O

IN THE SUPREME COURT

OF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN,

Petitioner,

V.

SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent.

Grand Jury of the County of Los Angeles; County of Los Angeles;

John Van de Kamp; and curt Livesay,
Real Parties in Interest.

After a Decision by the Court of Appeal

Second Appellate District, Division Three
Case No. B199147

PETITION FOR REVIEW

John J. Collins, Esq.

Tomas A. Guterres, Esq.
Douglas Fee, Esq. (State Bar No. 116995)
COLLINS, COLLINS, MUIR & STEWART, LLP
1100 E1 Centro Street
South Pasadena, CA 91030
(626) 243-1100; (626) 243-1111 FAX
Attorneys for Petitioners for Review/Real Parties in Interest
COUNTY OF LOS ANGELES, JOHN VAN DE KAMP,
and CURT LIVESAY
 IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN,

Petitioner,

v.

SUPERIOR COURT OF LOS ANGELES COUNTY,

Respondent.

Grand Jury of the County of Los Angeles; County of Los Angeles;

John Van de Kamp; and curt Livesay,
Real Parties in Interest.

After a Decision by the Court of Appeal

Second Appellate District, Division Three
Case No. B199147

PETITION FOR REVIEW

John J. Collins, Esq.

Tomas A. Guterres, Esq.
Douglas Fee, Esq. (State Bar No. 116995)
COLLINS, COLLINS, MUIR & STEWART, LLP
1100 E1 Centro Street
South Pasadena, CA 91030
(626)243-1100; (626) 243-1111 FAX
Attorneys for Petitioners for Review/Real Parties in Interest
COUNTY OF LOS ANGELES, JOHN VAN DE KAMP,
and CURT LIVESAY
 TABLE OF CONTENTS

PETITION FOR REVIEW

ISSUE PRESENTED ............................................................... 1

WHY REVIEW SHOULD BE GRANTED ................................................ 2

FINALITY OF THE COURT OF APPEAL'S OPINION ..................... 2

FACTUAL BACKGROUND ..................................................... 2

LEGAL DISCUSSION ............................................................ 7

A. California's Broad Rule of Secrecy and Nondisclosure

Concerning Grand Jury Materials Must Prevail, Absent
Specific Statutory Exception ..................................... 7

CONCLUSION ..................................................................... 14
 TABLE OF AUTHORITIES
Cases

Allen v. Payne (1934) 1 Cal. 2d 607 ............................................. 13

Daily Journal Corp. v. Superior Court i

(1999) 20 Cal.4 th 1117 ..................................... 5, 10, 11, 12, 13

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211 (1979) ......... 6, 7

Ex Parte Sontag (1884) 64 Cal. 525 ............................................... 5, 6

Los Angeles Times v. Superior Court

(2003) 114 Cal.App.4 th247 ................................................. 5

McClatchy Newspapers v. Superior Court

(1988) 44 Cal.3d 1162 ................................................ 4, 5, 7

People v. Tinder (1862) 19 Cal. 539 ............................................. 12

Socialist Workers Party v. Grubisic,

619 F.2d 641 (7th Cir. 1980) .................................... ............. 7

StatuIes

42 U.S.C. § 1983 ..................................................................... 3

Penal Code § 924.2 .............................................................. 4, 11

Penal Code § 929 ................................................................ 4, 11

Penal Code § 939.1 .............................................................. 9, 11

Rules

Cal. Rules of Court, Rule 8.500(b)(1) ............................................. 2

Federal Rule of Criminal Procedure 6(e) ........................................ 6

5.5_
 IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA

THOMAS LEE GOLDSTEIN, { 2nd Cir. No. B199147

Petitioner, PETITION FOR REVIEW

V° After a Decision by the

Court of Appeal
SUPERIOR COURT OF LOS ANGELES Second Appellate District,
COUNTY, Division Three
B199147
-- Respondent.

Grand Jury of the County of Los Angeles;

County of Los Angeles; John Van de Kamp;
Curt Livesay,

Real Parties In Interest.

PETITION FOR REVIEW

ISSUE PRESENTED

Does the Superior Court have inherent power to disclose secret

grand jury materials, notwithstanding statutory provisions which govern

and limit such disclosure?

 WHY REVIEW SHOULD BE GRANTED

This Court should grant review becausethe Court of Appeal's

published opinion fails to enforcethe legislative policy for preserving

l
secrecy of grand jury materials, and fails to implement this Court's rulings

which mandate obedience to the statutorily expressed legislative policy.

The Court of Appeal's opinion will allow public disclosure of grand

jury materials in a manner heretofore prohibited, and will severely impair

-th--_fune-t-ion-of.th--_grand jury_

The opinion creates disuniformity of decision and raises an

important question of law; Cal. Rules of Court, Rule 8.500(b)(1).

FINALITY OF THE COURT OF APPEAL'S OPINION

The Court of Appeal's August 23, 2007 opinion states, at p.

17: "The order granting Goldstein's writ petition is final immediately as to

this court. (Cal.Rules of Court, rule 8.264(b)(3).)"

There has been no petition for rehearing filed in the Court of Appeal.

FACTUAL BACKGROUND

Thomas Lee Goldstein was arrested for murder in 1979 after an

eyewitness identification was made [see Court of Appeal Opinion ("Opn."),

p. 3, Ex. B hereto]. At Goldstein's trial which resulted in his conviction as

charged, testimony was given by one Edward Floyd Fink who had been
placed in Goldstein's cell two daysafter the arrest, andwho testified that

Goldstein said he was in jail becausehe had shot a man [Opn., p.4].

In 1988,the Los Angeles County Grand Jury began investigating

misuse ofjailhouse informants in criminal trials, and issued its report in

1990 [Opn., p. 4]. The report criticized the Los Angeles County District

Attorney for deliberately failing to take steps necessary to curtail misuse of

jailhouse informant testimony, specifically by failing to create a centralized

index -to:disseminateimpeaehment-information pertain_g to informants

[Opn., p. 4].

Goldstein was released from custody after he filed a petition for

habeas corpus which resulted in an August 2002 hearing before a federal

magistrate where the eyewitness against Goldstein recanted his

identification, Goldstein presented evidence that jailhouse informant Fink

had received benefits for cooperating with law enforcement, and the federal

magistrate found Fink was representative of the jailhouse informants

addressed in the grand jury's report [Opn., p. 5].

Goldstein filed a civilsuit in the Central District of California under

42 U.S.C. § 1983 alleging wrongful conviction and incarceration based on

an alleged pattern and practice of misusing jailhouse informant testimony

[Opn., p. 5]. He sued the arresting agency City of Long Beach and four of

its police officers, as well as these petitioners for review, County of Los

Angeles,:its District Attorney John Van de Kamp, and prosecutor Curt

Livesay [Opn., p. 5].

In furtherance of his lawsuit, Goldstein sought access to grand jury

materials through informal means [Opn., p. 6], followed by the federal

District Court's issuance of a subpoena to the Superior Court of Los

Angeles County [Opn., p. 7]. Upon objection to the subpoena by counsel

for the Superior Court, Goldstein withdrew the subpoena and filed a motion

seeking access to the material [Opn., p. 7]. The Superior Court (Hon. Peter

Espinoza) conducted a.hearingon Goldst_in's motion and thereafter issued

a written denial of the motion [Opn., p. 8].

