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TO BE PUBLISHED IN THE OFFICIAL REPORTS

OFFICE OF THE ATTORNEY GENERAL

State of California

ROB BONTA

Attorney General

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OPINION

of

ROB BONTA

Attorney General

RYAN B. McCARROLL

Deputy Attorney General 

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No. 23-201

June 26, 2024

The HONORABLE JEFF W. REISIG, DISTRICT ATTORNEY OF YOLO 

COUNTY, has requested an opinion on two questions relating to grand jury indictments:

QUESTIONS PRESENTED AND CONCLUSIONS

1. Does the probable cause standard for a grand jury criminal indictment state a 

lesser standard of proof than preponderance of the evidence?

Yes. The probable cause standard for a grand jury criminal indictment, which 

requires the prosecution to present evidence that warrants a strong suspicion of guilt, 

states a lesser standard of proof than preponderance of the evidence, which requires proof 

that a particular fact is more likely than not to be true.

2. Must the word “shall” as used in Penal Code section 939.8—which states that 

the grand jury “shall find an indictment” upon a determination of probable cause—be 

construed and stated as “should” when the statutory language is used to instruct a grand 

jury?

No. Penal Code section 939.8 requires a grand jury to return an indictment if the 

grand jury concludes that there is probable cause, and a grand jury may be instructed to 

that effect.
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BACKGROUND

The California Constitution provides that each county shall have an elected district 

attorney and shall empanel at least one grand jury at least once per year.

1 In criminal 

cases, the district attorney “ordinarily has sole discretion to determine whom to charge, 

what charges to file and pursue, and what punishment to seek.”2

 The grand jury checks 

that discretion by protecting the defendant from “‘the trouble, expense, and disgrace of 

being arraigned and tried in public on a criminal charge for which there is no sufficient 

cause.’”3

 In particular, the grand jury must “‘determine whether probable cause exists to 

accuse a defendant of a particular crime.’”4

But the district attorney is not obliged to submit every case to the grand jury.

Even in felony cases, the California Constitution gives the district attorney discretion 

either to prosecute a case by grand jury indictment or instead to prosecute the case by 

information after preliminary examination and commitment by a magistrate.5

 Indeed, the 

“vast majority” of felony cases in California are now prosecuted by information rather 

than by indictment.6

Since 1959, Penal Code section 939.8 has provided that the grand jury “shall find 

an indictment when all the evidence before it, taken together, if unexplained or 

 1 Cal. Const., art. I, § 23 (“One or more grand juries shall be drawn and summoned at 

least once a year in each county”), art. XI, § 1, subd. (b) (“The Legislature shall provide 

for . . . an elected district attorney . . . in each county”), art XI, § 4, subd. (c) (“County 

charters shall provide for . . . an elected district attorney”).

2 Dix v. Superior Court (1991) 53 Cal.3d 442, 451; see People v. Ramirez (2022) 13

Cal.5th 997, 1139 (the district attorney “has broad discretion to prosecute a defendant for 

a particular crime so long as there is probable cause to believe that the defendant is guilty 

and the prosecution is not motivated by vindictiveness or invidious discrimination); see 

also Bordenkircher v. Hayes (1978) 434 U.S. 357, 364 (prosecutorial discretion generally 

includes “the decision whether or not to prosecute”).

3 Johnson v. Superior Court (1975) 15 Cal.3d 248, 254, quoting In re Tyler (1884) 

64 Cal. 434, 437.

4 Stark v. Superior Court (2011) 52 Cal.4th 368, 406.

5 Cal. Const., art I, § 14 (“Felonies shall be prosecuted as provided by law, either by 

indictment or, after examination and commitment by a magistrate, by information”); see 

People v. Henson (2022) 13 Cal.5th 574, 588; see also Bowens v. Superior Court (1991) 

1 Cal.4th 36, 43 (“We perceive an abundance of legitimate justifications for the state’s 

discretionary use of the indictment procedure to initiate felony prosecutions”).

6 See McGill v. Superior Court (2011) 195 Cal.App.4th 1454, 1467.
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uncontradicted, would, in its judgment, warrant a conviction by a trial jury.”7

 Similarly, 

Penal Code section 872(a) states that a magistrate “shall” issue an order holding the 

defendant to answer if “it appears from the examination that a public offense has been 

committed, and there is sufficient cause to believe that the defendant is guilty.” Although

the statutory language in sections 872(a) and 939.8 differs, both provisions are subject to 

section 995, which allows a defendant to challenge an indictment or information based on 

a lack of “reasonable or probable cause.”8

We considered the meaning of section 939.8 in a 1978 opinion issued in response 

to a request from then-Los Angeles County District Attorney John Van de Kamp. That

request asked, “What is the standard of proof a grand jury must use to indict in light of 

Penal Code section 939.8?”9

 We answered that “the standard of proof required to support 

a grand jury indictment is that of probable cause; that is, whether the evidence presented 

to the grand jury, if unexplained or uncontradicted, would warrant them in entertaining a 

strong suspicion of the guilt of the accused.”10

The California Supreme Court reached the same conclusion in Cummiskey v. 

