PRESS ENTERPRISE COMPANY v. DIAZ

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Court of Appeal, Fourth District, Division 2, California.

PRESS–ENTERPRISE COMPANY, Petitioner, v. SUPERIOR COURT, RIVERSIDE COUNTY, Respondent, Robert Rubane DIAZ, Real Party in Interest.

Civ. 29785.

Decided: January 12, 1984

James D. Ward and Sharon J. Waters, Thompson & Colegate, Riverside, for petitioner. Grover C. Trask, II, Dist. Atty., and Patrick F. Magers, Deputy Dist. Atty., as amicus curiae on behalf of petitioner. Michael B. Lewis, Public Defender, and John J. Lee, Deputy Public Defender, for real party in interest. Diane C. Campbell, Leucadia, for amicus curiae on behalf of respondent and real party in interest.

OPINION

Petitioner, Press-Enterprise Company, sought access to the transcript of the preliminary hearing of Robert Rubane Diaz.   Diaz was charged with the murder of 12 hospital patients by administering massive doses of the heart drug lidocaine.   The hearing was closed at Diaz' request pursuant to Penal Code section 868 1 , and thereafter the transcript was ordered sealed.   Following the preliminary hearing, Diaz was held to answer in the superior court on all 12 counts.   Petitioner attempted to gain access to the transcript, but its request was denied at both the municipal and superior court levels.   Petitioner then petitioned this court for a writ of mandate to compel the trial court to vacate its order sealing the transcript.   We denied the writ and petitioner petitioned the California Supreme Court seeking a hearing.   The Supreme Court granted a hearing and transferred the case to this court with directions to issue an alternative writ of mandate.   After complying with this order, we discharge the alternative writ and decline to issue a peremptory writ for the reasons hereinafter set forth.

 This case requires the resolution of the following issues:  (1) Does the public enjoy a constitutional right of access to preliminary hearings and transcripts generated therefrom? 2  (2) Does a recent amendment to section 868 grant the public a statutory right of access to preliminary hearings and transcripts?  (3) What standard does section 868 require the court to employ in balancing a defendant's constitutional right to a fair trial against the public's statutory right of access? and (4) Were the closure and sealing orders appropriate in this case? 3

I. Constitutional Considerations:  Public Access to Preliminary Hearings and Transcripts.

 Petitioner contends that the public has a constitutional right of access to preliminary hearings and transcripts.  Mercury-News, supra, 30 Cal.3d 498, 179 Cal.Rptr. 772, 638 P.2d 655 is dispositive on this issue.   In Mercury-News the California Supreme Court upheld the constitutionality of former section 868 which required closure of a preliminary hearing at a defendant's request.   In reaching this conclusion, the court held the public has no right of access to preliminary hearings under the federal or state Constitutions.  (Mercury-News, supra, 30 Cal.3d at pp. 506, 508–514, 179 Cal.Rptr. 772, 638 P.2d 655.)

In Gannett Co. v. DePasquale (1979) 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608, the United States Supreme Court held that a defendant's Sixth Amendment right to a public trial creates no corresponding public right of access to either the trial or a pretrial suppression-of-evidence hearing.  (Gannett Co. v. DePasquale, supra, 443 U.S. at pp. 384–391, 99 S.Ct. at pp. 2907–2911.4  One year later, in Richmond Newspapers, Inc. v. Virginia (1980) 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973, the court held the public has a qualified First Amendment right of access to the trial itself.   (Richmond Newspapers, Inc. v. Virginia, supra, 448 U.S. at p. 580, 100 S.Ct. at p. 2829.)   Analyzing Gannett in conjunction with Richmond Newspapers, the Mercury-News court concluded the right of access did not extend to preliminary hearings.

