Opinion
NOT TO BE PUBLISHED
Super. Ct. No. P03CRF0593
CANTIL-SAKAUYE, J.
In a criminal case, the trial court entered an order barring the parties from disseminating to members of the press or public certain items of tangible evidence, such as autopsy reports, investigative reports, crime scene photographs, crime scene diagrams or other similar items. This writ proceeding challenges the trial court’s refusal to lift its order as to the coroner and autopsy reports of the victim, Elizabeth Cloer, in the case. Petitioner Kathryn Dixon, a news reporter, claims the “gag order” constitutes an unconstitutional restriction on her right to access public records and to report on the pending criminal trial.
Strictly speaking the order of the trial court does not “gag” the prosecution and defense teams. It does not prevent their speaking with the press, but their dissemination of items of tangible evidence to the press. Nevertheless, for convenience we will refer to the order as the gag order.
As the findings of the trial court necessary to support its refusal to lift the order were not supported by any evidence, we shall grant the petition. We shall direct the trial court to vacate its March 9, 2007, order and enter a new order lifting its gag order as to the coroner and autopsy reports of Elizabeth Cloer so that petitioner may pursue, if she chooses, litigation to challenge the Sheriff-Coroner’s claim of exemptions under the California Public Records Act (CPRA) for production of such reports.
FACTUAL AND PROCEDURAL BACKGROUND
The body of Elizabeth Cloer was found in an open field in El Dorado County on the afternoon of June 19, 1971. Thirty-one years later, in 2002, DNA analysis of evidence from the scene produced a DNA profile that appeared to be consistent with the DNA of Phillip Thompson. In 2003, murder charges were filed against Thompson.
In July 2006, the trial court issued an order “to the District Attorney’s Office and other members of the ‘prosecution team’” and to defense counsel “and other members of the ‘defense team’” prohibiting them from “disseminat[ing] items of tangible evidence such as autopsy reports, investigative reports, crime scene photographs, crime scene diagrams and such similar items discoverable under Penal Code Section 1054, et. seq. to members of the press or public.” The order stated, however, that it did not restrict “any party (press, public or otherwise) from obtaining any information that is available under a Public Records Act request.”
Petitioner subsequently made a request pursuant to the CPRA (Gov. Code, § 6250 et seq.) to the El Dorado County Sheriff-Coroner for the complete coroner and autopsy reports regarding Cloer. County counsel for El Dorado County wrote a letter to petitioner denying her request. The letter asserted the Sheriff’s Department was a member of the prosecution team bound by the trial court’s order prohibiting dissemination of any items of tangible evidence, including the victim’s autopsy report, making the autopsy report exempt from disclosure under section 6254, subdivision (k) of the CPRA. The letter also stated the coroner and autopsy reports were not available under the CPRA exemption for investigatory records (§ 6254, subd. (f)) and the catch-all exemption for situations where the public interest served by non-disclosure clearly outweighs the public interest served by disclosure. (§ 6255, subd. (a).) The letter asserted the public interest in obeying court orders and in fair trials clearly outweighed the public interest in disseminating the coroner and autopsy reports.
Hereafter, undesignated statutory references are to the Government Code.
In response to the letter, petitioner filed a motion, in the criminal action against Thompson, seeking an order requiring the Sheriff-Coroner to provide her with a complete copy of the coroner and autopsy reports. As a news reporter, petitioner claimed she had standing to challenge the gag order issued by the trial court. Petitioner asserted the order did not bar the release of the coroner’s report because the coroner, despite El Dorado County’s consolidation of the coroner’s duties with the duties of the county sheriff, was not part of the “prosecution team” and because the coroner and autopsy reports were public records not exempt from disclosure under the Public Records Act. Petitioner claimed a gag order prohibiting disclosure of the coroner and autopsy reports was not justified under the tests articulated by the United States Supreme Court in Press-Enterprise Co. v. Superior Court (1984) 464 U.S. 501 [78 L.Ed.2d 629] (Press-Enterprise I) and Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1 [92 L.Ed.2d 1] (Press-Enterprise II).
Neither county counsel, the People, nor defense counsel filed any written response to petitioner’s motion. However, a deputy county counsel, the prosecutor and defense counsel all appeared at the hearing held on petitioner’s motion in the trial court.
The hearing began with an initial discussion of the procedural status of the matter before the court. Specifically, petitioner argued at the hearing the trial court’s order should not be interpreted to cover the 1971 coroner’s report and the coroner should be ordered to provide her with a copy of it. The prosecutor contended the issue before the court was not the merits of petitioner’s CPRA request as the motion filed by petitioner in the criminal action was not an appropriate procedural method to challenge a refusal to produce records. (See §§ 6258, 6259.)
The trial court agreed with the prosecutor. The trial court stated it was restricted to reviewing the gag order it had previously issued. If it removed that gag order, petitioner would have to follow the normal course to pursue her public records request. The gag order would simply be removed as an impediment to compliance with the CPRA. With that understanding, the trial court directed the parties to address the effect that an order removing the coroner’s report and autopsy report from the gag order would have on the criminal trial.
