Court
Decisions ("Case
Law") Regarding Your Right to a Verbatim Record of Your Traffic Trial
In
re
Armstrong
P.
v.
Matthews
P.
v.
Ashley
P.
v.
Dixon
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In re
Armstrong (1981) 126
Cal.App.3d 565 , 178 Cal.Rptr. 902
[Crim. No. 22659.
Court of Appeals of California, First Appellate District, Division One.
December 8, 1981.]
In re ANTONIO
FRANCOIS ARMSTRONG on
Habeas Corpus.
(Opinion by
Elkington, J., with
Racanelli, P. J., and Grodin, J., concurring.)
COUNSEL
James R. Jenner, Public Defender, and Jay B. Gaskill,
Assistant Public
Defender, for Petitioner.
George Deukmejian, Attorney General, Robert H.
Philibosian, Chief Assistant
Attorney General, William D. Stein, Assistant Attorney General, Robert
R.
Granucci and Michael Buzzell, Deputy Attorneys General, for Respondent.
OPINION
ELKINGTON, J.
On the habeas corpus petition of
Antonio Francois Armstrong we consider the constitutionality of a
practice of
some municipal courts not to record verbatim, although requested by the
defendant, the testimony and other oral proceedings of criminal
misdemeanor
cases by a phonographic reporter, or electronic recording device, or
otherwise. [[Emphasis added.]]
Petitioner Armstrong had been convicted in a municipal
court of Alameda
County of possession of a switchblade knife. He was sentenced to 30
days in the
county jail; the sentence was then suspended and he was placed on
probation. He
was thereafter arrested on suspicion of stealing [126 Cal.App.3d
568]
money from his employer, a bakery establishment, and probation
revocation
proceedings were instituted.
Four witnesses testified at the hearing, two for the
People and two for
Armstrong. The incriminating evidence was entirely circumstantial.
Armstrong
and several others worked with flour for their bakery employer. The
thief had
apparently tracked flour markings to the area where the employer's
money was
kept. Proof of Armstrong's guilt depended upon just where the witnesses
had
placed the markings.
[1a] At the probation revocation hearing Armstrong had
not requested
utilization of a phonographic reporter or an electronic recording
device
because he and his attorney knew it would be "futile" under the
well-known above described practice of the county's municipal courts.
At the hearing's conclusion the municipal court revoked
Armstrong's
probation and reimposed the 30-day sentence which had been suspended.
Armstrong appealed to the superior court from the order
revoking probation. No reporter's notes or other verbatim
record of the hearing being available, he and the prosecutor endeavored
without
success to agree upon a "settled statement on appeal." [[Emphasis
added.]] Armstrong's contention was that the witnesses had placed
flour-covered
shoe prints and smudges in locations unrelated to, and not leading
from, his
work area, and that there was thus no substantial evidence of his
guilt. The
prosecutor argued to the contrary. Nevertheless, a tentative and
incomplete
statement on appeal was prepared, leaving to the municipal court judge
the
recollection and insertion of missing and contested evidentiary facts.
The
statement as presented was somehow filed in the superior court without
signature of, or certification by, the municipal court judge.
Without decision on the appeal, the superior court
remanded to the municipal
court with the following order: "[I]n the absence of a reporter's
verbatim
transcript ..., the trial court must ... certify a settled statement of
the
evidence relied upon, ...."
Thereupon and more than six months after the probation
revocation hearing
the earlier statement, this time with interlineations by the judge, was
refiled
in the superior court with a certification "that the attached settled
statement is a true and correct record of the testimony presented at
the
revocation hearing." [126 Cal.App.3d 569]
Both the People and Armstrong insisted that the "settled
statement" was not "a true and correct record of the testimony
presented
...."
Nevertheless, the superior court on the appeal affirmed
the municipal
court's order revoking probation.
Thereafter the state's Supreme Court, on Armstrong's
petition for habeas
corpus, issued its order to show cause, returnable before this court.
We make some relevant observations.
[2] Upon a probation revocation proceeding in a criminal
case, no less than
upon others, the defendant is entitled to "due process safeguards."
(People v. Vickers (1972) 8
Cal.3d 451 [105 Cal.Rptr. 305, 503 P.2d 1313], passim.)
[3] "Although the United States Supreme Court has never
held that
states are required to provide appellate review, '... once established,
these
avenues must be kept free of unreasoned distinctions that can only
impede open
and equal access to the courts.'" (March v. Municipal Court (1972) 7
Cal.3d 422, 427 [102 Cal.Rptr. 597, 498 P.2d 437, 66 A.L.R.3d 945]; and
see Williams v. Oklahoma City (1969) 395 U.S. 458, 459 [23 L.Ed.2d 440,
442, 89
S.Ct. 1818];Rinaldi v. Yeager (1966) 384 U.S. 305, 310 [16 L.Ed.2d 577,
581, 86
S.Ct. 1497].)
The right of "equal access" to the courts rests upon the
"'constitutional guaranties of due process and equal protection
....'" (March v. Municipal Court, supra, 7
Cal.3d 422, 427, italics added; and see Preston v. Municipal Court
(1961) 188
Cal.App.2d 76, 83-84 [10 Cal.Rptr. 301]; Griffin v. Illinois (1956) 351
U.S. 12, 17-18 [100 L.Ed. 891, 898, 76 S.Ct. 585, 55 A.L.R.2d 1055].)
"The courts have been particularly careful to inspect
classifications
relating to the criminal process, ...." (United States v. Thompson
(D.C.Cir. 1971) 452 F.2d 1333, 1340 [cert. den.,405 U.S. 998 (31
L.Ed.2d 467,
92 S.Ct. 1251)].) And where one's "personal liberty is at stake, "a
statutory scheme "requires application of the strict scrutiny standard
of
equal protection analysis. Accordingly, the state must establish both
that it
has a 'compelling interest' which justifies the challenged procedure
and that
the distinctions drawn by the procedure [126 Cal.App.3d 570]
are
necessary to further that interest." (In re Moye (1978) 22
Cal.3d 457, 465 [149 Cal.Rptr. 491, 584 P.2d 1097].)
"Providing equal justice for poor and rich, weak and
powerful alike is
an age-old problem. People have never ceased to hope and strive to move
closer
to that goal. This hope, at least in part, brought about in 1215 the
royal
concessions of Magna Charta: 'To no one will we sell, to no one will we
refuse,
or delay, right or justice .... No free man shall be taken or
imprisoned, or
disseised, or outlawed, or exiled, or anywise destroyed; nor shall we
go upon
him nor send upon him, but by the lawful judgment of his peers or by
the law of
the land.' These pledges were unquestionably steps toward a fairer and
more
nearly equal application of criminal justice. In this tradition, our
own
constitutional guaranties of due process and equal protection both call
for
procedures in criminal trials which allow no invidious discriminations
between
persons and different groups of persons. Both equal protection and due
process
emphasize the central aim of our entire judicial system--all people
charged
with crime must, so far as the law is concerned, 'stand on an equality
before
the bar of justice in every American court.'" (Griffin v. Illinois,
supra,
351 U.S. 12, 16-17 [100 L.Ed. 891, 897-898]; fn. omitted.)
[4] It is now settled law that the
state must allow access by an appealing defendant in a criminal case,
to
"'"a record of sufficient completeness" to permit proper
consideration'" of his appeal. [[Emphasis
added.]] (March v. Municipal Court,
supra,7 Cal.3d
422, 428; and see Draper v. Washington (1963) 372 U.S. 487, 499 [9
L.Ed.2d 899,
907, 83 S.Ct. 774].)
Although there was some earlier authority to the
contrary, it became settled
that no distinction will be drawn between the rights of indigent, and
nonindigent, persons convicted of felonies who have appealed their
convictions,
to have an appropriate record on appeal furnished at the expense of the
state.
(March v. Municipal Court, supra, 7
Cal.3d 422, 428, fn. 3; People v. Victor (1965) 62
Cal.2d 280, 288-289 [42 Cal.Rptr. 199, 398 P.2d 391];In re Henderson
(1964)
61
Cal.2d 541, 542-543 [39 Cal.Rptr. 373, 393 P.2d 685]; People v. Carter
(1961) 56
Cal.2d 549, 567 [15 Cal.Rptr. 645, 364 P.2d 477]; In re Dixon (1953) 41
Cal.2d 756, 760 [264 P.2d 513]; People v. Smith (1949) 34
Cal.2d 449, 453 [211 P.2d 561]; In re Paiva (1948) 31
Cal.2d 503, 510 [190 P.2d 604].) [126 Cal.App.3d 571]
Today, the former distinction between felonies and
misdemeanors has been
abandoned. Insofar as the right of a convicted defendant to an adequate
record
on appeal is concerned, a
"distinction between felony and nonfelony offenses" will no longer
"satisfy the requirements of the Fourteenth Amendment ...."
(Mayer v. City of Chicago (1971) 404 U.S. 189, 195-196 [30 L.Ed.2d 372,
378-379, 92 S.Ct. 410].) [[Emphasis
added.]] That high holding had been
presaged by Justice Tobriner, then sitting on this division of our
court, in
this manner: "[T]he argument that we should distinguish between
felonies
and misdemeanors dissolves in the common formula of the penalty: both
types of
crime carry the sanction of fine and imprisonment. That the
imprisonment may be
longer for the felony than for the misdemeanor does not detract from
the fact
that both sanctions involve loss of liberty. While there are many
obvious differences
between the misdemeanor and the felony, and the former, of course,
imposes a
lighter penalty, we do not believe the
difference justifies the mutilation of the right of appeal by
deprivation of
the transcript." (Preston v. Municipal Court, supra, 188
Cal.App.2d 76, 84-85.) [[Emphasis added.]]
This judicial abolition of the distinction between a
convicted felon's, and
a convicted misdemeanant's, constitutional right to an adequate
appellate
record manifestly removed any previous decisional or statutory
provision, if
any there were, that only those convicted of felonies were entitled to
such a
record at state expense.
And it seems desirable at this point to emphasize that
we are not here
concerned with any particular kind of record for presentation to, and
use by,
an appellate court. March v. Municipal Court, supra, 7
Cal.3d 422, 428, instructs that: "What constitutes a 'record of
sufficient completeness' depends on the contentions being urged in the
appeal.
Sometimes a statement of the facts agreed to by both sides will be
sufficient,
and even when the contentions go to the rulings on evidence or its
sufficiency,
requiring access to a verbatim transcript, the transcript provided can
be
limited to the portions relevant to those issues.Draper v. Washington,
supra,
372 U.S. 487, 495 [9 L.Ed.2d 899, 905], states: "Alternative methods of
reporting trial proceedings are permissible if they place before the
appellate
court an equivalent report of the events at trial from which the
appellant's
contentions arise. A statement of facts agreed to by both sides ...
might ...
be [an] adequate substitut[e], equally as good as a transcript."
Code of Civil Procedure section 274c provides that in a
civil proceeding, a
municipal court official reporter "must, at the request of either [126
Cal.App.3d
572] party or of the court ... take down in shorthand
all the
testimony" and other oral proceedings, but that "in a criminal action
or proceeding" the official reporter must "take down" such
proceedings only upon the discretionary order of the court. (The
italics of
this paragraph are supplied.)
On the other hand, a related statute, Code of Civil
Procedure section 269,
states that in superior court criminal actions the reporter shall "take
down" such proceedings "on the order of the court, the district
attorney, or the attorney for the defendant...." (Italics added.)
Government Code section 72194.5 states: "Whenever an
official court
reporter or a temporary court reporter is not available to report a ...
misdemeanor criminal proceeding in a municipal or justice court, the
court may
order that such action or proceeding be electronically recorded,
including all
the testimony [and other proceedings]. The electronic recording device
and
appurtenant equipment shall be of a type approved by the Judicial
Council for
courtroom use." (Italics added.) Section 72194.5 has been implemented
by
rule 980.5, California Rules of Court.
It will be seen that under these statutes a criminally
charged misdemeanor
defendant in the municipal court is not, while a similarly charged
felony
defendant in the superior court is, as a matter of right, entitled to
have
"taken down," all related testimony and oral proceedings. Further,
the alternative availability of an electronic recording device in a
misdemeanor
case is not a matter of right, but is discretionary with the court.
The here questioned practice is apparently founded upon
the above-noted
statutes.
Armstrong's contention is that such statutes, which
permit the municipal
court to deny defendants of misdemeanor criminal actions the
availability of a
phonographic reporter, or an electronic recording device, or some
equivalent
means of reasonably assuring an accurate verbatim account of the
courtroom
proceedings, fail to comport with constitutional principles of due
process and
equal protection of the laws.
