# California Attorney General Opinion 23-401

> California Attorney General Reports · August 9, 2024

URL: https://www.frixlaw.com/law-library/cases/10502759

## Case

- **Court:** California Attorney General Reports
- **Decided:** August 9, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL
State of California

ROB BONTA
Attorney General

_______________

:
OPINION :
: No. 23-401
of :
: August 9, 2024
ROB BONTA :
Attorney General :
:
SUSAN DUNCAN LEE :
Deputy Attorney General :

The HONORABLE VERN PIERSON, EL DORADO COUNTY DISTRICT
ATTORNEY, has requested an opinion on a question relating to criminal grand juries.

QUESTION PRESENTED AND CONCLUSION

May prosecutors lawfully issue criminal grand jury subpoenas for witnesses to
appear at a future grand jury proceeding where the grand jury that will hear their
testimony has not yet been impaneled?

Yes, prosecutors may lawfully issue criminal grand jury subpoenas for witnesses
to appear at a future grand jury proceeding where the grand jury that will hear their
testimony has not yet been impaneled. The prosecutor’s subpoena power and the court’s
enforcement power exist regardless of whether the grand jury has been impaneled.

BACKGROUND

The California Constitution and the Penal Code provide that at least one grand
jury shall be drawn and impaneled each year in each county. 1 Penal Code section 904.6

1
See Cal. Const., art. I, § 23; Pen. Code, § 905; see generally Pen. Code, pt. 2, tit. 4,
§ 888 et seq. (grand jury proceedings).

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provides that the superior court in each county may also impanel a second grand jury,
upon the request of the Attorney General or the District Attorney, or on the court’s own
motion. When a second grand jury is formed pursuant to section 904.6, it has “sole and
exclusive jurisdiction” to return criminal indictments. 2 A criminal grand jury’s functions
include reviewing evidence presented by prosecutors, hearing testimony from witnesses,
and determining whether probable cause exists to indict a defendant on criminal charges. 3

Our requestor is the El Dorado County District Attorney. He informs us that in his
county, the superior court has elected not to have a standing section 904.6 criminal grand
jury, but instead to impanel a criminal grand jury for limited times, as needed. In
response, the district attorney’s office plans several criminal grand jury matters in
advance of the grand jury’s impanelment, and then asks the court to assemble a criminal
grand jury during a specific time range. When the court confirms the dates of the next
section 904.6 criminal grand jury session, but before the grand jurors are impaneled, the
district attorney issues subpoenas. According to the district attorney, there is a “good-
faith disagreement” among prosecutors about the issue, and the district attorney now asks
for our view as to whether this practice is permissible. As discussed in more detail
below, we conclude that it is.

ANALYSIS

Prosecutors play a central role in criminal grand jury proceedings. District
attorneys may at all times appear before the grand jury for the purpose of giving
information or advice on matters cognizable by the grand jury, and may question
witnesses whenever they think it necessary. 4 In addition to summoning the witnesses and
gathering other evidence for a particular grand jury investigation (such as physical
evidence, recordings, documents, reports, etc.), the prosecutor presents the criminal grand
jury with that evidence and asks the grand jurors to consider issuing an indictment against
one or more persons based on the evidence and law presented. A prosecutor is also
responsible for providing legal guidance to the grand jury, by presenting the applicable
legal standards and helping to ensure that the grand jurors understand the law. 5 The
relationship between a prosecutor and a grand jury is functionally collaborative, but the
grand jury has exclusive power to make its decisions independently of the prosecutor. 6

2
Pen. Code, § 904.6, subd. (d) (grand jury shall have sole and exclusive jurisdiction to
return indictments).
3
See Pen. Code, §§ 925-939.8 (powers and duties of grand juries).
4
Pen. Code, § 935; see 107 Ops.Cal.Atty.Gen. 86, 88 (2024).
5
107 Ops.Cal.Atty.Gen., supra, at p. 88.
6
Pen. Code, § 939 (grand jury sessions private for deliberation and voting); see generally
(continued…)

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The subpoena is the instrument by which witnesses are compelled to appear in a
legal proceeding. 7 When properly served, a facially valid subpoena carries all the
potential force of the judicial system behind it. 8 “Every citizen has an obligation to
comply” with a subpoena to attend a grand jury. 9 Prosecutors have broad general
statutory power to subpoena witnesses to appear in support of criminal prosecutions. 10
Prosecutors also have specific statutory power to subpoena witnesses to appear at grand
jury proceedings. Penal Code section 939.2, the grand jury statute that discusses
subpoenas, provides:

A subpoena requiring the attendance of a witness before the grand
jury may be signed and issued by the district attorney, [the district
attorney’s] investigator or, upon request of the grand jury, by any judge of
the superior court, for witnesses in the state, in support of the prosecution,
for those witnesses whose testimony, in [the district attorney’s] opinion is
material in an investigation before the grand jury, and for such other
witnesses as the grand jury, upon an investigation pending before them,
may direct. 11

