PEOPLE v. DIXON

Filed 3/8/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

STORY CONTINUED FROM PART I

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 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 defendants 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 defendants objection, the trial court allowed the media to televise the proceedings. The media videotaped only the testimony of the prosecutions chief witness and closing arguments. (Chandler v. Florida, supra, 449 U.S. at pp. 567-568.)

In challenging the courts 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 Harlans 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 Clarks plurality opinion and Justice Harlans concurring opinion provided unequivocal responses to the states argument that the defendant had failed to show isolatable prejudice, the Supreme Court, as stated in Chandler, later emphasized that the potential prejudices discussed in that opinion in fact materialized during the proceedings and undoubtedly affected the defendants trial in that case. (Ibid.; see also Murphy v. Florida (1975) 421 U.S. 794, 798; Nebraska Press Assn 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 medias presence in the courtroom is less distracting and cumbersome than at the time of the defendants 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 defendants trial, the Supreme Court concluded that states must be free to experiment and specifically upheld Floridas experimental program. (Id. at pp. 582-583.)

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 defendants right to a 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 courts decision on constitutional grounds, the party must demonstrate actual prejudice. (See Chandler, supra, at p. 582.)

C. Rule 1.150

Californias 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.

(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;

(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 medias 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 defendants motion on June 9, 2005, the day of the hearing. As defendant contends, the medias request was untimely.

The People argue that defendant cannot complain of a lack of notice because his motions indicated that he anticipated media coverage. Although a partys 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.)

Defendants 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 defendants interest in a fair trial and the publics 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 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 witnesss 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 publics 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 defendants specific objections was the disclosure of confidential information concerning his mental health. Defendants 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 courts file may contain psychological reports, and the district attorneys 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, either via the district attorneys 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 defendants 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 defendants psychological reports and released confidential information concerning his medical treatment to the public.

Another factor raised by defendant was his witnesses unwillingness to testify. Defendants 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.

Defendants attorney filed 11 declarations or supplemental declarations describing the effect of the press coverage on defendants trial. In addition to the factors discussed above, some of defendants attorneys 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 defendants attorney, the cameraperson from CBS 2 moved around the courtroom and, during defendants attorneys closing argument, stood next to the alternate jurors. Defendants 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. Defendants 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 defendants case, defendants attorney expressed concern that, despite the courts admonition, the jury inevitably would be exposed to extraneous information. The coverage also may have been one-sided because, as noted by defendants 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 defendants attorney and raised during the hearing on defendants motion.

We conclude that the trial court abused its discretion in allowing the media to broadcast or videotape defendants 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 defendants 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 courts 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.

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, the standard is whether the camera equipment, the broadcasts, or the prospect of future broadcasts adversely affected defendants 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 medias 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 medias presence during defendants trial.

Defendants attorney described how the press coverage affected her performance and the defense witnesses. Although the medias 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 jurys verdict.

The jurys verdict rested almost entirely on the testimony of the psychological experts. Despite defendants 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 defendants 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 jurys 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 defendants trial.

We therefore conclude that defendant has failed to demonstrate that he was denied a fair trial.

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.

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 defendants 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.)^[1]

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.) 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 partys 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 defendants attorney of the opportunity to seek an interview in the first place. Certainly, one partys 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 defendants request for discovery was not for information concerning the victims 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.

Finally, as argued at trial, the People maintain that Penal Code section 293 barred disclosure of the victims 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 victim of a sex offense. Contrary to the Peoples argument, this statute has been interpreted to not preclude disclosure of the victims 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 victims contact information. (Ibid.; citing Pen. Code, 1054.)

None of the arguments raised in the Peoples brief provides adequate justification for denying defendants 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 defendants 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 victims 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.

5. Disposition

We affirm the judgment.

CERTIFIED FOR PUBLICATION

s/McKinster

J.

We concur:

s/Ramirez

P. J.

s/King

J.

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^[1] 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 defendants due process rights. (Murillo v. Superior Court (2006) 143 Cal.App.4th 730, 740.)