As has been noted, an adequate appellate review requires
a "record of
sufficient completeness" to permit proper consideration of appellate [126
Cal.App.3d
573] contentions. And: "Alternative methods of reporting
trial proceedings are permissible if they place before the appellate
court an
equivalent report of the events at trial from which the appellant's
contentions
arise. A statement of facts agreed to by both sides ... might ... be
[an]
adequate substitut[e], equally as good as a transcript." (Draper v.
Washington, supra, 372 U.S. 487, 495 [9 L.Ed.2d 899, 905].)
But where the parties are not in
agreement, and the settled statement must depend upon fading memories
or other
uncertainties, it will ordinarily not suffice. It will not form an
adequate
basis for a criminal appeal where it is "premised upon recollections
[of
the trial court] as of a time nearly three months after trial"
(Draper
v. Washington, supra, 372 U.S. 487, 497 [9 L.Ed.2d 899, 906])
[[Emphasis
added.]], or where the court might or should conclude that one could
not
"make up a transcript of the trial proceedings from memory" (Williams
v. Oklahoma City, supra, 395 U.S. 458, 459 [23 L.Ed.2d 440, 442];
Herick v.
Municipal Court (1970) 8
Cal.App.3d 967, 975 [87 Cal.Rptr. 646]). A judge whose ruling has been
questioned on appeal or otherwise should avoid if possible the
"anomaly" of "relying on his memory rather than reported
event." (People v. Jenkins (1963) 223
Cal.App.2d 537, 540 [35 Cal.Rptr. 776].) And there is "a strong
concern on the part of [California] that there be adequate safeguards
for the
accurate recording of court proceedings." (Richards v.
Townsend (N.D.Cal. 1969) 300 F.Supp. 529, 531.) The
above-noted high [[Federal]] authority, including applicable statutes,
we
opine, mandates that a state shall provide, upon the defendant's
request, some
method of recording verbatim, the testimony and other oral proceedings
of a
felony or misdemeanor criminal action in its superior, municipal and
justice
courts. Anything less will deny "a record of sufficient completeness"
and thus an "adequate appellate review." [[Emphasis added.]]
In the case at bench, had a phonographic reporter's
services or an
electronic recordation been requested and available at the probation
revocation
hearing, the uncertainties of the disputed settled statement would
probably
have been resolved by a simple reference to the reporter's
untranscribed notes
or the recording. (See Herick v. Municipal Court, supra, 8
Cal.App.3d 967, 974.)
And finally we observe the express holding of the United
States District
Court for the Northern District of California, in Richards v. Townsend
(N.D.Cal. 1969) 303 F.Supp. 793, 795, that because of the
above-described
shortcomings "the right of appeal is effectively denied Alameda County
misdemeanants who find themselves [as did Armstrong [126 Cal.App.3d
574]
in the case before us] unable to obtain settled statements, ...." On
appeal, the United States Court of Appeals, Ninth Circuit, stated: "We
agree with the District Court that in order to afford appellee an
effective and
meaningful review on appeal the State of California must either furnish
her
with a transcript of her trial proceedings or grant her a new trial.
That
portion of the order, however, requiring the presence of an official
reporter
at any retrial is stricken." (Richards v. Townsend (9th Cir. 1971) 444
F.2d 528, 529.)
[1b] For these several reasons we
hold that the complained of practice of the municipal courts of Alameda
County
is violative of the "due process" and "equal protection of the
laws" provisions of the Fourteenth Amendment, and of this state's
Constitution, article I, section 7. [[Emphasis
added.]]
We have not failed to consider the Attorney General's
suggestion, on
rehearing, that we have failed to take into account Penal Code section
1045.
That section was enacted in 1980 and became effective after the
municipal court
proceedings here at issue. It is therefore inapposite to our instant
determination. But since it would, at least ordinarily, be applicable
upon
reinstitution of probation revocation proceedings against Armstrong, we
treat
the suggestion as a request that we examine the effect of section 1045
upon our
holding, thus to avoid unnecessary future litigation.
Penal Code section 1045 provides: "In any misdemeanor or
infraction
matter, where a verbatim record of the proceedings is not required to
be made
and where the right of a party to request a verbatim record is not
provided for
pursuant to any other provision of law or rule of court, if any party
makes a
request at least five days in advance and deposits the required fees,
the court
shall order that a verbatim record be made of all proceedings. Except
as
otherwise provided by law or rule the party requesting any reporting,
recording, or transcript pursuant to this section shall pay the cost of
such
reporting, recording, or transcript. [¶] This section shall cease
to be
operative upon a final decision of an appellate court holding that
there is a
constitutional right or other requirement that a verbatim record or
transcript
be provided at public expense for indigent or any other defendants in
cases
subject to the provisions of this section." (Italics added.)
We have, by our instant decision, held that, upon
request therefor, there is
a constitutional right that a verbatim record be provided at public
expense for
all defendants in misdemeanor matters. According
to [126 Cal.App.3d 575] section
1045's express terms it will "cease to be operative" when, and if,
our decision shall become final. We need not resolve other contentions
concerning its validity. [[Emphasis
added.]]
So also we have considered Armstrong's argument
concerning the shortcomings
of verbatim recording by electronic equipment. [5] We hold only that a
misdemeanor defendant, upon his request, is constitutionally entitled
to a verbatim
"record of sufficient completeness" permitting proper consideration
of an appeal which might thereafter be taken. If the claimed
inadequacies of
electronic recording shall hereafter be established by judicial
experience, or
otherwise, the constitutional requirement will not have been met.
Applying applicable judicial criteria for determining
"whether a
constitutional ruling is to be applied retroactively or prospectively"
(Mills v. Municipal Court (1973) 10
Cal.3d 288, 308 [110 Cal.Rptr. 329, 515 P.2d 273]), we declare that,
except
as to Armstrong, the holding we have made shall operate prospectively
only, and
as to misdemeanor trials and proceedings commenced after this opinion
shall
become final. (See Halliday v. United States (1969) 394 U.S. 831, 832
[23
L.Ed.2d 16, 89 S.Ct. 1498];Mills v. Municipal Court, supra, 10 Cal.3d
pp.
308-311; People v. Nelson (1972) 8
Cal.3d 463, 467 [105 Cal.Rptr. 314, 503 P.2d 1322] [cert. den.,411 U.S.
968
(36 L.Ed.2d 690, 93 S.Ct. 2158)]; In re Oglesby (1974) 36
Cal.App.3d 629, 631-634 [111 Cal.Rptr. 866], and authority there
collected.)
The writ of habeas corpus is granted. The order revoking
Armstrong's
probation is set aside, and the municipal court may take such further
proceedings as are in accordance with law and not inconsistent with the
views
we have expressed.
Racanelli, P. J., and Grodin, J., concurred.
People v.
Matthews (1983) 139
Cal.App.3d 537 , 188 Cal.Rptr. 796
[Crim. No. 43194.
Court of Appeals of California, Second Appellate District, Division
One.
January 25, 1983.]
THE PEOPLE,
Plaintiff and Respondent,
v. THEODORE B. MATTHEWS, Defendant and Appellant.
(Opinion by
Spencer, P. J., with
Hanson (Thaxton), J., and Reese, J., concurring.)
COUNSEL
Theodore B. Matthews, in pro. per., for Defendant and
Appellant.
Ira Reiner, City Attorney, Jack L. Brown and Katherine
J. Hamilton, Deputy
City Attorneys, and Bruce S. Bolger for Plaintiff and Respondent.
OPINION
SPENCER, P. J.
Introduction
Theodore B. Matthews appeals from a judgment of
conviction entered after a
court trial in which he was found guilty of violating Vehicle Code
section
21658, subdivision (a), unsafe lane change, an infraction. [139
Cal.App.3d
539]
Statement of Facts
Defendant, a motor coach operator employed by the
Southern California Rapid
Transit District (RTD), was cited for an unsafe lane change, a
violation of
Vehicle Code section 21658, subdivision (a), on July 2, 1981, while
operating a
coach owned by the RTD; he was directed to appear for arraignment at a
session
of the municipal court at some time before July 30, 1981.
On July 27, 1981, defendant appeared for arraignment;
prior to any case
being called, a prepared text was read advising all persons present of
their
constitutional rights. fn. 1
When his citation was called, defendant was advised of
the charge against
him; however, the record is silent as to whether he voluntarily or
knowingly
waived his constitutional rights. Subsequent to his entry of a guilty
plea, the
defendant was fined $10 plus penalty assessment.
Defendant appealed to the Appellate Department of the
Los Angeles Superior
Court; on August 24, 1982, that court filed an opinion in which the
judgment of
conviction was reversed.
On September 20, 1982, this court ordered the matter
transferred to it for
hearing and decision in order to secure uniformity of decision and to
settle
important questions of law pursuant to rule 62(a) of the California
Rules of
Court. [139 Cal.App.3d 540]
Contention
For the following reasons, defendant contends that the
trial court's verdict
is erroneous:
1. The vehicle which he was driving did not belong to
him, and
2. The vehicle had been issued to him by his employer on
the morning of July
2, 1981, with certification that a defective left turn signal had been
repaired
during the night.
Discussion
[1] In that judgment was entered on a plea of guilty, we
are unable to
address the merits of defendant's contention; however, we are entitled
to
determine whether there were any irregularities involving jurisdiction
or the
legality of the proceedings. (People v. Laudermilk (1967) 67
Cal.2d 272 [61 Cal.Rptr. 644, 431 P.2d 228].)
[2] Although the record reveals that defendant was fully
advised of his
constitutional rights, it is silent as to whether he waived those
rights. In
that the question presented herein has appeared before the superior
courts of
this appellate district with variant results, we welcome this
opportunity to
decide whether a guilty plea offered in an infraction proceeding is
valid
without an explicit "on-the-record" waiver of a defendant's
constitutional rights. For the reasons explicated below, we hold that
it is
not.
In 1968, the United State Supreme Court ruled that the
entry of a guilty
plea in a felony proceeding required a knowing and intelligent
affirmance.
(Boykin v. Alabama (1968) 395 U.S. 238 [23 L.Ed.2d 274, 89 S.Ct.
1709].) The
court stressed the importance of obtaining a knowing and voluntary
waiver of
constitutional rights by noting that a guilty plea is more than a
confession; a
guilty plea is actually a conviction. (Id, p. 242 [23 L.Ed.2d at p.
279].)
In a felony matter heard the following year, the
California Supreme Court
determined the standard by which a waiver of Boykin constitutional
rights was
to be judged: the record must indicate not only a freely and
intelligently
given waiver, but an understanding of the nature and consequences of
the plea
as well. (In re Tahl (1969) 1
Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449].)
Boykin-Tahl requirements were then extended to
misdemeanor proceedings
involving pleas of guilty and nolo contendere. (Mills v. Municipal
Court (1973)
10
Cal.3d 288 [110 Cal.Rptr. 329, 515 P.2d 273].) The Mills court reasoned
that a defendant who so pleads relinquishes the right to confront
accusers and [139
Cal.App.3d 541] the privilege against self-incrimination in the
same manner
as does a felony defendant. The Mills court specified, however, that
the
application of the Boykin-Tahl doctrine did not require the identical
procedures in misdemeanor cases as were required in felony proceedings;
a
misdemeanor defendant who had personally completed and signed an
adequate
waiver form could plead guilty through counsel if counsel affirmed that
the
defendant had been informed of the constitutional rights to be waived
and that
the client had knowingly and voluntarily waived them. The court
specifically
noted that "... Boykin and Tahl are aimed at insuring that a defendant
is
aware of the rights he is waiving by pleading guilty, it is reasonable
that
those cases should apply to all proceedings in which the rights to be
waived
are applicable." (Id, at p. 300; italics added.)
Thus, the Mills court clearly established the
applicability of the
Boykin-Tahl doctrine in infraction cases in that a defendant who pleads
guilty
to an infraction waives both the right to confront his accusers and the
privilege against self-incrimination.
Neither footnote 11 (fn. 2) nor 13 (fn. 3) in Mills
convinces us otherwise. Footnote 11
merely exempts from Boykin-Tahl requirements those criminal proceedings
which
terminate following the forfeiture of bail. Logic dictates such a
ruling in
that the defendant who chooses not to appear obviously relinquishes the
right
to retain counsel, the right to confront witnesses and the privilege
against self-incrimination.
Such reasoning, however, is inapplicable to the infraction defendant
who
chooses to appear in court and who might well choose to confront
witnesses or
remain silent.