Superior Court, holding that “the standard of proof under section 939.8 for returning an 

indictment is ‘probable cause.’”11 In other words, the prosecution must establish “a state 

of facts as would lead a man of ordinary caution or prudence to believe, and 

conscientiously entertain a strong suspicion of the guilt of the accused.”12

Our requestor here, the Yolo County District Attorney, asks us to elaborate on the 

meaning of section 939.8 in two respects. First, he asks us to compare the probable cause 

standard for securing a grand jury indictment under section 939.8 with the standard of 

proof by a preponderance of the evidence.

13 Second, he asks whether the statement in 

 7 Pen. Code, § 939.8, enacted by Stats. 1959, ch. 501, § 2, p. 2454. To “find” an 

indictment under § 939.8 is the same as to “return” an indictment. (See McGill v. 

Superior Court, supra, 195 Cal.App.4th at p. 1470, fn. 13.) We use the terms “find” and 

“return” interchangeably here.

8 Pen. Code, § 995, subds. (a)(1)(B) & (a)(2)(B).

9 61 Ops.Cal.Atty.Gen. 441 (1978) (“1978 Opinion”).

10 Id. at p. 451; accord, 74 Ops.Cal.Atty.Gen 170 (1991).

11 Cummiskey v. Superior Court (1992) 3 Cal.4th 1018, 1029; see Lorenson v. Superior 

Court (1950) 35 Cal.2d 49, 56-57.

12 Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1029, internal quotation marks 

omitted, italics added in Cummiskey.

13 The requestor phrased the first question as being “whether probable cause for a grand 

jury indictment is less than a preponderance of evidence, just as it is with preliminary 
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section 939.8 that the grand jury “shall” return an indictment upon finding the requisite 

standard of proof raises serious constitutional issues that might invalidate an indictment if 

the grand jury were instructed in those terms.14

These questions are significant in light of the unique position that the district 

attorney occupies in grand jury proceedings. When the grand jury is empaneled and 

sworn, the court gives the jurors “such information as it deems proper, or as is required 

by law, as to their duties, and as to any charges for public offenses returned to the court 

or likely to come before the grand jury.”15 Thereafter, the judge “shall not be present 

during the sessions of the grand jury,” unless the grand jury requests advice from the 

judge.16 But the district attorney “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.”17

ANALYSIS

Question One

The requestor asks us to confirm that the standard for securing a grand jury 

indictment under section 939.8 is “less[]” than the standard of proof by a preponderance 

of the evidence.

18 We agree that a prosecutor seeking a grand jury indictment under 

section 939.8 is obliged to show probable cause rather than to prove guilt by a 

preponderance of the evidence, and that probable cause is a less demanding standard than 

proof by a preponderance of the evidence. 

 

examinations and other probable cause situations, and whether probable cause for 

indictment is the same as probable cause for preliminary examinations and other probable 

cause situations.” (Letter from Yolo County District Attorney (Feb. 8, 2023) (“Requestor 

Letter”).) We have modified the question for ease of discussion.

14 The requestor phrased the second question as being “whether the [word] ‘shall’ in 

Penal Code section 939.8 must be construed as ‘should’ in order to avoid possible 

constitutional infirmity.” (Requestor Letter, supra, at p. 1.) Again, we have rephrased 

the question for ease of discussion.

15 Pen. Code, § 914, subd. (a).

16 Pen. Code, § 934, subd. (a).

17 Pen. Code, § 935; but see Pen. Code, § 939 (“No persons other than grand jurors shall 

be permitted to be present during the expression of the opinions of the grand jurors, or the 

giving of their votes, on any criminal or civil matter before them”).

18 Requestor Letter, supra, at pp. 2-3.
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As mentioned, section 939.8 requires the prosecution to establish reasonable or 

probable cause.19 That means there must be “a state of facts as would lead a man of 

ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion 

of the guilt of the accused.”20 In contrast, the preponderance of the evidence standard 

asks whether “the existence of a fact is more probable than its nonexistence.’”21 That 

means a party bearing the burden of proof by a preponderance of the evidence must 

persuade the factfinder that a particular fact “is more likely to be true than not true.”22

The requestor points to several cases that compare the two standards of proof in 

situations that are analogous to the one at issue here.