Petitioner later expressed her willingness to pursue her CPRA remedies, stating she was “very capable of filing a writ immediately[,]” but she felt she had to come first to this court “for interpretation” of its order.
The prosecutor argued the order was necessary to protect the integrity of the prosecution and that disclosure would jeopardize the ability of both sides to obtain a fair trial. As background, the prosecutor informed the court that the coroner’s report and autopsy report in this case were actually part of a broader investigative report prepared by a sheriff lieutenant. According to the prosecutor, the “report contains much more information, information that relates to the investigation of the case as opposed to strictly what would be deemed coroner’s information as set forth in that Government Code Section 27463.” The prosecutor argued the investigative information contained in the report regarding “defendant’s history, the violent nature of the accusations in this case, graphic description and details that were contained in the reports, could in effect prejudice the defendant in the eyes of the potential jury pool[.]” Dissemination of the reports would also, according to the prosecutor, compromise its continuing investigation of the case by potentially tainting witnesses and possibly promoting false confessions. Neither the prosecutor nor the deputy county counsel produced a copy of the report for the trial court’s review.
Petitioner expressed surprise that the report contained so much. If the report contained prejudicial matters, petitioner contended the appropriate remedy was redaction. The trial court noted petitioner had asked for an unredacted copy. Petitioner responded that was before she knew the reports contained additional information. She stated she was only looking for the material required by the Government Code for a coroner’s report. Petitioner continued to argue the public’s strong interest in the case.
Defense counsel sided with petitioner. According to the defense, the case had already received extensive newspaper coverage which included a lot of comments and statements from the prosecution and law enforcement. The information contained in the reports was not new, but already out in the public domain. The defense took the position the coroner’s and autopsy reports should be disclosed.
The prosecution disagreed with the defense that there had been extensive coverage of the case and invited evidence showing such coverage. The prosecution claimed it was not hiding anything, but just trying to preserve the integrity and fairness of the parties. Noting that the case was 36 years old, the prosecution claimed there was no urgency to release the reports until the trial was over. The prosecution also contended the victim’s family had to be notified before the autopsy report could be released to allow them to present argument regarding confidentiality of the medical information.
Petitioner offered to present such evidence, representing she had “a good six inches thick of press reports and internet reports[.]” The trial court did not accept petitioner’s offer.
Although the parties presented substantial argument to the trial court, as we have summarized, the parties presented no evidence at the hearing.
After the parties finished their arguments, the trial court ruled. It stated the court had an obligation to protect the defendant’s right to a fair and impartial jury even if the defendant did not make that request. It then stated that while the coroner and autopsy reports are public records and should be open for inspection by the public, such presumption of openness could be overcome by an overriding interest. The court found such overriding interest. The trial court stated its “specific finding that releasing the autopsy report and the coroner’s report at this juncture . . . could taint the jury pool and could taint the investigation in this case.” The court “specifically [found] that releasing the autopsy report and the coroner’s report in this particular case would jeopardize the right of the defendant to a fair and impartial jury making a determination of the charges against him.” Concluding the order was “as narrowly tailored as I can make it[,]” the court reaffirmed its prior order. The minute order for the hearing confirms the trial court’s reaffirmance of its previous order regarding the coroner’s report.
Petitioner filed this proceeding seeking a writ directing the trial court to set aside and vacate its order with respect to her request for the coroner and autopsy report. We issued an alternative writ.
DISCUSSION
It is important to recognize what was at issue before the trial court and, therefore, at issue here. The El Dorado County Sheriff-Coroner denied petitioner’s CPRA request for the coroner and autopsy reports, related to Cloer, on three grounds, including that disclosure was precluded by the criminal court gag order. Seeking to address this ground, petitioner filed a motion in the criminal court essentially asking the trial court to clarify that its order did not cover the coroner and autopsy reports or to modify its order to exclude those reports. As the trial court properly recognized, the motion before it related solely to its previously entered gag order. Petitioner’s motion was not a proceeding pursuant to the CPRA. (§§ 6258, 6259; Filarsky v. Superior Court (2002) 28 Cal.4th 419, 435 [§§ 6258 & 6259 provide exclusive procedure for litigating disputes regarding a person’s right to obtain records under the CPRA].) If the trial court removed the “impediment” of its gag order, petitioner would still have to pursue her CPRA remedies to obtain the reports. The trial court concluded an overriding interest justified its order precluding the disclosure of the coroner and autopsy reports. The sole issue before this court is the validity of that conclusion by the trial court.
Only the People, as one of the real parties in interest, have responded to this writ proceeding. The People contend petitioner lacks standing to challenge the trial court’s gag order and bring this petition. We disagree. The trial court’s order refusing to lift its previously entered gag order as to the Cloer coroner and autopsy reports doomed any further effort by petitioner to litigate the Sheriff-Coroner’s denial of her CPRA request for production of those reports. The potential for petitioner to obtain access to such reports through her CPRA request was specifically and directly impacted by the trial court’s order. Petitioner has standing to challenge such order. (Craemer v. Superior Court (1968) 265 Cal.App.2d 216, 218, fn. 1; see also In re Application of Dow Jones & Co. (2d Cir. 1988) 842 F.2d 603, 607 [potential recipients of otherwise restrained speech have standing to challenge restraint].)