Furthermore, the Mills court's empathy toward extending
Boykin-Tahl requirements
is evidenced by its statement that even in cases where the defendant
forfeits
bail and fails to appear, "it might theoretically be desirable to have
a [139
Cal.App.3d 542] defendant advised of the potential consequences of
his
action, ...." (fn. 4). Thus, Boykin-Tahl requirements are
theoretically desirable where bail is forfeited; where bail is not
forfeited
and the defendant is present in court, however, the desirability of
Boykin-Tahl
requirements is manifest, not simply theoretical.
Footnote 13 further supports our conclusion in that it
cites Penal Code
sections 19c and 19d to illustrate the Legislature's intent that
procedures
differ in infraction and misdemeanor cases; section 19d provides,
"Except
as otherwise provided by law, all provisions of law relating to
misdemeanors
shall apply to infractions, ...." Thus, although section 19c expresses
the
Legislature's intent that an infraction defendant is not entitled to
the right
to a public defender or a jury trial, section 19d clearly establishes
the
Legislature's intent that constitutional rights and privileges other
than those
specified in 19c do apply to infractions. As we have previously
established,
the infraction defendant who appears in court is entitled to confront
his
accusers and enjoys the privilege against self-incrimination. In that
the
Legislature has not expressly denied the applicability of this right
and
privilege to infraction defendants, despite the fact that section 19c
demonstrates the Legislature's purposeful deliberation concerning which
rights
were inapplicable to infraction defendants, we can only interpret
section 19d
as conferring Boykin-Tahl-Mills requirements on infraction proceedings
as the
Boykin-Tahl-Mills doctrine certainly comes within "provisions of law
relating to misdemeanors." (Pen. Code, § 19d.)
Furthermore, we cannot interpret the final line of
footnote 13,
"[n]othing in this opinion is intended to apply to infractions," in
accord with the meaning proffered by the People. The Mills court's
caveat
merely establishes that the applicability of the Boykin-Tahl-Mills
doctrine to
infraction proceedings is neither addressed nor settled by their
opinion; thus,
the Mills decision cannot be read as holding that there is no
requirement of a
knowing and intelligent on-the-record waiver in infraction proceedings.
Further evidence of the Legislature's intent that
Boykin-Tahl-Mills rules
apply to traffic infractions is found in the provisions of Vehicle Code
section
40901, effective January 1, 1977, which permits courts to adopt local
rules for
the trial of alleged infractions. Subdivision (c) (fn. 5) clearly
requires that the court [139
Cal.App.3d 543] "ascertain that the defendant knowingly and
voluntarily" waived his rights "[p]rior to the entry of a waiver of
constitutional rights pursuant to any rules adopted under this
section."
Thus the Legislature expressed its intention that the requirement of a
knowing
and voluntary waiver of constitutional rights applies even to processes
adopted
by local court rules, for any one of such processes is capable of
threatening
constitutionally guaranteed rights. We may infer from the Legislature's
express
concern with local rules a similar concern warranting the application
of
Boykin-Tahl-Mills requirements to the general processing of traffic
infractions.
The specific question we address herein has been
addressed with variant
results in the Appellate Department of the Los Angeles and Santa
Barbara
Superior Courts. In People v. Miner (1977) 68 Cal.App.3d Supp. 1 [137
Cal.Rptr.
149], the court held that Boykin-Tahl-Mills requirements apply to
infractions;
the opposite result was reached in People v. Pickett (1981) 128
Cal.App.3d
Supp. 11 [181 Cal.Rptr. 97]. The People seek disapproval of People v.
Miner
citing In re Kathy P. (1979) 25
Cal.3d 91 [157 Cal.Rptr. 874, 599 P.2d 65] to establish the Supreme
Court's
interpretation of Mills as exempting infractions from the requirement
of an
on-the-record waiver of rights prior to a guilty plea.
Kathy P. held that a minor need not be advised of the
right to retained
counsel in juvenile infraction matters. This holding alone does not
negate our
conclusion in that the right to retained counsel is not in question in
the
instant inquiry; rather, we are concerned with the right of
confrontation and
the privilege against self-incrimination, neither of which were
addressed by
the Kathy P. court.
The People also direct our attention to the Kathy P.
court's citation of
Mills as an example of the Supreme Court's approval of the summary
handling of
infraction cases. In view of footnote 7 in Kathy P., (fn. 6) consisting
of dictum to the contrary of the
inference raised by the People, we cannot agree that the Kathy P. court
was
interpreting Mills to stand for the proposition that the requirement of
a
"'on-the-record' waiver of constitutional rights as [a] prerequisite to
[a] guilty plea" was inapplicable in infraction cases, for if such were
its intention, the Kathy P. court could simply have overruled People v.
Miner,
supra, 68 Cal.App.3d Supp. 1. [139 Cal.App.3d 544]
In that our review of the applicable law establishes
that People v. Miner,
supra, 68 Cal.App.3d Supp. 1 contains a correct exposition of the law,
we
disapprove the conclusion reached in People v. Pickett, supra, 128
Cal.App.3d
Supp. 11 and note that Pickett is based on an erroneous interpretation
of the
Mills decision. In Pickett, the court stated, "In Mills v. Municipal
Court
[citation], our Supreme Court made it clear that Boykin-Tahl rules did
not
apply to infractions or bail forfeitures." (Id, at p. 13.)
As we have explained, the Mills court did preclude the
applicability of the
Boykin-Tahl doctrine to bail forfeitures; the decision specifically
stated,
however, that "[n]othing in this opinion is intended to apply to
infractions" (Mills v. Municipal Court, supra, 10
Cal.3d 288, 302), therefore, aside from the court's directive with
respect
to bail forfeitures, no inferences can be drawn concerning their
opinion on the
applicability of Boykin-Tahl-Mills requirements to infractions.
Although our decision mandates an on-the-record,
knowing, intelligent, and
voluntary waiver of constitutional rights before the entry of a plea of
guilty
or nolo contendere, we recognize along with the People the need for
"...
flexible procedures, which take into account the realities of the
crowded
dockets of municipal courts ...." (Mills v. Municipal Court, supra, 10
Cal.3d 288, 292.) Therefore, we echo the Mills court by noting that the
application of the Boykin-Tahl-Mills doctrine in infraction proceedings
need
not take the identical form required in felony or misdemeanor
proceedings so
long as the applicable constitutional rights are not sacrificed; swift
disposition is the principal purpose for the infraction classification.
(In re
Dennis B. (1976) 18
Cal.3d 687 [135 Cal.Rptr. 82, 557 P.2d 514]; People v. Carlucci (1979)
23
Cal.3d 249 [152 Cal.Rptr. 439, 590 P.2d 15].)
Our decision need not be onerous; rather, as was noted
in People v. Miner,
supra, 68 Cal.App.3d Supp. 1, 8, the addition of one sentence in the
defendant's advisement of rights, informing the defendant that a plea
of guilty
or nolo contendere would waive the right to confrontation and the
privilege
against self-incrimination, will satisfy the Boykin-Tahl-Mills
requirement of
an on-the-record admonition and waiver of rights and will add but a few
seconds
to the court's agenda.
[3] With the exception of the instant appeal, our
holding applies to future
infraction proceedings (People v. Bustamonte (1981) 30
Cal.3d 88 [177 Cal.Rptr. 576, 634 P.2d 927]), and operates
prospectively
only upon this opinion becoming final. [139 Cal.App.3d 545]
Judgment is reversed.
Hanson (Thaxton), J., and Reese, J., concurred.
FN 1. Each defendant was advised of the following
rights:
"1. You have the right to be represented by an attorney
at all stages
of the proceedings including your appearance tonight. You do not have
the right
to a court-appointed attorney or Public Defender unless you are charged
with a
misdemeanor offense. If you are charged with a misdemeanor and desire
the
services of an attorney but are unable to afford one, the Court will
appoint
one to rep represent you. However, the law requires that at the
conclusion of
your case that a hearing must be held to determine your ability, if
any, to pay
for all or part of the services of the court-appointed attorney.
"2. You have the right to a speedy and public trial. You
have the right
to have your trial within 45 days from the date of your arraignment. If
you are
charged with a misdemeanor, you have the right to a jury or court
trial. If you
are charged with an infraction, you only have the right to a court
trial.
"3. You have the right to confront and cross-examine the
witnesses
against you.
"4. You have the right to use the subpoena power of the
Court without
cost to compel the attendance of witnesses who could testify on your
behalf.
"5. You have the right against self-incrimination; you
cannot be
compelled to testify and no adverse inference can be drawn from your
silence.
"6. You have the right to be released on reasonable bail
while awaiting
trial.
"7. You also have the right to represent yourself.
"8. If you are not a citizen and charged with a
misdemeanor, a guilty
plea may result in your being deported, denied admission or
naturalization
pursuant to the laws of the United States."
FN 2. Footnote 11 states: "Our holding that
the Boykin-Tahl rule is applicable to misdemeanor guilty pleas in no
way
implies that such decisions have any application to the termination of
criminal
proceedings following the forfeiture of bail. In a variety of contexts,
most
notably minor traffic offenses, a defendant may choose to forfeit bail
rather
than appear in court, and in such circumstances the trial judge has
discretion
to declare the bail forfeited and to order that no further proceedings
be had
in the case. [Citations.] Although for some purposes such forfeiture of
bail
operates as a 'conviction' and may lead to collateral consequences
comparable
to a guilty plea [citation], we do not believe that the Boykin decision
was
intended to have any application to such bail forfeitures. Although
even in
such cases it might theoretically be desirable to have a defendant
advised of
the potential consequences of his action, any rule that would require
every
traffic violator either to appear in court personally or obtain an
attorney to
appear for him would be significantly more onerous--to both courts and
defendants --than could possibly be justified by the benefits obtained.
We do
not believe constitutional principles require so bizarre a result.
[Citation.]"
FN 3. Footnote 13 states: "The Legislature
has specifically provided for different procedures in infraction cases,
in
which incarceration is not an applicable sanction. Misdemeanor
procedures apply
except that there is no right to jury trial or right to appointed
counsel.
[Citations.] Nothing in this opinion is intended to apply to
infractions."
FN 4. Although theoretically desirable, the court
ruled that such a result would be onerous in that it would require a
defendant
who had chosen not to appear in court to do so.
FN 5. Vehicle Code section 40901, subdivision (c)
provides: "Prior to the entry of a waiver of constitutional right
pursuant
to any rules adopted under this section, the court shall inform the
defendant
in writing of the nature of the proceedings and of his right to
confront and
cross-examine witnesses, to subpoena witnesses on his behalf, and to
hire
counsel at his own expense. The court shall ascertain that the
defendant knowingly
and voluntarily waives his right to be confronted by the witnesses
against him,
to subpoena witnesses in his behalf, and to hire counsel on his behalf
before
proceeding."
FN 6. Footnote 7 states, "But see People v.
Miner [citation], holding Mills requirement applicable to personally
entered
pleas in infraction cases."
People v.
Ashley(1990) 220
Cal.App.3d 919 , 269 Cal.Rptr. 769
[No. A042153. Court
of Appeals of California, First Appellate District, Division One. Apr
23,
1990.]
THE PEOPLE,
Plaintiff and Respondent,
v. GREGORY SCOTT ASHLEY, Defendant and Appellant
[Opinion
certified for partial
publication. (fn. *) ]
(Superior
Court of Alameda County,
No. C78836, Joseph Karesh, Judge. (fn. †) )
(Opinion by
Newsom, Acting P.J., with
Stein, J., and Holmdahl, J., (fn. †) concurring.)
COUNSEL
Eric S. Multhaup, under appointment by the Court of
Appeal, for Defendant
and Appellant.
John K. Van de Kamp, Attorney General, Richard B.
Iglehart, Chief Assistant
Attorney General, John H. Sugiyama, Assistant Attorney General,
Laurence K.
Sullivan and Genald A. Engler, Deputy Attorneys General, for Plaintiff
and
Respondent.
OPINION
NEWSOM, Acting P. J.
An information filed in Alameda County on May 23, 1984,
charged Gregory
Scott Ashley (hereafter appellant) with murder (Pen. Code, § 187)
and rape
(Pen. Code, § 261, subd. (2)). After his first trial ended in a
mistrial with a
deadlocked jury, a second trial resulted in a verdict of guilty of
second
degree murder, with an enhancement for firearm use, and unlawful sexual
intercourse (Pen. Code, § 261.5), a lesser offense included in the
charge of
rape. On April 15, 1988, the court sentenced appellant to 15 years to
life on
the murder conviction and stayed sentences on the firearm enhancement
and the
conviction of unlawful intercourse.