23 The closest case appears to be 

People v. Abelino (2021) 62 Cal.App.5th 563, which described the “sufficient cause” 

standard that a magistrate must apply at a preliminary examination under section 

872(a).24 The court explained that “sufficient cause” means “reasonable and probable 

cause,” which involves “‘a level of proof below that of proof beyond a reasonable doubt, 

or even proof by a preponderance of the evidence.’”25 The court also observed that “‘the 

showing required at a preliminary hearing is exceedingly low.’”26

We have not found any authority to suggest that the comparison would be any

different when considering the standard of proof required to support a grand jury 

indictment. Indeed, we have previously equated the standard that a grand jury applies 

under section 939.8 with the standard that a magistrate applies under section 872(a).27 

And the California Supreme Court has done the same.

28 So we may confidently conclude 

 19 See Cummiskey v. Superior Court, supra, 3 Cal.4th at pp. 1027, 1029; Lorenson v. 

Superior Court, supra, 35 Cal.2d at pp. 56-57; 61 Ops.Cal.Atty.Gen., supra, at pp. 450-

451.

20 Cummiskey v. Superior Court, supra, 3 Cal.4th at pp. 1027, 1029, 1037.

21 In re Angelia P. (1981) 28 Cal.3d 908, 918, quoting In re Winship (1970) 397 U.S. 

358, 371-372 (conc. opn. of Harlan, J.).

22 CACI No. 200.

23 Requestor Letter, supra, at pp. 2-4.

24 People v. Abelino, supra, 62 Cal.App.5th at p. 573.

25 Ibid., quoting People v. Hurtado (2002) 28 Cal.4th 1179, 1189.

26 Ibid., quoting Salazar v. Superior Court (2000) 83 Cal.App.4th 840, 846.

27 61 Ops.Cal.Atty. Gen., supra, at pp. 441, 450-451.

28 Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1027.
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that both statutes involve “‘a level of proof below that of . . . proof by a preponderance of 

the evidence.’”29

Question Two

The second question involves the meaning of the statement in section 939.8 that 

the grand jury “shall” return an indictment when it is satisfied that the prosecution has 

established probable cause. The requestor and a comment submitted in support of the 

request posit that, although the word “shall” ordinarily connotes a lack of discretion, its 

meaning here is advisory or otherwise permissive.30 In other words, the requestor

suggests that despite its use of the term “shall,” section 939.8 gives the grand jury 

discretion not to return an indictment despite a finding of probable cause.31 He reasons

that instructing the grand jury in the apparently mandatory terms of section 938.9 might 

erroneously lead the grand jury to believe it lacked such discretion, creating the potential 

for constitutional error. This in turn leads the requestor to recommend that prosecutors 

advise the grand jury that it “should” return an indictment upon a finding of probable 

cause. We disagree.

Instead, we conclude for the reasons discussed below that the California Supreme 

Court was correct when it stated in Cummiskey that “section 939.8 requires the grand jury 

to return an indictment” if—but only if—the prosecution has established probable 

cause.32 That description is faithful to the ordinary meaning of the statement in section 

939.8 that the grand jury “shall” return an indictment when it finds that there is probable 

cause. And, even to the extent that the statutory text might be ambiguous, there is no 

extrinsic evidence of legislative intent indicating that the grand jury should have 

discretion to withhold an indictment in a case supported by probable cause. For example,

the legislative history of section 939.8 does not suggest any intent to give the grand jury 

 29 People v. Abelino, supra, 62 Cal.App.5th at p. 573, quoting People v. Hurtado, supra, 

28 Cal.4th at p. 1189.

30 Requestor Letter, supra, at p. 5-7; see Memorandum from Patrick O’Toole (Nov. 27, 

2023) (“O’Toole Memo”).

31 The discretion not to return an indictment despite the existence of probable cause is 

sometimes known as grand jury nullification. It has “historically served causes both good 

and ill.” (United States v. Navarro-Vargas (9th Cir. 2005) 408 F.3d 1184, 1199.)

32 Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1027; see also People v. Arroyo

(2016) 62 Cal.4th 589, 595 (implying that a “properly instructed” grand jury would know 

that it “shall find” an indictment if the prosecution has made the necessary showing); 

McGill v. Superior Court, supra, 195 Cal.App.4th at pp. 1469-1470 (grand jury “must” 

find an indictment if it concludes that there is probable cause).
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such discretion unrelated to its core purpose of determining whether the prosecution has 

shown probable cause. Moreover, contrary to the suggestion of the requestor, requiring 

the grand jury to return an indictment in cases supported by probable cause does not raise 

substantial constitutional questions under the separation of powers doctrine or principles 

of due process. We therefore conclude that the word “shall”—as used in Penal Code 

section 939.8 pertaining the grand jury’s issuance of a criminal indictment upon a finding 

of probable cause—need not be construed and stated as “should” when instructing a

grand jury.

