Opinion
KLEIN, P. J. Petitioner Tribune Newspapers West, Inc. (Tribune), the publisher of the Daily News, a newspaper with apparent circulation primarily in the San Fernando Valley area of Los Angeles County, is requesting a writ of mandate ordering respondent the Superior Court of the State of California for the County of Los Angeles (respondent court) sitting in the San Fernando Valley to vacate its order closing a juvenile fitness hearing to the press and public.
The case involves two minors, Michael M. and Mark B.,1 who are charged with two bank robberies and various other crimes while armed with a dangerous or deadly weapon. The proceedings attracted the attention of the local press because as characterized in one news article, the juveniles “may have belonged to a ‘rat pack’ of San Fernando Valley rich kids who commit crimes to escape boredom.”
Upon motion of the juveniles, respondent court entered an order barring the public from attending future hearings and ordering the press not to contact directly or indirectly any parties present at the hearing. We granted Tribune’s request for a temporary stay2 in order to review the petition and subsequently issued an alternative writ.
[447]The record reveals the respondent court did not provide a reasonable opportunity for the public and press to present evidence that there was no reasonable likelihood of substantial prejudice to the right of the accused to a fair trial nor consider viable alternatives against the backdrop of the proper test.
We conclude the respondent court committed an abuse of discretion in closing the fitness hearing in that an improper test for closure was used and all relevant factors were not considered. Therefore, the matter is remanded for a duly noticed hearing on the closure issue to be held, consistent with the views expressed herein.
Discussion
1. Nature of fitness hearing.
The fitness hearing is provided for by Welfare and Institutions Code section 707, and its purpose is to determine whether a minor accused of violating a criminal statute is a fit and proper subject to be dealt with under the Juvenile Court Law.3
The Legislature has mandated that “members of the public shall be admitted, on the same basis as they may be admitted to trials in a court of criminal jurisdiction, to hearings concerning petitions filed pursuant to Section 602 alleging that a minor is a person described in Section 602 by reason of the violation of any one of the following offenses: [¶] . . . . [¶] (3) Robbery while armed with a dangerous or deadly weapon.” (§ 676, subd. (a).)
It has been settled since 1978 when Brian W. v. Superior Court (1978) 20 Cal.3d 618 [143 Cal.Rptr. 717, 574 P.2d 788], was decided that section 676 applies to fitness hearings. In Brian W, the Supreme Court denied a petition for writ of mandate by a juvenile who had moved to exclude the press from a fitness hearing based upon the finding that said petitioner had failed to establish a “reasonable likelihood” that he would be unable to obtain a fair trial.
The Brian W. court found the media coverage had not been excessive or sensational. (Id., at p. 624.) Even substantial publicity where there is a very large pool of potential jurors coupled with appropriate safeguards in the conduct of judicial proceedings was held to “make(s) it highly probable that an impartial jury can be impanelled.” (Id., at p. 625.)
[448]The Supreme Court also noted that such measures as change of venue, postponement of trial, conducting a searching voir dire, giving clear and emphatic instructions to the jury, and sequestration protect the defendant and insure the constitutionality and fairness of proceedings against him. (Ibid.)
Following the discussion in Brian W. as to the nature of press access to juvenile hearings, the Legislature amended section 676.