* * * (fn. *)
[1] Lastly, appellant maintains that the trial court
erred in refusing to
allow defense counsel to use a small tape recorder during trial. He
explained [220
Cal.App.3d 921] that he needed sound recordings as personal notes
during
cross-examination of witnesses: "The reason I wanted to use this is
that I
find it very difficult to take accurate notes of my cross-examination
because
I'm concentrating on asking the question other than writing them down,
and it
interrupts the flow of my cross-examination to constantly write down
what the
witness says before I ask him the next question." The tape recorder
operated silently and was five inches by four inches by one inch in
size.
Defense counsel proposed to place it among the books on counsel table.
He
assured the court that "the jury would only become aware of it if they
look
carefully on the table." Nevertheless, the court found that the tape
recorder would be distracting and refused to allow its use.
California Rules of Court, rule 980(c) [[renumbered as
rule1.150, as of
2007]], provides: "Unless otherwise ordered for cause, inconspicuous
personal recording devices may be used by persons in a court room to
make sound
recordings as personal notes of the proceedings." We
consider that the trial court abused its discretion in refusing to
allow use of the tape recorder under this rule. [[Emphasis
added.]] Defense counsel proposed to use
the device
for precisely the purpose contemplated by the rule. The device could
hardly
have been more inconspicuous. In denying permission to use the tape
recorder,
the court was taking issue with the rule itself rather than with the
manner in
which defense counsel intended to use the device.
Appellant concedes, however, that he "cannot specify any
quantifiable
amount of prejudice accruing from the court's erroneous ruling" and
seeks
only a "ruling for purposes of retrial. ..." We agree, while the
ruling may have made counsel's work more difficult, the record does not
disclose that it interfered prejudicially with cross-examination.
The judgment is affirmed.
Stein, J., and Holmdahl, J.,
(fn. *) concurred.
FN *. Pursuant to California Rules of Court, rule
976.1, this opinion is certified for partial publication. The portion
to be
published follows.
FN †. Assigned by the Chairperson of the Judicial
Council.
FN †. Retired Associate Justice of the Court of Appeal
sitting under
assignment by the Chairperson of the Judicial Council.
FN *. See footnote, ante, page 919.
FN *. Retired Associate Justice of the Court of
Appeal sitting under assignment by the Chairperson of the Judicial
Council.
People v.
Dixon (2007)148
Cal.App.4th 414 , -- Cal.Rptr.3d --
[No. E038509. Fourth
Dist., Div. Two. Mar. 8, 2007.]
THE PEOPLE,
Plaintiff and Respondent,
v. JAMES HOWARD DIXON, Defendant and Appellant.
(Superior
Court of Riverside County,
No. RIC 334470, James A. Edwards, Judge. (fn. *) )
(Opinion by
McKinster, J., with
Ramirez, P. J., and King, J., concurring.)
COUNSEL
Chris Truax, under appointment by the Court of Appeal,
for Defendant and
Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson,
Chief Assistant Attorney
General, Gary W. Schons, Senior Assistant Attorney General, Bradley A.
Weinreb
and Ronald A. Jakob, Deputy Attorneys General, for Plaintiff and
Respondent. [148
Cal.App.4th 420]
OPINION
MCKINSTER, J.-
1. Introduction
A jury found defendant James Howard Dixon to be a
sexually violent predator
and the trial court recommitted defendant to a secured facility under
the
Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, §
6600 et seq.).
Defendant appeals the judgment and raises two claims of error.
Defendant claims
the court erred in granting the media's request to televise or
videotape the
proceedings. Defendant also claims the court erred in failing to order
the
prosecutor to disclose the victims' contact information.
In addressing defendant's first claim, we explain that
while the public and
the press may have a First Amendment right to attend the proceedings,
the press
does not have a constitutional right to have a camera in the courtroom.
The
trial court erred in failing to apply the proper standard in evaluating
the
media's request to televise the proceedings and, specifically, in
failing to
give adequate consideration to the factors listed in California Rules
of Court,
rule 1.150 (formerly rule 980 (fn. 1) ). The error, however, is
harmless because
defendant cannot show that the media's intrusion affected the jury's
determination that he satisfied the criteria for recommitment.
As to defendant's second claim, we recognize that, as a
special proceeding
of a civil nature, a civil commitment proceeding under the SVPA must
apply the rules
set forth in the Civil Discovery Act of 1986 (Code Civ. Proc., §
2016 et seq.)
(hereafter "Civil Discovery Act" or "the Act".) We
nevertheless conclude that, while defendant was entitled to the
victims' [148
Cal.App.4th 421] contact information under the Civil Discovery Act,
he
failed to make a timely demand as required under the Act.
We affirm the judgment.
2. Factual and
Procedural History
In 1978 and 1987, defendant was convicted of various
violent sex crimes
against three separate victims. The 1978 incidents occurred in San
Diego. While
15-year-old Joy P. was babysitting, defendant approached the house and
insisted
that he be allowed inside to retrieve something. After arguing with
defendant
for several minutes, Joy allowed defendant into the house. Inside,
defendant
put his hand over Joy's mouth and pointed what appeared to be a knife
against
her back. Defendant ordered Joy into the bedroom, where he forced her
to orally
copulate him and then raped her. After defendant forced her to orally
copulate
him a second time, Joy was able to slip out the front door and run to
her
parent's house next door.
A few days later, defendant also assaulted 30-year-old
Crystal M., who was
working as a cab driver. After having Crystal drive around, he placed a
metal
comb against her throat and demanded sex. In addition to raping
Crystal,
defendant beat her on the head with objects from the cab, including the
meter
flag. Afterwards defendant left Crystal on the street, bloody and
barely
conscious.
The 1987 incident occurred in Riverside. While Jane D.
was asleep in her
apartment, defendant came into her bedroom and pinned her down by the
shoulders. Defendant hit Jane about a dozen times across her face and
choked
her with his hand. During the course of the night, defendant repeatedly
attempted to penetrate Jane's vagina and anus with his penis. When
defendant
fell asleep, Jane got away and went for help. The officers found
defendant
asleep on Jane's bed. When they attempted to arrest him, he broke free
and
punched one of the officers. Only after a violent struggle were the
officers
able to handcuff defendant and place him under arrest.
Defendant pled guilty to the crimes. He initially served
his sentence in
state mental hospitals, but, after his treatment proved ineffective, he
was
sent to prison.
On August 2, 2000, a jury found that defendant was a
sexually violent
predator within the meaning of Welfare and Institutions Code section
6600, et
seq. The trial court placed defendant in the custody of the Department
of Mental
Health. [148 Cal.App.4th 422]
On June 20, 2002, the Riverside County District Attorney
filed a petition
for subsequent commitment under Welfare and Institutions Code section
6604, et
seq. On July 20, 2004, the district attorney filed another petition for
subsequent commitment. The trial court consolidated both petitions for
trial.
During the trial, the prosecutor presented the testimony
of Dr. Shoba
Sreenivasan, a licensed psychologist, and Dr. Gabrielle Paladino,
defendant's
treating psychiatrist at Atascadero State Hospital. Both psychological
experts
diagnosed defendant with paraphilia, alcohol dependency, and antisocial
personality disorder. Both experts also concluded that defendant was a
sexually
violent predator and was likely to reoffend.
Defendant admitted only that he had problems with anger
and alcohol.
Defendant claims that he has resolved these problems by taking anger
management
classes and receiving treatment for alcohol dependence. Defendant's
expert, Dr.
Mary Jane Alumbaugh, testified that defendant was not likely to
reoffend
because he was now 48 years old.
During the trial, Joy, Jane, and the police officers who
responded to Jane's
apartment testified that defendant did not manifest any signs of being
under
the influence of alcohol.
The jury found defendant to be a sexually violent
predator who remains a
danger to others within the meaning of Welfare and Institutions Code
section
6600. The trial court ordered defendant to be recommitted to the
Department of
Mental Health for further treatment in a secured facility.
3. Press
Coverage
The question we address in this opinion is whether the
trial court properly
exercised its discretion in allowing the media to videotape a civil
commitment
proceeding under SVPA.
Before the trial, defendant filed motions for a change
of venue and for
orders to seal the record, close the proceedings, and prohibit
television
coverage of his trial. The case had drawn substantial media attention
and
reporters from both CBS 2 and the Press-Enterprise were contacting
counsel for
interviews. On June 8, 2005, defendant's counsel was informed that the
media
had sought to televise defendant's trial. In her arguments in support
of the
defense motions, defendant's counsel argued that, based on the highly
sensitive
nature of the proceedings and the public prejudice against sex
offenders, any
additional and unnecessary media attention would prevent defendant from
receiving a fair trial. Counsel specifically argued that defendant's
psychological records were confidential under Welfare and Institutions [148
Cal.App.4th
423] Code section 5327 and any use of these records
during the
civil commitment proceedings should not allow for the dissemination of
defendant's personal information to the public. Counsel also argued
that televising
the proceedings would intimidate defense witnesses from testifying,
thereby
making it impossible to present a defense.
The court held a hearing on defendant's motions on June
9, 2005. David Wohl
of CBS 2 and counsel for the Press-Enterprise attended the hearing.
Defendant's
attorney initially remarked that the media's request to televise the
proceedings was untimely. Defendant's counsel also discussed the
arguments
presented in her moving papers, mentioning specifically the
confidentiality of
defendant's mental health records and the effect of the anticipated
media
attention on defendant's ability to have an impartial jury and procure
witnesses for his defense. Both Wohl and counsel for Press-Enterprise
argued
for the public's First Amendment right to have access to both criminal
and
civil trials. Defendant's attorney responded that involuntary civil
commitment
proceedings, such as proceedings under the Lanterman-Petris-Short Act,
are
typically closed and confidential. Counsel explained that courts have
found
that civil commitment proceedings under the SVPA are not intended to be
punitive in nature, but instead, are designed to determine the
defendant's need
for hospitalization.
The trial court denied defendant's motion. On the
question of whether to
allow a camera in the courtroom, the court concluded that, despite the
concerns
raised by defendant, there were less restrictive alternatives to
denying such
coverage. The court instructed Wohl to position his camera so that it
would not
be a distraction. The court also indicated that it would protect the
identity
of the jurors and, where necessary, the defense witnesses.
Although the trial court's approach appears to be
reasonable, it is apparent
upon closer examination that the court failed to give proper
consideration to
the factors listed in rule 1.150. As will be discussed below, when
confronted
with the precise issue involved in this case, the federal courts have
held that
the public and the press do not have a constitutional right to
broadcast or videotape
court proceedings. California law specifically prohibits the
broadcasting of
court proceedings, unless the court reasonably exercises its discretion
by
applying a certain set of factors. The record shows that the court
failed to
give proper consideration to these factors.
A. The Press and Civil Commitment Proceedings
We begin our analysis with the broader question of
whether the press should
have access to a civil commitment proceeding under the SVPA. Although
this is
not the precise issue in this case, this is the question that [148
Cal.App.4th 424] preoccupied much of the hearing below and the
briefs on
appeal. A discussion of this question also will provide the necessary
background for addressing the propriety of television coverage in a
proceeding
under the SVPA.
[1] Both the federal and state courts acknowledge a
presumption in favor of
public access. Under the First Amendment made applicable to the states
by the
Fourteenth Amendment, the public has a right to attend both criminal
and civil
proceedings. (See Press-Enterprise Co. v. Superior Court (1986)
478 U.S.
1; NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (hereafter NBC
Subsidiary) (1999) 20
Cal.4th 1178, 1210.) The press does not have a special right to access,
but
instead enjoy the same right afforded to the rest of the public. (Branzburg
v.
Hayes (1972) 408 U.S. 665, 684.)
The California Supreme Court, after reviewing cases
upholding the public's
constitutional right to attend criminal trials, specifically held that
the
public also has a right to attend civil trials. (NBC Subsidiary,
supra,
20 Cal.4th at p. 1209, citing Richmond Newspaper, Inc. v. Virginia
(hereafter Richmond Newspaper) (1980) 448 U.S. 555, 580 and fn.