Judge Espinoza found that the statutes on which Goldstein relied

(namely, Penal Code §§ 924.2, 929, and 939.1) did not apply to his

situation, and that in the absence of express statutory authorization, the

general rule of secrecy in grand jury proceedings prevailed as specified by

McClatch¥ Newspapers v. Superior Court (1988) 44 Cal.3d 1162 [Opn., p.

8].

Goldstein sought relief by mandamus. The Court of Appeal issued

an order directing real parties in interest to address whether the statutes on

which Goldstein relied for disclosure "are applicable to the investigatory

function of the grand jttry or whether those statutes are limited to criminal

proceedings" [Order of May 3, 2007, attached as Exhibit A hereto].

Goldstein and real parties briefed these issues extensively. The matter went

to oral argument on August 15, 2007, where Goldstein's counsel agreed

during the courseof argument that he had not urged the Superior Court that

it had inherent authority to order disclosure of grand jury materials.

The Court of Appeal issued its opinion [Exhibit B] on August 23,

2007. The court agreed with Judge Espinoza that the statutes on which

Goldstein relied for disclosure of grand jury materials were inapplicable

[Opn., p. 9-11], and recognized in accordance with its earlier opinion in Los

Angeles Times v. Superior Court (2003) 114 Cal.App.4 th 247 that there is

no presumptive right of ascess -to grand jury materials under California law

[Opn., p. 12]. The court, however, gave an unduly restrictive interpretation

to McClatch¥ Newpapers v. Superior Court, supra, 44 Cal.3d 1162,

viewing .that decision as involving only what the court termed "public

disclosure" of grand jury materials [Opn., p. 12] and resorting instead to

this Court's much earlier opinion in Ex Parte Sontag (1884) 64 Cal. 525 to

fred a nonstatutory "interests of justice" exception to the rule of grand jury

secrecy [Opn., p. 13-17].

While acknowledging this Court's broad statement in Daily Journal

Corp. v. Superior Court (1999) 20 Cal.4 th 1117, 1124 that in California the

whole matter of disclosing grand jury materials is regulated by statute

[Opn., p. 14], the Court of Appeal treated that decision dismissively (as it

had McClatch¥) for examining what the court termed "public disclosure" of

grand jury proceedings, and attempted to distinguish the same statement in

Sontag (about regulating disclosure of grand jury materials by statute) as

pertaining only to the particular statutethere involved (i.e., whether grand

juror Sontagcould be compelled to disclosehis vote on indictment) [Opn.,

p. 14-15]. Despite the admitted fact that Goldstein sought secret grandjury

materials to usein public litigation, the court maintained that "this case

does not involve public disclosure of grand jury materials. Rather,

Goldstein seeks disclosure of grand jury materials pursuant to a protective

order limiting use of the materials to his pending federal civil rights case.

Under these e_eumstanees,..the general role of.no public right of access is.

simply not in issue" [Opn., p. 12].

At the same time, and without paying heed to subsequent statutory

enactments and the legislative policy embodied in them, the Court of

Appeal seized on dicta in Sontag to fred that "there remains an interests of

justice exception" to exclusively statutory regulation of public disclosure

[Opn., p. 15] when disclosure becomes necessary for the purposes of public

justice or the protection of private rights [Opn., p. 15, citing Ex Parte

Sontag, supra, 64 Cal. at 526].

Based on this reasoning, the court looked to federal authority in

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211,219-220 (1979)

and Federal Rule of Criminal Procedure 6(e) to proclaim that "a similar rule

appears in California law" under the Sontag case allowing Goldstein to

compel disclosure of secret grand jury materials [Opn., p. 13]. The court

failed to take account of California public policy as manifested in

legislative enactments,and did not explain why it had taken 123years since

Sontagto discover a supposedinherentjudicial power contrary to

legislative mandatesof nondisclosure.

1
The court then adopted the conclusion stated in Douglas Oil, supra,

and the procedure laid out in Socialist Workers Party v. Grubisic, 619 F.2d

641 (7th Cir. 1980) to direct the Superior Court on remand in providing

Goldstein with disclosure of grand jury materials [Opn., p. 15-17].

LEGAL DISCUSSION

A. California's Broad Rule of Secrecy and Nondisclosure Concerning

Grand Jury Materials Must Prevail, Absent Specific Statutory

Exception.

Goldstein seeks to obtain discovery of secret grand jury information

for the sake of pursuing his civil suit venued in federal court.

In McClatch¥ Newspapers v. Superior Court, supra, 44 Cal.3d 1162,

the Court decided that a grand jury report exceeded established legal limits

"when it announced the grand jury's intention to disclose raw evidentiary

materials gathered during a secret watchdog investigation, including

transcripts of testimony, summaries and analyses of testimony, and

documentary exhibits;" id. at 1167. In rebuking the requested disclosure,

the Court held that "such disclosure would be fundamentally inconsistent

with governing legislation setting out the parameters of proper grand jury
 reporting and providing for the secrecyof grandjury proceedingswhich is

centralto the effective functioning of the grandjury systemin California;"

ibid.

The Court recognized that a basic function of a California grand

jury is '`to act as the public's 'watchdog' by investigating and reporting

upon the affairs of local government.., the watchdog role is by far the one

most often played by the modern grand jury in California;" id. at 1170

--(citations-and--footnote.omitted)_ Although the-issuance,ofareport_onAts

investigation "is the normal end product of the grand jury's activity in the

performance of its watchdog function" (j_d.at 1171), the Court found that

there were specific statutory limits on the issuance of reports; ibid.

Turning to common law principles holding that the secrecy of all

grand jury proceedings is deeply rooted i(i(_,at 1173), the Court easily found

the Legislature's intent "to incorporate this well-established heritage of

secrecy into the present grand jury system" as "plainly and amply shown in

the gove_ing provisions of the Penal Code;" ibid. Numerous justifications

arising in sound policy were offered, including the fostering of candid

testimony by witnesses, the avoidance of influencing testimony, and the

protection of accused innocents from harm to their reputations by

disclosure, leading to the conclusion that these vital goals "are best

achieved when secrecy is maintained even after the conclusion of a grand

jury investigation;" id. at 1174-1175. For, "It]he grand jury as a public

institution serving the community might suffer if those testifying today

knew that the secrecy of their testimony would be lifted tomorrow;" id. at

1175 (citations and internal punctuation omitted).

The Court took care to note that excesses by grand jurors which

amounted to defamation could be curbed by established judicial remedies

(id. at 1177), but that "disclosure of adverse comments by witnesses

appearing in secret before the grand jury presents quite a different problem"

( ibidq italics in original) .and that "the Legislature in effect has prevented

this type of damage to reputation by denying the grand jury any authority to

disclose raw evidentiary materials by means of its reports" (j_d..at 1177-

1178). In part because the grand jury had failed to obtain the Superior

Court's permission to conduct proceedings in public under Penal Code §

939.1 (a statute ineffectually relied on by Goldstein), the grand jury's

attempted wholesale disclosure of secret materials was unlawful when it

failed to follow the statutorily required procedure i(i(_,at 1179-1180) since

"grand jury secrecy is the rule and openness the exception, permitted only

when specifically authorized by statute" (J_d_.

at 1180).

