Alvarez v. Superior Court

Decision Date24 August 2007
Docket NumberNo. A117202.,A117202.
CourtCalifornia Court of Appeals Court of Appeals
PartiesAlberto ALVAREZ, Petitioner and Defendant, v. The SUPERIOR COURT of San Mateo County, Respondent; San Jose Mercury News, Inc., et al., Real Parties in Interest.

Charles Robinson, Redwood City, Eric Liberman, Millbrae, and John Halley, Redwood City, for Petitioner and Defendant.

Stephen Wagstaffe, Redwood City, for Respondent.

Edmund G. Brown, Jr., Attorney General, Ronald S. Matthias, Senior Assistant Attorney General for Real Party in Interest, Office of the Attorney General.

Sheppard, Mullin, Richter & Hampton, James M. Chadwick, San Francisco, and Guylyn R. Cummins, San Diego, for Real Party in Interest, San Jose Mercury News, Inc.


Penal Code section 938.1, subdivision (b),1 provides that grand jury transcripts shall be open to the public after an indictment issues unless the court finds a "reasonable likelihood" that their release will prejudice the defendant's right to a fair trial. (Pen.Code, § 938.1, subd. (b).) The First Amendment of the United States Constitution guarantees the press and the public a right of access to certain judicial proceedings and precludes their closure unless the court finds that access will create a "substantial probability" of prejudice and finds there are no less restrictive measures that would ameliorate the harm. (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 13-14, 106 S.Ct. 2735, 92 L.Ed.2d 1 (Press-Enterprise II); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1181, 86 Cal. Rptr.2d 778, 980 P.2d 337 (NBC Subsidiary).)

The "reasonable likelihood" standard of section 938.1 places a lesser burden on a defendant seeking to prevent dissemination of grand jury transcripts than would the "substantial probability" standard that applies to public access cases under the First Amendment. (Press-Enterprise v. Superior Court (1994) 22 Cal.App.4th 498, 503, 27 Cal.Rptr.2d 708, fn. 2 (Press-Enterprise III).) As we explain below, we conclude the First Amendment right of access does not extend to postindictment grand jury transcripts at a section 938.1 hearing, and that a defendant seeking to seal such transcripts pending the completion of trial need only establish prejudice under the lesser "reasonable likelihood" standard of section 938.1.


Officer Richard May of the East Palo Alto Police department was shot and killed on January 7, 2006. Defendant was arrested as a suspect a few days later. Local news media covered the case extensively, and articles about the crime, the victim and defendant appeared both in print and on the Internet.

On August 25, 2006, defendant was indicted by a grand jury and charged with first degree murder with special circumstances, namely, that a peace officer was killed in the line of duty. (§§ 187, subd. (a), 190.2, subds. (a)(7), (b) & (c).) The indictment also charged defendant with felon in possession of a firearm (§ 12021, subd. (a)) and alleged that he had personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), that he had committed the murder while on parole (§ 1203.085, subd. (b)), that he was ineligible for probation by virtue of a prior felony conviction (§ 1203, subd. (e)(4)) and that he had previously served a prison term for a felony offense (§ 667.5, subd. (b)).

After the indictment issued, the trial court ordered that the grand jury transcripts would be provided to the district attorney and the defendant, but would otherwise remain under seal pending further order. Defendant filed a motion to seal the transcripts until the completion of his trial pursuant to section 938.1, subdivision (b). San Jose Mercury News, Inc. (Mercury News) opposed the motion, and defendant filed a reply challenging the paper's standing to participate. Mercury News filed a separate motion to unseal the grand jury transcripts. The district attorney took no position as to whether the transcripts should be released.

A hearing was held at which defendant presented the testimony of two expert witnesses in support of his request that the transcripts remain sealed. Lewis Leader, a former newspaper reporter and editor, was offered as an expert on journalistic practices regarding stories about crimes and the courts. Edward Bronson, a social scientist with a degree in law, discussed the effects of pretrial publicity on the fairness of a trial, as well as the efficacy of voir dire in preventing prejudice. Both opined that the amount of media coverage on the case had been extensive, that the victim had been portrayed positively throughout, that the defendant had been portrayed very negatively, and that release of the grand jury transcripts would reignite public interest in the case and increase media coverage.