Given that the language of section 939.2 contains no temporal limitation, it
appears to allow prosecutors to issue criminal grand jury subpoenas at any time. But,
according to our requestor, some prosecutors have raised a concern that case law
precludes California prosecutors from subpoenaing witnesses in advance to appear before
a yet-to-be-impaneled grand jury. Specifically, in 1935, the Court of Appeal in In re
Peart construed Penal Code section 939.2’s predecessor statute as requiring prosecutors
to have the grand jury’s approval before subpoenaing a witness to appear. 12 As we

Johnson v. Superior Court (1975) 15 Cal.3d 248, 254-255 (historic role of grand jury is
to stand as buffer between prosecutor and people); Williams v Superior Court of San
Joaquin County (2019) 38 Cal.App.5th 1022, 1028-1029, 1033 (discussing grand jury as
buffer, and need for structural independence from prosecutor).
7
Black’s Law Dictionary (11th ed. 2019).
8
See Sullivan v. State Board of Control (1985) 176 Cal.App.3d 1059, 1063 (subpoena
implicates judicial process of court to compel).
9
Branzburg v. Hayes (1972) 408 U.S. 665, 682 fn. 6.
10
Pen. Code, § 1326, subd. (a) (“The process by which the attendance of a witness before
a court or magistrate is required is a subpoena. It may be signed and issued by any of the
following: . . . (2) The district attorney, their investigator or, upon request of the grand
jury, any judge of the superior court, for witnesses in the state, in support of an
indictment or information, to appear before the court in which it is to be tried.”)
11
Italics added.
12
In re Peart (1935) 5 Cal.App.2d 469, 473-474 (1935).

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understand it, some have argued that this holding, which has never been judicially
overruled, may prevent district attorneys from subpoenaing witnesses until after a
criminal grand jury has been impaneled. We disagree.

The issue in Peart was whether a district attorney could issue subpoenas to compel
the attendance of witnesses when the grand jury had not directed the district attorney to
do so. 13 Peart noted that, under the statutes existing at that time, the duties of a
prosecutor with respect to a grand jury were merely to “attend upon” and “give advice” to
a grand jury, not to coordinate or initiate the grand jury’s investigations. 14 Moreover,
under former Penal Code section 1326, subpoenas were to be signed and issued by the
district attorney “for such witnesses as the grand jury, upon investigation pending before
them, may direct.” 15 Given that statutory language, Peart held that a district attorney
could not issue grand jury subpoenas unless directed to do so by the grand jury. 16

First, as we have previously observed, in the wake of Peart, former section 1326
“was immediately amended to ‘overrule’” that decision and provide the district attorney
with the authority that the court found lacking. 17 Specifically, the Penal Code was
amended to grant district attorneys clear independent authority to subpoena “those
witnesses whose testimony, in his [the district attorney’s] opinion is material in an
investigation before the grand jury . . . .” 18

But while the requestor acknowledges broad agreement among prosecutors that
the post-Peart legislative amendments mean that a district attorney no longer needs the
grand jury’s permission to issue subpoenas on its behalf, there remains a question as to
whether the grand jury must at least be impaneled before the district attorney may do so.
We acknowledge the distinction drawn here, but conclude it is of no moment. First,
nothing in the amended or current statute, or in any other statute, confines the
prosecutor’s subpoena power as it exists post-Peart to periods when a criminal grand jury

13
In re Peart, supra, 5 Cal.App.2d at pp. 473-475.
14
Ibid.
15
Ibid.
16
Ibid.
17
74 Ops.Cal.Atty.Gen. 186, 187-188 (1991).
18
Stats. 1937, ch. 215, § 1 (former Pen. Code § 1326 amended to state that district
attorney may issue subpoenas “for those witnesses whose testimony, in his opinion, is
material in an investigation before the grand jury . . . .”); current § 939.2 (“for those
witnesses whose testimony, in his opinion, is material in an investigation before the grand
jury”); see Beale, et al., Grand Jury Law and Practice, (2d ed., December 2023 update),
§ 6.2 and fn. 4 (Peart apparently overridden by subsequent amendment to statute).
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is impaneled. 19 This is not surprising. If the prosecutor does not need a particular grand
jury’s permission or approval to issue a subpoena in the first instance, there is no
apparent utility or justification for requiring the prosecutor to wait until a particular grand
jury is impaneled before issuing it, especially when doing so in advance will facilitate
presenting matters to that grand jury once it is impaneled.