At the end of its opinion in McClatch¥, the Court took up amicus

curiae arguments that judicial restraint of disclosure affected the public's

right to scrutinize public affairs (j_d.at 1183). Here we begin to see the

"public disclosure" element so important to the Court of Appeal, but left

undefined by that court or by this Court in McClatch¥, and even so

 irrelevant when taken in context. In all events, the Court found that "[t]he

people, actingthrough their electedrepresentativesor through exercise of

the initiative power, may authorizethe disclosure attemptedhere, but they

I
I

have not done so to date, presumably for the policy reasons we have

discussed;" id. at 1184. Those policy reasons would appear to hold tree

whether the one seeking disclosure of secret materials is a news

organization or a curious private individual, albeit one potentially with a

-personal-stake in the information_

The upshot of the McClatchy decision is a finding of inherent

judicial power for the purpose of limiting a grand jury from acting

unlawfully, and for the sake of preventing a disclosure of secret materials

which would offend the legislative formula for maintaining secrecy as

expressed in statute; id. at 1184.

More recently, in Daily Journal Corp. v. Superior Court, supra, 20

Cal.4 th 1117, the Court dealt with a contest over information compiled by a

criminal grand jury which investigated events concerned with the

bankruptcy of Orange County and which concluded without indictment.

The Daily Journal litigation involved another effort by news media to

obtain secret grand jury information ("all testimony and documents;" id. at

1120). The Court "granted review to determine whether the superior court,

in the absence of a statutory provision for disclosure under these

O
circumstances, properly released the grand jury materials to the public. As

10
t
O

will appear,we concludethat it did not;" ibid.

In a respect extremely pertinent to the present case,the challenged

order had directed the district attorney to releaseall transcripts and

documents,based on two grounds:ftrst, on the public's right to know

"under the First Amendment and the California Constitution;" and secondly

and independently (reminiscent of the present matter), on "the court's

'inherent equity, supervisory and administrative powers';" id. at 1121.

Achieving the-same effect as in. the present ease_ the Court of Appeal had

affmned the order of disclosure, determining "that, in the absence of any

statutory provision limiting its authority, a superior court has inherent

power to order the release of otherwise secret grand jury materials

whenever the advantages gained by secrecy are outweighed by a public

interest in disclosure;" ibid. While not phrased in the same terms as the

"interests of justice" inherent power announced by the Court of Appeal

here, it comes close enough in result.

Refuting this conclusion, the Court prefaced its analysis by citing

(among others) the same statutes lately relied on by Goldstein, reviewing

the public policy reflected in Penal Code § 939.1 and § 924.2 Da(D(D(_D___y

Journal, supra, 20 Cal.4 th at 1122-1123), as well as noting the 1998

enactment of Penal Code § 929 i(_. at 1124). Then, the Court framed the

issue in stating, "It]he question before us is whether the superior court in

this matter had authority to disclose grand jury materials to the public when

11
none of the foregoing statutes was applicable;" ibid. The Court stated no

qualification or restriction with respect to "public" as opposed to any other

kind of disclosure, no special rule based on the happenstance that the party

seeking disclosure was a news organization, nor any hint of a different rule

for a party wanting to use the information for the sake of a lawsuit.

Instead, the Court harked back to its seasoned opinion of a prior day

to note that: "As we explained more than a century ago: 'In this State the

whole matter [of disclosing grand jury proceedings] is regulated by statute.'

(Ex Parte Sontag (1884) 64 Cal. 525, 527. By enacting the statutes

governing the 'exceptional cases' (ibid.) in which a court may order

disclosure of grand jury materials, the Legislature has, in effect, occupied

the field; absent express legislative authorization, a court may not require

disclosure. [fla.];" Daily Journal, supra, 20 Cal.4 *hat 1124-1125.

How clear and definitive that language is. The Legislature has

occupied the field. Absent express legisl_itive authorization, a court may

not require disclosure. And yet, the concept is no innovation, but is instead

a restatement of law well known (or at least of long standing), for even two

decades before the 1884 Sontag opinion, the Court had reached a similar

result in,People v. Tinder (1862) 19 Cal. 539 (Daily Journal, supra, 20

Cal.4 th at 1125).

In its discussion of these cases and others, the Daily Journal

decision did not pause to make distinctions about the identity or capacity of

12
the party seeking disclosure , about the purpose for which disclosure was

sought, or about the final disposition of the material sought. The Court's

rulings were not constrained to the realm of "public disclosure" so as to

become inapplicable to other cases; see, e.g., Allen v. Pa_-ne (1934) 1

Cal.2d 607, 608, cited for the proposition that the legislative history of the

grand jury revealed a practice of defining and delimiting its powers by

express statutory grant, such that the Court "declined to resort to the very

vaguejusfificat-ion..of 'inherent' or 'implied' powers;" Daffy Journal, supra,

20 Cal.4 _ at 1125.

One seeks in vain to justify the Court of Appeal's new development

of an implied or inherent exception to strict legislative control over grand

jury disclosure, "public" or otherwise. The exception certainly cannot be

supported by the holding in Daily Journal where the Court rejected the idea

of an inherent power in the judiciary to order disclosure of secret grand jury

materials; id. at 1128 ("Otherwise, if superior courts could disclose

materials based only on their inherent powers, the statutory rules governing

disclosure of grand jury testimony would be swallowed up in that large

exception"). "Thus, contrary to the Court of Appeal, we conclude that

whatever exercise of authority to disclose grand jury materials has not been

expressly permitted by the Legislature is prohibited;" id. at 1129.

Indeed, our Court of Appeal, striving to distinguish preceding

authority on the basis of "public disclosure," never articulated how the

13
information Goldstein strives to get will not be the subject of"public

disclosure" in an open court of law attended by news media representatives

among others in the public realm, despite possible use ofundescribed

protective orders. That, after all, is exactly what Goldstein seeks: public

use of in£ormation in a public trial, wielded to help his privately motivated

effort to prove his case. There is thus no reasoned dichotomy or distinction

between the "public disclosure" limitation as seen by the Court of Appeal,

-and Goldstein's-personally interested.use of the .information in a public

trial.

The distilled teaching of the controlling authorities is one of respect

for separation of powers between the judicial and the legislative branches of

government. Where the Legislature has carefully crafted a mere few

exceptions to the rule of grand jury secrecy, the judicial branch should tread

carefully to avoid inventing new exceptions that will eviscerate the

legislative formula through engrafting vague and ill-suited notions of

judicial discretion.

CONCLUSION

Whereas this Court's prior opinions have recognized limited

instances of irdaerent judicial authority to prevent improper disclosure of

secret grand jury materials in accordance with legislative mandates of

secrecy, the Court of Appeal has now devised a concept of inherent judicial

14
authority to do the opposite, by ordering disclosure of secret grand jury

materials regardless of the legislative mandates against disclosure.

The Court of Appeal's published opinion reflects a profoundly

unheralded and unjustified conception of the relationship between the

courts, the grand jury, and the legislature branch. The opinion creates

disuniformity of decision and involves an important question of law.

The decision, if left unreviewed, will usher in a disruptive tide of

discovery into secret grand jury materials, in a manner ineffectually fettered

by the broad concept of judicial discretion in place of orderly grand jury

disclosure as the law requires: according to strict limits set by legislative

direction.