Post Mercury-News decisions advanced by petitioner do not detract from its dispositive nature.  Globe Newspaper Co. v. Superior Court (1982) 457 U.S. 596, 102 S.Ct. 2613, 73 L.Ed.2d 248 considered a Massachusetts mandatory closure rule which barred press and public access to criminal sex-offense trials during the testimony of minor victims.   The court held that the mandatory closure rule violates the First Amendment.  (Globe Newspaper Co. v. Superior Court, supra, 457 U.S. at pp. 601–611, 102 S.Ct. at pp. 2617–2623, 73 L.Ed.2d at pp. 254–260.)   Since the opinion in Globe was addressed to the actual trial, it is not controlling.5  (Cf. Gannett Co. v. DePasquale, supra, 443 U.S. at p. 388, fn. 19, 99 S.Ct. at p. 2910, fn. 19.)   Post Mercury-News treatment of the issue by the federal circuit courts emphasizes the dichotomy between the preliminary hearing and other pretrial proceedings.   Although there are cases where the federal courts have found a First Amendment right of access to certain pretrial proceedings, the result was obtained through an analogical comparison to a trial.   Petitioner has not cited, nor have we found, any decision which extended the access right to a preliminary hearing.   Indeed, preliminary hearings are to be distinguished from rather than analogized to trials.  (See Gannett Co. v. DePasquale, supra, 443 U.S. at p. 437, 99 S.Ct. at p. 2935 (conc. & dis. opn. of Blackmun J.);  United States v. Brooklier (9th Cir.1982) 685 F.2d 1162, 1167 and cases decided therein.   See also United States v. Criden (3d Cir.1982) 675 F.2d 550, 557 (distinguishing Mercury-News ).)

Although Mercury-News did not consider whether the public has a constitutional right of access to transcripts, logic dictates a reapplication of the preliminary hearing analysis.   Accordingly, since there is no right of public access to preliminary hearings arising under either the federal or state Constitutions (Mercury-News, supra, 30 Cal.3d at pp. 506–508, 179 Cal.Rptr. 772, 638 P.2d 655), there is no constitutional right to transcripts of such hearings.

II. Penal Code Section 868:  A Statutory Right of Access

 The principal changes accomplished by the 1982 amendment to section 868 are that the section now requires that the preliminary hearing shall be open and public, and it will only be closed when necessary in order to protect the defendant's right to a fair and impartial trial.6  Prior to the amendment, closure was mandatory if requested, and no finding of necessity was required.  (See Note, Criminal Procedure (1983) 14 Pacific L.J. 581, 583–584.)   Petitioner contends that this amendment has the effect of granting the public a right of access to preliminary hearings and the transcripts thereof.   We agree.

In Mercury-News the court stated the Legislature could properly accommodate competing free-speech and fair-trial interests.  (Mercury-News, supra, 30 Cal.3d at p. 514, 179 Cal.Rptr. 772, 638 P.2d 655.)   The Legislature responded by amending section 868, effective March 1, 1982, about six weeks after the Mercury-News decision.

In apparent reference to the Mercury-News decision, the Legislature stated:  “This act is an urgency statute․  [¶] The absence of clear legislative guidance has resulted in confusion concerning the access of the public and other parties to criminal proceedings․  Therefore, in order to clarify the rights of the public and others to know about the workings of our criminal justice system, it is necessary that this act become effective immediately.”  (2 West's Cal.Legl.Service (1982) pp. 394–395.)   Since the Legislature has power to determine the rights of individuals, provided there is no interference with constitutional guarantees (Modern Barber Col. v. Cal. Emp. Stab. Com. (1948) 31 Cal.2d 720, 726, 192 P.2d 916), we conclude that a right of public access to preliminary hearings arises under section 868.   This right of access extends to transcripts produced from preliminary hearings.  (Compare United States v. Brooklier, supra, 685 F.2d at p. 1172 [denial of motion to release transcript was tantamount to a denial of right of access].)

III. Closure upon Necessity:  A Balancing Approach

 Petitioner asserts that the language of necessity in section 868 requires the application of the closure test adopted by the Ninth Circuit in United States v. Brooklier, supra, 685 F.2d 1162.   This test, derived from the Gannett dissent (Gannett Co. v. DePasquale, supra, 443 U.S. at pp. 441–442, 99 S.Ct. at pp. 2936–2937 [conc. & dis. opn. of Blackmun, J.] ), would require a defendant to establish that closure of his preliminary hearing is strictly and inescapably necessary in order to protect his fair trial guarantee.   Under this standard a defendant must demonstrate:  “(1) ‘a substantial probability that irreparable damage to his fair-trial right will result from conducting the proceeding in public’;  (2) ‘a substantial probability that alternatives to closure will not protect adequately his right to a fair trial’;  and (3) ‘a substantial probability that closure will be effective in protecting against the perceived harm.’ ”  (United States v. Brooklier, supra, 685 F.2d at p. 1167.)

