2009 California Penal Code - Section 934-938.4 :: Article 3. Legal And Other Assistants For Grand Juries

PENAL CODE
SECTION 934-938.4

934.  (a) The grand jury may, at all times, request the advice of
the court, or the judge thereof, the district attorney, the county
counsel, or the Attorney General. Unless advice is requested, the
judge of the court, or county counsel as to civil matters, shall not
be present during the sessions of the grand jury.
   (b) The Attorney General may grant or deny a request for advice
from the grand jury. If the Attorney General grants a request for
advice from the grand jury, the Attorney General shall fulfill that
request within existing financial and staffing resources.

935.  The district attorney of the county 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, and may
interrogate witnesses before the grand jury whenever he thinks it
necessary. When a charge against or involving the district attorney,
or assistant district attorney, or deputy district attorney, or
anyone employed by or connected with the office of the district
attorney, is being investigated by the grand jury, such district
attorney, or assistant district attorney, or deputy district
attorney, or all or anyone or more of them, shall not be allowed to
be present before such grand jury when such charge is being
investigated, in an official capacity but only as a witness, and he
shall only be present while a witness and after his appearance as
such witness shall leave the place where the grand jury is holding
its session.

936.  When requested so to do by the grand jury of any county, the
Attorney General may employ special counsel and special
investigators, whose duty it shall be to investigate and present the
evidence in such investigation to such grand jury.
   The services of such special counsel and special investigators
shall be a county charge of such county.

936.5.  (a) When requested to do so by the grand jury of any county,
the presiding judge of the superior court may employ special counsel
and special investigators, whose duty it shall be to investigate and
present the evidence of the investigation to the grand jury.
   (b) Prior to the appointment, the presiding judge shall conduct an
evidentiary hearing and find that a conflict exists that would
prevent the local district attorney, the county counsel, and the
Attorney General from performing such investigation. Notice of the
hearing shall be given to each of them unless he or she is a subject
of the investigation. The finding of the presiding judge may be
appealed by the district attorney, the county counsel, or the
Attorney General. The order shall be stayed pending the appeal made
under this section.
   (c) The authority to appoint is contingent upon the certification
by the auditor-comptroller of the county, that the grand jury has
funds appropriated to it sufficient to compensate the special counsel
and investigator for services rendered pursuant to the court order.
In the absence of a certification the court has no authority to
appoint. In the event the county board of supervisors or a member
thereof is under investigation, the county has an obligation to
appropriate the necessary funds.

936.7.  (a) In a county of the eighth class, as defined by Sections
28020 and 28029 of the Government Code, upon a request by the grand
jury, the presiding judge of the superior court may retain, in the
name of the county, a special counsel to the grand jury. The request
shall be presented to the presiding judge in camera, by an affidavit,
executed by the foreperson of the grand jury, which specifies the
reason for the request and the nature of the services sought, and
which certifies that the appointment of the special counsel is
reasonably necessary to aid the work of the grand jury. The affidavit
shall be confidential and its contents may not be made public except
by order of the presiding judge upon a showing of good cause. The
special counsel shall be selected by the presiding judge following
submission of the name of the nominee to the board of supervisors for
comment.
   The special counsel shall be retained under a contract executed by
the presiding judge in the name of the county. The contract shall
contain the following terms:
   (1) The types of legal services to be rendered to the grand jury;
provided, (i) that the special counsel's duties shall not include any
legal advisory, investigative, or prosecutorial service which by
statute is vested within the powers of the district attorney, and
(ii) that the special counsel may not perform any investigative or
prosecutorial service whatsoever except upon advance written approval
by the presiding judge which specifies the number of hours of these
services, the hourly rate therefor, and the subject matter of the
inquiry.
   (2) The hourly rate of compensation of the special counsel for
legal advisory services delivered, together with a maximum contract
amount payable for all services rendered under the contract during
the term thereof, and all service authorizations issued pursuant
thereto.
   (3) That the contract may be canceled in advance of the expiration
of its term by the presiding judge pursuant to service upon the
special counsel of 10 days' advance written notice.
   (b) The maximum contract amount shall be determined by the board
of supervisors and included in the grand jury's annual operational
budget. The maximum amount shall be subject to increase by the
presiding judge through contract amendment during the term thereof,
subject to and in compliance with the procedure prescribed by Section
914.5.
   (c) The contract shall constitute a public record and shall be
subject to public inspection and copying pursuant to the provisions
of the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code).
However, at the sole discretion of the board of supervisors, any or
all of the following steps may be taken:
   (1) The nomination by the presiding judge, and any or all actions
by the board of supervisors in commenting upon the nominee and the
comments, may be made confidential.
   (2) The deliberations and actions may be undertaken in meetings
from which the public is excluded, and the communication containing
comments may constitute a confidential record which is not subject to
public inspection or copying except at the sole discretion of the
board of supervisors. Moreover, any written authorization by the
presiding judge pursuant to paragraph (1) of subdivision (a) shall
constitute a confidential record which is not subject to public
inspection or copying except in connection with a dispute concerning
compensation for services rendered.