The plain language of the amendment indicates a legislative intent to increase access to juvenile hearings. The legislative history supports this conclusion. In numerous documents discussing Assembly Bill No. 1374 (1979-1980 Reg. Sess.), the bill to amend section 676, comparisons were made between the access afforded under Brian W. and the additional access which Assembly Bill No. 1374 (1979-1980 Reg. Sess.) would allow.4
The Senate Committee on Judiciary stated “[t]he purpose of this bill is to make minors more fully responsible for their crimes, to make juvenile court judges more accountable to the public, and to increase public understanding of the juvenile court system.”5 Moreover, the legislative history indicates that juvenile fitness hearings were intended to be open to the public even in highly publicized cases.6
The legislative intent in amending section 676 to provide additional public access to fitness hearings is both in accord with the traditional openness of judicial proceedings and a response to public concern about the increase in criminal activity among young people. As then Attorney General George Deukmejian observed, “Minors are committing more serious and violent crimes than ever before and are becoming more criminally sophisticated. The news media, victims of crime and the public are entitled to have as much knowledge as possible about the juvenile justice system and what it [449]is doing to better serve public safety needs. Obviously, this cannot be accomplished unless the public is informed by timely access to juvenile court proceedings.”7
The clearly expressed legislative intent in the amendment of section 676 therefore must govern our perspective of the case before us. Notwithstanding this view, we are nevertheless confronted with the meaning of the language used by the Legislature that public admission, including press, should be on the same basis as “trials in a court of criminal jurisdiction.” (§ 676, subd. (a).)
Obviously a fitness hearing is not a “trial,” nor like a trial in any way. But equally relevant, there are no established standards for closing trials in California.
In an effort to fashion a reasonable standard and clarify this ambiguity, we seek direction from several sources. An overview of the historical openness of criminal trials is provided by the United States Supreme Court in two recent cases. (Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555 [65 L.Ed.2d 973, 100 S.Ct. 2814]; Press-Enterprise Co. v. Superior Court (1984) 464 U.S. 501 [78 L.Ed.2d 629, 104 S.Ct. 819].) The United States Supreme Court discussed the important function traditionally provided by open judicial proceedings. Open courtrooms have furnished a significant community therapeutic value, providing a focus for public concern for public, safety, and enhancing the integrity of the judicial system. As the plurality opinion in Richmond Newspapers observed, the history of openness in judicial proceedings reflects the public’s “fundamental, natural yearning to see justice done” and the need for public acceptance and support of the court system. (Richmond Newspapers, Inc. v. Virginia, supra, at p. 571 [78 L.Ed.2d at p. 986].)
The public policy of California also requires open judicial proceedings whenever there is no conflict with a defendant’s right to a fair trial. In dealing specifically with preliminary hearings, the Supreme Court proclaimed in Press-Enterprise Co. v. Superior Court (1984) 37 Cal.3d 772, 780 [209 Cal.Rptr. 360, 691 P.2d 1026] that open hearings “guard against persecution and favoritism, . . ., inspire confidence in the criminal justice system, and serve the cathartic needs of the community. ”
The conflict between the right of public access and the right of an accused to a fair trial has been considered many times. (See, e.g., Nebraska Press [450]Assn. v. Stuart (1976) 427 U.S. 539 [49 L.Ed.2d 683, 96 S.Ct. 2791]; Gannett Co. v. DePasquale (1979) 443 U.S. 368 [61 L.Ed.2d 608, 99 S.Ct. 2898].) In United States v. Brooklier (9th Cir. 1982) 685 F.2d 1162, the court discussed issues raised during voir dire and certain motions made during trial. There the Ninth Circuit held closure of criminal proceedings requires the accused to establish that closure is “strictly and inescapably necessary” in order to protect fairness of the trial. (United States v. Brooklier, supra, at p. 1167.)
The Brooklier court determined the defendant could discharge this burden by demonstrating a substantial probability that (1) irreparable damage to the right to a fair trial will result from conducting the proceedings in public, (2) alternatives to closure will not adequately protect the right to a fair trial, and (3) closure will effectively protect against the perceived harm. (Ibid.)
It has been suggested that United States v. Brooklier, supra, 685 F.2d at page 1167, should be looked to as a guide, with its test of “substantial probability” of prejudice that press coverage would prevent a fair trial before closure would be permitted.
However, as noted, the California Supreme Court in discussing the same issue but in the context of preliminary hearings, has adopted a standard which requires the defendant to establish “a reasonable likelihood of substantial prejudice after all the evidence is considered” before the preliminary hearing may be closed. (Press-Enterprise Co. v. Superior Court, supra, 37 Cal.3d at p. 782.)