17.) Because the public has a First Amendment
right to access, the party seeking closure must offer a compelling
interest
that cannot be achieved through less restrictive means. [[Emphasis
added.]] (See NBC Subsidiary, supra,
20
Cal.4th
at
p. 1203, citing Globe Newspaper Co. v. Superior Court (1982)
457 U.S.
596, 607). Based on this constitutional right to access, courts have
strongly
disfavored legislation or judicial orders mandating the closure of
courtrooms,
even where the state has a legitimate interest in ensuring privacy. (NBC
Subsidiary,
supra, 20 Cal.4th at pp. 1199-1203, citing Richmond
Newspaper, supra, 448 U.S. 555 [holding unconstitutional a court's
mandatory closure order in a high profile murder trial, despite two
prior mistrials]
and Globe Newspaper, supra, 457 U.S. 596 [finding
unconstitutional a
state statute mandating closure during the testimony of minor victims
of sex
crimes].)
Closed proceedings or partial closures, however, may be
allowed upon a
showing that press coverage would cause prejudice based on the specific
facts
in the case. (NBC Subsidiary, supra, 20 Cal.4th at p. 1211.) The
public's right to access, therefore, is not absolute. (See Richmond
Newspaper, supra, 448 U.S. at p. 581, fn. 18.) "[I]n neither the
criminal
nor the civil context do the high court cases or their progeny
described above
grant an 'unrestricted' right of access; each decision has been careful
to
explain that, under certain circumstances, the presumption of openness
can be
overcome upon a proper showing." (NBC Subsidiary, supra, 20
Cal.4th
at p. 1211.) [148 Cal.App.4th 425]
Thus, despite the presumption in favor of open
proceedings, courts have
upheld exclusion orders to ensure a fair trial under certain
circumstances.
(Compare Gannett Co., Inc. v. DePasquale (1979) 443 U.S. 368,
388, fn.
19 [excluding the public from pretrial suppression hearing in a
criminal case]
and Branzburg v. Hayes, supra, 408 U.S. at p. 684 [excluding
the press
from attending grand jury proceedings which are designed to determine
whether
probable cause exists to prosecute the accused] with Press-Enterprise
Co.
v.
Superior
Court (Press-Enterprise I) (1984) 464 U.S. 501, 513
[upholding the
public's right to attend jury voir dire] and Press-Enterprise Co.
v.
Superior Court (Press-Enterprise II) (1986) 478 U.S. 1, 13
[extending the
public's right to access to preliminary hearings].) While these
decisions
generally are made on a case-by-case basis by weighing the parties'
rights to
privacy or fairness on the one hand with the public's right to access
on the
other, the courts have not foreclosed the possibility of legislation
requiring
closed proceedings in certain special cases. "We observe that various
statutes set out, for example, in the Code of Civil Procedure, Family
Code, and
Welfare and Institutions Code provide for closure of certain civil
proceedings.
We address herein the right of access to ordinary civil proceedings in
general,
and not any right of access to particular proceedings governed by
specific
statutes." (NBC Subsidiary, supra, 20 Cal.4th at p. 1212, fn.
30;
see also Burkle v. Burkle (2006) 135
Cal.App.4th 1045, 1058, fn. 17.)
[2] In determining whether the constitutional right of
access attaches to a
particular proceeding, the United States Supreme Court has set forth
two
related considerations: first, whether the place and process
historically have
been open to the public and, second, whether public access plays a
significant
positive role in the particular process. (Press-Enterprise II, supra,
478
U.S.
at p. 8.) "Although many governmental processes operate best
under public scrutiny, it takes little imagination to recognize that
there are
some kinds of government operations that would be totally frustrated if
conducted openly." (Id. at pp. 8-9.)
For example, the public does not have a First Amendment
right to attend
juvenile dependency proceedings. (San Bernardino County Dept. of
Public
Social Services v. Superior Court (1991) 232
Cal.App.3d 188, 195.) In San Bernardino County Department of Public
Social Services v. Superior Court, this court applied the analysis
set
forth in Press Enterprise II and observed that dependency
proceedings
historically have not been open to the public. (San Bernardino
County Dept.
of Public Social Services v. Superior Court, supra, at p. 198.)
Such
proceedings have been intended as private, informal, nonadversarial
proceedings
aimed at rehabilitation, as opposed to punishment. (Ibid.) In
discussing
the second consideration, we recognized that openness may expose
deficiencies
in the system and promote improvements to the juvenile dependency
process. (Id.
at p. 201.) [148 Cal.App.4th 426] In weighing these
considerations, we
concluded that openness would detract from the goal of rehabilitation.
We
therefore held that the public does not have a First Amendment right to
access
in juvenile dependency cases. (Id. at p. 205.)
In juvenile dependency cases, then, public access is
left to the court's
discretion. Welfare and Institutions Code section 346 provides that the
parties
may consent to access or the court may allow the press to attend the
proceedings. (See San Bernardino County Dept. of Public Social
Services,
supra, 232 Cal.App.3d at p. 208.) Where the presumption of openness
does
not apply, the court exercises broader discretion to limit access.
Rather than
having to fashion an order that is narrowly tailored to achieve a
compelling
interest, the court may limit access where there is a reasonable
likelihood of
prejudice. (Ibid.)
In the case, Burkle v. Burkle, supra, 135
Cal.App.4th 1045, the court decided whether divorce cases are
presumptively
open. The court noted that Family Code section 214 ". . . authorizes
the
court, 'when it considers it necessary in the interests of justice and
the
persons involved, [to] direct the trial of any issue of fact joined in
a
proceeding under this code to be private. . . .'" (Burkle v. Burkle,
supra, at p. 1056.) The court noted, however, that Family Code
section 214
provides the exception, rather than the general rule. (Ibid.)
In applying the two-pronged analysis set forth in Press-Enterprise
II,
the court in Burkle noted, "[w]e are not aware of, and Mr.
Burkle
does not offer, any cases or commentary supporting the notion that
divorce
proceedings have ever been generally excepted from California's
historical
tradition of presumptively open civil proceedings. Indeed, in the
context of
court records, which we address in the succeeding section, California
courts
have made the point virtually unassailable: '[N]o California case holds
or even
hints that the principles articulated in these cases [the generally
open nature
of court files] vary when family law litigation is involved. . .
.· In general,
court files in family law cases should be treated no differently than
the court
files in any other cases for purposes of considering the
appropriateness of
granting a motion to seal any of those files.' [Citation.]" (Burkle
v.
Burkle, supra, 135 Cal.App.4th at p. 1056, citing In re
Marriage of
Lechowick (1998) 65
Cal.App.4th 1406, 1413-1414.) The court also noted that the same
benefits
that public access provides to civil proceedings generally apply to
divorce
proceedings specifically. (Burkle v. Burkle, supra, at p. 1057.)
"We are unable to discern, from policy and precedent, any principled
basis
for concluding that the same utilitarian values that apply 'with at
least equal
force' in criminal and civil trials [citation] somehow lose their
potency in
the context of divorce proceedings." (Ibid.) [148
Cal.App.4th
427]
In light of these considerations, the court held that
the constitutional
right to access extends to divorce proceedings. The court explained, ".
.
. the factors that differentiate divorce cases from 'ordinary civil
cases'-the
intrusions into family privacy that accompany the dissolution of
intimate
relationships-do not support Mr. Burkle's view that no First Amendment
right of
access exists in divorce cases. Instead, the factors unique to marital
dissolutions are weighed in the balancing process that necessarily
occurs in a
decision whether to close divorce proceedings or to seal records that
are
presumptively open. In other words, divorce cases are different only in
that
they present different factors to be weighed in the balance against
First
Amendment access rights. Indeed, the issues distinguishing divorce
cases from
other civil cases-such as psychological evaluations in child custody
disputes
and the like-are often the subject of statutory exceptions to the
general rule
of public access, in which the Legislature has already engaged in the
necessary
balancing of privacy rights and public access rights. Nothing about
these
exceptions contradicts the conclusion that both historical tradition
and the
institutional value of open proceedings mandate a presumption of
openness in
divorce proceedings just as in other civil cases." (Burkle v.
Burkle,
supra, 135 Cal.App.4th at pp. 1060-1061 [fn. omitted].) Therefore,
while
factors in certain proceedings may justify an exception to the public
right of
access, other factors are simply taken into consideration in deciding
whether
to close proceedings that are presumptively open.
In a setting more analogous to the case at hand, a civil
commitment
proceeding under the Lanterman-Petris-Short (LPS) Act (Welf. &
Inst. Code,
§ 5000 et seq.), the statutory scheme includes a provision to open
the
proceedings to the public upon a party's request. "Notwithstanding any
other provisions of this section, any party to the proceeding may
demand that
the hearing be public, and be held in a place suitable for attendance
by the
public." (Welf. & Inst. Code, § 5118.) This language suggests
that the
proceedings are private unless the parties request otherwise. (Compare
with Com.
v. Milice (1991) 401 Pa. Super. 96, 99 [holding that trial court
retains
discretion to close the hearing because the statute requires that the
hearing
be open to the public unless the parties request otherwise].) The LPS
Act does
not address whether the court retains discretion to deny the request
for open
proceedings or independently authorize public access.
We have found no cases addressing the question of
whether the First
Amendment right to access extends to proceedings under the SVPA or any
other
California statute governing civil commitment proceedings. And, unlike
with
juvenile dependency proceedings or proceedings under the LPS Act, there
also is
no statute addressing public access to proceedings under the SVPA. As
noted by
defendant's attorney, involuntary civil commitment proceedings
typically are
closed proceedings. Because such proceedings are aimed at determining
the
status of a person's mental health, they involve [148 Cal.App.4th
428]
primarily personal and confidential matters. As with juvenile
dependency
proceedings, while openness would expose any deficiencies and allow for
improvements in the process, it would seriously undermine the goals
involved in
these cases. The two considerations set forth in Press-Enterprise II,
therefore,
appear
to weigh against extending the public right of access
to
involuntary civil commitment proceedings.
Limiting public access seems consistent with the purpose
behind the SVPA.
The California Supreme Court has maintained that, "[t]he SVPA . . . is
protective rather than punitive in its intent. [I]n enacting the SVPA
'the
Legislature disavowed any "punitive purpose[ ]," and declared its
intent to establish "civil commitment" proceedings in order to
provide "treatment" to mentally disordered individuals who cannot
control sexually violent criminal behavior. [Citation.] The Legislature
also
made clear that, despite their criminal record, persons eligible for
commitment
and treatment as SVP's are to be viewed "not as criminals, but as sick
persons." [Citation.] Consistent with these remarks, the SVPA was
placed
in the Welfare and [148 Cal.App.4th 429] Institutions Code,
surrounded
on each side by other schemes concerned with the care and treatment of
various
mentally ill and disabled groups. (See, e.g., §§ 5000 [LPS
Act], 6500 [Mentally
Retarded Persons Law].)' [Citation.]" (People v. Vasquez (2001)
25
Cal.4th 1225, 1231-1232, quoting Hubbart v. Superior Court
(1999) 19
Cal.4th 1138, 1171.)
[3] In light of this purpose, a civil commitment
proceeding revolves around
the assessment of whether the defendant has been diagnosed with a
mental
disorder and is likely to commit other acts of sexual violence in the
future.
(Welf. & Inst. Code, § 6604, 6600, subd. (a).) The defendant
must be
evaluated by two practicing psychiatrists or psychologists, who then
will make
their evaluation reports available to the parties and the court. (Welf.
&
Inst. Code, § 6601, subd. (d).) The defendant also may obtain his
own expert to
conduct an independent evaluation. (Welf. & Inst. Code, §
6603, subd. (a).)
The jury trials in these cases, therefore, consist largely of testimony
by psychiatrists
or psychologists discussing defendant's mental disorder and current
dangerousness.
While the psychological reports must be made available
to the parties and
the court (see Welf. & Inst. Code, §§ 5328, subd. (f),
6601, subd. (d); Albertson
v. Superior Court (2001) 25
Cal.4th 796, 805; People v. Angulo (2005) 129
Cal.App.4th 1349, 1363), they remain confidential for all other
purposes.
Psychological evaluations obtained in the course of providing services
under
the SVPA are confidential. (Welf. & Inst. Code, § 5328; People
v.
Martinez (2001) 88
Cal.App.4th 465, 474-475.) While Welfare and Institutions Code section
6603
permits disclosure of defendant's psychological records to the district
attorney for use in the civil commitment proceedings, the statute does
not
authorize its release to the general public. The Legislature's decision
specifically to authorize disclosure to certain individuals, including
the
district attorney, implies that the documents should not be made
available to
just anyone. To allow open access to the public would make Welfare and
Institutions section 6603 entirely unnecessary.
Additionally, the court cannot serve as a conduit
through which confidential
information is transmitted to other members of the public (see County
of
Riverside
v.