As a result, without review, the grand jury in California will be

severely impaired in its role of civil watchdog and in its other functions, as

witnesses tailor their once-secret testimony to avoid the personal

repercussions of disclosure, rather than being able to rely as before on the

longstanding rule of secrecy. In effect, the new rule allowing judicial

disclosure will result in self-generated nondisclosure by grand jury

witnesses, fi-ustrating the mission of both civil and criminal grand juries.

15
 Accordingly, petitioners County of Los Angeles, John Van de

Kamp, and Ckn't Livesay respectfully pray that this petition for review be

granted.

DATED: September 4, 2007 Respectfully submitted,

COLLINS, COLLINS, MUIR &

STEWART, LLP

Jo

TOMAS A. GUTERRES
DOUGLAS FEE
Attorneys for Petitioners for Review/
Real Parties in Interest
COUNTY OF LOS ANGELES,
JOHN VAN DE KAMP, and
CURT LIVESAY

16
 CERTIFICATE OF WORD COUNT

I certify that pursuant to California Rules of Court, Rule 8.204, the

i
attached (Petition For Review) is proportionately spaced, has a typeface of

13 in Times New Roman font and contains 3,266 words based upon the

word count from Microsoft Word 2002.

Dated: September 4, 2007 Respectfully submitted,

Collins, Collins, Muir & Stewart, LLP

By:
Douglas Fee J_" -
Attorneys for Petitioners for
Review/Real Parties in Interest
COUNTY OF LOS ANGELES,
JOHN VAN DE KAMP, and
CURT LIVESAY

17
MAY.30,2007 2:56PM COACLERKS
OFFICE NO.3b28 P. 2/2

IN THE COURT OF APPEAL OF THE STATE OF CALIF_a_-,IIA

SECOND APPELLATE DISTRICT _ _ _._._

DIVISION
THREE _ .t_,__ O
• ' __...._j_4__,..'_
_@2

THOMAS LEE GOLDSTEIN, B199147 --_,_ .

Petitioner, (Los Angeles .County

Super. Or, No. BH004311
V, (Peter Espinoza, Judge)

THE SUPERIOR COURT OF ORDER

LOS ANGELES COUNTY,

Respondent,

CITY OF LONG BEACH, et al,,

Real Parties in Interest.

BY THB COURT:

Tlie petition for writ of mandate _ied May 21, 2007, has been read and

considered, Counsel for real parties in interest are direoted to file response to the petition
on or before June 14, 2007, The response should include, but is not limited to, briefimg as
to whether the cited statutory provisions (Pen. Code §§ 924.2, 929, and 939.1) are
applicable to the investigatory ftmetion of the grand jury or whether those statutes are

limited to criminal proceedings.

The reply must be filed no later than June 29, 2007,
MAY.30.2007 2:56PM COACLERKS
OFFICE N0.3528 P. 1/2

COURT OF APPEAL - STATE OF CALIFORNIA

Second Appellate District - Clerk's Office
JOSEPH A. LANE, CLERK OF THE COURT
(213) 830-7000
I
I

FAX COVER SI=IEET

DATE: May 30, 2007

TO: John J. Collins

FAX #: 626-243-1111

FROM: Zaida Heraldez, Deputy Clerk, Division 3

Division 3: 213-830-7103

,
Number of pages including cover sheet:
| ..... i
2 i

Order dated 5/30/07

Thomas Lee Goldstein

V,
&C.hA.
City of Long Beach et al
 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THOMAS LEE GOLDSTEIN, B199147

Petitioner, (Los Angeles County

Super. Ct. No. BH004311)
V.

SUPERIOR COURT OF
LOS ANGELES COUNTY,

Respondent; ,AUOs 007

JOSEPHA. L_,_L. Clerk
GRAND JURY OF THE
DeputyClerk
COUNTY OF LOS ANGELES et al.,

Real Parties in Interest.

ORIGINAL PROCEEDINGS in mandate. Peter Espinoza, Judge.

Petition granted.

Kaye, MeLane & Bednar. ski, Ronald O. Kaye, David S. McLane, Marilyn E.

Bednarski and Matthew N. Sirolly for Petitioner.

No _ippearanee for Respondent.

Raymond G. Fortner, Jr., County Counsel and Gordon W. Trask, Principal

Deputy, for Real Party in Interest Grand Jury of the County of Los Angeles.

Collins, Collins, Muir & Stewart, John J. Collins, Tomas A. Guterres,

Douglas Fee and Eric C. Brown for Real Parties in Interest County of Los Angeles,

John Van de Kamp and Curt Livesay.

 Thomas Lee Goldstein seeks writ review of an order of the superior court

denying Goldstein access tothe raw evidentiary materials received by the 1988-
O,
1989 and 1989-1990 Los Angeles County Grand Juries during their investigation

into the misuse ofjailhouse informants over the preceding 10 years. Goldstein

seeks these materials in connection with his pending federal civil rights lawsuit

(42 U.S.C. § 1983) in which he asserts he wrongfully was convicted of murder in

1980 and spent 24 years in prison based on the perjured testimony of a jailhouse

informant. The trial court denied Goldstein's motion, finding the statutory

provisions relied upon by Goldstein (Pen. Code, §§ 924.2, 929 & 939.1) did not

authorize disclosure. The trial court concluded that, absent express authorization,

the general rule of grand jury secrecy, stated in McClatchy Newspapers v. Superior

Court (1988) 44 Cal.3d 1162 (McClatchy Newspapers), prevailed.

However, Goldstein does not seek public disclosure of grand jury materials,

which McClatchy Newspapers addressed. Rather, Goldstein seeks discovery of

grand jury materials to redress an injustice investigated by the grand jury, and he is

willing to abide by a protective order limiting the use of the grand jury materials to

his pending federal civil rights case. In these circumstances, we conclude the

Superior Court of Los Angeles County, as part of its iiaherent authority to prevent

injustice and as part of its supervisory power over the grand jury, has discretion to

grant Goldstein's motion if he is able to demonstrate that disclosure is necessary

"for the purposes of public justice, or for the protection of private rights .... "

(Ex Parte Sontag (1884) 64 Cal. 525, 526.) In making this determination, the trial

court should engage in the three-step test announced in Douglas Oil Co. v. Petrol

Stops Northwest (1979) 441 U.S. 211,222, [60 L.Ed.2d 156] (Douglas Oil).

Under that test, parties seeking grand jury material in federal court must make a
particularized showing that (1) the material they seek is needed to avoid a possible

injustice in another judicial proceeding, (2) the need for disciosure is greater than

the need for continued secrecy, and (3) the request is structured to cover only
material so needed.
 We therefore grant the writ petition and remand the matterto the trial court

with directions to reconsiderGoldstein's motion in light of the views expressedin

this opinion. If.the trial .courtdeterminesGoldstein has demonstrateda need to

• discover the grand jury materials that outweighs the need for continuedsecrecy, it
should also indicate the terms of the protective order, if any, under which the
material is disclosed to Goldstein. In the event the trial court concludesjustice does
not requ_e discovery in this c_e, it nonethelessmust assessthe need for continuing
secrecyof the grandjury materials. As indicated in Socialist Workers Party v.
Grubisic (1'980) 619 F.2d 641 (Socialist Workers Party), the trial court must

perform this task in,order to allow the federal court to make an informed

assessment, and one that comports with considerations of comity, in determining in

Goldstein's federal civil rights case whether the grand jury materials are subject to
disclosure under federal law.