The California Press-Enterprise Co. dealt with the appropriate standard to be applied by a magistrate in determining whether the public’s right to access to preliminary hearings should be limited due to the risk of impairment of a defendant’s right to a fair trial. (Id., at p. 774.) The California Supreme Court therein analyzed Penal Code section 868 before and after its amendment effective March 1982, which amendment now provides that a preliminary examination “shall be open and public.”
Penal Code section 868 enables the closing of a preliminary examination on request by the defendant based on a magistrate’s finding “that exclusion of the public is necessary in order to protect the defendant’s right to a fair and impartial trial, ...” (Italics added.) Press-Enterprise Co. v. Superior Court, supra, 37 Cal.3d at page 779, reasons that because of the legislative history of the amendment and the lack of a definition of “necessary,” the Legislature intended the courts to determine the appropriate standard, and Press-Enterprise Co. did so.
[451]The court concluded: “Once a defendant establishes a reasonable likelihood of substantial prejudice, there is a clear and present danger of prejudice, and the prosecution or media may overcome the defendant’s showing by a preponderance of the evidence to the effect that there is no reasonable likelihood of prejudice.” (Id.., at p. 782.)
In discussing the meaning of “necessary” against the backdrop of the legislative intent which accompanied the amendment of Penal Code section 868 proclaiming that open preliminary hearings would be the rule rather than the exception, the majority opinion, along with the concurring, and the concurring and dissenting ones, found only slight differences in two proposed standards for closure. The two standards considered are “a substantial showing of potential prejudice,” and “a reasonable likelihood of substantial prejudice,” and the court opted for the latter. (Ibid.) However, the concurring opinion stressed that “the determination of ‘necessity’ must inevitably be a matter of judgment based on probabilities, ...” (Id., at p. 782, italics added.)
It is legally and factually difficult to equate a fitness hearing to a trial. A fitness hearing has a specific purpose very different from that of a trial, or a preliminary hearing. Because the standard to be utilized in closing a trial to the press has not been fully developed by the United States or the California courts, the directive of section 676 is not of much assistance to the courts, rather like the ambiguity of “necessary” in Penal Code section 868. The standards suggested by the majority and dissent in the California Press-Enterprise Co. case are substantially similar, or “[wjhile there is some difference between the two standards, it obviously is not very great.” (Id., at p. 781.)
Therefore, we conclude that fitness hearings, like preliminary hearings and trials, should be open, unless a minor can establish a reasonable likelihood of substantial prejudice to the right to receive a fair and impartial trial. This test has already withstood scrutiny by the California Supreme Court in Press-Enterprise Co. v. Superior Court, supra, 37 Cal.3d at page 782, Brian W. v. Superior Court, supra, 20 Cal.3d at page 624, and Odle v. Superior Court (1982) 32 Cal.3d 932, 937 [187 Cal.Rptr. 455, 654 P.2d 225], if not as applied to “trials,” at least as to situations requiring examination of similar issues and comparable rationales.
2. The respondent court abused its discretion.
There can be no doubt that “the primary right is the right to a fair trial and that the public right of access must give way where there is conflict.” (Press-Enterprise Co. v. Superior Court, supra, 37 Cal.3d at [452]p. 781.) However, in cases involving closure, the question is whether the court exerted its discretionary power to limit public access in a manner which neither denied nor abridged the freedoms associated with open judicial proceedings. The issue must be resolved on a case-by-case basis after consideration of all relevant factors and all alternatives to closure.
Because of the dearth of any evidentiary basis to uphold the ruling, we determine the respondent court abused its discretion in closing the fitness hearing.
a. No evidence of the circulation of papers with prejudicial publicity.
There is not one shred of evidence as to the circulation of the papers covering the incidents. On this subject, the record reflects that the minor’s attorney, Mr. Diamond, made an offer of proof that the press coverage had been “overwhelming” and “extensive,” and his willingness to call reporters to establish the evidentiary basis. The respondent court found it “unnecessary” to do so. Thereafter, Mr. Diamond indicated that “we can assume for purposes of discussion that the press coverage has been extensive, overwhelming and inaccurate.”