The Mercury-News decision provides some guidance in developing an appropriate test.   The court considered this issue in terms of the positive and negative aspects of an open preliminary hearing.   In relating the beneficial value of an open preliminary hearing, the court recognized it may be the only time a judicial proceeding of importance occurs during a criminal prosecution, and therefore, the preliminary hearing would provide the sole opportunity for public observation of the criminal-justice system.

However, the court also noted that the nature of preliminary hearings presents danger that public access may prejudice a defendant's right to a fair trial.   “As with other pretrial proceedings, the climate [preliminary hearings] may generate in advance of trial cannot always be nullified by relatively simple controls, such as sequestration and exclusion of witnesses, that are available to counter inflammatory publicity at the time of trial.”  (Mercury-News, supra, 30 Cal.3d at p. 511, 179 Cal.Rptr. 772, 638 P.2d 655.)  “Prejudice at times may be acute because of the superficial resemblance between preliminary hearing and trial.  [Citation.]  The distinct functions served by the two proceedings are not always clear to nonlawyers.   They may ascribe to a one-sided preliminary hearing the legitimacy and credibility of a trial.   Accordingly, a defendant denied the protection of section 868 might feel compelled to abandon his right of silence at the hearing and to embrace a tactic of trying the case in the media.”  (Mercury-News, supra, 30 Cal.3d at p. 512, 179 Cal.Rptr. 772, 638 P.2d 655.)   Further, due to the timing of a preliminary hearing, a defendant will frequently find it difficult to show that prejudice is likely and closure is justified.  “The evidence required may not be available at an early stage, when community reaction and the media's attitude are not clear.   Moreover, defendant may have little knowledge before the hearing of the prosecution's strategy and evidence.   That additionally clouds his ability to prove the value to him of closure.”  (Mercury-News, supra, 30 Cal.3d at p. 513, 179 Cal.Rptr. 772, 638 P.2d 655, fn. omitted.)

Although, by amendment of section 868, the Legislature intended to clarify the right of public access to preliminary hearings, there is no indication that the Legislature intended to encroach upon the rights of defendants to receive a fair trial.  Section 868 expressly requires closure of the hearing if the court finds that right endangered.   Therefore, the comments of the court in Mercury-News describing the prejudicial effect of certain pretrial publicity are germane to any consideration of the standard to be used in implementing section 868 as amended.

We conclude that the Brooklier test is inappropriate as a standard for closure under section 868.   The Brooklier test was formulated in deference to the public's First Amendment right of access to voir dire proceedings and actual trials.  (See United States v. Brooklier, supra, 685 F.2d at p. 1167.)   Even in the constitutional context, Justice Powell in Gannett stated that the Brooklier test (as contained in his brethren's dissent) would not adequately safeguard defendant's right to a fair trial.  “A rule of such apparent inflexibility could prejudice defendants' rights and disserve society's interest in the fair and prompt disposition of criminal trials.”  (Gannett Co. v. DePasquale, supra, 443 U.S. at p. 399, 99 S.Ct. at p. 2915 [conc. opn. of Powell, J.].)  The right of access at a preliminary hearing is conferred by statute.   This difference in the source of the right being asserted, as well as the greater difficulty in showing prejudice at the preliminary stage, mandate the application of a more flexible standard.

In Cromer v. Superior Court (1980) 109 Cal.App.3d 728, 733–734, 167 Cal.Rptr. 671, the court held that the appropriate standard for insuring the accused a fair trial under the threat of adverse pretrial publicity is whether there is a “ ‘reasonable likelihood’ of substantial prejudice.  [Citation.]”  The court also noted that a defendant is entitled to “ ‘receive a trial by an impartial jury free from outside influences.   Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial court must take strong measures to ensure that the balance is never weighed against the accused.’ ”  (Original italics.)  (Cromer v. Superior Court, supra, 109 Cal.App.3d at pp. 731–732, 167 Cal.Rptr. 671, quoting Sheppard v. Maxwell (1966) 384 U.S. 333, 362, 86 S.Ct. 1507, 1522, 16 L.Ed.2d 600, 620.)