BACKGROUND

1. Goldstein 's 1980 conviction of murder.

On November 16, 1979, Goldstein was arrested for murder based on a

homicide that occurred 13 days earlier a few blocks from Goldstein's Long Beach
apartment. At the timel Goldstein was a 30-year-old veteran of the Marines who

wag. studying engineering at Long Beach City College. Goldstein had no prior

convictions or history of violence. No one acquainted with the murder victim ever

• suggested.the victim had ever had any contact with Goldstein. No forensic

eviden, ce linked Goldstein to the homicide: Goldstein became a suspect in the case

• based on a shooting.incident that occurred a week after the homicide.

• An e3rev¢itness to that incident saw the gunman enter Goldstein's apartment

build.ing. Long Beach police detectives thereafter showed numerous photographs,

includingGoldstein's; to Loran Campbell, one of the five eyewitnesses to the

homicide. Although Campbell did not recognize any of the individuals depicted in

.the photographs and Goldstein did not match Campbell's initial description of the

murder suspect, one of the detectives focused on Goldstein's photograph and asked

if Goldstein could have been the individual Campbell saw running from the scene.

3
Campbell replied it was possiblebut he was not certain. One of the detectives

thereafter wrote in a police report that Campbell hadselectedGoldstein's

photograph and said: "That looks like the man. I'm not sure and I'm not positive
but that looks like him." Campbell thereafter identified Goldstein at Goldstein's
murder trial. However, asnoted below, Campbell later retractedhi_ identification,
of Goldstein, explaining he had been influenced by the detectivesand his desire to
assisttheir investigation.
Two daysafter Goldstein's arrest,Edward Floyd Fink, a heroin addict with
several prior felony convictions, was placed in the samecell as Goldstein in the
Long Beach City Jail. At,Goldstein's murder trial, Fink testified Goldstein told him
he was in jalI becausehe shot a man in a dispute over money. Fink also testified he
received no benefit as a result of his testimony. Goldstein was convicted as

•charged..
2. The grandjury proceedings.

Commencing in ! 988, the Los Angeles County Grand Jury investigated the

misuse ofjailhouse informants in criminal trials. In 1990, it issued a report that

concluded misuse ofjailhouse informants had been pervasive over the preceding

10-year period. With respect to the Los Angeles County District Attorney's office,

the grand jury found "deliberate and informed declination to t.ake the action

necessary to curtail the misuse ofjailhouse informant testimony." These .....

deficiencies included failing to create a centralized index to disseminate

impeachment information pertaining to informants, such as the benefit they

received for their testimony and their history of cooperation with law enforcement.

On August 30, 1990, the Superior Court of Los Angeles County issued an

order stating the "material aecumulated and used by the 1988-89 GrandJury and the

1989-90 Grand Jury in their investigations of the jitilhouse informants is to be kept

secure by thecourt. ['[[] The .material is not to be viewed, inspected or copied

except by order of the Presiding Judge, Assistant Presiding Judge, or the

Supervising Judge of the Criminal Division."

 3. Federal habeas corpus proceedings result in Goldstein's release from

prison.

At an evidentiary hearing conducted by Magistrate Robert N. Block in

August of 2002 in connection with a federal petition for writ of habeas corpus filed

by Goldstein, the eyewitness at Goldstein's tria!, Loran Campbejl, recanted his

identification of Goldstein. Campbell explained he had been overanxious to help

the police and he identified Goldstein based on what flae police told him and his

desire to be a good citizen, not based on his observations on the night of the
homicide. Goldstein also presented evidence of benefits Fink received during _e

time he cooperated with law enforcement.

At the conclusion of the hearing, Magistrate Block found Campbell's

testimony credible and further found Fink was representative of the jailhouse

informant addressed in the grand jury's report. Magistrate Block stated: "It is

readily apparent to this Court that Fink fits the profile of the dishonest jailhouse

informant that the Grand Jury Report found to be highly active in Los Angeles

County at the time of [Goldstein's] conviction." As a result of Magistrate Blocks'

findings, Goldstein was released from custody in April of 2003, after serving 24

years in prison.
, 4. Goldstein files a civil rights action in federal district court.

On November 29, 2004, Goldstein filed a civil suit in the Central District of

California, stating causes of action under the federal civil rights statute, 42 U.S.C.

§ 1983, based on his assertedly wrongful conviction and incarceration. In his

federal civil rights case, Goldstein is suing the City of Long Beach, four individual

Long Beach police detectives, the County of Los Angeles, John Van de Kamp.and

Curt Livesay. Goldstein's federal lawsuit asserts, inter alia, the defendants obtained
Go.ldstein's conviction based on their pattern and practice of misusing the testimony

ofjailhouse informants in criminal cases.

 5. Goldstein's attempts to access the grand jury material.

Goldstein initially soflght access to the grand jury material by letter dated

February 1, 2006, to the Presiding Judge of the Superior Court of Los Angeles

County and.the supervising judge of the criminal division. Counselfor the Superior

Court of Los Angeles County _ereinafter referred to as "court counsel"}, initially

indicated the superior court would not disclose the material. However, when

Goldstein's counsel indicated willingness to abide by a protective order limiting use

of the material to Goldstein's federal civil rights case, court counsel indicated a

subpoena .would be needed in order to release the grand jury material.

On July 5, 2006, Goldstein sent court counsel further information about the

case including the declaration ofVema Wefald, an attorney who had accessed the

grand jury materials in cormection with two federal habeas corpus proceedings.

Wefald asserted that Douglas Dalton, special counsel appointed to assist the grand

jury in its investigation into the misuseofjailhouse informants, told her the grand

jury materials were indexed and organized for the express purpose of facilitating

review of the material by future litigants. 1

1 Goldstein asserts Wefald's statements regarding the organization and

indexing of the grand jury materials are not hearsay in that she personally has
accessed the material. Nonetheless, Goldstein has separately filed an application to
admit the declaration of Douglas Dalton to avoid the hearsay problem in Wefald's
declaration. In the declaration, Dalton states: "It was the intent of the Grand Jury
that the underlying materials upon which the Report was based be made available to
anyone affected by jailhouse informant abuses as.may be necessary to pursue their
remedies. This was a reason for the records to be preserved. At the conclusion of
the Report, the GrandJury:specifically states that 'the materials developed by the
Grand Jury during their investigation will be preserved under secure conditions.'
G.J. Rpt. at 153. The materials were preserved.., so that they could be accessed in
future litigation and/or court proceedings. The Grand Jury asked the District
Attorney's Office to cooperate in providing access to the materials developed by the
Grand Jury in its investigation. Id. at 152-3."
 On July 7, 2006, Goldstein serveda subpoenaissued in his federal civil
rights caseon the SuperiorCourt of Los Angeles County requesting production of

the grand jury materials.

On July 27, 2006, court counsel objected to the subpoena and requested

Goldstein volhntarily with_aw it and seek access to the material "[p]ursuant to the

[the 1990 .order of the Superior Court, by filing a motion] before the Presiding
Judge, the Assisting Presiding Judge, or the Supervising Judge of the Criminal

Division. of the Superior Court."

Goldstein complied with the request on September 19, 2006. Goldstein's

motion relied on various Penal Code sections and specifically asked Ne trial court

to set forth in its ruling whether and to what extent there was a continuing need for

secrecy of the material in order to,permit Goldstein to litigate the issue in federal
court.