Ordinary Meaning of the Statutory Text

The first step in interpreting a statute is to consider the ordinary meaning of the 

text in light of the statute as a whole and the overall legislative scheme.

33 If the text is 

clear and unambiguous, a court will “presume the Legislature meant what it said and the 

plain meaning of the statute governs.”34 “Only when the statute’s language is ambiguous 

or susceptible of more than one reasonable interpretation, may the court turn to extrinsic 

aids to assist in interpretation.”35 As such, we begin by considering the ordinary meaning 

of the statement in section 939.8 that the grand jury “shall” return an indictment if it finds 

that there is probable cause.

The word “shall” ordinarily connotes a non-discretionary mandate or command, 

and is synonymous with the word “must.”36 Because a non-discretionary mandate or 

command is more forceful that a mere preference or recommendation, the word “shall” is 

not typically understood to be synonymous with the word “should.”37

 33 See People v. Rojas (2023) 15 Cal.5th 561, 568; People v. Curiel (2023) 15 Cal.5th 

433, 461; People v. Valencia (2017) 3 Cal.5th 347, 360.

34 People v. Snook (1997) 16 Cal.4th 1210, 1215; see Lungren v. Deukmejian (1988) 

45 Cal.3d 727, 735.

35 Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1103.

36 See People v. Standish (2006) 38 Cal.4th 858, 869 (“Ordinarily, the term ‘shall’ is 

interpreted as mandatory and not permissive”); Common Cause v. Board of Supervisors

(1989) 49 Cal.3d 432, 443 (“It is a well-settled principle of statutory construction that the 

word ‘may’ is ordinarily construed as permissive, whereas ‘shall’ is ordinarily construed 

as mandatory . . .”); see, e.g., Cal. Rules of Court, rule 1.5(b)(1) (“‘Must’ is mandatory”); 

cf. De Martinez v. Lamagno (1995) 515 U.S. 417, 432, fn. 9 (“Though ‘shall’ generally 

means ‘must,’ legal writers sometimes use, or misuse, ‘shall’ to mean ‘should,’ ‘will,’ or 

even ‘may’”).

37 See Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 75 (“Case 
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Consistent with that ordinary meaning of the word “shall,” courts have used nondiscretionary language when describing the statement in section 939.8 that the grand jury 

shall return an indictment if it finds that there is probable cause. As noted, the California 

Supreme Court stated in Cummiskey that section 939.8 “requires” the grand jury to return 

an indictment when the prosecution has satisfied its burden of proof.38 The Court of 

Appeal similarly said in McGill v. Superior Court that the grand jury “must” return an 

indictment if the prosecution has satisfied its burden.39 Although the meaning of the 

word “shall” was not at issue in either Cummiskey or McGill, we “do not lightly disregard 

dictum” from either of those courts.

40

But the United States Supreme Court has recognized that “legal writers sometimes 

use, or misuse, ‘shall’ to mean ‘should.’”41 And California courts have likewise observed 

that “statutes containing ‘shall’ language are sometimes interpreted as directory or 

permissive,” especially if “discretion is inherent in the activity concerned.”42 As such,

we will proceed to consider whether extrinsic indicia of legislative intent suggest that the 

word “shall” does not carry its ordinary meaning when it is used in section 939.8.

Legislative History

In our view, the history of section 939.8 does not reveal a legislative intent to 

depart from the ordinary meaning of the word “shall.” Prior to the adoption of section 

939.8, the Legislature provided that the grand jury “ought” to find an indictment when 

there is probable cause.43 The California Supreme Court described that language as 

 

law has defined ‘should’ generally to mean a moral obligation or recommendation”); 

Cal. Rules of Court, rule 1.5(b)(5) (“‘Should’ expresses a preference or a nonbinding 

recommendation”).

38 Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1027.

39 McGill v. Superior Court, supra, 195 Cal.App.4th at pp. 1454, 1469-1470 (“After the 

investigation, the grand jury must ‘find an indictment’ if ‘all the evidence before it, taken 

together, if unexplained or uncontradicted, would, in its judgment, warrant a conviction 

by a trial jury’”) (italics added).

40 Bigler-Engler v. Breg, Inc. (2017) 7 Cal.App.5th 276, 330.

41 De Martinez v. Lamagno, supra, 515 U.S. at p. 432, fn. 9; see, e.g., Nat. Federation of 

Independent Business v. Sebelius (2012) 567 U.S. 519.

