence favorable
to an accused upon request violates due process where the evidence is material either to
guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 61 In
subsequent cases, the Court elaborated on that rule. For example, it held that favorable
evidence includes both exculpatory and impeachment evidence, and that evidence is
material “if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different.” 62 The Court further
determined that prosecutors must voluntarily provide Brady evidence, even if the
defendant has not requested it. 63
Penal Code section 1054.1 is a California criminal discovery statute that lists
materials and information that the prosecuting attorney “shall disclose” to a criminal
defendant before trial. 64 The statute lists the names and addresses of intended
prosecution witnesses, statements of all defendants, all relevant evidence from the
investigation of the charged offenses, felony convictions of material witnesses whose
credibility will likely be critical to the trial outcome, any exculpatory evidence, and
relevant witness statements (and related items such as reports and examinations) that the
prosecution intends to offer at trial. 65
The requirements under Brady and its progeny are distinct from those under
section 1054.1. 66 For example, section 1054.1 “requires the prosecution to provide all
exculpatory evidence, not just evidence that is material under Brady and its progeny.” 67
And as the California Supreme Court has explained, Brady due process requirements
operate independently from discovery statutes such as section 1054.1. 68 “No statute can

61

Brady v. Maryland, supra, 373 U.S. at p. 87.

62

United States v. Bagley (1985) 473 U.S. 667, 676-677, 682.

63

United States v. Agurs (1976) 427 U.S. 97, 106-107, 110.

64

People v. Washington (2019) 34 Cal.App.5th 311, 317, quoting Pen. Code, § 1054.1.

65

Pen. Code, § 1054.1.

66

Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378.

67

People v. Cordova (2015) 62 Cal.4th 104, 124.

68

Izazaga v. Superior Court, supra, 54 Cal.3d 356 at p. 378.
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limit . . . due process rights of criminal defendants,” and the discovery statutory scheme
which includes section 1054.1 “does not attempt to do so.” 69
Grand jury proceedings are conducted in secret. 70 More specifically, grand jurors
work in “private,” vote and deliberate in “secret,” take an oath not to disclose evidence,
and only authorized persons (such as a district attorney) may be present during grand jury
proceedings. 71 But the secrecy of grand jury proceedings does not mean that grand jury
material, such as testimony and exhibits, may never be disclosed. 72
California statutes expressly provide for disclosure of grand jury materials by the
court in particular circumstances. For example, under sections 938 and 938.1, if a grand
jury returns an indictment against a defendant, the grand jury transcript shall be provided
to the defense and soon after made public. 73 And if a grand jury does not indict the
accused, section 924.6(a) provides that the court, upon a party’s application, “shall”
disclose grand jury testimony that is relevant and admissible to a pending or subsequent
criminal proceeding. 74 Also, under section 924.2, a court may release, under a protective
order, relevant impeachment material from a grand jury transcript. 75 Those provisions all
address when grand jury material is available from the court. In contrast, section 1054.1
is a criminal discovery statute that pertains to the duties of disclosure by a prosecuting
attorney. 76

69

Ibid.

See, e.g., Douglas Oil Co. of California v. Petrol Stops Northwest (1979) 441 U.S. 211,
218, fn. 9; People v. Garcia, supra, 52 Cal.4th at p. 729; but see Pen. Code, § 939.1
(limited public sessions). The Court of Appeal discussed reasons for secrecy in People v.
Superior Court (Mouchaourab and other cases) (2000) 78 Cal.App.4th 403, 415-416.
70

71

Pen. Code, §§ 911, 915, 924.2, 939.