Heretofore the crucial component lacking in section 868 cases was the requirement that the lower court apply a balancing test before closing a preliminary hearing.   Although in Mercury-News the court pointed out that a balancing approach would be difficult to apply with respect to preliminary hearings because of the early stage of development of the case, the court also recognized that in many instances concerns may be amenable to judicial balancing on a case-by-case basis and the Legislature had the power to accommodate these interests.  (Mercury-News, supra, 30 Cal.3d at p. 514, 179 Cal.Rptr. 772, 638 P.2d 655)  The amendment clearly states that the requirement of an “open and public” preliminary hearing shall yield upon the defendant's request and a finding that exclusion is necessary to protect the defendant's right to a fair and impartial trial.   Thus, in section 868 the Legislature has provided a framework for such a case-by-case analysis.   We conclude that a preliminary hearing must be closed at defendant's request if, after balancing the competing interests, the court finds a reasonable likelihood of substantial prejudice which would impinge on the defendant's right to a fair trial.

 In making its determination the court should consider:  (1) the extent and prejudicial impact of past media coverage;  (2) the likelihood and degree of prejudicial impact resulting from media coverage of the impending preliminary hearing;  (3) the relative size of the prospective jury pool;  (4) the efficacy of closure as a means of protecting the defendant's right to a fair trial;  and (5) the existence of viable alternatives.  (See generally, Nebraska Press Assoc. v. Stuart (1976) 427 U.S. 539, 562–563, 96 S.Ct. 2791, 2804–2805, 49 L.Ed.2d 683, 699–700 (speculating on the existence of prospective prejudice was proper);  Mercury-News, supra, 30 Cal.3d at p. 512–513, 179 Cal.Rptr. 772, 638 P.2d 655.)   Additionally, since the court must stay open to balancing the two competing interests, prudence suggests that it remain receptive to reasonable arguments advancing other relevant factors.

 What constitutes a viable alternative in lieu of closure may differ with each case.   The court should consider any alternative which would still protect the defendant's right to a fair and impartial trial.  (See generally, Gannett Co. v. DePasquale, supra, 443 U.S. at pp. 441–442, 99 S.Ct. at pp. 2936–2937 [conc. & dis. opn. of Blackmun, J.];  Brian W. v. Superior Court (1978) 20 Cal.3d 618, 625, 143 Cal.Rptr. 717, 574 P.2d 788.)   Restraints on publication are generally not viable because they impose an equal, or often greater, restraint than closure on First Amendment rights.   (Mercury-News, supra, 30 Cal.3d at p. 513, 179 Cal.Rptr. 772, 638 P.2d 655.)   Finally, a change of venue or postponing the trial until the effect of pretrial publicity subsides, are usually not viable because they may subject the parties to great inconvenience, while possibly violating a defendant's right to a speedy trial in the vicinage.7

 Because a denial of a preliminary hearing transcript is also a denial of a right of access protected by section 868, it must be tested by the same standards and satisfy the same requirements as the initial closure.   (Cf. United States v. Brooklier, supra, 685 F.2d at p. 1172.)   Moreover, even when a transcript has been properly sealed, it must be released upon a proper showing that a reasonable likelihood of substantial prejudice to the defendant's right to a fair trial no longer exists.

IV. Propriety of the Lower Courts' Orders

 The magistrate granted the motion to close the preliminary hearing relying on Gannett.   The magistrate found that due to pretrial publicity, and the general nature of preliminary hearings, only the prosecutorial side of defendant's case would be reported in the media.   Because there was no objection to the closure at the preliminary hearing, the record does not reveal whether the court considered the competing rights of public access or the existence of viable alternatives prior to closure.   However, it is apparent that the court found a reasonable likelihood of substantial prejudice and granted the closure motion to protect Diaz' right to a fair and impartial trial.

We turn now to the order sealing the transcript.   Petitioner contends that the superior court failed to state any reasons or make a specific finding to support the sealing order as required by section 868;  the court sealed the transcript based on an insufficient showing of possible prejudice;  and the court failed to consider any alternatives.

A review of the record of the hearing on petitioner's request for access to the transcript reveals that the court considered Diaz' right to a fair trial and concluded that there was “a reasonable likelihood that making all or any part of the transcript public might prejudice the defendant's right to a fair and impartial trial.”   The court did not specifically state on record that this right was considered in light of the countervailing access rights of the public.   However, it is clear that the court recognized the existence of the right of access but determined that the probability of prejudice to Diaz' right to a fair and impartial trial continued as long as the matter remained set for a jury trial.