937.  The grand jury or district attorney may require by subpoena
the attendance of any person before the grand jury as interpreter.
While his services are necessary, such interpreter may be present at
the examination of witnesses before the grand jury. The compensation
for services of such interpreter constitutes a charge against the
county, and shall be fixed by the grand jury.

938.  (a) Whenever criminal causes are being investigated before the
grand jury, it shall appoint a competent stenographic reporter. He
shall be sworn and shall report in shorthand the testimony given in
such causes and shall transcribe the shorthand in all cases where an
indictment is returned or accusation presented.
   (b) At the request of the grand jury, the reporter shall also
prepare transcripts of any testimony reported during any session of
the immediately preceding grand jury.

938.1.  (a) If an indictment has been found or accusation presented
against a defendant, such stenographic reporter shall certify and
deliver to the clerk of the superior court in the county an original
transcription of the reporter's shorthand notes and a copy thereof
and as many additional copies as there are defendants, other than
fictitious defendants, regardless of the number of charges or
fictitious defendants included in the same investigation. The
reporter shall complete the certification and delivery within 10 days
after the indictment has been found or the accusation presented
unless the court for good cause makes an order extending the time.
The time shall not be extended more than 20 days. The clerk shall
file the original of the transcript, deliver a copy of the transcript
to the district attorney immediately upon receipt thereof and
deliver a copy of such transcript to each such defendant or the
defendant's attorney. If the copy of the testimony is not served as
provided in this section, the court shall on motion of the defendant
continue the trial to such time as may be necessary to secure to the
defendant receipt of a copy of such testimony 10 days before such
trial. If several criminal charges are investigated against a
defendant on one investigation and thereafter separate indictments
are returned or accusations presented upon said several charges, the
delivery to such defendant or the defendant's attorney of one copy of
the transcript of such investigation shall be a compliance with this
section as to all of such indictments or accusations.
   (b) The transcript shall not be open to the public until 10 days
after its delivery to the defendant or the defendant's attorney.
Thereafter the transcript shall be open to the public unless the
court orders otherwise on its own motion or on motion of a party
pending a determination as to whether all or part of the transcript
should be sealed. If the court determines that there is a reasonable
likelihood that making all or any part of the transcript public may
prejudice a defendant's right to a fair and impartial trial, that
part of the transcript shall be sealed until the defendant's trial
has been completed.

938.2.  (a) For preparing any transcript in any case pursuant to
subdivision (a) of Section 938.1, the stenographic reporter shall
draw no salary or fees from the county for preparing such transcript
in any case until all such transcripts of testimony in such case so
taken by him are written up and delivered. Before making the order
for payment to the reporter, the judge of the superior court shall
require the reporter to show by affidavit or otherwise that he has
written up and delivered all testimony taken by him, in accordance
with subdivision (a) of Section 938 and Section 938.1.
   (b) Before making the order for payment to a reporter who has
prepared transcripts pursuant to subdivision (b) of Section 938, the
judge of the superior court shall require the reporter to show by
affidavit or otherwise that he has written up and delivered all
testimony requested of him in accordance with that sudivision.

938.3.  The services of the stenographic reporter shall constitute a
charge against the county, and the stenographic reporter shall be
compensated for reporting and transcribing at the same rates as
prescribed in Sections 69947 to 69954, inclusive, of the Government
Code, to be paid out of the county treasury on a warrant of the
county auditor when ordered by the judge of the superior court.

938.4.  The superior court shall arrange for a suitable meeting room
and other support as the court determines is necessary for the grand
jury. Any costs incurred by the court as a result of this section
shall be absorbed by the court or the county from existing resources.


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