For instance, a federal rule generally allows disclosure of grand jury transcripts when
directed by a court. (Goldstein v. Superior Court (2008) 45 Cal.4th 218, 229-230, citing
Fed. Rules Crim. Proc., rule 6(e)(3)(E), 18 U.S.C.)
72

Pen. Code, §§ 938-938.1; but see Pen. Code, § 938.1, subd. (b) (disclosure to public
may be delayed pending court determination whether to seal until trial completion to
avoid prejudicing defendant’s right to fair and impartial trial).
73

74

Pen. Code, § 924.6, subd. (a); Goldstein v. Superior Court, supra, 45 Cal.4th at p. 228.

75

Goldstein v. Superior Court, supra, 45 Cal.4th at p. 234, citing Pen. Code, § 924.2.

76

Pen. Code, § 1054.1.
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Brady Does Not Exclude Materials from Criminal Grand Jury Proceedings
We first address the Brady question. To begin, California law on grand jury
secrecy cannot override federal constitutional due process principles as enunciated by
Brady and its progeny. The supremacy clause of the United States Constitution provides
the relevant authority. 77 That clause provides, “This Constitution, and the Laws of the
United States which shall be made in Pursuance thereof . . . shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.” 78 Since state laws
cannot trump the requirements of the federal Constitution, the question here is whether
Brady itself recognizes a carve-out for materials from criminal grand jury proceedings.
We conclude that it does not.
The constitutional requirement described in Brady and its progeny contains no
express exception for criminal grand jury materials, and we have found no authority
implying the existence of such an exception. The lack of such an exception is sensible in
our view.
As the Ninth Circuit has explained, the “purpose of Brady is to ensure that
‘criminal trials are fair’” and to prevent “a miscarriage of justice.” 79 The Brady right is
premised on the notion that “our system of the administration of justice suffers when any
accused is treated unfairly.” 80 And the right of criminal defendants to a fair trial imposes
certain duties on prosecutors, consistent with the sovereign obligation to ensure “that
‘justice shall be done’” in all criminal prosecutions. 81
By “[p]lacing the burden on prosecutors to disclose information,” Brady
“‘illustrate[s] the special role played by the American prosecutor in the search for truth in
criminal trials.’” 82 While “the State is obliged to “prosecute with earnestness and vigor,”
it “is as much [its] duty to refrain from improper methods calculated to produce a
Quesada v. Herb Thyme Farms, Inc. (2015) 62 Cal.4th 298, 307 (“supremacy clause
. . . makes federal law paramount”).
77

78

U.S. Const. art. VI, cl. 2, italics added.

Amado v. Gonzalez (9th Cir. 2014) 758 F.3d 1119, 1133, quoting Brady, supra, 373
U.S. at p. 87 and United States v. Bagley, supra, 473 U.S. at p. 675.
79

80

Brady v. Maryland, supra, 373 U.S. at p. 87.

United States v. Agurs (1976) 427 U.S. 97, 111, quoting Berger v. United States (1935)
295 U.S. 78, 88.
81

Amado v. Gonzalez, supra, 758 F.3d at p. 1133, quoting Strickler v. Greene (1999) 527
U.S. 263, 281.
82

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wrongful conviction as it is to use every legitimate means to bring about a just one.” 83
Indeed, as Justice Marshall observed, “[a] prosecutor’s duties under Brady form “the
essence of due process of law,” because “[i]t is the State that tries a man, and it is the
State that must insure that the trial is fair.” 84 If the State “has in its exclusive possession
specific, concrete evidence which is not merely cumulative or embellishing and which
may exonerate the defendant or be of material importance to the defense . . . the State is
obliged to bring it to the attention of the court and the defense.” 85
We see no reason why that same obligation would not apply when concrete
evidence of material importance to the defense appears in material from a criminal grand
jury proceeding. We acknowledge, of course, the long tradition of secrecy in grand jury
proceedings. 86 That tradition serves important purposes. It protects the “innocent
accused who is exonerated from disclosure of the fact that he has been under
investigation, and from the expense of standing trial where there was no probability of
guilt.” 87 It “prevent[s] the escape of those whose indictment may be contemplated.” 88 It
“encourage[s] free and untrammeled disclosures by persons who have information with
respect to the commission of crimes.” 89 It “insure[s] the utmost freedom to the grand
jury in its deliberations, and to prevent persons subject to indictment or their friends from
importuning the grand jurors.” 90 And it “prevent[s] subornation of perjury or tampering
with the witnesses who may testify before [the] grand jury and later appear at the trial of
those indicted by it.” 91
Cone v. Bell (2009) 556 U.S. 449, 469, quoting Berger v. United States, supra, 295
U.S. 78, 88.
83