A recess was declared, and upon resumption, the respondent court indicated it had about 12 articles in chronological order, provided by “its staff,” which the respondent court thereafter directed to be marked as exhibits, along with one from the other minor’s file by reference.
The respondent court then made the statement: “At this juncture I am more concerned with whether or not on the merits of the issue that is presently before me, given the broadcast and sweeping dissemination of information in the print media, whether that now justifies my closing the hearing.” (Italics added.)
At another point in the hearing, the respondent court merely observed that: “The Valley News is now one of the fastest growing papers in this country. Fastest growing and very important and certainly they are on a collision course with the L.A. Times with regard to who [s/c] is going to get more readers, [¶] Certainly in the Valley that is true, and it is an open secret that it is owned by the Chicago Tribune, and they are a very aggressive paper, trying desperately to encroach upon the L.A. Times who has a perceived monopoly of newspaper circulation here in the Greater Los Angeles County area, [¶] Now we have this all-pervasive publicity being undertaken, specifically by the Daily News with all sorts of articles, ...” (Italics added.)
[453]At page 54 of the reporter’s transcript, the respondent court stated, “I am not willing to characterize [the press coverage] as extreme press distortion,” and then again discusses the “unrestricted dissemination of information,” as “widely disseminated to a public.” Finally, the respondent court issues a tentative ruling to exclude the press because, inter alia, “there is a reasonable probability of prejudice because of the all-pervasive publicity that has been exhibited thus far . . . .”
However, although about 15 newspaper articles were apparently received in evidence, and the contents read into the record and extensively argued, there is no evidence as to the circulation of the newspapers involved. This court has no way of knowing, or reviewing, whether the circulation of any or all of the three papers covers a thousand households, ten thousand, or a million, or, for that matter, the communities within Los Angeles County where the circulation occurred. Significantly, there is no evidence in the record of coverage by television or radio nor the metropolitan edition of the Los Angeles Times.
b. Inadequate notice given.
A preliminary question is whether adequate notice was provided to the press of the hearing on the motion to close the fitness hearing, assuming notice is required.
The record reflects the hearing started out as the fitness hearing scheduled for that date, the time then being 11:38 a.m. After matters relating to the fitness hearing were discussed, Mr. Diamond brought up the question as to whether the fitness hearing should be closed because of the Daily News coverage. The respondent court responded by indicating “[w]e are not going to have a full-blown hearing on whether or not the press should be admitted to this hearing. . . . You should have filed a written motion giving, not only Notice to this Court and the People, but to the media so they could have a representative to represent their own best interests.”
Nonetheless, moments later, the respondent court agreed to have a formal hearing on closure that day at 1:45p.m., and stated to the reporters present in the courtroom from the Daily News and the Los Angeles Times that “the media will have to have their representatives down here at 1:45.” That afternoon at 2:30 p.m. the hearing resumed with only Dan Marmalefsky as counsel for the Daily News appearing. Mr. Marmalefsky indicated he first heard of the case at 12:30 p.m. that date but the record reflects he did not [454]request a continuance. No counsel were present from the Los Angeles Times or the Herald Examiner or any other component of the news media.
Irrespective of the short notice and absence of counsel for the other papers covering the story, the hearing went forward with Mr. Diamond’s argument for closure based on the extent and nature of the press coverage, claiming further adverse publicity would prejudice his client and make it impossible for him to get a fair trial with a jury in the jurisdiction.
Obviously, this hearing was not properly noticed to interested parties. Less than two hours notice hardly allows time for the preparation that may be necessary to overcome a prima facie showing of cause for closure. Waiver is not a legitimate argument here because of the lack of notice and the absence of legal representation from the other newspapers involved.
On this record, the press was not provided a fair opportunity to participate.
c. Brian W arguments.
