The amendments to Penal Code section 917 that prohibit a grand jury from inquiring into an offense where an officer used lethal force are unconstitutional because the Legislature cannot limit the grand jury’s constitutional power to indict. In 2015 an officer shot and killed a suspect. The El Dorado County District Attorney convened a grand jury but the superior court dismissed the grand jury pursuant to section 917, which was amended in 2015 to prohibit grand jury indictments in such cases. The district attorney filed a writ of mandate challenging the constitutionality of the statute. Held: Peremptory writ issued. Article I section 14 of the California Constitution gives grand juries indictment power. After reviewing the history of California’s grand jury procedure, the Court of Appeal concluded that, while the procedures governing the exercise of that power are subject to legislative change, “the Legislature does not have the power to enact a statute that limits the constitutional power of a criminal grand jury to indict any adult accused of a criminal offense.” As a result, the amendments to section 917 are unconstitutional. The Legislature’s objective in amending section 917 was to increase transparency in cases involving an officer’s use of lethal force by precluding grand jury indictments, which lack transparency. Although the Legislature cannot eliminate the grand jury’s indictment power over such cases, it can submit a constitutional amendment to the electorate or “take the less cumbersome route of simply reforming the procedural rules of secrecy in such cases, which are not themselves constitutionally derived or necessary to the grand jury’s functioning . . . .”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C081603.PDF