Counsel for the County of Los Angeles (hereinafter referred to as "county

counsel"), appearing on behalf of the grand jury, filed a response to Goldstein's

motion that essentially conceded Gold.stein might eventually be granted access to

the grand jury materials by enforcing a subpoena duces tecum issued in Goldstein's

federal civil rights case, citing Socialist Workers Party, supra, 619 F.2d 641.
Socialist Workers Party directs that a federal district court enforce a federal

subpoena seeking disclosure of state grand jury materials only after first allowing

the state court to determine the need for continuing secrecy of the materials.

The federal court thereafter considers this .information in determining whether

disclosure should be ordered under the three-part Douglas Oil test. Under that test,

. We deferred ruling on Goldstein's application pending submission of the

matter for decision. As discussed more fully below, this case requires us to
determine, as a matter of law, whether the trial court had authority to grant
Goldstein's request for disclosure. Dalton's declaration is not rele_rant to that issue.
Consequently, we deny Goldstein's request. Obviously, Goldstein is free to submit
this declaration, and any other evidence at his disposal, to the trial court upon
remand.
 as noted above, parties seeking grand jury transcripts must make a particularized

showing .that (1) the material they seek is needed to avoid a possible injustice in

another judicial proceeding, (2) the need for disclosure is greater than the need for

continued secrecy, and (3) the request is structured to cover only material so

needed. (Douglas Oil, supra, 441 U.S. atp. 222.)

County counsel indicated that, if the superior court found a continuing need

to maintain secrecy of the requested documents, it should specify which documents

should remain sealed and why. County counsel requested the trial court appoint a

special master to review the pleadings in Goldstein's federal case and the grand jury.

materials at issue and thereafter advise the trial court. In reply, Goldstein disputed

the need for continued secrecy and opposed county counsel's suggestion that a

special master be appointed as causing unnecessary delay.

On March 13, 2007, the trial court conducted a hearing on the motion.

At the hearing, Wefald, the attorney who previously had accessed the grand jury

materials, indicated it had been a relatively simple matter to review the material

because the "records were organized" for the benefit of future litigants. Wefald

stated there was an index of witnesses, an index of exhibits and three binders

containing summaries of the testimony of every witness.

On March 22, 2007, the trial court issued a written denial of Goldstein's

motion. The trial court found the Penal Code sections cited by Goldstein did not

apply to the situation presented and, in the absence of a statute expressly permitting
O disclosure, Goldstein could not overcome the general rule that grand jury

proceedings are secret. (MeClatchy Newspapers, supra, 44 Cal.3d 1162.)

 Goldsteinthen filed the instant petition for writ of mandate.2 Goldstein's
petition assertshe again has serveda subpoenaissuedin the federal civil rights case
on the SuperiorCourt of Los Angeles County requestingthe grandjury materials.
DISCUSSION

In tlqAscase,we must first determinewhether the trial court was correct in its

ruling that none of the statutory provisions cited by Goldstein authorized disclosure
of the grandjury materials. Finding the trial court correctly concluded they did not,
.wenext considerwhether the trial court, independentof any statutoryprovision, had
authority to permit accessto the requestedgrandjury materials for use in
Goldstein's civil rights caseto prevent injustice. Finally, we consider the trial
court's obligation to perform the statecourt function contemplated in Socialist
Workers Party.

1. The statutory provisions cited by.Goldstein are not applicable.

Goldstein claims the trial court had discretion to disclose the grand jury

materials he requested pursuant to Penal Code sections 924.2, 929 and 939.1. 3
None of the cited sections assists Goldstein.

a.. Section 924.2.

Section 924.2 provides: "Each grand juror shall keep secret whatever he

himself or any other grand juror has said, or in what manner he or any other grand
•. juror has voted on a matter before them. Any court may require a grand juror to

disclose the testimony of a witness examined by a grand jury, for the purpose of
asoertaining whether it is consistent with that given by the witness before the cqurt,

or to disclose the testimony given before the grand jury by any person, upon a

2 Goldstein also filed an appeal from the denial of the motion to discover the
grand jury materials. (B 198860 filed May 11, 2007.) We address the merits of
Goldstein's writ petition because it appears the issue presented is one of importance
that should be resolved promptly: (See Phelan v. Superior Court (1950) 35 Cal.2d
363,370.)
3 Subsequent unspecified statutory references are to the Penal Code.
charge against suchperson for perjury in giving his testimony or upon trial
therefor."

Go'ldsteinargues section924.2, originally enacted assection 926 in 1872,

makesclear the legislative intent to codify the power of the superior court to
disclose grandjury materials for use in an ongoing judicial proceedingwhen
necessaryto achievejustice. Goldstein notesthe language of the sectionis archaic.
He assertsthere is no need for a live witness to be before the court at the time of the

requestfor disclosure. Rather, the sectionrequires only an active, ongoing

litigation. Goldstein assertsthe trial court should have read section 924.2
expansively to accomplish the result intended.
Section924.2 was enactedto protect grandjurors by limiting the
circumstancesunder which they could be called aswitnesses. (People v.
Northey (1888) 77 Cal. 618, 633.) Further, Goldstein does notclaim a witness at

the trial of his federal case will give testimony that is inconsistent with testimony

given before the grand jury and there is no pending perjury investigation. Thus,

section 924.2 has no application here.

b. Sections 929 and 939.1.

Section 929 provides: "As to any matter not subject to priv_ege, with the

approval of the presiding judge of the superior court or the judge appointed by the

presiding judge to supervise the grand jury, a grand jury may make available to the

public part or all of the evidentiary material, findings, and other information relied

upon by, or presented to, a grand jury for its final report in any civil grand jury
investigation provided that the name of any person, or facts that lead to the

identity of any person who provided information to the grand jury, shall not be
released .... "

Section 939.1 allows public grand jury sessions when,an investigation affects

the public interest.

10
 Goldstein arguessections929 and 939.1, readtogether,provide authority to
releasethe grand jury materials at issuehere. However, section929, by its express
terms, merely permits a sitting grandjury to incorporateportions of the raw
evidentiary material it received into its report. Section 929was not enacteduntil
I

1998, eight years after the grand jury report on the misuse ofjailhouse inform_nts.

Moreover, section 929 requires the grand jury to obtain approval from the superior

court before it includes raw evidentiary material in its report. Section 939.1 is not

applicable because the grand jury held no public sessions.

In sum, we agree with the trial court's assessment of the statutory provisions

cited by Goldstein.

2. The superior court that supervised a grand jury retains authority to make

limited disclosure of grand jury materials to prevent injustice.

a. General rule against public disclosure of grandjury proceedings.

