Oziel v. Superior Court

• Decision Date: 17 September 1990
• Docket Number: No. B050295,B050295
• Citation: 273 Cal.Rptr. 196,223 Cal.App.3d 1284
• Court: California Court of Appeals Court of Appeals
• Parties: , 59 USLW 2219, 18 Media L. Rep. 1113 L. Jerome OZIEL, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. CBS INC., Capital Cities/ABC, Inc., and The People of the State of California, Real Parties in Interest.

Page 196

273 Cal.Rptr. 196

223 Cal.App.3d 1284, 59 USLW 2219, 18 Media L. Rep. 1113

L. Jerome OZIEL, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent.

CBS INC., Capital Cities/ABC, Inc., and The People of the State of California, Real Parties in Interest.

No. B050295.

Court of Appeal, Second District, Division 7, California.

Sept. 17, 1990.

The Law Offices of Bradley Wm. Brunon, Bradley Wm. Brunon, and Jeffrey J. Douglas, Santa Monica, for petitioner.

No appearance for respondent.

Herbert M. Schoenberg and Beth A. Finley, Los Angeles, for real party in interest CBS Inc.

Munger, Tolles & Olson, Steven M. Perry, and Michael R. Doyen, Los Angeles, for real party in interest Capital Cities/ABC, Inc.

No appearance for real party in interest The People of the State of Cal.

LILLIE, Presiding Justice.

By petition for writ of mandate, L. Jerome Oziel seeks to set aside that portion of a May 22, 1990 order of respondent court granting disclosure of portions of videotapes of the execution of a search warrant for petitioner's residence and office. The issues raised by the petition are (1) whether the trial court abused its discretion in permitting public disclosure of videotapes containing images of the interior of petitioner's home obtained under color of a search warrant, and (2) whether the issue of the legality of the videotaping of the execution of the search warrant is properly before us.

FACTUAL AND PROCEDURAL BACKGROUND

L. Jerome Oziel, a psychotherapist, is alleged to have provided treatment to Erik Galen Menendez and Joseph Lyle Menendez, defendants in underlying murder prosecutions, and allegedly possessed evidence relating to the murders. On March 9, 1990, a search warrant, silent on the issue of whether the officers were authorized to videotape its execution, was issued pursuant to Penal Code section 1524, subdivision (c) ¹ for Oziel's home and office. During On May 16, 1990, National Broadcasting Company, Inc. and Capital Cities/ABC, Inc., each filed in superior court, petitions for an order permitting disclosure of the search warrant videotapes as well as other items not at issue herein; CBS Inc. filed notice of joinder in the above petitions. ³ The media argued in their petitions that the videotapes of the execution of the search warrant should be disclosed because (1) they are public records under the California Public Records Act (Gov.Code, § 6250 et seq.); (2) they are documents or records of the court relating to a search warrant under Penal Code section 1534, which provides that if a search warrant has been executed, "the documents and records shall be open to the public as a judicial record"; and (3) disclosure is required under the First Amendment right to open criminal trials.

the execution of the search warrant by a special master, the exterior and interior of Oziel's home and office, including Oziel's wife in a bathrobe and various rooms and personal property inside the home, were videotaped. ²

In written opposition to the petitions in superior court, Oziel argued that disclosure of the videotape would constitute an unauthorized "video-tour" of his home to which he has a right of privacy; that the videotaping exceeded the scope of the warrant; and that the media's proposed disclosure would constitute the tort of invasion of privacy by publicly disclosing private facts which would be offensive and objectionable to a reasonable person of ordinary sensibilities. Further, Oziel acknowledged that the legality of the making of the videotape had not yet been ascertained, and continued that "[a]ssuming the propriety and legality of both the search and videotaping thereof, (two propositions which Dr. Oziel does not here concede), 'the use of [that videotape] for another purpose [other than the one for which the government created it] or the disclosure of it to a third party' were specifically repudiated by the voters of California by enacting the privacy amendment to the California Constitution...."