The minor’s claim that if he is certified to adult criminal court after his fitness hearing, press attendance at said hearing will result in prejudicial publicity and jeopardize his right to a fair trial is almost identical to the argument made and rejected in Brian W. v. Superior Court, supra, 20 Cal.3d 618. The minor’s counsel here maintained that sensitive and detailed information about his family background, his personal history, and damaging statements about his participation in the robberies, will all come out at the fitness hearing. Granted, such evidence may or may not be admissible in an adult criminal court, and as argued in Brian W., “thus magnifying the prejudicial effect of dissemination by the press of information obtained at the hearing.” (Id., at p. 624.)
However, “[i]n rejecting this argument, the [Brian W. ] court below found that petitioner [minor] failed to establish a ‘reasonable likelihood’ that he will be unable to obtain a fair trial.” (Ibid.) In upholding the lower court’s ruling, the Supreme Court in Brian W. concluded the finding had “ample support.” (Ibid.)
The fact of prejudicial publicity and its questionable admissibility in adult criminal court should be but one factor for a trial court to consider in ruling on a motion to close a fitness hearing. Certainly prejudicial publicity should not per se be grounds to prevent public access.
[455]d. Surnames not confidential.
The respondent court was also concerned with the news media’s use of the minors’ surnames. Section 676, subdivision (c), specifically provides: “The name of a minor found to have committed one of the offenses listed in subdivision (a) shall not be confidential, unless the court, for good cause, so orders.” (Italics added.) The United States Supreme Court has also held that states cannot impose criminal sanctions for the truthful publication on the lawfully obtained name of an alleged juvenile delinquent. (Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97 [61 L.Ed.2d 399, 99 S.Ct. 2667].)
Here, the minor was accused of robbery while armed, which is one of the offenses listed under section 676, subdivision (a). Further, the media could, and did, ascertain surnames from many sources outside the fitness hearing. Use by the media of a minor’s surname should be but a factor in the consideration of closure.
3. Potential juror pool large.
The size of the jury pool in Los Angeles County is an important factor which must be considered prior to closure of a judicial proceeding.8 The respondent court rhetorically reflected: “The question arises whether or not in L. A. County—and I realize this is a big county. What do you have? 7, 8 million people in this county—whether or not we are going to create such a climate of unholy interest, poisoned by information which has nothing to do with guilt or innocence, but rather information that relates to family dynamics with which a juror should be totally unfamiliar and be uninfluenced by now being exposed to that information is certainly in a position not to say that they are fair and impartial, or at least their statement that they can be fair and impartial is open to some question. [¶] Why should we create the climate to set it up for automatic appeal were we to have an all-pervasive dissemination of inflammatory information? [¶] Why should we create the climate, even arguing for moment we might be able to find somewhere in this county twelve people who haven’t heard of this case and had no interest and could give the minor a fair trial? [¶] Why should the taxpayers underwrite six weeks of sequestration of jurors at a cost often thousand dollars a day to select a fair and impartial jury?” (Italics added.)
[456]There is absolutely nothing in the record to support the observations of the respondent court.
The Tribune’s counsel, Mr. Marmalefsky, argued it was the minor’s burden to show he could not find 12 jurors in Los Angeles County who could fairly try the case. He stated to his knowledge, there was no publicity in the Los Angeles Times. The respondent court responded there was some, but did not indicate the Los Angeles Times’ articles appeared only in the valley edition, as the record discloses.
The considerations for closure are not unlike those for change of venue, namely, a contention that widespread and prejudicial publicity precludes a defendant from receiving a fair trial in the county where the crimes were committed. In Odle v. Superior Court, supra, 32 Cal.3d at pages 935-936, the Supreme Court denied a petition for writ of mandate seeking a change of venue for a defendant who was charged with the murders of a police officer and a young woman in Contra Costa County, which crimes received extensive media coverage.
The Odie court stated “each case must be decided on its own facts . . . we examine the record and attempt to isolate the factors which should affect our determination.” (Id., at p. 938, italics added.) The court considered the size of the community, the nature and extent of publicity, the status of the accused and the victims, and the nature and gravity of the offense.