Both federal and California law recognize that grand juries must operate in

secrecy in order to perform their functions.4 Douglas Oil itemized several of the

"distinct interests served by safeguarding the confidentiality of grand jury

proceedings" relative to a criminal indictment. (Douglas Oil, supra, 441 U.S. at

p. 219.) "First, ifpreindictment proceedings were made public, many prospective

witnesses would be hesitant to come forward vol..untarily, knowing that those

against whom they testify would be aware of that testimony. Moreover, witnesses

who appeared before the grand jury would be less likely to testify fully and frankly,

as they would be open to retribution as well as to inducements. There also would

4 As observed in McClatchy Newspapers, California law has authorized grand

juries to perform three basic purposes: '_to weigh criminal charges and determine
whether indictments should be returned (§ 917); to weigh allegations of misconduct
against public officials and determine whether to present formal accusations
requesting their removal from office (§ 922; see Gov. Code, § 3060 et seq.); and to
act as the public's 'watchdog' by investigating and reporting upon the affairs of
local government (e.g., §§ 919, 925 et seq.). Of these functions, the watchdog role
is by far the one most often played by the modern grand jury in California.
[Citations.]" (McClatchy Newspapers, supra, 44 Cal.3d at p.1170, fla. omitted.)
11
 be therisk.that thoseaboutto be indicted would flee, or would try to influence
individual grandjurors to vote against indictment. Finally, by preserving the
secrecy of the proceedings,we assurethat personswho are accusedbut exonerated

by the grandjury will not be held up to public ridicule." .(Ibid.)

McClatchy Newspapers observed that secrecy also is r_ecessary "when the

grand jury conducts a watchdog investigation of local government operations .... "

(McClatchy Newspapers, supra, 44 Cal.3d at p. 1175.) In that circumstance,

• "the efficacy and credibility of watchdog investigations.., require that witnesses

testify without fear of reproach by their peers or Neir superiors. Though the

watchdog investigation and report serve a different social purpose than the criminal

indictment, eticiting candid testimony is obviously critical to both functions of the

grand jury." (Ibid.) Moreover, "in considering the effects of disclosure of grand

jury proceedings, the courts must also consider not only the immediate effects upon

a particular grand jury, but also the possible effect upon the functioning.of future

grand juries." (Douglas Oil, supra, 441 U.S. atp. 222.)

For all these reasons, the general rule is that there is no presumptive right of
public access to grand jury materials under California law. (Los Angeles Times v.

Superior Court (2003) 114 Cal.App.4th 247, 263.) However, this case does not

involve public disclosure of grand jury materials. Rather, Goldstein seeks

disclosure of gran&jury materials pursuant to a protective order limiting use of the

materials to his pending federal civil rights case. Under these circumstances, .the

general rule of no public right of access is simply not in issue.

12
 b. Disclosure of grand jury materials to prevent injustice.

Douglas Oil noted "it has been recognized that in some situations justice

may demand that discrete portions of transcripts be made available for use in

subsequeflt proceedings. [Citation.]" (Douglas Oil, supra, 441 U.S, at pp. 219-
220.) The high court observed that "recogr_mon
'" " of the occasional need for Iitigants

to have access to grand jury transcripts led to the provision in Fed. Rules Crim.

Proc., 6(e)(2)(C)(i) that disclosure of grand jury transcripts may be made 'when so

directed by a court preliminarily to or in conjunction with a judicial proceeding.' "

(td. at p. 220.)

We believe a similar rule appears in California law. Ex Parte Sontag, supra,

6i{-Cgl. 5-2-,57-ad-d_sseit_-eth_ a grand juror couldbe compel_d-to re-veai _bw he

had voted on an indictment. Sontag noted grand jurors ate bound by their oath

"to preserve inviolate the secrets of the grand jury room. Public policy would seem
to forbid vain disclosures made to gratify idle curiosity. 'But,' say Thompson and

Merriam, 'when, for the purposes of public justice, or for the protection of private

rights, it becomes necessary, in a court of justice, to disclose the proceedings of the

grand jury, the better authorities now hold that this may be done .... (Thorn. &

Mer. on Juries, § 703.)5 (Id. at p. 526.)

Consequently, we conclude that, under both federal and state law, when, in

the words of Ex Parte Sontag, supra, '64 Cal. at p. 526, "it becomes necessary, in a

court of justice, to disclose the proceedings of the grand jury," the absence of a

statutory provision expressly authorizing such disclosure does not foreclose the

superior court that supervised the grand jury from permitting limited disclosure to

prevent injustice.

13
O

In determining whetherjustice requires disclosure in any given situation, the

trial court should apply the well settledthree-part test announcedin Douglas Oil.
D
In that case, the United States Supreme Court synthesized two of its earlier

decisions related to discovery of grand jury materials (Dennis v. United States

(1966) 384 U.S. 855, 8701[16 L.Ed.2d 9ff3]; United States v. Procter & Gamble

(1958) 356 U.S. 677, 682 [2 L.Ed.2d 1077]) and announced the following "standard

for determining when the traditional secrecy of the grand jury may be broken:

Parties seeking grand jury transcripts under Rule 6(e) must show that the material

they seek.is needed to avoid a possible injustice in another judicial proceeding, that

the need for disclosure is greater than the-need for continued secrecy, and that their

request is struc_red to c-over only mate_al so needed?' (Douglas OfT, supra, 44"[

U.S. atp. 222.)

Although the high court framed this test in reference to Fed. Rules Crim.

Proc., rule 6(e), we note that rule 6(e) was not the source of the authority for

disclosing grand jury materials when the interests of justice require it. Rather,

Douglas Oil indicated the authority, to disclose grand jury materials flows from the

court's inherent responsibility to prevent injustice and rule 6(e) merely reflected

that authority.

We are aware that in Daily Journal Corp. v. Superior Court (1999)

20 CaI.4th 1117, 1I24, another case involving public disclosure of grand jury

proceedings, our Supreme Court relied upon Ex Parte Sontag, supra, 64 Cal. at

p. 527, for the proposition that," 'In this State the whole matter [of disc!osing grand

jury proceedings] is regulated by statute.' '.' (Daily Journal Corp. v. Superior

Court, supra, at p. 1124.) However, as noted above, the matter at issue in Sontag

was whether an individual grand juror could be compelled to disclose how he had

voted on an indictment. It was that matter that Sontag held was "regulated by

statute," specifically, the Penal Code section relating to the oath of a grand juror.

Quoted in full, Sontag stated: ','No case has been called to our attention in which it

has been held that a grand juror could be compelled to answer how he voted with

14
 respectto the finding of a particular indictment. [_ In this Statethe whole matter
is regulatedby statute." (Ex.Parte Sontag, supra, at p. 527.)
• It therefore appears that, although the matter of public disclosure of grand

jury proceedings is governed by statute, there remains an interests of justice

excepti@n that may require limited disclosure of grand jury proceedings when, in

the words ofEx Parte Sontag, it becomes necessary "for the purposes of public

justice, or for the protection of.private rights .... " (Ex Parte Sontag, supra, 64 Cal.

at p. 526; see also People v. Superior Court (Mouchaourab) (2000) 78 Cal.App.4th

403,436-437 [recognizing the right of an indicted defendant to assert a due proce.ss

right to discover nontestimonial portions of grand jury proceedings in connection

wi_ a mot{on to _t as{de a cri_ninai indictment].)

Consequently, the matter must be remanded to permit the trial court to

-determine whether application of the three-part Douglas Oil test requires disclosure

of the grand jury materials Goldstein seeks to prevent injustice.

•. 3. Procedure to be followed by.the trial court in the event it concludes

Goldstein is not entitled to the grand jury materials under the interests of justice
test.

If, after applying the Douglas Oil balancing test to the instant facts, the trial

court concludes Goldstein is not entitled to any portion of the grand jury materials

he seeks, there remains the matter of the trial court's obligation under Socialist

"Workers Party to advise the federal district court with jurisdiction over Goldstein's.

pending civil rights case of the need for continuing secrecy with _espect to the.

undisclosed state grand jury materials.