Superior Court (1974) 42
Cal.App.3d 478, 481). In rejecting a request by a state agency for
confidential records, we explained that, ". . . the plain language of
the
exception to confidentiality contained in subdivision (f) of section
5328 says
that the information and records may be disclosed to the courts,
not
to
an
administrative agency through the courts." (County of
Riverside, supra, 42 Cal.App.3d at p. 481 [italics original].) If
such is
the case for an administrative agency, then the same is true for the
public at
large. While these confidential reports can be used during civil
commitment
proceedings, they nonetheless retain their confidential nature and
should not
be made available to the public.
There is, therefore, a compelling basis for arguing that
involuntary civil
commitment proceedings under the SVPA are not ordinary civil
proceedings that
must be open to the public. Other states that have addressed similar
issues
have come to different conclusions based on their rules governing
public
access, the particular civil commitment statute involved, or their
rules
concerning the confidentiality of medical information. (See, e.g., State
v.
Koch (1999) 169 Vt. 109, 115 [holding that the court erred in
excluding the
press from a hearing on the state's motion to revoke the criminal
defendant's
order of non-hospitalization, particularly because the defendant's
medical
records were not confidential under Vermont law]; Matter of Belk
(1992)
107 N.C. App. 448, 452, 454 [affirming court's decision to close the
hearing
for the involuntarily commitment of a violent family member to a state
hospital
because, under North Carolina law, the public's right to access does
not extend
to civil cases and civil commitment proceedings were intended to be
private,
informal, and non-adversarial].) However, in light of the rules
governing
public access in California, we are reluctant to require absolute
closure in
these cases. Our Supreme Court has made it clear that courts should
attempt to
safeguard the defendant's rights through less restrictive means rather
than
completely barring public access. (See NBC Subsidiary, supra,
20 Cal.4th
at p. 1203, citing Globe Newspaper Co. v. Superior Court, supra,
457
U.S.
at
p. 607). [148 Cal.App.4th 430]
[4] Moreover, while civil commitment proceedings involve
a determination of
the defendant's mental health, the case also involves the defendant's
past
convictions, which are a matter of public concern and the records of
which
already are available to the public. Also, a sexually violent predator
has a
lesser expectation of privacy in his psychological records. (See People
v.
Martinez (2001) 88
Cal.App.4th 465, 478.) It is not entirely clear, therefore, whether
some
access would be appropriate, provided that the court take precautions
to
protect confidential information. Because of these and other
considerations, we
think the decision is best left to the Legislature, which is better
equipped to
hear the competing interests involved in these cases and formulate a
rule
concerning public access in SVPA proceedings.
B. Broadcasting Civil Commitment Proceedings
We turn to the specific question in this case, namely,
whether the trial
court properly granted the media's request to televise or videotape the
proceedings.
Defendant claims that the trial court erred when it
allowed the media to
videotape his trial. Defendant specifically argues that the trial court
failed
to apply rule 1.150, which provides that a request to televise the
proceedings
must be made by a timely motion and that a grant of such a request must
be
based on the consideration of several enumerated factors.
The People appear to argue that because the June 9,
2005, hearing was held
in response to the defendant's request to close the proceedings, the
trial
court had no obligation to apply rule 1.150 before allowing the media
to record
the proceedings. What the People fail to appreciate, however, is that
regardless of who initially made the motion, the court still must apply
the law
in addressing the particular question presented. The record indicates
that
defendant preemptively asked the court to preclude the media from
televising
his trial. The record also shows that, in opposing defendant's motion,
the
media sought to televise or videotape the proceedings. The question of
whether
the proceedings should be videotaped was squarely before the court.
Although not discussed by the parties, there are two
United States Supreme
Court cases addressing the general question of whether the press should
be
allowed to broadcast or videotape judicial proceedings. The question
was first
presented to the Supreme Court in Estes v. Texas (1965) 381
U.S. 532. In Estes, during the pretrial hearing on the media's
request to broadcast
the proceedings, there were 12 cameramen in the courtroom, taking still
and
motion pictures. There were cables and wires [148 Cal.App.4th 431]
all
across the courtroom floor with microphones on the bench, and directed
at the
jury box and counsel's table. For the trial, however, the court had
ordered the
media to construct a booth in the back of the courtroom and restricted
all
filming and broadcasting to that location. (Estes, supra, at pp.
536-537.)
The court in Estes issued six separate opinions.
By a plurality vote,
the court held that the right to access does not include the right to
televise
the proceedings. (Estes v. Texas, supra, 381 U.S. at pp. 539
(plur. opn.
of Clark, J.), 587 (conc. opn. of Harlan, J.).)
Justice Harlan wrote, "The free speech and press
guarantees of the
First and Fourteenth Amendments are also asserted as embodying a
positive right
to televise trials, but the argument is greatly overdrawn.
Unquestionably,
television has become a very effective medium for transmitting news.
Many
trials are newsworthy, and televising them might well provide the most
accurate
and comprehensive means of conveying their content to the public.
Furthermore,
television is capable of performing an educational function by
acquainting the
public with the judicial process in action. Albeit these are credible
policy
arguments in favor of television, they are not arguments of
constitutional
proportions. The rights to print and speak, over television as
elsewhere, do
not embody an independent right to bring the mechanical facilities of
the
broadcasting and printing industries into the courtroom. Once beyond
the
confines of the courthouse, a news-gathering agency may publicize,
within wide
limits, what its representatives have heard and seen in the courtroom.
But the
line is drawn at the courthouse door; and within, a reporter's
constitutional
rights are no greater than those of any other member of the public.
Within the
courthouse the only relevant constitutional consideration is that the
accused
be accorded a fair trial. If the presence of television substantially
detracts
from that goal, due process requires that its use be forbidden." (Estes
v.
Texas,
supra, 381 U.S. at p. 589 (conc. opn. of Harlan J.).)
In addressing Texas's argument that the defendant had
failed to isolate and
articulate the actual prejudice suffered as a result of the media's
intrusion,
the plurality in Estes held that the inherent prejudice
involved in
televising or videotaping the proceedings was sufficient to warrant a
reversal.
(Estes v. Texas, supra, 381 U.S. at pp. 541-544 (plur. opn. of
Clark,
J.), 591-592 (conc. opn. of Harlan, J.).) In writing for the plurality,
Justice
Clark specifically identified several potential impacts that televising
the
proceedings could have on the trial, including the jury's exposure to
extraneous information and public pressure, the distraction caused by
the
equipment, the witnesses' potential access to the testimony of
preceding
witnesses, the added pressure of being on camera and the temptation to
put on a
good performance, and the effect on the defendant's ability to
communicate [148
Cal.App.4th 432] privately with his attorney and concentrate on
presenting
his defense. (Id. at pp. 544-548.) "A defendant on trial for a
specific crime is entitled to his day in court, not in a stadium, or a
city or
nationwide arena. The heightened public clamor resulting from radio and
television coverage will inevitably result in prejudice." (Id.
at
p. 548.) Justice Clark explained that, while these potential impacts
may escape
exact measurement, they cannot be ignored or dismissed as purely
hypothetical.
(Ibid.)
The plurality opinion in Estes, however,
recognized that the full
effects of televising trials were unknown and, therefore, left room for
future
consideration of what was a relatively new application of technology in
1965.
(See Estes v. Texas, supra, 381 U.S. at pp. 540, 541, 551-552.)
Justice
Clark closed with the comment: "It is said that the ever-advancing
techniques of public communication and the adjustment of the public to
its
presence may bring about a change in the effect of telecasting upon the
fairness of criminal trials. But we are not dealing here with future
developments in the field of electronics. Our judgment cannot be rested
on the
hypothesis of tomorrow but must take the facts as they are presented
today." (Id. at pp. 551-552 (plur. opn. of Clark, J.).) Justice
Harlan also added, "we should not be deterred from making the
constitutional judgment which this case demands by the prospect that
the day
may come when television will have become so commonplace an affair in
the daily
life of the average person as to dissipate all reasonable likelihood
that its use
in courtrooms may disparage the judicial process. If and when that day
arrives
the constitutional judgment called for now would of course be subject
to re
-examination in accordance with the traditional workings of the Due
Process
Clause." (Id. at p. 595-596 (conc. opn. of Harlan, J.).)
An occasion for further consideration presented itself
in Chandler v.
Florida (1981) 449 U.S. 560. There, the court addressed the
question of
whether the state may experiment with different forms of electronic
media. In 1937,
the American Bar Association (ABA) adopted Judicial Canon 35, which
recommended
the prohibition of broadcast coverage of courtroom proceedings. (Chandler,
supra, at pp. 562-563.) In 1952, the ABA amended Canon 35 to
include
television coverage. (Id. at p. 563.) At the time the Supreme
Court
issued its opinions in Estes, as recommended by the ABA, the
federal
rules and 48 states prohibited television coverage of courtroom
proceedings. (Estes
v. Texas, supra, 381 U.S. at p. 544.) This included Florida, which
adopted
the rule as Canon 3A(7) of the Florida Code of Judicial Conduct. (Chandler,
supra, at p. 563.) In 1978, the ABA Committee on Fair Trial-Free
Press
proposed revised standards, including a provision that allowed
television
coverage under conditions to be established by the court or local rule.
(Id.
at pp. 563-564.) Although the proposed revisions were rejected, the
Conference
of State Chief Justices approved a resolution that allowed the states
to
promulgate their own [148 Cal.App.4th 433] standards for the
use of
different forms of electric media during court proceedings. (Id.
at p.
564.)
Meanwhile, in response to requests from the media,
Florida established a
one-year pilot program that allowed electronic media to cover all
judicial
proceedings under specific guidelines. (Chandler v. Florida, supra,
449
U.S. at pp. 564-565.) After the one-year period and after receiving
comments
from those involved, the Florida Supreme Court concluded that there was
more to
be gained than lost by allowing media coverage of judicial proceedings.
(Id.
at p. 565.) Florida thereafter revised Canon 3A(7) of the Florida Code
of
Judicial Conduct to permit the use of electronic media coverage again
under
specific guidelines. (Id. at p. 566.) The guidelines allowed
only the
use of one camera and one camera technician. The equipment must be in a
fixed
location and could not be moved during the trial. Any additional
recording
devices had to be located outside the courtroom. The guidelines also
restricted
the use of artificial lighting, the recording of private
communications, and
other intrusions or distractions. The court retained discretion to
prohibit all
coverage if it would have a deleterious effect on the defendant's right
to a
fair trial and exercised plenary discretion to prohibit coverage of
certain
witnesses. (Ibid.)
In Chandler, the defendants were Miami Beach
policemen who committed
a burglary at a well-known restaurant. Over the defendant's objection,
the
trial court allowed the media to televise the proceedings. The media
videotaped
only the testimony of the prosecution's chief witness and closing
arguments. (Chandler
v. Florida, supra, 449 U.S. at pp. 567-568.)
In challenging the court's order allowing the media to
videotape the
proceedings, the defendants relied on the Estes case. They
argued that Estes
established a per se constitutional rule that the televising of
criminal trials
is inherently a denial of due process. Although the Supreme Court
affirmed the
basic holding in Estes that the First Amendment right to access
does not
include the right to televise the proceedings, the court rejected the
defendants' interpretation that Estes established a per se rule
that
televising proceedings necessarily violates due process. (Chandler
v.
Florida, supra, 449 U.S. at pp. 570.)
The Supreme Court instead interpreted Estes,
particularly in light of
Justice Harlan's concurring opinion, as holding that televising the
court
proceedings was a denial of a fair trial based on the particular facts
in that
case. (Chandler v. Florida, supra, 449 U.S. at p. 573.) Although
both
Justice Clark's plurality opinion and Justice Harlan's concurring
opinion
provided unequivocal responses to the state's argument that the
defendant had
failed to show isolatable prejudice, the Supreme Court, as stated in Chandler,
later
[148 Cal.App.4th 434] emphasized that the potential
prejudices
discussed in that opinion in fact materialized during the proceedings
and
undoubtedly affected the defendant's trial in that case. (Ibid.;
see
also Murphy v. Florida (1975) 421 U.S. 794, 798; Nebraska
Press Ass'n
v. Stuart (1976) 427 U.S. 539, 552.)
Rather than a per se rule against televising court
proceedings, the Supreme
Court in Chandler held that, to establish a due process
violation, the
defendant must show that media coverage in his case had an adverse
impact on
his trial. (Chandler v. Florida, supra, 449 U.S. at pp. 581.) In
other
words, the Supreme Court essentially concluded that, even if there had
been
previously, there is no longer any basis to presume that prejudice
would result
from media coverage. The Supreme Court noted that, because of the
advances in
electronic technology, the media's presence in the courtroom is less
distracting and cumbersome than at the time of the defendant's trial in
Estes.