The trial court granted Mercury News's motion to unseal after redacting irrelevant and unduly prejudicial material. It concluded that the public and press have a qualified First Amendment right of access to grand jury transcripts after an indictment has issued, therefore, federal constitutional law required release of the transcripts unless doing so would create a substantial probability of prejudice, which defendant had not demonstrated. The court rejected defendant's argument that he need only show a reasonable likelihood of prejudice as provided under section 938.1, subdivision (b): "[T]he statutory language in section 938.1(b) is unconstitutional to the extent that it ignores the constitutional dimension of this problem."

Defendant filed a petition for writ of mandate and/or prohibition in this court seeking an order that the grand jury transcripts remain sealed. Mercury News filed informal opposition. We summarily denied the petition. The Supreme Court granted review and transferred the matter, back to this court with directions to issue an order to show cause why the relief sought by defendant should not be granted. We set a date for filing a return, continued the trial court's stay of its order unsealing the grand jury transcripts, and calendared the matter for oral argument.


Defendant contends the order unsealing the grand jury transcripts must be vacated because the trial court imposed a higher burden of proof upon him than required under California law when it considered whether the pretrial release of the transcripts would create a "substantial probability" of prejudice. He argues that under section 938.1, subdivision (b), he needed only to prove a "reasonable likelihood" of prejudice for the transcripts to remain sealed pending the completion of his trial. Defendant also argues that Mercury News lacked standing to participate in the hearing below. We conclude that Mercury News had standing to participate in the hearing, but agree with defendant that the court should have applied the reasonable likelihood standard of section 938.1, subdivision (b).

A. Standing

Defendant contends the district attorney was the only party other than himself entitled to participate in the hearing to determine whether the transcripts should remain sealed. We disagree. At the time of the hearing, the grand jury transcripts had been ordered sealed pending further order by the court. Mercury News was entitled to seek inspection of the transcripts and properly did so by filing a motion to unseal. (Cal. Rules of Court, rule 2.551(h)(2) ["A party or member of the public may move, apply, or petition ... to unseal a record."]; Craemer v. Superior Court (1968) 265 Cal.App.2d 216, 218, fn. 1, 71 Cal.Rptr. 193 [reporter had standing to seek writ of mandate to inspect sealed grand jury transcripts].)

Defendant acknowledges that a member of the press is entitled to challenge an order sealing grand jury transcripts, but suggests the court should have first ruled on his motion to seal, and then separately addressed Mercury News's motion to unseal the transcripts in the event his motion was granted. Bifurcating the hearing in this manner would have elevated form over substance when the court's ultimate task was to determine whether release of the transcripts would prejudice defendant's fair trial rights. The trial court did not err when it considered the motions to seal and unseal in a single hearing.

B. The Public's Right to Grand Jury Transcripts Under Section 938.1

California has provided for a secret grand jury since the inception of its criminal justice system. (People v. Superior Court (Mouchaourab) (2000) 78 Cal. App.4th 403, 414, 92 Cal.Rptr.2d 829.) But, unlike many other jurisdictions, this state permits the release of grand jury transcripts to the public once an indictment has been returned. (See Judicial Council of Cal., Rep. to Governor and Leg. (1970-1974) Sealing of Criminal Transcripts Before Trial, p. 21 ["California is one of the few states that has rejected the traditional secrecy of grand jury transcripts."]; contrast Fed. Rules Crim.Proc, rule 6(e), 18 U.S.C.)

"The California Constitution, as adopted in 1879, left to the Legislature the adoption of specific rules for the operation of the grand jury. It provided: `Offenses heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and commitment by a magistrate, or by indictment, with or without such examination and commitment, as may be prescribed by law.' (Cal. Const., art. I, former § 8.) As we explained in Fitts v. Superior Court (1936) 6 Cal.2d 230, 241 : `The [constitutional] convention of 1879 ... by failing to make further provisions as to the grand jury left to the [Legislature all questions affecting the grand jury not expressly covered by the Constitution.'" (Daily Journal Corp. v. Superior Court (1999) 20 Cal.4th 1117, 1125, fn. 5, 86 Cal.Rptr.2d 623, 979 P.2d 982.)

As early as 1933, former section 925 required that a reporter transcribe grand jury proceedings for delivery to the county...

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