Douglas Oil considered this procedural issue where both the court

supervising the grand jury and the court presiding over the current matter were
federal courts. Douglas Oil concluded the better practice was to have the court that

supervised the grand jury make a written evaluation of the need for continued grand

jury secrecy. Thereafter, the cou_ presiding over the current judicial proceeding

would evaluate the request for disclosure in light of the supervising court's

15
assessmentof_e needfoi continuedsecrecy. (Douglas Oil, supra, 441 U.S. at.

pp. 230-231.)

• Socialist Workers.Party.adapted this procedure to the situation presented

where plaintiffs in a federal civil rights action sought transcripts of a state grand
jury, Socialist Workers Party noted the state court's rule of secrecy with respect to

the grand jury materials had to accede to the federal claims of the plaintiffs, which
would be determined under federal common law. Socialist lYorkers Party

concluded that "when state grand jury proceedings are subject to disclosure

[pursuant to application of Douglas Oil], comity dictates that the federal courts

defer action on any disclosure requests until the party seeking disclosure shows that

the state sfiige_isory court has considered his request and has ruled on the

continuing need for secrecy." (Socialist Workers Party,.supra, 619 F.2d at p..644.)

Socialist Workers Party explained, "This preliminary stage is designed merely to

forestall unnecessary intrusion by the federal courts in state grand jury proceedings

or, at least, to ensure that the important state interest in secrecy is thoroughly

considered." (Ibid.)

As can be seen from the forgoing, if the trial court determines upon remand

that Goldstein is not entitled to the grand jury materials under state law, it

nonetheless has an obligation to assess the need for continuing secrecy and prepare
a written evaluation of that need as an aid to the federal court's consideration of the

issue. This obligation is especially significant where the trial court has denied

access to the materials. Such a ruling suggests the trial court found a strong need to

prevent lifting.the veil of secrecy. In that circumstance, the trial court has a duty to
ensure, to the extent it is able, that the federal court is advised of the specifics of the

need for secrecy. Consequently; to the extent the trial court denies Goldstein's

request on remand, it shall state in writing the need for continuing secrecy so that

the federal court may consider this factor in determining whether Goldstein is
entitled to access these materials under federal law.

16
 DISPOSITION
The order to show causeis discharged. The writ petition is granted.
The matter is remanded to the trial court with directions .to reconsider Goldstein"s

motion for access to the raw evidentiary materials presented to the 1988-1989 and

1989-1990 grand juries in their investigations of the misuse ofj ailhouse informants

in light of the views expressed in this opinion. In the event the trial court again

denies Goldstein's motion, it shall indicate in writing the reasons that necessitate

continuing secrecy of the materials as to which discovery is denied in order to

permit the federal court to apply the Douglas Oil test in Goldstein's federal civil

rights case. The order grant'mg Goldstein's writ petition is final immediately as to

thins court.-(-Cal. RUles of-C0u_, ruleS/2-64-(b)-(3_0 Golds_ffm shall recOverhis eOsts

in this appellate proceeding.

CERTIFIED FOR PUBLICATION

KLEIN, P. J.

We concur:

CROSKEY, J.

ALDRICH, J.

17
 PROOF OF SERVICE
(CCP _ 1013(a) and 2015.5")
State of CaliforoJa, )
) SS.

County of Los Angeles )

lamemployedintheCountyof [] LosAngdes [] Orange, StataofCalifomia.

I am over the age of 18 and not a party to the within action; my business address is:
[] 1100 El Centre Street, Pest Office Box 250, South Pasadena, California 91030.
[] 620 Newport Center Drive, Suite 200, Newport Beacb_ CA 92660-8002
On this date, I served the foregoing document described as PETITION FOR REVIEW on the interested parties in this
action by placing same in a sealed envalope, addressed as follows:

SEE ATTACHED SERVICE LIST

[] IBY MAIL1 - I caused such envalope(s) with postage thereon fully prepaid to be placed in the United States marl in South
Pasadena, California. I am"readily familiar" with the firm's practice ofcoUectinn andprocessing correspondence for mailing.
Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at:
South Pasadena, California in the ordinary course of business. I am aware that on motion of the party sewed, service is
-presumed-in_ralid.-if.postaLcancellation-date-or .postage -meter. date is-more than. one day after-date of-deposit for .mailing in
affidavit.

[] (BY CERTIFIED MAIL) - I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Return Receipt
Requested to be placed in the United States Mail in South Pasadena, California.

[] BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVIDING FOR OVERNIGHT DELIVERY

[] (BY ELECTRONIC FILING AND SERVICE) - I served a true copy, with all exhibits, electronically on designated
recipients listed on the attached Service List.

[] FEDERAL EXPRESS - I caused the envelope to be delivered to an authorized courier or driver authorized to receive
documents with delivery fees provided for.

[] (BY FACSIMILE) - I caused the above-desoribed document(s) to be transmitted to the offices of the interested parties at the
facsimile number(s) indicated on the attached Service List and the activity report(s) generated by facsimile number (626)243-
1111 (So. Pasadena) or (949) 7184801 (Newport Beach) indicated all pages were transmitted.
[] (BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s).

Executed on September 4, 2007 at: South Pasadena, California.

[] (STATE) - I declare under penalty ofpeijury under the laws of the State of California that the above is true and correct.

[] {FEDERAL) - I declare that I am employed in the office era member of the bar of this court at whose direction the service was
made.

Lilly Y. Fukui __
 Thomas Lee Goldstein v. City of Long Beach, et al.
Case No.: CV04-9692 AB3VI(Ex)
Our File No. 16293
SERVICE LIST

I
......... I ....................................................
"'Davicl'S_"l_'cL_e".......................................................................................
: Theresa M. Traber, Esq.
K.AYE, McLANE & BEDNARSKI LLP Traber & Voorhees
128 North Fair Oaks Avenue 128 N. Fair Oaks Aveue, Suite 204
Pasadena, CA 91103 Pasadena, CA 91103
(626) 844-7660; fax: (626) 844-7670 (626) 585-9611; fax (626) 577-7079
ATTORNEYS FOR PETITIONER CO-COUNSEL FOR PETITIONER
..T,.H.o...._...,S..
L..-....G.
OL.p..S.TE_
...........................................................................
..T._q_.S...L......qO...L..p..S.
TE.tN...
...................................................
Clerk of the Court D. Brett Bianco, Esq.
2_or deliveryto: Hon. Peter Espinoza, Div. 123 Court Counsel
L.A. Superior Court Los Angeles Superior Court
Criminal_Justice.Center 11 ! N. I_'ll Street_ Room 546
210 West Temple Street Los Angeles, CA 90012-3014
Los Angeles, CA 90012-3210 (213) 974-5137; fax (213) 625-3964
ATTORNEYS FOR LOS ANGELES COUNTY
SUPERIOR COURT
Clerk of the Court Gordon W. Trasl_ Esq.
California Court of Appeal Principal Deputy County Counsel
Second Appellate District, Div. Three 648 Kenneth Hahn Hall of Administration
300 So. Spring Street, FI.2, N. Tower 500 West Temple Street
Los Angeles, CA 90013-1212 Los Angeles, CA 90012-2713
(213) 830-7000 ATTORNEY FOR LOS ANGELES COUNTY and
THE LOS ANGELES COUNTY GRAND JURY

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