On the extent of the publicity, there was specific evidence as to circulation figures—the approximate circulation, the area covered, and the days of the week circulated, i.e., “a countywide newspaper with circulation of approximately 100,000 (6 days a week).” (Id., at p. 939, fn. 5.) The Odie court made the observation: “The size of Contra Costa County and the fact that the publicity was not pervasive in a geographic sense is an important factor in this case.” (Id., at p. 942.) The court was using the “reasonable likelihood that a fair trial could not be had in the absence of a change of venue” standard. (Id., at p. 946.)
The Odie majority makes no mention of cost as a factor. However in the dissent, Justice Mosk recognizes “the considerable burden on the administration of justice and the cost to the public resulting from the change of venue in a major case.” Justice Mosk goes on to point out a possible alternative: “import a jury venire from outside the county.” (Id., at p. 958.)
Inflammatory news coverage in a newspaper of limited circulation is not sufficient for closure. In People v. Jacobson (1965) 63 Cal.2d 319 [46 Cal.Rptr. 515, 405 P.2d 555], cert. den. 384 U.S. 1015 [16 L.Ed.2d 1036, [45786] S.Ct. 1954], morning and evening editions of a Long Beach newspaper had carried front page stories featuring defendant’s own incriminating statements as well as a picture of defendant in a comical pose. Although the jury voir dire was lengthened because persons influenced by the press coverage had to be excused, a jury was eventually selected which included no one who could remember reading of the crime. Several persons on the jury panel stated that they did not read the newspaper in question at any time. (Id., at p. 325.)
Here, most of the publicity was apparently limited to the San Fernando Valley. It is highly probable that a large jury pool exists in Los Angeles County which never read the news coverage in the Daily News or the valley edition of the Los Angeles Times. Admittedly, some articles appeared in the Herald Examiner, but again, there was no evidence as to the circulation of the paper on the approximate eight days from the end of May to June 25, 1985, that stories ran, as disclosed by the record.
The argument of potentially tainted jurors and inability to get an impartial jury was also raised and rejected in Brian W. The Supreme Court stated therein: “Finally, petitioner overestimates the impact that even substantial publicity might have on the very large pool of potential jurors. Proceedings in this case are being held in Los Angeles County, which has a population of more than 7 million persons; the large number of people available for jury service, when coupled with appropriate safeguards in the conduct of judicial proceedings, makes it highly probable that an impartial jury can be impanelled. (See, e.g., People v. Manson (1976) 61 Cal.App.3d 102, 173-192 [132 Cal.Rptr. 265].) [¶] The court can further lessen the impact of adverse publicity, if it occurs, by utilizing one or more of a panoply of measures available to protect the defendant and ensure the constitutionality and fairness of proceedings against him. Such measures include granting a change of venue, postponing trial until the effect of pretrial publicity subsides, conducting a searching voir dire, giving clear and emphatic instructions to the jury, and sequestering its members. [Citations.] Postponement and change of venue are not entirely satisfactory remedies, of course, as they may indirectly affect the defendant’s right to a speedy trial in the district in which the crime was committed.” (Brian W. v. Superior Court, supra, 20 Cal.3d at p. 625, fn. omitted.)
There was no evidence in this record that any of the alternatives to a trial in the San Fernando Valley, as suggested by Brian W., were considered. The Los Angeles County Superior Court has numerous branches, excluding San Fernando Valley, within close proximity of the valley courts. The trial could be transferred locally to another branch of the Los Angeles County Superior Court system. There may also be the possibility of untainted po[458]tential jurors being bused into the San Fernando Valley from other areas of Los Angeles County, but that avenue was not explored either. (Odle v. Superior Court, supra, 32 Cal.3d at p. 958 (dis. opn. of Mosk, J.).) Another possibility is the sound exercise of the court’s discretion to exclude the public from those portions of the hearing involving exceptionally sensitive material such as the probation officer’s behavioral study.
4. Cost factor not controlling.
It would be a dangerous and totally unacceptable precedent to hold that alternatives to a jury trial within an area where prejudicial publicity has circulated need not be pursued before the press is excluded, based on a cost factor.
