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

APPEAL from the Superior Court of Riverside County. James A. Edwards, Judge. (Retired Judge of the San Bernardino Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

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.

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 medias 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 defendants 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 medias 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^[1]). The error, however, is harmless because defendant cannot show that the medias intrusion affected the jurys determination that he satisfied the criteria for recommitment.

As to defendants 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 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 Joys 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 parents 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 Janes vagina and anus with his penis. When defendant fell asleep, Jane got away and went for help. The officers found defendant asleep on Janes 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.

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, defendants 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. Defendants 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 Janes 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, defendants counsel was informed that the media had sought to televise defendants trial. In her arguments in support of the defense motions, defendants 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 defendants psychological records were confidential under Welfare and Institutions Code section 5327 and any use of these records during the civil commitment proceedings should not allow for the dissemination of defendants 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 defendants motions on June 9, 2005. David Wohl of CBS 2 and counsel for the Press-Enterprise attended the hearing. Defendants attorney initially remarked that the medias request to televise the proceedings was untimely. Defendants counsel also discussed the arguments presented in her moving papers, mentioning specifically the confidentiality of defendants mental health records and the effect of the anticipated media attention on defendants ability to have an impartial jury and procure witnesses for his defense. Both Wohl and counsel for Press-Enterprise argued for the publics First Amendment right to have access to both criminal and civil trials. Defendants 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 defendants need for hospitalization.

The trial court denied defendants 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 courts 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 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.

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 publics 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. (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 courts 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 publics 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.)

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 publics right to attend jury voir dire] and Press-Enterprise Co. v. Superior Court (Press-Enterprise II) (1986) 478 U.S. 1, 13 [extending the publics 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 publics 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.)

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.) 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 courts 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 Californias 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.)

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. Burkles 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 partys 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 defendants attorney, involuntary civil commitment proceedings typically are closed proceedings. Because such proceedings are aimed at determining the status of a persons mental health, they involve 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 SVPs are to be viewed not as criminals, but as sick persons. [Citation.] Consistent with these remarks, the SVPA was placed in the Welfare and 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.)

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 defendants 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 defendants 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 Legislatures 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 states motion to revoke the criminal defendants order of non-hospitalization, particularly because the defendants medical records were not confidential under Vermont law]; Matter of Belk (1992) 107 N.C. App. 448, 452, 454 [affirming courts decision to close the hearing for the involuntarily commitment of a violent family member to a state hospital because, under North Carolina law, the publics 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 defendants 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).

Moreover, while civil commitment proceedings involve a determination of the defendants mental health, the case also involves the defendants 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 medias 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 defendants 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 defendants 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 medias request to broadcast the proceedings, there were 12 cameramen in the courtroom, taking still and motion pictures. There were cables and wires all across the courtroom floor with microphones on the bench, and directed at the jury box and counsels 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 reporters 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 Texass argument that the defendant had failed to isolate and articulate the actual prejudice suffered as a result of the medias 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 jurys 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 defendants ability to communicate 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.)

TO BE CONTINUED AS PART II..

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^[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.