We note County Counsel’s letter to petitioner regarding her CPRA request did not claim the reports were not “public records,” but asserted three statutory exemptions. The People now suggest coroner and autopsy reports are arguably not even public records. On the contrary, such reports are generated and kept as part of the coroner’s official statutory duties. (§§ 27463, 27463.5, 27491.) As such they come within the definition of “public records” for the purposes of the CPRA. (§ 6252, subd. (e) [“‘public records’” includes “any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics”]; Coronado Police Officers Assn. v. Carroll (2003) 106 Cal.App.4th 1001, 1006 [CPRA definition of public records “is broad and ‘“‘intended to cover every conceivable kind of record that is involved in the governmental process[.]’”’”]; see People v. Williams (1959) 174 Cal.App.2d 364, 390 [autopsy report is public record].) Whether the specific coroner and autopsy reports in this case are exempt from disclosure is not before us.
This brings us to the merits of petitioner’s claim that the trial court’s gag order as applied to Cloer’s coroner and autopsy reports constitutes an unconstitutional restriction on freedom of the press.
Petitioner argues the order was not justified under the standards required by Press-Enterprise I, supra, 464 U.S. 501 [78 L.Ed.2d 629] and Press-Enterprise II, supra, 478 U.S. 1, 13-14 [92 L.Ed.2d 1, 13-14]. Petitioner also relies heavily on People v. Jackson (2005) 128 Cal.App.4th 1009. Petitioner claims the applicable constitutional standards were not met because the trial court’s findings that disclosure would taint the jury pool and taint the investigation were not supported by the evidence. Analogizing this situation to one where a court “seals” records, petitioner also claims the trial court’s gag order did not comply with the requirements and procedure set forth in rules 2.550 and 2.551 of the California Rules of Court.
Claiming the petitioner’s authorities are not on point, the People contend the trial court’s order was justified under the standard set forth in Sheppard v. Maxwell (1966) 384 U.S. 333, 362-363 [16 L.Ed.2d 600, 620] and direct our attention to Hamilton v. Municipal Court for Berkeley-Albany Judicial Dist. of Alameda County (1969) 270 Cal.App.2d 797. The People argue the Rules of Court regarding sealing records have no application to this case.
We need not settle the dispute as to the standard applicable when a trial court considers an order preventing the disclosure of public records that relate to matters involved in a criminal case. Under any standard, a court must have evidence before it to justify required findings of fact. “‘“A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence.”’” (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, quoting People v. Morris (1988) 46 Cal.3d 1, 21.)
For example, the trial court here did not have any evidence before it of the nature and extent of publicity the case had already received, although petitioner offered to submit such evidence. The trial court had no evidence regarding the content of information already in the public domain. Specifically, there was no evidence as to whether the information contained in Cloer’s coroner and autopsy reports had previously been disclosed to members of the public or press in the intervening thirty plus years from when they were written. It also appears from the nature of the comments of the parties and the trial court at the hearing that the trial court never saw the actual sheriff’s report, which the prosecutor claimed contained the coroner and autopsy reports regarding Cloer. An in camera review of such document would have been appropriate in this case in order to (a) understand the arguments made by the parties regarding the nature of the report, (b) compare the information contained in the document with the information already in the public domain, (c) determine whether the release of any information would prejudice the parties’ right to a fair trial, and (d) consider whether redaction or other alternatives were available to protect the parties’ right to fair trial. The court had no evidence regarding the size of the potential jury pool available for defendant’s trial or the chances potential jurors would be exposed to the proposed publicity concerning this case. Simply put, there were many possible factors relevant to the issue (see, e.g., In re Willon (1996) 47 Cal.App.4th 1080, 1099-1100), but no evidence was submitted to the trial court on any of them. The parties simply argued their positions. “It is axiomatic that argument is not evidence.” (People v. Breaux (1991) 1 Cal.4th 281, 313; see Maudlin v. Pacific Decision Sciences Corp. (2006) 137 Cal.App.4th 1001, 1015.)
Without evidence on which to base its findings, the trial court clearly erred in refusing to lift its gag order as to the public records, the coroner and autopsy reports, so that petitioner could pursue her CPRA remedies. We shall grant the petition for a writ of mandate.
DISPOSITION
Let a peremptory writ of mandate issue directing the superior court to set aside and vacate its March 9, 2007, order and to enter a new order lifting its July 24, 2006, order as to the coroner and autopsy reports of Elizabeth Cloer so that petitioner may pursue, if she chooses, litigation to challenge the Sheriff-Coroner’s claim of exemptions under the California Public Records Act for production of such reports. Petitioner’s request for costs is denied. (Cal. Rules of Court, rule 8.490(m)(2).)
We concur: SCOTLAND, P.J., RAYE, J.