The request also points to a passage from Peart in which that court—in response
to the petitioner’s claim that he was unlawfully confined for disobeying a subpoena when
there was no investigation before the grand jury—cited the following language from the
1899 Iowa case of Chambers v. Oehler et al.:

We take it that the pendency of some proceedings in court is
necessary in order to warrant the issuance of process for witnesses. There
being no case pending in this instance, the justice had no authority to issue
a subpoena for a witness. The subpoena having been issued without
authority, plaintiff was justified in disobeying it. 20

This passage does not alter our analysis or conclusion. Again, the controlling
California Penal Code provisions place no temporal limits upon a prosecutor’s issuance
of a grand jury subpoena to a witness that the prosecutor intends to testify before a grand
jury that is later impaneled. In any event, a closer reading of Chambers v. Oehler reveals
that the improperly-issued subpoena in that case required the witness’s appearance at a
date and time when there was no action pending before the justice who issued it. That
holding has no bearing on the lawfulness of the practice at issue here, which
contemplates that the witness will appear before an impaneled grand jury in relation to a
matter that is properly before that grand jury by the time the witness appears. 21

And if, for some reason, the criminal grand jury is not impaneled by the time the
witness has been called to appear, or the matter to which the witness’s testimony
pertained has not come before a sitting grand jury by that time, then the witness could
make a motion in the superior court to quash the subpoena, giving reasons why the

19
See generally People v. Perez (1989) 207 Cal.App.3d 431, 436-437 (nothing in
statutory scheme precludes use of on-call procedure for subpoenaed witness).
20
In re Peart, supra, 5 Cal.App.2d at p. 476, quoting Chambers v. Oehler et al. (1899)
107 Iowa 155 [77 N.W. 853].
21
Grand juries have independent power to ask the court to subpoena witnesses, as well as
power to question witnesses on their own initiative. (Pen. Code, §§ 939.2, 1326; see
McGill v. Superior Court (2011) 195 Cal.App.4th 1454, 1464.) Although a subpoena that
emanates from the superior court at the grand jury’s request plainly contemplates a
sitting grand jury, the prosecutor’s power to issue subpoenas is not so constrained.

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subpoena should not be enforced. 22 But even in that event, the power either to quash or
enforce a grand jury subpoena lies in the superior court alone. The grand jury itself is
entirely outside the enforcement process, so whether a specific grand jury is impaneled is
immaterial to a subpoena’s enforcement. 23 In our view, the fact that a sitting grand jury
is not needed to enforce a subpoena provides additional evidence that the Legislature
does not require there to be a sitting grand jury before the prosecutor may issue one in the
first instance.

Before leaving the subject entirely, we note that several federal courts have
expressly endorsed the practice of issuing subpoenas in advance of the grand jury being
convened. 24 And it appears that most States permit the practice as well. 25 While
California’s Penal Code does not authorize the practice in express affirmative terms, we
believe for the reasons discussed above that the controlling statutes authorize prosecutors
to issue criminal grand jury subpoenas without regard to the impanelment of a particular

22
See Southern Pac. Co. v. Superior Court (1940) 15 Cal.2d 206, 210 (witness has right
to have validity of subpoena adjudicated before giving testimony); Los Angeles Times v.
Superior Court (2003) 14 Cal.App.4th 247, 248 (contest to subpoena is by motion to
quash); People ex rel. DPW v. Younger (1970) 5 Cal.App.3d. 575 (contest to subpoena is
by motion to quash).
23
The grand jury itself is not a freestanding judicial body, but rather an arm of the court
that convenes it. “There is no doubt that a grand jury is part of the court by which it is
convened, and that it is under the control of the court.” (In re Gannon (1886) 69 Cal.
541, 543; see Dustin v Superior Court (2002) 99 Cal.App.4th 1311, 1322; see generally
Levine v. United States (1960) 362 U.S. 610, 617.) Although grand juries function with
independence and secrecy in pursuing their investigations, a grand jury is always subject
to the superior court’s general supervision. (See Board of Retirement v. Santa Barbara
County Grand Jury (1997) 58 Cal.App.4th 1185; see generally 20A Cal.Jur.3d Criminal
Law: Pretrial Proceedings (April 2024 update), § 706.)
24
See, e.g., In re Grand Jury Proceeding (1st Cir. 1981) 568 F.2d 782, 783-784; United
States v. Kleen Laundry & Cleaners, Inc. (E.D.N.Y. 1974) 381 F. Supp. 519, 523; United
States v. Culver (D. Md. 1963) 224 F. Supp. 419, 432; see also San Luis Obispo County
District Attorney Dan Dow, letter to Attorney General’s Office, June 22, 2023.
25
Beale et al., Grand Jury Law and Practice, supra, § 6.2 and fn. 4 (at least 48 states
permit prosecutors to issue subpoenas before jury is impaneled). Issuing early subpoenas
helps to ensure that key witnesses will be available when the grand jury assembles,
preventing delays for all concerned, and helps ensure that valuable evidence is captured
and preserved, which might be lost if the subpoena were delayed until the grand jury
convened; early subpoenas can be especially important in complex cases, allowing
prosecutors additional time to investigate and assemble a complex set of facts before
presenting witnesses to the grand jury. (Ibid.)

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grand jury, so long as the grand jury will be impaneled to hear the relevant matter by the
time the witness must appear before it.

For all the above reasons, we conclude that prosecutors may lawfully issue
criminal grand jury subpoenas for witnesses to appear at a future grand jury proceeding
where the grand jury that will hear their testimony has not yet been impaneled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10502759. Public record. Not legal advice.