Opposition Brief — Sacramento Bee v. Municipal Court of California

~ARIGINAL

| Supreme Court,

oe: ILE D.

DEC 31 a4

ALEXANDER 1. STEVAS

NO. e4-28h

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1984

THE SACRAMENTO BEE, Published by

McClatchy Newspapers, a California

Corporation,

Petitioner,

Vv.

THE MUNICIPAL COURT OF THE STATE

OF CALIFORNIA, FOR THE COUNTY OF

SACRAMENTO,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE CALIFORNIA MUNICIPAL COURT

FOR THE COUNTY OF SACRAMENTO

BRIEF IN OPPOSITION

NANCY A. REGAN

NANCY REGAN LAW OFFICES

P. O. Box 376

Citrus Heights, CA 95611-0376

Telephone: (916) 962-1233

Counsel for

Real Party in Interest

RONNY WILLIAM MOZENGO

TABLE OF CONTENTS

OPINIONS BELOW... .. ccc eer c erence cerns scare reeassescesese

JURISDICTION... cc cccccccccccccccesccccescccesesesesece

STATEMENT OF THE CASE.......ccescccccecccccsccccccccecs

REASONS FOR DENYING THE WRIT... .----eeeeccccererecccces

CONCLUSION. 2.22 -cseecercccccrecccercccrccsssseucesesene

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TABLE OF AUTHORITIES

Cases

Gannett Co. v. DePasquale 443 U.S. 368..... saves ebeoees 4

Globe Newspapers Co. v. Superior Court, Etc.

v.85. | 5

Nebraska Press Assn. 427 U.S. 529..... iss kehaeasoneanhen Gee

Peapie Vi Bisiot (2960) 54 Cal .28 698... ccscccsccvcserces 2

People v. Mozingo (1983) 34 Cal.3d 926........... eusae 1

Press Enterprise Co. v. Superior Court of Cal.

464 U.S. itu nbedus cee enneees CSCEKS DODO SS oeeee 4

Richmond Newspapers, Inc. v. Virginia

OES Weta. SO5 6 5.66000 06 ses vcbtecccoos hehgtusesacve 5

San Jose Mercury-News v. Municipal Court

MESS) JO-COL.2G GOR. cccccvncctsceces YY CCT err 3

Times-Picayune Pub. Corp. v. Schulingkamp

SSD D.B. SPOR cccvceoccecccccescces iwehtecs2saun 5

Waller v. Georgia, SS eee eee ee re Cee ee 4

United States Constitution

United States Constitution:

Amendment 1........ iii eae ae eee ee rerr ee ree

Amendment 5....... SEE CR ET OPEC E EOS OT hele a Pe

pe Cee ee ee eletwralane

Amendment 14........ inh ak the ce a Oe RD coe, ee

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California Statutes

California Penal Code:

Section RGR SESE Nt BP Ae area ay eee MR Nat ss Mea GR oy

SE SECON vee bya dete eha ses 544 pee EES Ane ake

pe | NPC Tee ere ees Peer ro rare oe ee

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OPINIONS BELOW

No opinion was issued in the courts below.

JURISDICTION

The facts relating to the Court's jurisdiction in this

matter are as set forth in the Petition, pages ] and 2, under

the heading "Jurisdiction".

STATEMENT OF THE CASE

In the underlying criminal action, the Real Party in Interest,

RONNY WILLIAM MOZINGO, was charged with three counts of battery

and battery against a custodial officer in violation of California

Penal Code sections 242 and 243(c), respectively. The charges

arose from an altercation with Sacramento County Sheriff's deputies

at the county jail, where the Real Party was, and currently is,

awaiting re-trial on charges of the rape and murder of his step-

mother on December 18, 1979. His conviction of those crimes, for

which he had been sentenced to death, was reversed by the California

Supreme Court based on incompetence of counsel. People v. Mozingo

(1983) 34 Cal.3d 926.

Because of the publicity generated by the death penalty case,

and by the concurrent prosecution of the Real Party's uncle,

DOUGLAS MOZINGO, for three counts of first degree murder, with

special circumstances and nine counts of attempted murder, counsel

for the Real Party moved that the preliminary hearing in the battery

case be closed to the public pursuant to Penal Code section ses).

Defense counsel's declaration in support of said motion is set

forth in the Petition at pages 5 through 7.

A. “The examination shall be open and public. However, upon the

request of the defendant and a finding by the magistrate that exclusion

of the public is necessary in order to protect the defendant's right

to a fair and impartial trial, the magistrate shall exclude from the

examination every person except the clerk, court reporter and bailiff,

the prosecutor and his or her counsel, the Attorney General, the

district attorney of the county, the investigating officcr, the officer

having custody of a prisoner witness while the prisoner is testifying,

the defendant and his or her counsel, the officer having the defendant

in custody and a person chosen by the prosecuting witness who is not

himself or herself a witness but who is present to provide the

On March 13, 1984, the Municipal Court granted the Real Party's

motion to close the preliminary hearing over the objection of

petitioner. On March 15, 1984, petitioner filed a direct petition

for writ of prohibition or mandate in the California Supreme Court.

