People v. Connor

• Decision Date: 06 February 2004
• Docket Number: No. H024743,H024743
• Citation: 115 Cal.App.4th 669,9 Cal.Rptr.3d 521
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff, v. Charles Leonard CONNOR, Defendant and Appellant; SAN JOSE MERCURY NEWS, INC., Petitioner and Respondent.

9 Cal.Rptr.3d 521

115 Cal.App.4th 669

The PEOPLE, Plaintiff, v. Charles Leonard CONNOR, Defendant and Appellant SAN JOSE MERCURY NEWS, INC., Petitioner and Respondent.

No. H024743

Court of Appeal, Sixth District.

February 6, 2004.

Charles William Hendrickson, Korda, Johnson & Wall LLP, San Jose, for Defendant and Appellant.

Edward P. Davis, Jr., James M. Chadwick, Danielle Van Wert, Gray, Cary, Ware & Freidenrich, East Palo Alto, for Petitioner and Respondent.

WUNDERLICH, J.

I. Introduction

Under Penal Code section 1203.05,¹ probation reports are open to the public without restriction for 60 days after judgment is pronounced or probation is granted, whichever is earlier. After that time, however, only specified persons retain the right to unfettered access. Nonspecified persons can gain access only "by order of the court, upon filing of a petition therefor by the person." (§ 1203.05, subdivision (b).) In this case, we determine what this restriction on access by nonspecified persons means and how the petition process operates.

We find that the restriction was intended to restore to the subject of a probation report a measure of privacy concerning personal information in the report after the period of open access has expired. Accordingly, we hold that when a nonspecified person files a petition seeking a probation report, the subject of the report is entitled to notice and an opportunity to be heard at an in camera hearing concerning any personal information he or she does not want released. If the subject does not seek a hearing, then the court should release the entire probation report. However, if the subject seeks a hearing, then, after balancing the subject's interest in the confidentiality of personal information against the potential benefit from its release, the court may exercise its discretion to redact personal information. It should then release the remainder of the report.

II. Statement of the Case

On January 17, 2001, defendant Charles Leonard Connor pleaded no contest to one count of committing a lewd act on a dependent adult. (§ 288, subd. (c)(2).) The Santa Clara County Probation Department filed its report on March 6, 2001, and on that day, the court suspended imposition of sentence and placed defendant on formal probation for three years with various conditions, including six months of electronic monitoring.

More than one year later, on April 19, 2002, the San Jose Mercury News, Inc. (the News) filed a petition under section 1203.05, subdivision (b) for access to defendant's probation report. On July 9, 2002, the court granted the petition. In its decision, the court found that it had broad discretion concerning whether to grant or deny a petition in furtherance of justice. After balancing defendant's constitutional right to privacy against the News's common law right of access to judicial records, the court concluded that the balance tipped in favor of the News.

Defendant appeals from the order. We reverse it and remand the matter for further proceedings.

III. Contentions of the Parties

The parties stake out diametrically opposed positions concerning the meaning of section 1203.05. According to defendant, the statute establishes a presumption of confidentiality concerning probation reports after the 60-day period has expired. Thus, to obtain access, a petitioner must overcome the presumption and can do so only by showing a compelling need that furthers the ends of justice. Defendant contends that the trial court erred in failing to recognize the presumption of confidentiality and in considering irrelevant factors, such as the objectives of sentencing and the circumstances that support releasing a defendant on probation. Defendant further contends that the News failed to overcome the presumption of confidentiality.

According to the News, the statute establishes a presumption of access. Thus, when a petition is filed, the court must release the probation report unless the defendant overcomes the presumption by showing that disclosure will jeopardize a compelling interest. The News argues that although the trial court erroneously found that it had broad discretion over the petition, it correctly concluded that defendant had failed to overcome the presumption of access.

Initially, however, the News claims that the order granting its petition is not appealable, and therefore we must dismiss the appeal.

