Telegram-Tribune, Inc. v. Municipal Court

• Decision Date: 02 April 1985
• Docket Number: KSBY-T,INC,P,TELEGRAM-TRIBUN
• Citation: 166 Cal.App.3d 1072,213 Cal.Rptr. 7
• Court: California Court of Appeals
• Parties: , a California Corporation, andetitioners and Appellants, v. MUNICIPAL COURT In and For SAN LUIS OBISPO COUNTY, Respondent. Herman W. ROSE, Real Party in Interest. Civ. 69549.

Page 7

213 Cal.Rptr. 7

166 Cal.App.3d 1072

TELEGRAM-TRIBUNE, INC., a California Corporation, and KSBY-TV, Petitioners and Appellants, v.MUNICIPAL COURT In and For SAN LUIS OBISPO COUNTY, RespondentHerman W. ROSE, Real Party in Interest.

Civ. 69549.

Court of Appeal, Second District, Division 6, California.

April 2, 1985.

As Modified April 16, 1985.

Kotler & Kotler and Jonathan Kotler, Walnut Creek, Andre, Morris & Buttery and Michael J. Morris, San Luis Obispo, for petitioner and appellantTelegram-Tribune, Inc.

Hoge, Fenton, Jones & Appel, Inc., and Clayton U. Hall, San Jose, for petitioner and appellant KSBY-TV.

James B. Lindholm, Jr., County Counsel(San Luis Obispo) and R. Wyatt Cash, Deputy

County Counsel, San Luis Obispo, for respondent.

Ephraim Margolin and Sandra Coliver, San Francisco, for real party in interest.

STONE, Presiding Justice.

The TELEGRAM-TRIBUNE, INC., a California corporation, and KSBY-TV appeal from a judgment of the San Luis Obispo Superior Court denying their Petition for Writ of Mandate.We affirm the judgment.

Appellants ask this court to consider appropriate standards for a magistrate to determine whether the public's right of access to preliminary hearings should be limited due to risk of impairment of a defendant's right to a fair trial, and whether in camera proceedings violated appellants' right to access to criminal proceedings.The California Supreme Court recently resolved the first question in Press-Enterprise Co. v. Superior Court(1984)37 Cal.3d 772, 209 Cal.Rptr. 360, 691 P.2d 1026, and held that "the magistrate shall close the preliminary hearing upon finding a reasonable likelihood of substantial prejudice which would impinge upon the right to a fair trial."(p. 781, 209 Cal.Rptr. 360, 691 P.2d 1026)The Court did not address the second question.

The present state of the record renders this proceeding academic.Nevertheless, appellants ask us not to exercise judicial restraint but to disregard the mootness, as did the superior court.We concur that the issues presented are capable of repetition yet evade review.(Gannett Co. v. DePasquale(1979)443 U.S. 368, 377, 99 S.Ct. 2898, 2904, 61 L.Ed.2d 608;San Jose Mercury-News v. Municipal Court(1982)30 Cal.3d 498, 501, fn. 2, 179 Cal.Rptr. 772, 638 P.2d 655.)

PROCEDURAL HISTORY

On August 26, 1982, Herman W. Rose, charged with first degree murder with special circumstances, sought to have his preliminary hearing closed to the public and press.The municipal court granted the motion over appellants' opposition, and appellants filed a Writ of Mandate in the superior court.The superior court issued an alternative writ which required the municipal court either to show cause why the preliminary hearing should not be open to the public or, in the alternative, to hold a further hearing upon Rose's request to exclude the public from the preliminary hearing.

The alternative writ provided a two-step procedure for the motion to close the preliminary hearing.First, Rose should present in "general terms and conclusions" the basis for his motion for closure.Then he could, by declarations under seal or testimony in camera, set forth any specific reasons why opening the preliminary hearing to the public would adversely affect his right to a fair and impartial trial.The alternative writ also provided that any interested party could present evidence opposing Rose's motion or questions to be asked of witnesses by the magistrate if an in camera hearing was held.Additionally, the burden of proof was on the moving party to establish facts supporting his motion by a preponderance of evidence.

On August 30, 1982, Rose filed a Petition for Writ of Mandate and/or Prohibition in the Court of Appeal, Fifth Appellate District, to stay the hearing on closure of the preliminary hearing.September 1, 1982, that court issued a stay order relating to the issue of burden of proof and ordered the magistrate to determine the proper standard of proof applicable to the hearing, and determined he was not bound by the superior court's ruling on that issue.