42 Fox v. County of Fresno (1985) 170 Cal.App.3d 1238, 1242; see Wilson v. Sharp

(1954) 42 Cal.2d 675, 678-679.

43 Stats. 1851, ch. 29, § 212, p. 235; former Pen. Code, § 921; see also Stats. 1850, 

ch. 119, § 233, p. 292; People v. Tinder (1862) 19 Cal. 539, 539.
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being “‘plainly only [a] matter of advice to the [grand] jury.’”44 In 1959, the Legislature 

recodified the grand jury statutes into a single title of the Penal Code.45 As part of that 

recodification, the Legislature repealed former section 921 and enacted current section 

939.8, changing the word “ought” to “shall.”46

In the 1978 opinion discussed above, we observed that the 1959 recodification had 

changed the statutory language, and we described the current language in section 939.8 as 

being “mandatory.” Specifically, we observed that the 1959 recodification “changed the 

directory ‘ought’ to the mandatory ‘shall.’”47 It might have been more accurate to 

describe the prior language as being advisory or otherwise permissive rather than 

directory.

48 But the point remains that the Legislature replaced that language with the 

“mandatory” language in section 939.8 stating that the grand jury “shall” return an 

indictment if it finds that there is probable cause.

Admittedly, our 1978 opinion also said that the 1959 recodification had been 

“substantially without change” to the law.49 But our focus there was less on the shift to 

“mandatory” language than on the unchanged standard of proof.50 We explained that 

“[f]or many years the question of the standard of proof before a grand jury was only of

academic interest” because “grand jury proceedings were not subject to judicial review 

regarding the sufficiency of the evidence received by that body.”51 Although “review of 

the sufficiency of the evidence before the grand jury has [since] become possible,” a 

decision not to find an indictment remains unreviewable.52 As such, our prior description 

 44 In re Kennedy (1904) 144 Cal. 634, 638, quoting State v. Boyd (S.C. App. L. & Eq. 

1834) 20 S.C.L. 288, 289.

45 See M.B. v. Superior Court (2002) 103 Cal.App.4th 1384, 1391; Cal. Law Revision 

Com. Annual Rep. (1959) p. 20.

46 Stats. 1959, ch. 501, § 2, p. 2454.

47 61 Ops.Cal.Atty.Gen., supra, at p. 447.

48 See In re Kennedy, supra, 144 Cal. at p. 638; see also People v. McGee (1977) 19 

Cal.3d 948, 958-959 (comparing the “mandatory-directory duality with the linguistically 

similar, but analytically distinct, ‘mandatory-permissive’ dichotomy”).

49 61 Ops.Cal.Atty.Gen., supra, at p. 450; see id. at p. 447 (“Essentially . . . the statute has 

remained unaltered since 1851”).

50 See id. at p. 441.

51 See id. at p. 447.

52 See ibid.
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of the 1959 recodification as having been “substantially without change” does not negate 

our observation in the same opinion that the language in section 939.8 is mandatory.

We have received comments suggesting that the change from “ought” to “shall” as 

part of the 1959 recodification might have been unintentional, especially given 

contemporaneous statements disclaiming any intent to make a substantive change in the 

law.53 These comments also suggest that the issue has largely escaped legislative and 

judicial attention over the last 65 years because some prosecutors depart from the 

statutory language by advising the grand jury that it “should” return an indictment if there 

is probable cause.54 But those observations do not explain the relative silence in all of the 

other cases where courts and prosecutors have tracked the current language in section 

939.8 by instructing the grand jury that it “shall” return an indictment if it finds probable 

cause.55 We can see no persuasive reason to reconsider our prior statement that the 

language in section 939.8 is mandatory.

Separation of Powers

The requestor argues that the ordinary meaning of the word “shall” raises 

substantial questions regarding the constitutionality of the statement in section 939.8 that 

the grand jury “shall” return an indictment if it finds that there is probable cause.56 

Specifically, he argues that requiring the grand jury to return an indictment raises 

questions regarding the separation of powers, even in cases that are supported by 

probable cause.57 To avoid those questions, he suggests that the Legislature presumably 

 53 O’Toole Memo, supra, at pp. 1-3; see Stats. 1959, ch. 501, § 20, p. 2458 (“It is not the 

intent of the Legislature to make any substantive change in the laws affected by this 

act”); Cal. Law Revision Com. Annual Rep. (1959) p. 20 (drafters of the recodification 

bill “refrained from recommending any change which might be construed to be 

substantive in nature, even in instances where it considered that the particular change was 

desirable and noncontroversial”); see also Cal. Law Revision Com. Annual Rep. (1960) 

p. 10 (same).

