Skip to content
Name: Breceda et al. v. Superior Court
Case #: B244574
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 04/25/2013

Exculpatory documents that are available in the district attorney’s office must be provided to a grand jury under Penal Code section 939.71 even if the district attorney handling the case has no personal knowledge of the documents. The prosecution obtained a grand jury indictment of petitioners, officials of Irwindale, for embezzlement of city funds. Petitioners had participated in lavish junkets to New York City, which were ultimately paid for by the city. In argument to the grand jury, the prosecution focused on evidence that the petitioners claimed and received a $75 daily allotment for travel expenses they did not pay, explaining that this “double dipping” established fraudulent intent to embezzle from the city. The trial court denied petitioners’ motion to dismiss the indictment and they sought a writ of prohibition. Held: Petition granted. In a grand jury proceeding, a district attorney seeking an indictment who is aware of exculpatory evidence is obligated under Penal Code section 939.71 to inform the grand jury of its nature and existence. Here, the prosecution failed to present a city council resolution and an interoffice memorandum approving a $75 daily allotment while traveling on city business even if the official’s meals were paid for by a third party. Although the deputy district attorneys prosecuting the case did not have personal knowledge of the resolution and memorandum, the prosecution still had an obligation to provide the exculpatory documents to the grand jury because other individuals in the district attorney’s office knew about the documents. Had the resolution and memorandum been presented to the grand jury, it would have had the opportunity to consider whether the documents showed that petitioners had no fraudulent intent as to the allotment. If petitioners had been deemed to have acted lawfully within the city’s travel reimbursement policy, the acts of so-called “double-dipping” could not be the inferential basis of a probable cause finding of fraudulent intent to misappropriate. On the basis of this substantial prejudice, the court vacated the indictment.