(Chandler, supra, 449 U.S. 576.) The Supreme Court also noted
that
courts have developed curative devices to avoid prejudice and
safeguards to
protect the judicial process. (Id. at pp. 574-575, 577.) For
example, in
Florida, courts are admonished to take special precautions to protect
certain
witnesses, including children, victims of sex crimes, and informants,
from the
media and the stress of being on camera. (Id. at p. 577.)
The Supreme Court concluded, "[w]hatever may be the
'mischievous
potentialities [of broadcast coverage] for intruding upon the detached
atmosphere which should always surround the judicial process,'
[citation], at
present no one has been able to present empirical data sufficient to
establish
that the mere presence of the broadcast media inherently has an adverse
effect
on that process. [Citation.] The appellants have offered nothing to
demonstrate
that their trial was subtly tainted by broadcast coverage-let alone
that all
broadcast trials would be so tainted." (Chandler v. Florida, supra,
449 U.S. at pp. 578-579.) Without a demonstration that the media
coverage
actually affected defendant's trial, the Supreme Court concluded that
states
must be free to experiment and specifically upheld Florida's
experimental
program. (Id. at pp. 582-583.)
[5] As stated in Estes and affirmed in Chandler,
the
public
and
the press do not have a constitutional right to televise the
proceedings or
videotape them for future broadcasting. (Estes v. Texas, supra,
381 U.S.
at p. 539; Chandler v. Florida, supra, 449 U.S. at p. 569; see
also Nixon
v. Warner Communications, Inc. (1978) 435 U.S. 589, 610.) Based on
the
information available when the Supreme Court decided Chandler,
the court
recognized that television coverage was not as mischievous as
previously thought,
and the cautious use of modern technology could advance the public
interest
without infringing upon the defendant's right to a [148 Cal.App.4th
435]
fair trial. The court in Chandler left it up to the states to
adopt
their own rules, permitting the states to delegate authority to the
trial
courts to decide whether press coverage would be appropriate on a
case-by-case
basis. When a party challenges the court's decision on constitutional
grounds,
the party must demonstrate actual prejudice. (See Chandler, supra,
at
p.
582.)
C. Rule 1.150
[6] California's guidelines for determining whether to
allow the press to
televise or videotape judicial proceedings are set forth in rule 1.150.
(Marin
Independent Journal v. Municipal Court (1993) 12
Cal.App.4th 1712, 1718.) As in other states, California has moved from
a
restrictive approach to a more open, yet cautious approach. (KFMB-TV
Channel
8 v. Municipal Court (1990) 221
Cal.App.3d 1362, 1367 [discussing amendments to rule 1.150].)
The general rule is stated in subdivision (c): "Except
as provided in
this rule, court proceedings may not be photographed, recorded, or
broadcast." The exception to the general rule is set forth in
subdivision
(e):
"(e) Media coverage
Media coverage may be permitted only on written order of
the judge as
provided in this subdivision. The judge in his or her discretion may
permit,
refuse, limit, or terminate media coverage. This rule does not
otherwise limit
or restrict the right of the media to cover and report court
proceedings.
"(1) Request for order
"The media may request an order on Media Request to
Photograph,
Record, or Broadcast (form MC-500). The form must be filed at least
five
court days before the portion of the proceeding to be covered unless
good cause
is shown. A completed, proposed order on Order on Media Request to
Permit
Coverage (form MC-510) must be filed with the request. The judge
assigned
to the proceeding must rule on the request. If no judge has been
assigned, the
request will be submitted to the judge supervising the calendar
department, and
thereafter be ruled on by the judge assigned to the proceeding. The
clerk must
promptly notify the parties that a request has been filed.
"(2) Hearing on request
"The judge may hold a hearing on the request or may rule
on the request
without a hearing. [148 Cal.App.4th 436]
"(3) Factors to be considered by the judge
"In ruling on the request, the judge is to consider the
following
factors:
"(A) The importance of maintaining public trust and
confidence in the
judicial system;
"(B) The importance of promoting public access to the
judicial system;
"(C) The parties' support of or opposition to the
request;
"(D) The nature of the case;
"(E) The privacy rights of all participants in the
proceeding,
including witnesses, jurors, and victims;
"(F) The effect on any minor who is a party, prospective
witness,
victim, or other participant in the proceeding;
"(G) The effect on the parties' ability to select a fair
and unbiased
jury;
"(H) The effect on any ongoing law enforcement activity
in the case;
"(I) The effect on any unresolved identification issues;
"(J) The effect on any subsequent proceedings in the
case;
"(K) The effect of coverage on the willingness of
witnesses to
cooperate, including the risk that coverage will engender threats to
the health
or safety of any witness;
"(L) The effect on excluded witnesses who would have
access to the
televised testimony of prior witnesses;
"(M) The scope of the coverage and whether partial
coverage might
unfairly influence or distract the jury;
"(N) The difficulty of jury selection if a mistrial is
declared;
"(O) The security and dignity of the court;
"(P) Undue administrative or financial burden to the
court or
participants;
"(Q) The interference with neighboring courtrooms; [148
Cal.App.4th
437]
"(R) The maintenance of the orderly conduct of the
proceeding; and
"(S) Any other factor the judge deems relevant."
Based on rule 1.150, defendant raises two specific
contentions. Defendant
first contends that, under subdivision (e)(1), the media's request to
videotape
the proceedings was untimely. According to rule 1.150(e)(1), the
request must
be filed at least five court days before the proceeding unless the
media shows
good cause. To comply with this provision, the media should have filed
a
separate form with its request at least five days before the first
hearing to
be televised. In this case, the Press-Enterprise filed only an
opposition to
defendant's motion on June 9, 2005, the day of the hearing. As
defendant
contends, the media's request was untimely.
[7] The People argue that defendant cannot complain of a
lack of notice
because his motions indicated that he anticipated media coverage.
Although a
party's foresight in preparing for trial should not excuse others from
providing notice when required, we agree that the lack of notice did
not catch
defendant by surprise or cause any prejudice. (See People v. Spring
(1984) 153
Cal.App.3d 1199, 1207.)
Defendant's second and main contention is that the trial
court failed to consider
the relevant factors listed in subdivision (e) of rule 1.150. Before
addressing
the exception, we note that the general rule implies a presumption
against
opening the courtroom to unlimited media coverage. While many of the
potential
risks associated with having cameras in the courtroom have been
minimized with
improvements in technology and the application of other conditions,
such as
limiting the media to the use of one camera (see rule 1.150(e)(7)(A)),
there
remain some serious concerns in balancing the defendant's interest in a
fair
trial and the public's interest in observing the judicial process. (See
Westmoreland
v. Columbia Broadcasting System, Inc. (2d Cir. 1984) 752 F.2d 16.
23, fn.
10.)
As with public access generally, there is no rule or
statute concerning
media coverage of civil commitment proceedings under the SVPA. Rule
1.150,
therefore, provides the framework for analysis. Under rule 1.150(e), ".
.
. it is clear that the threshold determination as to whether
representatives of
the electronic media and their equipment should be allowed access is
left to
the court which must exercise its discretion to fairly balance the
respective
interests of the parties and the public and the effect of electronic
coverage
on the fair administration of justice." (KFMB-TV Channel 8 v.
Municipal
Court, supra, 221 Cal.App.3d at p. 1367.)
Some of the relevant factors include the following: the
importance of
maintaining public trust in the judicial system (rule 1.150(e)(3)(A));
the [148
Cal.App.4th 438] importance of promoting public access (rule
1.150(e)(3)(B)); the parties' preferences (rule 1.150(e)(3)(C)); the
nature of
the case (rule 1.150(e)(3)(D)); the privacy rights of all the
participants
(rule 1.150(e)(3)(E)); and the effect of coverage on the witness's
willingness
to cooperate (rule 1.150(e)(3)(K)). As to the first two factors, the
public
undoubtedly has an interest in having access to the courts and ensuring
the
integrity of the fact finding process. (See Globe Newspaper Co. v.
Superior
Court, supra, 457 U.S. at p. 606; NBC Subsidiary, supra, 20
Cal.4th
at p. 1207.) Particularly, in an SVPA case, the proceedings will
determine
whether to hold in custody or release individuals who have been
identified or
adjudicated as sexually violent predators. Because these individuals
potentially pose a danger to society, the public has a legitimate
interest in
these proceedings.
In light of the other factors, however, there may have
been other ways to
preserve the public's interest without allowing cameras in the
courtroom.
Although the trial court acknowledged that it had discretion to allow
the media
to cover the proceedings, it appears that the court did not give proper
consideration to the other factors. Moreover, because counsel for the
People
and the press relied primarily on the NBC Subsidiary case, it
is unclear
whether the court inappropriately applied a presumption that the
proceedings
had to be open. Reliance on the right to access cases is entirely
inapposite to
the question of whether to allow cameras in the courtroom. (See Westmoreland
v.
Columbia
Broadcasting System, Inc., supra, 752 F.2d at pp.
22-23.)
As to nature of the case, the court seemed to treat this
case no differently
than any other civil case. A proceeding under the SVPA is not an
ordinary civil
case, but a special proceeding of a civil nature. (See People v.
Yartz
(2005) 37
Cal.4th 529, 536.) As discussed above, the trial revolves around the
determination of whether the defendant should be committed involuntary
in a
state mental hospital based on his diagnosed mental disorder and
dangerousness.
The nature of the case, therefore, should have weighed against
permitting the
press to televise or videotape the proceedings.
As to the parties' preference, defendant obviously
objected to media
coverage. One of defendant's specific objections was the disclosure of
confidential information concerning his mental health. Defendant's
attorney
explained, "[T]here is nothing in 6600 et seq. that indicates that . .
.
material, which is confidential and in an arena that is historically
private,
can then be turned over to the press. [¶] Obviously, the court's
file may
contain psychological reports, and the district attorney's office may
have
access to psychological reports. And we can see from the previous
activity, in
terms of the prior coverage by the Press-Enterprise, that the
Press-Enterprise
has gained, [148 Cal.App.4th 439] either via the district
attorney's
office or via the court file, access to at least part of the
psychological
evaluations involved in this case. And not only have they gained access
to that
for their own use, but they have not seen fit to restrain themselves in
terms
of actually publishing that." As stated above, the use of defendant's
psychological reports in a civil commitment proceeding does not
transform them
from being confidential to being open and accessible to the public.
(Welf.
& Inst. Code, § 5328; see also People v. Gardner
(1984) 151
Cal.App.3d 134, 141-142 [holding that the court erred in permitting
confidential information to remain in a probation report].) The record
shows
that the media had access to defendant's psychological reports and
released
confidential information concerning his medical treatment to the
public.
Another factor raised by defendant was his witnesses'
unwillingness to
testify. Defendant's attorney explained that the defense witnesses had
expressed reservations about testifying because of the press coverage.
While
the prospects of finding defense witnesses to testify on behalf of a
sexually
violent predator are arguably slim, the added media coverage may have
made
matters worse for the defense. Even if it was unclear whether these
potential
witnesses would have been more cooperative without the pressure of
being on
camera, this factor nevertheless weighs in favor of a closed
proceeding.
Defendant's attorney filed 11 declarations or
supplemental declarations
describing the effect of the press coverage on defendant's trial. In
addition
to the factors discussed above, some of defendant's attorney's other
concerns
included that she sometimes was unable to communicate privately with
defendant
in the courtroom because of the microphones and camera. ". . . I need
to
be able to talk to respondent privately in the court while court is in
session
and during the breaks without having a reporter sitting close enough to
hear
us, without a television microphone close enough to record our voices,
and
without a television camera videotaping what we are saying to each
other."
According to defendant's attorney, the cameraperson from CBS 2 moved
around the
courtroom and, during defendant's attorney's closing argument, stood
next to
the alternate jurors. Defendant's attorney explained, "[d]efending a
person on a W&I 6600 case is extremely demanding. It requires a
great deal
of concentration to detail. It is mentally, emotionally and physically
draining.