54 O’Toole Memo, supra, at p. 3, fn. 4 (“There has not been a legal challenge to section 

939.8’s ‘shall’ language, either because ‘shall’ is not always used in such instructions, or 

the issue has not been recognized”); see, e.g., Cummiskey v. Superior Court, supra, 3 

Cal.4th at p. 1025 (trial court instructed grand jury that “an indictment should be found” 

when there is sufficient cause”) (italics added).

55 See Requestor Letter, supra, at p. 6 (acknowledging that “some courts and district 

attorney offices instruct the grand jury using section 939.8”).

56 Id. at pp. 5-7 & fn. 5.

57 Id. at pp. 6-7.
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intended to give the grand jury at least some discretion not to return an indictment despite 

a finding of probable cause. And he posits that the best way to convey that presumed 

intent is to construe section 939.8 as meaning that the grand jury “should” return an 

indictment if it finds that there is probable cause.58

In making these arguments, the requestor relies on the precept that “a statute is to 

be construed where fairly possible so as to avoid substantial constitutional questions.”59 

The California Supreme Court has explained that the avoidance canon applies when “a 

statute is susceptible of two constructions, one of which will render it constitutional and 

the other unconstitutional in whole or in part, or raise serious and doubtful constitutional 

questions.”60 In those instances, a court “will adopt the construction which, without 

doing violence to the reasonable meaning of the language used, will render it valid in its 

entirety, or free from doubt as to its constitutionality, even though the other construction 

is equally reasonable.”61 The rule is based on “the presumption that the Legislature 

intended, not to violate the Constitution, but to enact a valid statute within the scope of its 

constitutional powers.”62

As relevant here, the California Constitution provides that “[t]he powers of state 

government are legislative, executive, and judicial. Persons charged with the exercise of 

one power may not exercise either of the others except as permitted by this 

Constitution.”63 But the separation of powers doctrine also “‘recognizes that the three 

branches of government are interdependent, and it permits actions of one branch that may 

“significantly affect those of another branch.”’”64 As such, the separation of powers “is 

violated only when the actions of a branch of government defeat or materially impair the 

inherent functions of another branch.”65

 58 Id. at p. 7.

59 Requestor Letter, supra, at p. 7, fn. 5, quoting United States v. X-Citement Video, Inc. 

(1994) 513 U.S. 64, 69; O’Toole Memo, supra, at pp. 5-6.

60 Miller v. Municipal Court of City of Los Angeles (1943) 22 Cal.2d 818, 828.

61 Ibid.

62 Ibid.; see People v. Gutierrez (2014) 58 Cal.4th 1354, 1373; People v. Superior Court

(Romero) (1996) 13 Cal.4th 497, 509.

63 Cal. Const., art. III, § 3.

64 In re Rosenkrantz (2002) 29 Cal.4th 616, 662, quoting Carmel Valley Fire Protection 

Dist. v. State of California (2001) 25 Cal.4th 287, 298.

65 Ibid.; see People ex rel. Pierson v. Superior Court (2017) 7 Cal.App.5th 402, 414 

(“Strictly speaking, it would not appear that the doctrine of separation of powers would 

apply to a constitutional body outside our triptych form of government, but the concept 
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We conclude that requiring the grand jury to return an indictment in a case 

supported by probable cause does not raise substantial questions regarding the 

constitutional principles described above. The California Supreme Court has long 

described the grand jury as protecting the accused from “‘the trouble, expense, and 

disgrace of being arraigned and tried in public on a criminal charge for which there is no 

sufficient cause.’”66 The grand jury performs this function by returning an indictment 

“only when the evidence presented to it indicates that [the defendant] has committed a 

public offense.”67 In other words, “it is the grand jury’s function to determine whether 

probable cause exists to accuse a defendant of a particular crime.”68

In our view, the ordinary meaning of the word “shall” as used in section 939.8 

does not raise significant concerns regarding the grand jury’s ability to assess probable 

cause, even when the word appears in instructions to the grand jury. Although the

ordinary meaning requires the grand jury to return an indictment, that requirement plainly 

applies if and only if the grand jury has determined that there is probable cause.69 And 

the statute does not compel the grand jury to conclude that there is probable cause in any 

particular case.

To support his argument that an essential function of the grand jury is to serve as a 

check on the prosecution’s charging decisions—even where those decisions are supported 

by probable cause—the requestor points to a statement in Vasquez v. Hillery (1986) 474 

U.S. 254. In that case, the Supreme Court observed that the grand jury “‘is not bound to 

indict in every case where a conviction can be obtained.’”70 To understand that 

statement, we look to the underlying authority, which explained that a grand jury’s 

 

would be the same. The Legislature thus cannot act to defeat or materially impair the 

inherent constitutional power of another entity”).