In dictum, the California Supreme Court made the following statement: “Changes of venue or continuances may subject the parties and courts to considerable inconvenience or expense . . . .” (San Jose Mercury-News v. Municipal Court (1982) 30 Cal.3d 498, 513 [179 Cal.Rptr. 772, 638 P.2d 655].) Expense to those parties and courts was not a discussed factor, much less a deciding one in San Jose Mercury-News, nor in Odie.
It would seem the complete lack of case authority on point is due to the fact that when balancing the interest of minimizing the expense in the impaneling of an impartial jury against the interests of preserving rights of public access and a free press, it is quite apparent there it is no contest. To conclude otherwise is untenable. There may come the egregious fact situation that calls for a discussion of balancing costs as a serious factor, but this case does not rise to that posture.
Many cases involving sensational, bizarre, lurid and offensive fact situations, which have received extensive television, radio and press coverage in a broad area, have been tried to a jury of 12 impartial persons. (See, e.g., People v. Sirhan (1972) 7 Cal.3d 710, 728-733 [102 Cal.Rptr. 385, 497 P.2d 1121], cert. den. 410 U.S. 947 [35 L.Ed.2d 613, 93 S.Ct. 1382]; People v. Manson (1976) 61 Cal.App.3d 102, 181-192 [132 Cal.Rptr. 265], cert. den. 430 U.S. 986 [52 L.Ed.2d 382, 97 S.Ct. 1686].)
Media dissemination of the alleged facts of horrifying and threatening criminal activity, particularly multiple murders, unfortunately is a fact of life in our society. The news reports may, and do, contain inadmissible hearsay, rank and unfounded opinions, incriminating statements, inaccurate sketches and more. But our criminal justice system is deemed to be hearty enough to withstand prejudicial publicity and still guarantee a given defendant the most basic right to receive a fair trial. In this regard, the cost to the [459]criminal justice system to provide a fair trial is the price we pay for an open society, and a free press with access to criminal proceedings.
5. All alternatives must be considered prior to a closure order.
Admittedly, the respondent court was sailing uncharted waters in trying to fashion a test for closure. However, it had some guidance from section 676, which had been amended since Brian W. was decided in 1978, expressing the clear intent of the Legislature favoring openness as the rule, not the exception.
That a hearing should take place on this issue is rather basic, and a hearing requires notice. Press-Enterprise Co. places the burden on the defendant to establish a “clear and present danger of prejudice,” which may be overcome by a preponderance of the evidence. (Press-Enterprise Co. v. Superior Court, supra, 37 Cal.3d at p. 782.) In Brian W., petitioner also had the burden. (Brian W. v. Superior Court, supra, 20 Cal.3d at p. 624.)
The test the respondent court was contemplating, “a reasonable probability of prejudice,” is a somewhat lesser standard than “a reasonable likelihood of substantial prejudice” or “a substantial probability of prejudice.” However, as previously noted, in the final analysis the ruling must be a “matter of judgment based upon the probabilities. ” (Press-Enterprise Co. v. Superior Court, supra, 37 Cal.3d at p. 782 (cone. opn. of Grodin, J.).) To be upheld as a sound exercise of discretion, a court’s decision must be based on a consideration of all relevant factors, measured against the appropriate standard.
This record is lacking in several particulars. The hearing went forward with inadequate notice to interested parties. The respondent court closed the hearing due to potential prejudice without any evidentiary basis as to the area and amount of circulation of the newspapers in which the articles appeared. Assuming an unresolvably tainted, or potentially tainted local juror pool, no alternative measures were considered.
The reasons expressed by the respondent court for granting the minor’s motion for closure, assuming they were valid in and of themselves, were still not adequate to be controlling, but only amounted to factors to be considered along with others. One such factor to be given substantial weight is the fitness hearing itself, because of the point in time at which it occurs, and the crucial and sensitive nature of potential testimony.