On March 16, 1984, the California Supreme Court transferred the

petition to the Court of Appeal, Third Appellate District. On March

29, 1984, the court of appeal summarily denied the petition. On

April 6, 1984, petitioner filed a petition for hearing in the

California Supreme Court, which summarily denied the petition on

May 24, 1984.

At each stage of the proceedings, petitioner asserted that the

press and the public have a qualified First Amendment right to

attend preliminary hearings and that California Penal Code section

868 violated that right.

REASONS FOR DENYING THE WRIT

The main purpose of California Penal Code section 868 is to

protect the defendant's right to a fair trial. At the preliminary

examination, the magistrate determines whether there is reasonable

or probable cause to bind the defendant over for trial in superior

court. The testimony is very often that of the prosecution only.

Penal Code section 868 protects the defendant's right to an impartial

and unbiased jury by preventing dissemination of this testimony by

the media prior to trial. [People v. Elliot (1960) 54 Cal.2d 498,

504; 354 P.2d 225] Penal Code section 868 also protects the reputa-

tion of the person who is unjustifiably accused of crime. [Id. at

pp. 504-505]

The California Supreme Court rotseuted the contention that Penal

Code section 868 is an unconstitutional infringement of the public's

1. (continued)

prosecuting witness moral support, provided that the person so chosen

shall not discuss prior to or during the p.eliminary examination the

testimony of the prosecuting witness with any person, other than the

- prosecuting witness, who is a witness in the examination. Nothing in

this section shall affect the right to exclude witnesses as provided

in Section 867 of the Penal Code."

=2-

right to attend preliminary hearings in San Jose Mercury-News v.

‘Municipal Court (1982) 30 Cal.3d 498, 638 P.2d 655. The court

weighed the public's right of access to judicial proceedings,

examining “the traditional availability of the source to public

scrutiny as well as the relative benefits and burdens of recognizing

access rights.” [Id., 30 Cal.3d, 498 at p. 509) The court found

that the nature and timing of preliminary hearings present dangers

that public access may prejudice fair trial rights guaranteed to

the accused under the Fifth, Sixth and Fourteenth Amendments.

Factual and relevant reporting may be just as unfair as inflaminatory

or misleading publicity if it produces a jury pool which is convinced

of the defendant's guilt before trial. [Id., 30 Cal.3d 512]

The court further found in San Jose Mercury-News that an

evaluation of the type requested by petitioner in the instant case, |

findings, and consideration of alternatives to closure, are not

practicable with respect to preliminary hearings and are not

required. [Id., 30 Cal.3d 498, at p. 513)

Case-by-case evaluation may be appropriate

with respect to trials and pretrial suppression

hearings conducted after the defendant has been

bound over. But a preliminary caring may

be held as early as two days after crraignment

or plea unless the prosecution shows good cause

or the defendant waives time. In any event

it must occur within 60 days after arraignment

or plea unless defendant consents to further

delay. (Pen. Code, Section 859b)

Often, therefore, it is impossible for

defendant to make a showing that in his case

prejudice is likely and closure justified.

The evidence required may not be available at

an early stage, when community reaction and

the media's attitude are not clear. Moreover,

defendant may have little knowledge before

the hearing of the prosecution's strategy

and evidence That additionally clouds his

ability to prove the value to him of closure.

Finally, certain alternate means of prevent-

ing prejudice from adverse pretrial publicity,

such as gag orders or restraints on publication,

can involve equal and even greater intrusions on

speech and press rights. (see, e.g. Nebraska

Press Assn., supra, 427 U.S. 529,556-560 [49 L.Ed.

2d 683, 695-698)...Changes of venue or continuances

may subject the parties and courts to considerable

inconvenience or expense and may even violate

the defendant's right to speedy trial in the

vicinage. (U.S. Const., Amends, VI, XIV; Cal.

Const. Art I g 15) (San Jose Mercury-News v.

Municipal Court, supra, 30 Cal.3d 498, 513)

~

The cases cited by petitioner do not support its contention

that the public has a qualified First Amendment right to attend

preliminary hearings. Waller v. Georgia, U.S. ; 104 S.Ct.

2210 (1984) held that closure of a suppression hearing to the public

over the objection of the defendant, violated his Sixth Amendment

right to a public trial. It should be noted that the jury had been

empaneled prior to the hearing of the suppression motion and that

this was therefore not a pretrial hearing.