The presence of the cameraman so close to me and in my line of sight
was both
very intimidating and very distracting." Defendant's attorney also
noted
that, at one point in the proceeding, there was a second unauthorized
cameraperson inside the courtroom with a still or motion camera sitting
next to
the Press-Enterprise reporter in the front row of the audience. Because
of the
extensive print and television coverage of defendant's case,
defendant's
attorney expressed concern that, despite the court's admonition, the
jury
inevitably would be exposed to extraneous information. The coverage
also may
have been one-sided because, as noted by defendant's [148
Cal.App.4th 440]
attorney, the cameraperson filmed the direct examination of some of the
key
witnesses and experts, but did not return to film their
cross-examinations.
Many of these concerns were anticipated by defendant's attorney and
raised
during the hearing on defendant's motion.
[8] We conclude that the trial court abused its
discretion in allowing the
media to broadcast or videotape defendant's trial. The record shows
that the
court may have applied a presumption of openness and imposed upon
defendant the
burden of overcoming that presumption. According to rule 1.150,
however,
broadcasting and recording is not allowed unless the court reasonably
exercises
its discretion in accordance with that provision. The factors,
particularly,
the unusual nature of a civil commitment proceeding under the SVPA,
should have
weighed in favor of excluding cameras from the courtroom. The other
factors
discussed above further highlight the inappropriateness of such media
coverage.
Although the public has a legitimate interest in these cases, its
interest can
be protected without the additional intrusion of a camera in a
proceeding that
involves mostly sensitive information, including records of defendant's
psychological treatment and testimony from adult and minor victims of
sex
crimes.
D. Prejudice
In these cases, it is difficult to
assess the extent of the harm caused by the court's erroneous ruling.
It is
also difficult to determine when an erroneous ruling would warrant a
reversal.
It seems logical that a reversal would be appropriate only when the
erroneous
ruling caused such harm that it adversely affected the judgment. In
other
words, there must be a showing that the defendant was denied a fair
trial. [[Emphasis
added.]]
In the context of addressing the effect of media
coverage on jurors, the
United States Supreme Court stated the standard for determining
prejudice as
follows: "To demonstrate prejudice in a specific case a defendant must
show something more than juror awareness that the trial is such as to
attract
the attention of broadcasters. [Citation.] No doubt the very presence
of a
camera in the courtroom made the jurors aware that the trial was
thought to be
of sufficient interest to the public to warrant coverage. Jurors,
forbidden to
watch all broadcasts, would have had no way of knowing that only
fleeting
seconds of the proceeding would be reproduced. But the appellants have
not
attempted to show with any specificity that the presence of cameras
impaired
the ability of the jurors to decide the case on only the evidence
before them
or that their trial was affected adversely by the impact on any of the
participants of the presence of cameras and the prospect of broadcast."
(See Chandler v. Florida, supra, 449 U.S. at p. 581.) As
indicated by
the court, [148 Cal.App.4th 441] the standard is whether the
camera
equipment, the broadcasts, or the prospect of future broadcasts
adversely
affected defendant's trial and amounted to a denial of due process.
Although defendant argues that the press coverage
affected his right to
present a defense and his right to counsel, the record in this case
does not
show that the media's presence was anything akin to the "Roman
circus" or "Yankee Stadium" atmosphere of the Estes case.
(Chandler v. Florida, supra, 449 U.S. at p. 583; Estes v.
Texas,
supra, 381 U.S. at pp. 536, 550-551.) While CBS 2 may have placed a
microphone at the counsel table at one point during the proceedings and
while
the cameraperson may have stood next to the alternate jurors during
closing
argument, defendant cannot claim that there were reporters, cameras,
and wires
everywhere. The record shows that the court, for the most part,
maintained
control over the courtroom and attempted to minimize the impact of the
media's
presence during defendant's trial.
Defendant's attorney described how the press coverage
affected her
performance and the defense witnesses. Although the media's presence
may have
hindered communication between counsel and her client and may have
distracted
counsel during the trial, defendant has not shown how such adverse
affects
deprived him of a fair trial. As to the witnesses, as noted by the
court, defendant
could have subpoenaed them. Defendant argues that forcing the witnesses
to
appear in court would not have garnered favorable testimony from those
who
already had reservations about testifying on behalf of a sex offender.
Even so,
defendant cannot show how the additional testimony would have affected
the
jury's verdict.
The jury's verdict rested almost entirely on the
testimony of the
psychological experts. Despite defendant's claim that this was a close
case,
the record shows that, if it were not for the salacious details and the
press
coverage, the case would have been nothing more than a routine case for
recommitment under the SVPA. The prosecution and defense experts agreed
on the
diagnosis. The only real issue before the jury was whether defendant
continued
to present a danger to society because of his age. The defense expert
testified
that defendant's age made him less likely to reoffend. As to this key
issue,
the testimony of additional lay witnesses would not have made a
difference. The
jury's verdict was based primarily on its evaluation of the testimony
of the
expert witnesses. While the media coverage in this case and the
presence of the
camera and reporters in the courtroom may have been inappropriate, they
did not
adversely affect defendant's trial.
We therefore conclude that defendant has failed to
demonstrate that he was
denied a fair trial. [148 Cal.App.4th 442]
4. Discovery
Defendant claims the trial court erred in denying his
request to compel the
prosecutor to disclose the current contact information for two
prosecution
witnesses who also were victims in the underlying crimes. Defendant
specifically argues that the prosecutor and the trial court erroneously
relied
on Penal Code section 293, subdivision (c), to deny his request.
Defendant also
argues that the Civil Discovery Act applied and that he was entitled to
the
victims' contact information under the Act and under the due process
clause of
the federal Constitution.
Defendant correctly notes that the Civil Discovery Act
applied and that the
trial court erred in relying on Penal Code section 293. The record
reveals that
the parties were operating under the incorrect assumption that the
rules
governing criminal discovery applied to a civil commitment proceeding
under the
SVPA. Although defendant now asserts his rights under the Civil
Discovery Act,
we cannot conclude that the trial court erred in denying his request
where
defendant failed to make a timely demand as required under the Act.
[9] As noted by defendant, a proceeding under the SVPA
is civil in nature (Hubbart
v. Superior Court, supra, 19 Cal.App.4th at p. 1166; Sporich v.
Superior
Court (2000) 77
Cal.App.4th 422, 427), which both affects the defendant's rights and
determines what rules of discovery apply (People v. Fulcher
(2006) 136
Cal.App.4th 41, 55). A defendant in an SVPA proceeding does not have a
Sixth
Amendment right to confront witnesses against him. Instead, he has a
general
due process right of confrontation that applies to civil proceedings. (Fulcher,
supra, at p. 55.) Also, rather than the statutes governing
discovery in
criminal cases, discovery in a civil commitment proceeding under the
SVPA is
governed by the Civil Discovery Act. (See Code Civ. Proc., §
2016.020 subd.
(b); People v. Superior Court (Cheek) (2001) 94
Cal.App.4th 980, 995; People v. Angulo (2005) 129
Cal.App.4th 1349, 1358.) (fn. 2)
[10] Under the Civil Discovery Act, ". . . any party may
obtain
discovery regarding any matter, not privileged, that is relevant to the
subject
matter involved in the pending action or to the determination of any
motion
made in that action, . . . Discovery may be obtained of the identity
and
location of persons having knowledge of any discoverable matter, . . ."
(Code Civ. Proc., § 2017.010.) [148 Cal.App.4th 443] The
disclosure of
the names and addresses of potential witnesses is a routine and
essential part
of pretrial discovery. (See In re Littlefield (1993) 5
Cal.4th 122, 132.) The Civil Discovery Act also provides that a party
may
obtain information by the use of various methods, including oral and
written
depositions. (Code Civ. Proc., § 2020.010, subd. (a).) The party's
ability to
subpoena witnesses presumes that he has the witnesses' contact
information. As
noted by defendant, although the witnesses may resist a subpoena, there
is no
justification for depriving defendant's attorney of the opportunity to
seek an
interview in the first place. Certainly, one party's ability to
cross-examine
the witness at trial does not absolve the other party of his pretrial
discovery
obligations.
The People contend that defendant was not entitled to
disclosure in this
case for a few reasons. First, the People argue that defendant was
required to
show good cause. In support of this argument, the People cite Vinson
v.
Superior
Court (1987) 43
Cal.3d 833, a case involving sexual harassment. The Vinson case
relies on Code of Civil Procedure section 2036.1, which has been
repealed. (Vinson,
supra, at pp. 843-844, citing Code Civ. Proc., § 2036.1,
repealed by Stats.
1986, ch. 1334, § 1, operative July 1, 1987.) The language of the
former
statute now appears only in Code of Civil Procedure 2017.220. That
provision is
inapplicable because defendant's request for discovery was not for
information
concerning the victim's sexual conduct with individuals other than the
perpetrator. Rather, the request concerned information directly
relevant to the
subject matter of the action. None of the authorities cited by the
People
support its argument that a party must show good cause to discover the
names
and addresses of the potential witnesses.
Second, the People argue that defendant was not entitled
to disclosure
because it would result in unwarranted annoyance, embarrassment,
oppression, or
undue burden for the victims. (See Code Civ. Proc., § 2017.020,
subd. (a); Cheek,
supra, 94 Cal.App.4th at p. 994.) It is, however, unclear how a
simple
request for the witnesses' contact information could be any of these
things.
Even in cases involving victims of sexual assaults, it cannot be
presumed that
such requests would burden the other party or harass the witnesses.
[11] Finally, as argued at trial, the People maintain
that Penal Code
section 293 barred disclosure of the victim's contact information.
Penal Code
section 293, subdivision (d), provides: "No law enforcement agency
shall
disclose to any person, except the prosecutor, parole officers of the
Department of Corrections, hearing officers of the parole authority,
probation
offices of county probation departments, or other persons or public
agencies
where authorized or required by law, the name of a person who alleges
to be the [148 Cal.App.4th 444] victim of a sex offense."
Contrary to the
People's argument, this statute has been interpreted to not preclude
disclosure
of the victim's information to the public defender. (Reid v.
Superior Court
(1997) 55
Cal.App.4th 1326, 1338 (Reid).) According to the court in Reid,
the
public
defender qualifies as an authorized person to receive the
victim's
contact information. (Ibid.; citing Pen. Code, § 1054.)
None of the arguments raised in the People's brief
provides adequate
justification for denying defendant's request. As observed in Reid,
"as
a
general rule, '[a] lawyer may properly interview any witness or
prospective witness for the opposing side in any civil or criminal
action
without the consent of opposing counsel or party.' [Citations.]
Generally, '[a]
defendant is entitled to have access to any prospective witness
although such a
right of access may not lead to an actual interview.' [Citation.]" (Reid,
supra, 55 Cal.App.4th at p. 1333.) Defendant here was entitled to
discover
the contact information for the potential witnesses.
The trial court, however, had a separate basis for
denying defendant's
request. As discussed during oral argument before us on appeal, under
the Civil
Discovery Act, defendant should have made a timely demand for the
identity and
whereabouts of the prosecution witnesses. Specifically, defendant
should have
completed discovery 30 days before the date set for trial. (See Code
Civ.
Proc., § 2024.020; Beverly Hospital v. Superior Court
(1993) 19
Cal.App.4th 1289, 1294.) Defendant did not make a demand for discovery
before trial. Also, when defendant made his request during the trial,
he did
not argue that he was entitled to the victim's contact information
under Code
of Civil Procedure section 2017.010. By stating the specific ground for
his
request, defendant would have given the trial court an opportunity to
respond
and fashion an appropriate remedy. Although the parties and the court
may have
been operating under an incorrect assumption about the rules governing
discovery in an SVPA proceeding, defendant cannot claim the benefits of
the
civil discovery rules without demonstrating compliance with its
requirements.
We conclude, therefore, that, while defendant was
entitled to the victims'
current contact information under the Civil Discovery Act, the court
had no
obligation to grant his request in the absence of a timely demand. [148
Cal.App.4th
445]
5. Disposition
We affirm the judgment.
Ramirez, P. J., and King, J., concurred.
FN *. Retired Judge of the San Bernardino Superior
Court assigned by the Chief Justice pursuant to article VI, section 6
of the
California Constitution.
FN 1. Effective January 1, 2007, the California
Rules of Court were reorganized and renumbered. All further reference
to a
specified numbered rule are to the current California Rules of Court
unless
otherwise stated.
FN 2. We are not asserting an opinion, however, as
to whether all the specific procedures afforded under the Civil
Discovery Act
apply in SVPA proceedings. We note that Division Three of this district
has
held that, in SVPA proceedings, the use of a request for admission
under Code of
Civil Procedure section 2019.010, subdivision (e), would violate a
defendant's
due process rights. (Murillo v. Superior Court (2006) 143
Cal.App.4th 730, 740.)
|