Moore v. Illinois (1972) 408 U.S. 786, 809-810 (J. Marshall, concurring in part and
dissenting in part).
84

85

Giles v. State of Md. (1967) 386 U.S. 66, 100 (J. Fortas, concurring in the judgment).

See People v. Superior Court (Mouchaourab and other cases), supra, 78 Cal.App.4th at
p. 414 (“The secret grand jury has been a part of California’s criminal justice system
since its beginning”).

86

Douglas Oil Co. of California v. Petrol Stops Northwest, supra, 441 U.S. at p. 219, fn.
10; see also People v. Superior Court (Mouchaourab and other cases), supra, 78
Cal.App.4th at pp. 415-416.
87

Douglas Oil Co. of California v. Petrol Stops Northwest, supra, 441 U.S. at p. 219, fn.
10.
88

89

Ibid.

90

Ibid.

91

Ibid.
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Notwithstanding these important purposes, our State provides for certain
disclosures by the court of once-secret information after the grand jury proceedings end. 92
Those statutorily authorized disclosures perhaps reflect the reality that many of the
purposes served by secrecy diminish (or disappear altogether) once the proceedings are
complete. 93 For example, “[t]he risk of flight is less of a concern since the indicted
defendant has been accused and presumably will have been arrested”; and “[t]here is no
longer a need to prevent the importuning of grand jurors, since they have completed their
deliberations and have returned the indictment.” 94
And even where criminal grand jury proceedings are ongoing, the interests served
by grand jury secrecy do not rise to a level where they might outweigh defendants’
constitutionally enshrined right to a fair trial. In other words, the due process rights
protected by Brady override our system’s general preference for secrecy concerning
criminal grand jury materials. To the extent that disclosures of certain evidence related to
ongoing criminal grand jury proceedings would undermine the purposes described above,
the answer is not to exclude those materials from the Brady right, but for the prosecution
to seek a protective order to address any particularized concerns. 95
Numerous cases involving federal or out-of-state grand juries accord with our
view that the secrecy of criminal grand jury proceedings does not excuse prosecutors
from their disclosure obligations under Brady. For example, the Fourth Circuit vacated a
conviction and sentence and remanded the case to the district court to determine whether
As mentioned above, the grand jury transcript is not only disclosed to the defendant but
also becomes public in California after an indictment. (See Pen. Code, §§ 938 and
938.1.) When there is no indictment—meaning, the transcript remains secret—section
924.6 authorizes court disclosure of the testimony that is relevant and admissible to
another criminal proceeding. (Pen. Code, § 924.6; see Pen. Code, §§ 938 and 938.1
(disclosure of transcript); see also note 75 and accompanying text, ante.)
92

See People v. Superior Court (Mouchaourab and other cases), supra, 78 Cal.App.4th at
p. 416 (“Where the grand jury proceeding has resulted in a criminal indictment, the same
reasons for maintaining the secrecy requirements are no longer present”).
93

94

Id. at p. 416.