66 Johnson v. Superior Court, supra, 15 Cal.3d at p. 254, quoting In re Tyler, supra, 64 

Cal. at p. 437, italics added.

67 Greenberg v. Superior Court (1942) 19 Cal.2d 319, 321.

68 Cummiskey v. Superior Court, supra, 3 Cal.4th at p. 1026; see Stark v. Superior Court, 

supra, 52 Cal.4th at p. 406 (“The role of the grand jury in an indictment proceeding is to 

‘determine whether probable cause exists to accuse a defendant of a particular crime’”).

69 Pen. Code, § 939.8 (the grand jury shall find an indictment “when” it determines that 

there is probable cause).

70 Requestor Letter, supra, at pp. 6-7, citing Vasquez v. Hillery, supra, 474 U.S. at p. 263, 

quoting United States v. Ciambrone (2nd Cir. 1979) 601 F.2d 616, 629 (dis. opn. of 

Friendly, J.); see also Hawkins v. Superior Court (1978) 22 Cal.3d 584, 589 (grand jurors 

are “legally free to vote as they please”), abrogated by the voters on other grounds as 

stated in Bowens v. Superior Court, supra, 1 Cal.4th at p. 46.
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decision not to return an indictment is “‘unchallengeable,’” even if the grand jury has 

succumbed to “‘the whims of the jurors or their conscious or subconscious response to 

community pressures.’”71

We do not read Hillery as stating a constitutional rule protecting the grand jury’s 

ability to refuse to indict notwithstanding a finding of probable cause. Rather, the more 

persuasive reading of the statement is that it recognizes the practical reality that, if the 

grand jury decides not to return an indictment, the prosecution has no way to challenge 

that decision. That type of decision is similar to a trial jury’s decision to acquit despite 

proof beyond a reasonable doubt: in both instances, the decision is “without recourse by 

the prosecution.”72 But the unchallengeable nature of those decisions does not mean that 

it would defeat or materially impair any essential functions of the trial jury or the grand 

jury, respectively, to instruct them accurately about their duties under controlling law.

73

The requestor also points to United States v. Navarro-Vargas, in which the Ninth 

Circuit considered whether a grand jury’s ability to withhold an indictment despite a 

finding of probable cause was an “irreducible element of what it means to have a grand 

jury” under the Fifth Amendment of the United States Constitution.

74 At issue there was 

the model grand jury charge used in federal court, which states that the grand jury 

“should” return an indictment upon a finding of probable cause, but “cannot” judge the 

wisdom of the laws enacted by Congress.75

A majority of the Ninth Circuit panel concluded that the model charge did not 

violate the grand jury clause of the Fifth Amendment.76 The majority explained that it 

was unaware of any practice “to advise grand juries that they may stand in judgment of 

the wisdom of the laws before them.”77 It reasoned that “[i]f a grand jury can sit in 71 United States v. Ciambrone, supra, 601 F.2d at p. 629 (dis. opn. of Friendly, J.), 

quoting United States v. Cox (5th Cir. 1965) 342 F.2d 167, 189-190 (con. opn. of 

Wisdom, J.).

72 People v. Williams (2001) 25 Cal.4th 441, 449.

73 See People v. Engelman (2002) 28 Cal.4th 436, 440-441.

74 Requestor Letter, supra, at pp. 6-7; see United States v. Navarro-Vargas, supra, 408 

F.3d at pp. 1189-1190; see also U.S. Const., 5th Amend. (“No person shall be held to 

answer for a capital, or otherwise infamous crime, unless on a presentment or indictment 

of a Grand Jury”).

75 United States v. Navarro-Vargas, supra, 408 F.3d at p. 1187; see Federal Judicial 

Center, Benchbook for U.S. District Court Judges, supra, § 7.04, pp. 249, 252, ¶¶ 9, 25.

