Press-Enterprise v. Superior Court

Decision Date10 February 1994
Docket NumberNo. E013110,PRESS-ENTERPRIS,P,E013110
CourtCalifornia Court of Appeals Court of Appeals
Parties, 22 Media L. Rep. 1344 Theetitioner, v. SUPERIOR COURT of the State of California for the County of Riverside, Respondent. David Lynn SCOTT, III, Real Party in Interest.

Sharon J. Waters, Waters & Elwell, Riverside, for petitioner.

No appearance for respondent.

Alan C. Oberstein, Public Defender, and Toni Tweedle Healy, Deputy Public Defender, for real party in interest.

OPINION

McKINSTER, Associate Justice.

After we granted a peremptory writ of mandate in this matter directing the superior court to issue an order to release the grand jury transcripts in their entirety, the Supreme Court granted a petition for review and transferred the matter to us with directions to reconsider our order in light of Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, 23 Cal.Rptr. 397, 859 P.2d 96. Consequently, we calendared the matter for oral argument. We again conclude that petitioner, The Press-Enterprise, is entitled to the relief requested and grant its petition.

FACTS

It is alleged that real party in interest, David Lynn Scott, is the "Ninja rapist" or "Ninja prowler" who committed several rapes and one murder in Moreno Valley and the Canyon Crest area of Riverside. On April 2, 1993, a twenty count indictment was returned against him which included one count of murder with allegations of two special circumstances (Pen.Code, §§ 187/190.2, subd. (a)) 1, five counts of burglary (§ 459), two counts of attempted murder (§§ 664/187), and five counts of rape (§ 261, subd. (2)).

Scott was arraigned and entered a not guilty plea on all counts. Subsequently, he made a motion pursuant to section 938.1 that the grand jury transcripts remain sealed until the conclusion of trial, contending that due to the pretrial publicity the case has already received that there is a reasonable likelihood that his right to a fair and impartial trial would be prejudiced by the release of the transcripts.

The Press-Enterprise filed opposition to the motion, contending that the reasonable likelihood standard of section 938.1 is constitutionally infirm and that it must be replaced by the substantial probability of prejudice standard set forth by the U.S. Supreme Court in Press-Enterprise v. Superior Court (Press-Enterprise II ) (1986), 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1. It argued that there was no basis under either standard to seal the grand jury transcript.

A hearing on this motion was held on May 14, 1993, at which The Press-Enterprise as well as the deputy district attorney and Scott's attorney made appearances. At the conclusion of this hearing the trial court determined that the applicable standard for ruling on this motion was "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."

The court then set the matter for further hearing in order to review the grand jury transcripts and to consider specific objections by Scott to their release. At this subsequent hearing the court took judicial notice that as of May 1993, The Press-Enterprise had a daily circulation of 160,540 and a Sunday circulation of 168,705. The court noted that not all of its circulation is in the City of Riverside, but it did note that it prints seven different local editions and there are six or "seven possible local editions which they may change ... in the B Section with local news akin to those areas."

A representative of the Superior Court Executive Office, Manuel R. Gonzalez, Jr. testified that the pool of jurors called to serve on criminal trials in the central division of the Riverside County Superior Court are drawn from the area west of Indio, including the cities of Riverside, Temecula, Hemet, Banning, Beaumont, Corona, Lake Elsinore, Sun City, and Moreno Valley. His office does not have any population figures for this area.

Although the People indicated that they intended to supply the court information regarding the population of this area, it does not appear that such information was ever made a part of the record. The court's personal estimates of the population of three largest cities were 218,000 to 220,000 for the city of Riverside; 110,000 to 118,000 for Moreno Valley; and, over 80,000 for Corona.

The court made the following findings: "FINDING NO. I: Press-Enterprise and other weekly newspapers [e.g., Perris Progress] are newspapers of general circulation "FINDING NO. II: The court cannot find that there is a 'reasonable likelihood' that release of the transcript, with the exception of those portions covered in Findings No. III, will prejudice the defendant's right to a fair trial.

with circulation and readership in the cities of Western Riverside County, including Riverside, Corona, Moreno Valley, Hemet, Banning, Beaumont, Temecula, Murrieta, Lake Elsinore and Sun City, from which potential jurors are drawn and called for criminal cases heard at the Hall of Justice in Riverside. The Court takes judicial notice per Evidence Code Section 451, subdivision (f) of The Press-Enterprise's circulation.

"FINDING NO. III: The Court finds that a portion of the Grand Jury testimony dealing with statements by the defendant to witnesses about a 'dream' and 'out of body experiences' are different from substantially all of the other testimony ... because of their nature and because they are attributed to the defendant himself and may reasonably be considered as references to the alleged [murder] victim Brenda Kenny...."

The court ordered that certain portions of the transcript remain sealed, finding that under both the "reasonable likelihood" and the "substantial probability" standard that these portions are so unusual and surrealistic that neither voir dire nor admonitions by the court to disregard those portions could reverse the potentially damaging and prejudicial effect they would have. Scott indicates that the portions of the transcript to remain sealed constitute about 3% of the 307 page transcript.

In considering reasonable alternatives to sealing these portions of the transcripts, the court opined that "[i]t is highly unlikely that such knowledge or mindset could be set aside by voir dire or admonitions by the court to disregard things that prospective jurors have read about the incident of the alleged murder of Brenda Kenny. Such evidence is potentially very damaging and prejudicial to [Scott]."

The Press-Enterprise seeks review of the order that those specified portions of the grand jury transcript be sealed.

DISCUSSION

Section 938.1 provides that once an indictment has been returned, the transcript of the grand jury proceedings shall be open to the public unless the court orders otherwise on its own motion or on motion of a party pending determination 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." (Pen.Code, § 938.1, subd. (b).)

As a preliminary matter, we point out that we do not have occasion in this case to decide whether the "reasonable likelihood" or "substantial probability" standard applies to the determination to seal all or part of the grand jury transcript. 2 This is a result of the trial court's ruling that the specified portions of the transcript that it ordered sealed were prejudicial under either the "reasonable likelihood" or "substantial probability" standard.

In reviewing the trial court's determination, we exercise our independent judgment. We have concluded that this is the appropriate standard of review by referring to the standard applicable to review of rulings on motions to change venue in criminal cases. Under section 1033 the court must order a change of venue when there is a reasonable likelihood that a fair and impartial trial cannot be had in the county. "A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had." (Maine v. Superior Court (1968) 68 Cal.2d 375, 383, 66 Cal.Rptr. 724, 438 P.2d 372.) On pretrial writ review of this ruling, the appellate court Based on our review of the record, we cannot conclude that there is either a reasonable likelihood or a substantial probability that release of the entire grand jury transcript would prejudice Scott's right to a fair trial. In reaching this conclusion, we will accept the trial court's finding that a prospective juror who reads newspaper accounts regarding evidence of Scott's dreams and out of body experiences are likely to remember these reports and may even develop a preconception concerning his guilt or innocence. We cannot, however, conclude that release of this material would make it difficult to find 12 jurors capable of acting...

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