See, e.g., Millaud v. Superior Court (1986) 182 Cal.App.3d 471, 476 (“We have no
doubt the broad power of the trial court to fashion criminal discovery procedures
satisfying, so far as possible, the legitimate needs of all parties, includes the power to
issue protective orders preventing unjustified use of the requested materials. . . . We see
no reason why the court cannot protect against disclosure which would hamper a third
party or injure its interests, as well as prevent disclosure which would harm the
prosecution”).
95

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grand jury testimony was material under Brady. 96 A federal district court in our State
concluded that the federal government violated its Brady obligations by withholding
grand jury transcripts. 97 Another district court in West Virginia concluded that Brady
required disclosure of “exculpatory portions of grand jury testimony of government
witnesses that could potentially require investigation by the defense,” and granted a
motion to produce “exculpatory information contained in the grand jury testimony of
government agents.” 98 The New York Court of Appeals found a due process violation
under Brady when the prosecution failed to disclose, at a suppression hearing, grand jury
testimony that was facially favorable to the defense. 99 Similarly, as the requestor has
noted, the Supreme Judicial Court of Massachusetts held that there was a Brady
obligation to disclose grand jury testimony to unrelated defendants who were not the
subject of the grand jury’s proceeding. 100 In addition, other federal circuit and district
court cases have indicated that Brady does apply to grand jury materials even though the
facts of the particular cases did not show a violation had occurred. 101 In contrast, we
96

U.S. v. King (4th Cir. 2011) 628 F.3d 693, 703-704.

97

U.S. v. Aguilar (C.D. Cal. 2011) 831 F.Supp.2d 1180, 1206.

98

U.S. v. Shifflett (W.D. Va. 1992) 798 F.Supp. 354, 355, 358.

99

People v. Geaslen (1981) 54 N.Y.2d 510, 516.

Matter of Grand Jury Investigation (2020) 485 Mass. 641, 642, 658; see Requestor
letter, pp. 12-13.
100

See, e.g., U.S. v. Christensen (9th Cir. 2015) 624 Fed.Appx. 466, 484-485
(nondisclosure of grand jury testimony did not violate Brady because it was not material);
U.S. v. Span (9th Cir. 1992) 970 F.2d 573, 582-583 (no reversible Brady error for delayed
disclosure of grand jury testimony because delay was not prejudicial); U.S. v. Kerr (9th
Cir. 1992) 981 F.2d 1050, 1052 (grand jury testimony was immaterial under Brady); U.S.
v. Vaccaro (9th Cir. 1987) 816 F.2d 443, 452, abrogated on other grounds (grand jury
testimony could not have affected outcome, citing Brady); U.S. v. Natale (2d Cir. 1975)
526 F.2d 1160, 1171 (no suppression of favorable evidence to support Brady violation
involving grand jury testimony); U.S. v. Sitzmann (D.D.C. 2014) 74 F.Supp.3d 128, 134,
137-138 (nondisclosure of grand jury testimony was not Brady violation because
elements for such violation were not met); Williams v. State (Ala. Crim. App. 1996) 710
So.2d 1276, 1296-1297 (nondisclosure of grand jury testimony was not Brady violation
because it was not material exculpatory or impeachment evidence); U.S. v. Persico
(S.D.N.Y. 1985) 621 F.Supp. 842, 870 (no Brady issue because defendant had “actual
knowledge” of portion of grand jury testimony that defendant “believes is exculpatory”);
Green v. State (Md. Ct. Spec. App. 1975) 25 Md.App. 679, 703 (Brady claim for grand
jury testimony failed because defendant did not show evidence was material,
demonstrably favorable, and not already known).
101