Prejudicial publicity does not per se necessitate an order barring public access to judicial proceedings, given the size of the potential jury pool in [460]Los Angeles County. However, irresponsible media by their actions may well forfeit the right of access in flagrant fact situations.
Before ordering closure, the respondent court should consider: (1) the nature and extent of the media coverage, including circulation figures and geographical distribution; (2) possible transfer to a branch of the Los Angeles Superior Court outside San Fernando Valley; (3) feasibility of transporting jurors from another area of the county to the San Fernando Valley court; (4) a change of venue; (5) protection afforded by a searching voir dire of potential jurors; and (6) sequestration of the jury panel. Alternative measures may present difficulties for trial courts but none are beyond the realm of the manageable.
Based on the record before us, it has not been shown publicity would distort the views of potential jurors so that 12 jurors could not be found in Los Angeles County who would fulfill their duty to render a just verdict based solely on the evidence presented in open court. (See Nebraska Press Assn. v. Stuart, supra, 427 U.S. 539.)
Because this record is so incomplete and inadequate, it does not form a solid basis to support the respondent court’s closing the fitness hearing, and therefore, the ruling constituted an abuse of discretion.
Disposition
The matter is remanded with instructions to conduct a hearing, duly noticed, for consideration of all relevant factors to be weighed in a determination of whether the minor has met his burden of establishing that the adverse publicity has created a reasonable likelihood of substantial prejudice to his right to a fair and impartial trial, and to provide the public and press an opportunity to overcome the minor’s showing by a preponderance of the evidence that there is no reasonable likelihood of substantial prejudice.
The alternative writ of mandate is discharged and the temporary stay order is dissolved.
Danielson, J., concurred.
Mark B. obtained permission to proceed with his fitness hearing with press and public present. Michael M. chose to wait for appellate determination on the public access issue.
After notice of our stay order, respondent court conducted further proceedings and modified its order by changing future hearings to “fitness hearings” and striking that portion of its order prohibiting the press from contacting any party present at the hearings. In view of our stay order, these proceedings were inappropriate.
All further code references are to the Welfare and Institutions Code, unless otherwise indicated.
Senate Committee on Judiciary, analysis of Assembly Bill No. 1374 (1979-1980 Reg. Sess.); Assembly Committee on Criminal Justice, Analysis of Assembly Bill No. 1374 (hearing Apr. 30, 1979 and hearing June 21, 1980); Senate Republican Caucus, Third Reading analysis of Assembly Bill No. 1374 (Mar. 31, 1980); California Department of Legal Affairs, Enrolled Bill Report on Assembly Bill No. 1374, by J. Anthony Kline, legal affairs secretary (June 6, 1980); California Department of Youth Authority, Enrolled Bill Report on Assembly Bill No. 1374, by Richard Lew (June 30, 1980); California Assemblyman Gerald N. Pelando (author of Assem. Bill No. 1374) letter to California Governor Edmund G. Brown, Jr., dated June 23, 1980).
Senate Committee on Judiciary, analysis of Assembly Bill No. 1374 (1979-1980 Reg. Sess.). Also see letter dated June 23, 1980, to California Governor Edmund G. Brown, Jr., from California Assemblyman Gerald N. Pelando (author of Assem. Bill No. 1374).
See Department of Finance Report, Enrolled Bill Report on Assembly Bill No. 1374 (Mar. 27, 1980); Ways and Means Committee Staff Analysis on Assembly Bill No. 1374 (Jan. 23, 1980).
Attorney General George Deukmejian, letter in support of Assembly Bill No. 1374 to California Governor Edmund G. Brown, Jr., dated June 27, 1980.
Pursuant to Evidence Code section 452, subdivisions (g) and (h), we take the judicial notice that Los Angeles County covers 4,083 square miles and had a population of 7,867,181 as of January 1985. (Information supplied by Los Angeles County Department of Planning.) The potential jury pool consists of the total voting age population. The 1980 census found 5,446,115 persons over 18 in Los Angeles County. (Information supplied by Jury Services Division of Los Angeles County Superior Court.)