Press-Enterprise Co. v. Superior Court of Cal. 464 U.S. :

104 S.Ct. 819 (1984) held that the vior dire examination of potential

jurors could not be closed to the public absent findings that closure

was essential and consideration of alternatives to closure. This

Court made a detailed review of the history of the jury trial and

found that the selection of jurors has “presumptively been a public

process with exceptions only for good cause shown." [Id., 104 S.Ct.

819, 822) This case does not support petitioner's contentions

because jury selection is not truly a pretrial or preiiminary

proceeding, but an integral part of the trial process itself.

Gannett Co. v. DePasquale 443 U.S. 368 (1979), in section V

reviewed in detail the history of the public trial at common law,

and found"...there exists no persuasive evidence that at common

law members of the public had any right to attend pretrial proceedings;

indeed, there is substantial evidence to the contrary. By the time

of the adoption of the Constitution, public trials were clearly

associated with the protection of the defendant. And pretrial

proceedings, precisely because of the same concern for a fair trial,

were never characterized by the same degree of openness as were

actual trials. WF Under English common law, the public had no right

to attend pretrial proceedings.” [Id., at pp. 387-389] This Court

went on to cite California Penal Code section 868 as an example of

an explicit provision relating to closed pretrial proceedings.

{Id., at p. 391, fn. 23] This court held in Gannett that the public

has no independent constitutional right to insist upon access to a

pretrial judicial proceeding, in this case, a suppression hearing.

Richmond Newspapers, Inc. v Virginia 448 U.S. 555 addressed

the issue of whether the public has a constitutional right to attend

criminal trials. This Court held that the First Amendment guarantee

the right to attend criminal trials, but does not support petitioner's

contention that there is any First Amendment right to attend prelim-

inary or pretrial hearings.

Globe Newspapers Co. v. Superior Court, Etc. U.S. e

102 S.Ct. 2613 (1982) struck down as violating the First Amendment,

a Massachusetts statute which required the exclusion of the public

from the courtroom during the testimony of minor victims in the

trials of specified sex offenses. This case expiessly dealt with

the public's right to attend trials, and did not deal with the issue

_of the right of the public to attend preliminary or pretrial hearings.

This Court has recognized that restraints upon the press prior

to trial are not necessarily and in all cases invalid. [Nebraska

Press Assn. v. Stuart 423 U.S. 1327 (1975}] A footnote in Times -

Picayune Pub. Corp. v. Schulingkamp 419 U.S. 1301 (1974) suggests

closure of pretrial hearings as an alternative to an order imposing

direct limitations on media reporting to protect the defendants from

prejudicial pretrial publicity, and cites California Penal Code

section 868. [Id., at p. 1308, fn. 3)

The cases cited by petitioner deal with exclusion of the public

@uring the trial phase of the criminal prosecution, "a time when

the jurors and witnesses can be otherwise shielded from prejudicial

publicity, and also a time when both sides are being heard."

[Nebraska Press Assn. v. Stuart, supra, at p. 1332] Petitioner has

failed to demonstrate that it, or the public, has a First Amendment

right to attend preliminary hearings.

California Penal Code section 868 protects defendants' right

to a fair trial before an unbiased jury upon the finding, explicit

or necessarily impled, that exclusion of the public is necessary

to protect that right. It is submitted that this provision is

constitutional.

-§-

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SB ce

CONCLUSION

The petition for a writ of certiorari should be denied.

Dated: December 27, 1984

P. 0. Box 376

Citrus Heights, CA 95611-0376

Telephone: (916) 962-1233

Counsel For

Real Party In Interest, -

RONNY WILLIAM MOZINGO

IFICATE OF SERVICE BY MAIL

I, NANCY A. REGAN, a member of the Bar of the Supreme Court

of the United States and counsel for RONNY WILLIAM MOZINGO, Real

Party in Interest herein, hereby certify that on December 27, 1984,

pursuant to Rule 28.3, Rules of the Supreme Court, I served one

copy of the attached BRIEF IN OPPOSITION, MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS, AFFIDAVIT OF RONNY WILLIAM MOZINGO on each of

the parties herein by depositing such copies in the United States

Post Office, Fair Oaks, California, with first class postage prepaid,

properly addressed to the post office addresses of the parties as

follows:

JOHN DOUGHERTY HON. LEIGHTON HATCH

KEN PETERSON Judge, Municipal Court

Sacramento County Dist. Atty. 720 Ninth Street

901 G Street Sacramento, CA 95814

Sacramento, CA 95814

WILLIAM B. SHUBB

CHARITY KENYON

DIEPENBROCK, WULFF, PLANT & HANNEGAN

455 Capitol Mall, Suite 800

Sacramento, CA 95814

All parties required to be served have been served.

Dated: December 27, 1984

Citrus Heights, CA 95611-0376

Telephone: (916) 962-1233