76 United States v. Navarro-Vargas, supra, 408 F.3d at pp. 1189-1190.

77 Id. at p. 1202.
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judgment of [the] wisdom of the policy behind a law, then the power to return a no bill in 

such cases is the clearest form of ‘jury nullification.’”78 Indeed, the “prospect of a grand 

jury here and there deciding for itself that a law lacked ‘wisdom’” would be “an 

invitation to lawlessness and something less than the equal protection of the laws.”79 

And the majority also observed that the model charge “does not state that the jury 

‘must’ or ‘shall’ indict, but merely that it ‘should’ indict if it finds probable cause. As a 

matter of pure semantics, it does not ‘eliminate discretion on the part of the grand jurors,’ 

leaving room for the grand jury to dismiss even if it finds probable cause.”80 So “[e]ven 

assuming that the grand jury should exercise something akin to prosecutorial discretion,” 

the majority reasoned that “the instruction does not infringe upon that discretion.”81

The requestor reads Navarro-Vargas as implying that the model grand jury charge 

would have violated the Fifth Amendment if it had stated that the grand jury “shall” 

return an indictment upon a finding of probable cause. We are uncertain whether 

Navarro-Vargas stands for that proposition, as the semantical discussion was not the only 

basis for the majority’s holding. But even accepting the requestor’s reading of NavarroVargas, it would not dictate the result under California law. It is well established that the 

grand jury clause of the Fifth Amendment at issue in Navarro-Vargas is one of the few 

provisions of the Bill of Rights that does not apply to the States.82 Indeed, the NavarroVargas majority itself described California’s use of mandatory terminology in section 

939.8 as part of its survey of how the matter had been addressed in different States—

without suggesting that such mandatory language was constitutionally impermissible 

when used by California and other States.

83

Furthermore, the meaning of the grand jury clause of the Fifth Amendment does 

not necessarily inform the meaning of the indictment clause of the California 

Constitution. Indeed, the indictment clause of the California Constitution is part of a 

pretrial screening process that differs significantly from its federal counterpart. Most 

significantly, in the federal system, “a felony prosecution simply cannot proceed without 

 78 Id. at p. 1203.

79 Ibid.

80 Id. at p. 1205, quoting United States v. Marcucci (9th Cir. 2002) 299 F.3d 1156, 1159.

81 Ibid.

82 People v. Henson, supra, 13 Cal.5th at p. 589 (“It has long been held that the Fifth 

Amendment’s guarantee of indictment by grand jury does not apply to the states”); see 

Hurtado v. California (1884) 110 U.S. 516, 538.

83 United States v. Navarro-Vargas, supra, 408 F.3d at p. 1197.
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the approval of the grand jury.”84 This makes the federal grand jury an effective shield 

from prosecution.85 In stark contrast, the California Constitution gives the district 

attorney discretion to bypass the grand jury by submitting the case to a magistrate for a 

preliminary examination.

86 

For these reasons, Navarro-Vargas does not cause us to question the 

constitutionality of the statement in section 939.8 that the grand jury “shall” return an 

indictment if it concludes that there is probable cause, nor our conclusion that the grand 

jury may be instructed to that effect.

Due Process

The requestor also states that instructing a grand jury based on the ordinary, 

mandatory reading of section 939.8 would raise substantial questions regarding the grand 

jury’s “independence.”87 This arguably implicates the rule that, as a matter of due 

process, there must be a pretrial screening process that is impartial and independent of the 

prosecution.

88 We therefore consider whether requiring the grand jury to return an 

indictment upon a showing of probable cause might lead the grand jury to believe that it 

is “beholden to the prosecutor during the decisionmaking process.”89 We conclude that 

the ordinary meaning of the word “shall” as used in section 939.8 does not impair the 

impartial and independent nature of the grand jury. 

As previously discussed, the statement in section 939.8 that the grand jury “shall” 

find an indictment applies if and only if the grand jury has already determined that there 

is probable cause.90 And the statute does not in any way suggest that the grand jury must 

conclude that there is probable cause in a particular case. Nor does it suggest that 

negative consequences might befall the grand jurors individually or collectively if they do 

not conclude that there is probable cause. We therefore conclude that instructing a jury 

on the ordinary and mandatory meaning of the word “shall” as used in section 939.8—

and in any instruction to the grand jury that tracks the statute’s terminology—does not 

 84 United States v. Navarro-Vargas, supra, 408 F.3d at p. 1213 (dis. opn. of Hawkins, J.).

85 See ibid.

86 Cal. Const. art I, § 14; see Bowens v. Superior Court, supra, 1 Cal.4th at pp. 43-44; see 

also Sherwood v. Superior Court (1979) 24 Cal.3d 183, 187.

87 Requestor Letter, supra, at p. 5.

88 Avitia v. Superior Court (2018) 6 Cal.5th 486, 494-495.

89 Id. at p. 498.

90 Pen. Code, § 939.8 (the grand jury shall find an indictment “when” it determines that 

there is probable cause).
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raise significant concerns about the defendant’s “substantial right to an impartial and 

independent grand jury.”91

In sum, we conclude that Penal Code section 939.8 requires a grand jury to return 

an indictment if the grand jury concludes that there is probable cause, and that the grand 

jury may be so instructed.

 91 Avitia v. Superior Court, supra, 6 Cal.5th at p. 495.