SCI-Sacramento, Inc. v. Superior Court

Citation54 Cal.App.4th 654,62 Cal.Rptr.2d 868
Decision Date24 April 1997
Docket NumberINC,No. C024452,SCI-SACRAMENT,C024452
CourtCalifornia Court of Appeals
Parties, 25 Media L. Rep. 1881, 97 Cal. Daily Op. Serv. 2994, 97 Daily Journal D.A.R. 5269 , et al., Petitioners, v. The SUPERIOR COURT of San Joaquin County, Respondent; The PEOPLE, Real Party in Interest.

[54 Cal.App.4th 656] Diepenbrock, Wulff, Plant & Hannegan, Charity Kenyon, Holly B. Armstrong, Sacramento, for Petitioners.

Crosby, Heafey, Roach & May, John E. Carne, David E. Durant, Oakland, Johanson & Robinson, Stephen H. Johanson, Sacramento, as Amici Curiae on behalf of Petitioners.

No appearance for Respondent.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Edmund D. McMurray, Roger E. Venturi, Susan J. Orton, Deputy Attorneys General, for Real Party in Interest.

Gil Garcetti, District Attorney (Los Angeles), George M. Palmer, Brent Riggs, Deputy District Attorneys, as Amici Curiae on behalf of Real Party in Interest.

SIMS, Associate Justice.

Petitioners SCI-Sacramento, Inc., a Maryland Corporation doing business as KOVR-TV, and Jim Saunders (KOVR's news director and custodian of records), hereafter collectively "KOVR," petition this court for a writ of mandate or prohibition to avoid disclosure of materials subpoenaed by the prosecution in a pending criminal case. The materials are "outtakes" of a videotaped interview KOVR conducted with the defendant in the [54 Cal.App.4th 657] criminal case. KOVR submitted the videotape to the trial court for purposes of an in camera review in the course of the trial court's ruling on KOVR's motion to quash the prosecution's subpoena. The trial court ordered disclosure. KOVR contends the threatened disclosure is prohibited by the newspersons' shield law. (Cal. Const., art. I, § 2, subd. (b) 1 [hereafter "article I, section 2(b)"]; Evid.Code, § 1070. 2 ) The People argue among other things that the shield law merely provides an immunity against contempt, not a privilege against disclosure, and there is no contempt order in this case. We shall agree that our review of the merits of the dispute is premature.

We previously issued an alternative writ and a stay of the trial court's order pending our plenary review. We shall now dissolve the stay and issue a peremptory writ directing the trial court to vacate its order and issue a new order giving the newspersons the opportunity to choose to suffer a judgment of contempt.

FACTUAL AND PROCEDURAL BACKGROUND

KOVR is a television station engaged in the gathering, receiving and processing of information for communication to the public. After learning that one Anthony Lee DeSoto had confessed to sheriff's investigators that he [54 Cal.App.4th 658] had killed his cellmate, KOVR news reporter Tom Layson conducted a videotaped interview with DeSoto in the San Joaquin County jail.

Portions of the interview were broadcast on KOVR news programs on March 19 and March 20, 1996.

In April 1996, the People issued a subpoena duces tecum for KOVR's custodian of records to "BRING TAPE RECORDING OF THE ENTIRE INTERVIEW AT THE SAN JOAQUIN COUNTY JAIL OF DEFENDANT ANTHONY LEE DESOTO ON 3/19 OR 3/20/96, TO INCLUDE PORTIONS OF BROADCAST AS WELL AS PORTIONS THAT WERE NOT BROADCASTED [sic ]." The subpoena indicated no appearance was required if the materials were turned over to the prosecution.

KOVR submitted only the broadcast portions of the interview, invoking the newspersons' shield law (Cal. Const., art. I, § 2; Evid.Code, § 1070) as to the "outtakes" which were not broadcast. The prosecutor reiterated her demand for the unpublished materials.

In June 1996, KOVR moved to quash the subpoena on the grounds of the newspersons' shield law. KOVR's motion requested that the subpoena be quashed but asked in the alternative: "If the court should determine that the District Attorney has established and produced evidence of a colorable interest in this matter, KOVR requests that the court review in camera those portions of the videotape claimed to be essential to protecting the interests of the People. Such in camera review of the unpublished material, with counsel for the media present, would be essential to perform the balancing of the nature described in Delaney [v. Superior Court (1990) 50 Cal.3d 785, 268 Cal.Rptr. 753, 789 P.2d 934].[p] If the court should determine that ... the District Attorney has established a right to production of the portions of the videotape that have not been broadcast, then in camera review is requested without prejudice to the right of KOVR's custodian of records to review the court's ruling and to decide whether or not to disclose the unbroadcast portions of the videotape or to suffer a judgment of contempt." (Italics added.)