At the hearing on the petitions on May 22, 1990, Oziel argued that the magistrate authorizing the search warrant did not authorize a videotape, which "was done by the district attorney's office for their own purposes." As to the issue of whether the The court responded, "We know with a search warrant the police have the right to violate privacy. They have the right to go through there, search everything in the house where they might find items. That's what they have done. They have the right to go in and record it. [p] In terms of reports, in terms of personal recollections, they have the right to record it on audio, and I believe on video, and they are all public records." In response to Oziel's statement that under the court's ruling the police, in conducting a contraband search, could go in and videotape a strip search of the suspect, the court responded that the cases are viewed on a case-by-case basis, and "If there is something so egregious and embarrassing that overrides the public interests, I will step in. This is not such a case."

videotaping violated Oziel's Fourth Amendment rights, Oziel stated that "[w]e have not had the opportunity to argue it, and this doesn't appear to be the appropriate forum for doing that.... If we don't have a forum to have the material suppressed since we aren't a defendant here, what gave them the right to [videotape] if they can now turn it over?"

The minute order of May 22 states in pertinent part: "Motion for public disclosure of videotapes of the execution of the search warrant of the residence of Dr. Oziel related to the deaths of Mr. and Mrs. Jose Menendez is argued and granted as follows: The court orders the Beverly Hills Police Department to release to the public only the portions of the aforementioned videotape(s) excluding words and ... excluding any physical evidence and any portions relating to any other patients." ⁴

Oziel filed timely petition for writ of mandate and request for stay of that part of the May 22, 1990 order releasing the videotapes of the execution of the search warrant for Oziel's residence. We granted stay pending our further order, and issued order to show cause why respondent court should not be compelled to grant the relief requested in the petition. Hearing has been had thereon, and we conclude for the reasons set forth below, that the petition should be granted. Before addressing the principal issues raised by the petition, we first discuss the claims by real parties that the California Public Records Act applies herein, and that review by petition for writ of mandate is not available.

I PUBLIC RECORDS ACT

To the extent that the court ordered disclosure of the videotapes as public records subject to disclosure under Government Code section 6250 et seq., the court was in error. "The unambiguous language of the statute [ ⁵] speaks clearly y on this point Moreover, real parties, as did respondent court, improperly deem that the police or the district attorney had some claim to or right to possession of the videotapes. ⁶ However, an officer seizing and holding property under a search warrant does so on behalf of the court; possession by the officer, is in contemplation of the law, possession by the court. (People v. Superior Court (1972) 28 Cal.App.3d 600, 608, 104 Cal.Rptr. 876.)

                and it expressly exempts the state courts from the provisions of the Act.  Estate of Hearst (1977) 67 Cal.App.3d 777, 782 [136 Cal.Rptr. 821] ... correctly ruled that the Act does not apply to the judiciary."  (Pantos v. City and County of San Francisco (1984) 151 Cal.App.3d 258, 262, 198 Cal.Rptr. 489.)   Without intending to imply that the videotapes herein constitute judicial records within the meaning of Code of Civil Procedure section 1904 or Penal Code section 1534, subdivision (a), we also note that it has been held that judicial records are exempt from the California Public Records Act.  (People v. Rhodes (1989) 212 Cal.App.3d 541, 552, 261 Cal.Rptr. 1.)
                

Penal Code section 1536 provides that property seized under a search warrant "must be retained by the officer in his custody, subject to the order of the court to which he is required to return the proceedings before him, or of any other court in which the offense in respect to which the property or things taken is triable."

The same rule applies to property seized without a warrant: "But, [the People] argue, property seized without a warrant is not so held on behalf of the court and, thus, is not subject to an order made in a summary proceeding. We think the argument without merit. In the present case, it appears from the return that most (and possibly all) of the property involved was offered in evidence before the grand jury and is, therefore, presently in the possession of respondent court or its officers and agencies. [p] But even as to property not yet offered or received in evidence we think that judicial control still exists. We are not now concerned with a private seizure, by a private individual, for some purpose of his own. We deal with property seized by a public officer, acting under the color of his Accordingly, it is clear from our record that the police held the videotape on behalf of the court and have no authority to disclose it or dispose of it except as the court may order. Hence, the fact that the district attorney in the instant case may not have opposed media's petitions as to these videotapes is of no import and is irrelevant to the issue of whether the court properly ordered disclosure.

status as a law enforcement officer, and seized solely on the theory that it constitutes a part of the evidence on which judicial action against its owner or possessor will be taken. We regard property so taken and so held as being as much held on behalf of the court in which the contemplated prosecution will be instituted as is property taken and held under a warrant. The seizing officer claims no right in or to the property, or in or to its...