IV. Appealability of an Order Granting Access to a Probation Report

There is no constitutional right of appeal from a judgment or order in criminal cases; rather the right of appeal is statutory. (See People v. Mazurette (2001) 24 Cal.4th 789, 792, 102 Cal.Rptr.2d 555, 14 P.3d 227 ["`It is settled that the right of appeal is statutory and that a judgment or order is not appealable unless expressly made so by statute'"]; People v. Garrett (1998) 67 Cal.App.4th 1419, 1421, 79 Cal.Rptr.2d 803; People v. Vargas (1993) 13 Cal.App.4th 1653, 1659, 17 Cal.Rptr.2d 445.) In particular, section 1237 authorizes an appeal from a "final judgment" or "an order made after judgment, affecting the substantial rights of the party." (§ 1237, subds. (a) & (b).)

The order here is not a final judgment but an order made after final judgment. Thus, the viability of defendant's appeal depends on whether the order affects his substantial rights.

Defendant claims the order affects his right to confidentiality concerning the probation report. The News claims that the statute does not confer confidentiality and does not affect any privacy interest because it merely provides access to information that is already a matter of public record. Given the parties' positions, we can settle the issue of appealability only by resolving their dispute concerning the purpose and meaning of section 1203.05.

In construing statutory language, our fundamental task is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. (In re Harris (1993) 5 Cal.4th 813, 844, 21 Cal.Rptr.2d 373, 855 P.2d 391.) We begin by examining the statutory language, giving the words their usual and ordinary meaning. If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. (Day v. City of Fontana (2001) 25 Cal.4th 268, 272, 105 Cal.Rptr.2d 457, 19 P.3d 1196.) If, on the other hand, the statutory language is unclear or ambiguous and permits more than one reasonable interpretation, we may consider various extrinsic aids to help us ascertain the Legislature's intent, including legislative history, public policy, settled rules of statutory construction, and an examination of the evils to be remedied and the legislative scheme encompassing the statute in question. (Ibid.; People v. Garrett (2001) 92 Cal.App.4th 1417, 1422, 112 Cal.Rptr.2d 643.) In such circumstances, we select the interpretation that comports most closely with the apparent intent of the Legislature, with a view toward promoting, rather than defeating, the general purpose of the statute and avoiding an interpretation that would lead to absurd consequences. (People v. Walker (2002) 29 Cal.4th 577, 581, 128 Cal.Rptr.2d 75, 59 P.3d 150.)

Section 1203.05 provides, "Any report of the probation officer filed with the court, including any report arising out of a previous arrest of the person who is the subject of the report, may be inspected or copied only as follows: [¶] (a) By any person, from the date judgment is pronounced or probation granted or, in the case of a report arising out of a previous arrest, from the date the subsequent accusatory pleading is filed, to and including 60 days from the date judgment is pronounced or probation is granted, whichever is earlier. [¶] (b) By any person, at any time, by order of the court, upon filing a petition therefor by the person. [¶] (c) By the general public, if the court upon its own motion orders that a report or reports shall be open or that the contents of the report or reports shall be disclosed. [¶] (d) By any person authorized or required by law to inspect or receive copies of the report. [¶] (e) By the district attorney of the county at any time.[¶] (f) By the subject of the report at any time."

The language of the statute is plain and clear: (1) Specified persons — i.e., the subject of a report (hereafter referred to as "the" or "a" defendant), the district attorney, and any person authorized or required by law to see or receive the report — have unfettered access to reports at any time; (2) nonspecified persons and the general public have unfettered access to reports for only 60 days; (3) after that time, they have access only by court order. We find these provisions unambiguous insofar as they reflect an intent to restrict access to probation reports by nonspecified persons and the general public after the 60-day period has expired.

To help ascertain the purpose of this restriction, we first presume that in enacting, reenacting, and amending the statute, the Legislature was aware of existing law and rules of court concerning the type of information contained in probation reports.² (See People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183, 199, 96 Cal.Rptr.2d 463, 999 P.2d 686 [courts presume Legislature aware of existing law]; In re Alyssa H. (1994) 22 Cal.App.4th 1249, 1253, 27 Cal.Rptr.2d 809 [and rules of court].) Pertinent in this regard is section 1203, subdivision (b)(1), which provides, in relevant part, "[I]f a person is convicted of a felony and is eligible for probation, before judgment is pronounced, the court shall immediately refer the matter to a probation officer to investigate and report to the court, at a specified time, upon the circumstances surrounding the crime and the prior history and record of the person, which may be considered either in aggravation or mitigation of the punishment." We also note that section 1203.10 more specifically provides, in relevant part, "At the time of the plea or verdict of...