At the July 8, 1996, hearing on the motion to quash, the trial court stated (in concurrence with the position taken in the People's opposition to the motion to quash) that the case law requires in camera review only when the material sought to be shielded under the newspersons' shield law is confidential or sensitive--elements not present in the instant case, where KOVR has not contended the unpublished tape is confidential or sensitive. 3 The court further stated that notwithstanding this point of law, the court would [54 Cal.App.4th 659] exercise its discretion and review the tape in camera. The court asked KOVR's counsel if she had the tape (exhibit C) with her. She did, and she turned it over to the court. The court conducted the in camera review in the presence of KOVR's counsel, defendant, and defense counsel. KOVR's counsel stated she had no objection to the presence of the defense "[a]s long as it would not constitute a waiver of the Shield Law...." The trial court agreed. 4

On July 19, 1996, the trial court issued an order denying KOVR's motion to quash, ordering that the videotape (exhibit C) be unsealed (but staying its order), and directing KOVR to provide a copy of the unedited interview to the prosecution. There are two versions of the court order--a sealed version which has not been provided to the People, and an unsealed version. Both versions of the order stated in part: "The court hereby denies KOVR's Motion to Quash and orders that EXHIBIT C be unsealed, but stays the execution of that order until the next hearing on this matter set for July 23, 1996. KOVR is further ordered to provide a complete copy of the unedited interview in continuous sequence at the July 23, 1996 hearing." 5

The court later noted a correction extending the stay to July 29, the date of the next hearing.

KOVR wrote to the court requesting that the stay be extended to September due to unavailability of the court reporter to transcribe the July 8th hearing.

The court minutes of the July 29, 1996, hearing reflect: "COUNSEL FOR KOVR INDICATES INTENTION TO FILE PETITION FOR WRIT OF MANDATE CHALLENGING THE COURT'S DECISION AND REQUEST FOR STAY TO 09/03/1996 IS RENEWED IN LIGHT OF THE CONTINUANCE OF THE TRIAL DATE [which was continued to March 17, 1997]." The trial court ordered preparation of the transcript of the July 8, 1996, hearing

and granted KOVR a stay to August 19, 1996. The minutes also reflect KOVR's request for a further stay was denied at an in camera hearing, the transcript of which was ordered sealed

Our record contains no reporter's transcript of the July 29, 1996, proceedings.

On August 14, 1996, KOVR filed in this court a petition for writ of mandate and/or prohibition and application for immediate stay.

[54 Cal.App.4th 660] On August 16, 1996, we issued a stay of the trial court's July 19, 1996, order and directed the People in its opposition brief to address "the question whether the superior court erred in ordering the unpublished information to be unsealed rather than permitting [KOVR] to choose whether to comply with the subpoena duces tecum or to risk being held in contempt." We also granted KOVR's request to file under seal two exhibits sealed by the trial court--exhibit B (the "sealed version" of the trial court order including as an attachment a written transcript of the videotaped interview, prepared by the court) and exhibit D (the reporter's transcript of the in camera proceedings).

In October 1996, the People filed its opposition brief, arguing among other things that the shield law does not apply because there is no adjudication of contempt.

On November 21, 1996, we issued a writ of alternative mandate and continued the stay in effect.

On December 31, 1996, the People filed a return to the alternative writ, which among other arguments incorporated by reference arguments contained in its earlier opposition.

On January 8, 1997, KOVR filed a reply to the return.

We granted requests to file amici curiae briefs by Kelly Broadcasting Company, doing business as KCRA-TV, et al., California Newspaper Publishers Association (CNPA) et al., and the California District Attorneys Association.

DISCUSSION
I. Newspersons' Shield Law

In its petition, KOVR raises no First Amendment claim. Thus, the sole issue before us is application of the newspersons' shield law (Art. I, § 2(b); Evid.Code, § 1070).

The purpose of the shield law is "to protect a newsperson's ability to gather and report the news." (Delaney v. Superior Court (1990) 50 Cal.3d 785, 806, fn. 20, 268 Cal.Rptr. 753, 789 P.2d 934.) The shield law "provides only an immunity from contempt, not a privilege" against disclosure. (Delaney v. Superior Court, supra, 50 Cal.3d at p. 797, fn. 6, 268 Cal.Rptr. 753, 789 P.2d 934; see also, New York Times Co. v. Superior Court (1990) 51 Cal.3d 453, 458, 273 Cal.Rptr. 98, 796 P.2d 811.)

[54 Cal.App.4th 661] KOVR asks this court to address a question of first impression--whether the prosecution in a criminal proceeding can have a constitutional interest sufficient to require disclosure of information otherwise protected by the shield law. This...

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