The municipal court held the hearing in accordance with the two-part procedure outlined by the superior court.Rose called several witnesses from the news media to testify about local news coverage of the case and requested the final witness, an expert in evaluating the impact of pretrial publicity, to testify in camera because hypothetical questions to be asked would reveal specific facts about the case.The court granted the request and allowed interested parties, including appellants, to submit written questions.

The municipal court subsequently determined that if the preliminary hearing were public, "not only would there be a reasonable likelihood of prejudice to the defendant and his ability to have a fair trial, the Court feels that there is a very substantial probability that irrevocable damage to his fair trial could result from the conducting of the proceeding in public."

On September 22, 1982, appellants filed their second Petition for Writ of Mandate in the San Luis Obispo Superior Court which again stayed the preliminary hearing pending hearing on the writ.The parties agreed, however, that the preliminary hearing could be closed and be concluded prior to the writ hearing and that no party would raise the defense of mootness.The preliminary hearing proceeded and Rose was held to answer on all charges.He subsequently changed his plea pursuant to a plea bargain.

The writ hearing was held September 7, 1982.The superior court concluded that the appropriate burden of proof under Penal Code section 868 was neither the "reasonable likelihood" test adopted by the municipal court nor the "clear and convincing" test advocated by appellants, but rather the "preponderance of evidence" test set forth in Evidence Code section 115.Additionally, the court concluded that in camera proceedings were allowable in these circumstances, and, after reviewing the transcripts of both open and closed portions of the hearing, held that there was substantial evidence to support the municipal court's finding of need for a closed hearing.Finally, the court stated that the magistrate's error in articulating the "reasonable likelihood" standard was harmless because the magistrate actually applied a standard amounting to "preponderance of the evidence."Accordingly, the court entered judgment from which this appeal ensues.

DISCUSSION

Standard of Review

Although the superior court chose an incorrect standard of proof, its conclusion was correct.The magistrate, in fact, applied, almost verbatim, the test recently declared in Press-Enterprise.The magistrate found, "not only would there be a reasonable likelihood of prejudice to the defendant and his ability to have a fair and impartial trial, the court feels that there is a very substantial probability that irrevocable damage to his fair trial could result from the conducting of the proceedings in public....The court just feels in this particular case ... the very strong possibility of prejudice to the defendant...."Thus, the required finding of "a reasonable likelihood of substantial prejudice which could impinge upon the right to a fair trial" was met.

In Camera Hearing

The superior court had previously suggested to the magistrate that the Real Party in Interest, Rose, first present in open court a general outline of the defendant's position on his request for exclusion and "such nonconfidential evidence as would not, in itself, prejudice the defendant," and then present specific evidence of a confidential nature in camera, sans objectors and prosecution.The court further provided for preservation of the in camera record for later appellate review, and for submission of questions by objectors and prosecutor to be asked in camera as well as evidence bearing on the issue of closure in open court.Such a procedure appears eminently sensible.The court aptly indicated that prejudicial matters sought to be withheld from premature public knowledge should not thereby be made available to the public and media as part of the motion process itself.The remedy allowed would otherwise be illusory.

In camera proceedings to review claims of privilege and confidentiality have both statutory and judicial support.(SeeEvid.Code, §§ 915(privileges), 1042(d)(confidential informers).Hammarley v. Superior Court(1979)89 Cal.App.3d 388, 153 Cal.Rptr. 608(media "shield laws")), and have also withstood constitutional challenge.(SeePeople v. Pacheco(1972)27 Cal.App.3d 70, 103 Cal.Rptr. 583;People v. O'Brien(1976)61 Cal.App.3d 766, 132 Cal.Rptr. 616.)In addition, Evidence Code section 915 has been construed to authorize in camera proceedings to protect privileges other than those specifically enumerated therein.(e.g., Hammarley v. Superior Court, supra,--in camera hearing to determine whether media would be required to produce subpoenaed documents;In re Lifschutz(1970)2 Cal.3d 415, 437, fn. 23, 85 Cal.Rptr. 829, 467 P.2d 557--in camera hearing acceptable to determine relevancy of psychiatrist-patient communications not otherwise protected by section 915;see alsoMavroudis...