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have found no case holding that Brady incorporates some sort of carve-out that would
exclude criminal grand jury material from its reach.
Section 1054.1 Does Not Exclude Materials from Criminal Grand Jury
Proceedings
We now turn to the section 1054.1 question. Again, the statute requires the
prosecution to disclose the names and addresses of intended prosecution witnesses,
statements of all defendants, all relevant evidence from the investigation of the charged
offenses, felony convictions of material witnesses whose credibility will likely be critical
to the trial outcome, any exculpatory evidence, and relevant witness statements (and
related items such as reports and examinations) that the prosecution intends to offer at
trial. 102
The statute is part of the chapter governing criminal discovery. The chapter’s
introductory provision, section 1054, instructs us to interpret the chapter so as to give
effect to section 1054’s stated purposes. Those purposes include a directive in
subdivision (e) for criminal discovery to occur only as provided by the chapter, other
express statutes, or the federal Constitution. 103 Section 1054 in its entirety provides:
This chapter shall be interpreted to give effect to all of the following
purposes:
(a) To promote the ascertainment of truth in trials by requiring timely
pretrial discovery.
(b) To save court time by requiring that discovery be conducted informally
between and among the parties before judicial enforcement is requested.
(c) To save court time in trial and avoid the necessity for frequent
interruptions and postponements.
(d) To protect victims and witnesses from danger, harassment, and undue
delay of the proceedings.
(e) To provide that no discovery shall occur in criminal cases except as
provided by this chapter, other express statutory provisions, or as mandated
by the Constitution of the United States.
102

Pen. Code, § 1054.1.

Pen. Code, § 1054. As the Court of Appeal observed, this directive does not preclude
discovery when “required to vindicate rights guaranteed by the California Constitution.”
(Magallan v. Superior Court (2011) 192 Cal.App.4th 1444, 1462.)
103

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As a general matter, nothing in the Penal Code excludes criminal grand jury
material from section 1054’s general directive for criminal discovery to be conducted as
provided by the discovery chapter, other express statutes, and the Constitution. Nor is
there any express exclusion of criminal grand jury material from section 1054.1’s ambit.
We note, however, that just because material from a criminal grand jury proceeding may
be listed in section 1054.1, disclosure of any given material could nevertheless be
prohibited under another statute, such as the good-cause exception for “threats or possible
danger to the safety of a victim or witness, possible loss or destruction of evidence, or
possible compromise of other investigations by law enforcement.” 104 And, of course,
even where material does have to be disclosed to the defendant under section 1054.1, in
appropriate circumstances the prosecutor may seek a protective order to prohibit the
public dissemination of the document. 105
Although we have found no case directly addressing the question under section
1054.1, the Court of Appeal has spoken on the general subject of disclosure of grand jury
material. The Court recognized that “although the grand jurors were sworn to secrecy
regarding disclosure of evidence, after the indictment is handed down a transcription of
the entire testimony is made available to the indicted defendant, to the district attorney
and to the public,” citing sections 938 and 938.1. 106 With regard to nontestimonial
material, the Court recognized that section 1054(e) “allows for discovery authorized by
‘other express statutory provisions.’” 107 The Court identified such authority in statutes
authorizing and providing grounds for a defendant’s motion to dismiss the indictment. 108
The Court’s reasoning illustrates that the general principle that criminal grand jury
materials are secret does not prevent discovery of such materials when statutorily
authorized.
The above case arose when defendants sought discovery of information from the
grand jury proceeding that resulted in the defendants’ indictment. But as we have seen,
these issues could arise with unrelated defendants, and in situations where there is no
indictment and therefore no public grand jury transcript. 109 Regardless of the particular
104

See Pen. Code, § 1054.7.

105

See generally Millaud v. Superior Court, supra, 182 Cal.App.3d at p. 476.

People v. Superior Court (Mouchaourab and other cases), supra, 78 Cal.App.4th at
p. 416.
106

Id. at p. 436. Examples of nontestimonial material would include exhibits and
comments by the district attorney to the grand jury. (See id. at p. 430.)
107

Id. at pp. 429 (“sections 995, 939.71 and to a certain extent section 939.6 provide the
requisite ‘express statutory provisions,’ within the meaning of section 1054, subdivision
(e), authorizing discovery of nontestimonial grand jury proceedings”), 436.
108

109

See, e.g., note 100, ante, and accompanying text.
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scenario, however, we see no basis in section 1054.1 to exclude material from criminal
discovery on the ground that it derives from criminal proceedings before a grand jury.

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