 Petitioner and amicus curiae contend that the order sealing the transcript should be vacated for the following reasons:  (1) the media coverage has been factual and therefore of a nonprejudicial nature;  (2) since the evidence adduced at the preliminary hearing was neither inflammatory nor sensational it is not likely to lead to extensive media coverage at this time;  (3) the testimony is free from potentially inadmissible evidence and confessions;  (4) any evidence about the preliminary hearing is likely to be forgotten before trial;  (5) media coverage has been declining significantly since the time Diaz was first charged with murder;  and (6) the transcript can be selectively released deleting the prejudicial portions.

Diaz maintains, however, that (1) release of the transcript would significantly impair his right to be tried by an impartial jury selected from Riverside County;  (2) the preliminary hearing testimony is subject to evidentiary attack at trial;  (3) some of the municipal court's comments were prejudicial;  (4) media coverage has been extensive in general;  and (5) a venue study reveals that he could still get a fair trial in Riverside County largely due to the superior court's protective order.

Balancing the competing interests leads to the conclusion that the trial court acted properly in ordering the transcript sealed.   For the reasons which follow, we hold that the trial court could properly conclude that releasing the transcript, as long as the case remains set for a jury trial, would create a reasonable likelihood of substantial prejudice to Diaz' right to a fair trial.

This case has been the subject of intense media coverage for over two years.   A substantial amount of this coverage occurred before Diaz was arrested in November of 1981.   Most of the articles before his arrest contained a common theme of suspicion and implication.   Diaz was frequently questioned by the media concerning his possible involvement.   Some of the articles depicted the details of suffering which the victims endured before their death.   An article covering Diaz' arrest displays a photograph of him in handcuffs and police custody.   After the transcript was sealed, newspaper coverage declined.

Petitioner is in error in suggesting that factual evidence cannot be prejudicial.   Petitioner directs this court to Mercury-News, supra, 30 Cal.3d at p. 512, 179 Cal.Rptr. 772, 638 P.2d 655 and asserts that the court stated that if the evidence is factual and not inflammatory or sensational, then it cannot be said that publication of this information would necessarily produce a jury pool within which the defendant's guilt has already been ascribed.

The opinion actually states:  “Yet inflammatory or misleading publicity is not the only unfair publicity.   Factual, relevant reporting may be prejudicial too if it produces a jury pool within which a defendant's guilt has already been ascribed.”  (Mercury-News, supra, 30 Cal.3d at p. 512, 179 Cal.Rptr. 772, 638 P.2d 655.)   While it is true that factual reporting does not invariably lead to prejudice, as Mercury-News stated, such reporting can be prejudicial because it may produce a jury pool in which defendant is presumed guilty.   This principle is applicable here.   Moreover, apart from (but related to) this principle, the transcript is indicative of only the prosecutorial side of the case, bringing to mind many of the other concerns expressed in Mercury-News.   Our examination of the transcript convinces us that even factual dissemination of its contents would result in public awareness of potentially inadmissible evidence and prejudicial comments.   Were this to occur, the exclusion of such evidence in court during the trial would be rendered meaningless.  (See Sheppard v. Maxwell, supra, 384 U.S. at p. 360, 86 S.Ct. at p. 1521;  Corona v. Superior Court (1972) 24 Cal.App.3d 872, 877–878, 101 Cal.Rptr. 411.)   Additionally, petitioner's contention that such evidence would be forgotten is not persuasive with Diaz' trial just weeks away at the time of this hearing.

The transcript consists of 47 volumes, 4,239 pages, spanning 8 weeks of testimony.   The sheer volume of the transcript suggests that its release would generate substantial media coverage.   Although petitioner argues that the more severe danger of “day-by-day” reporting has now passed with the conclusion of the preliminary hearing, there is nothing to prevent the press from bringing about its recurrence.   Further, any coverage would have the effect of renewing questions about Diaz' involvement, thereby reopening the pre-arrest publicity.

 Alternatives to sealing the transcript would not suffice in this case.   Citing Associated Press v. U.S. Dist. Ct. for C.D. of Cal. (9th Cir.1983) 705 F.2d 1143, petitioner suggests the use of clear and emphatic jury instructions and an intensive voir dire as alternatives to sealing the transcript.   However, in that case these measures were found practicable in a large urban area.   Relying on Nebraska Press, supra, 427 U.S. 539, 96 S.Ct. 2791, 49 L.Ed.2d 683, Associated Press stated in a large urban area such as Los Angeles, there are millions of potential jurors, and these alternatives will screen out those with fixed opinions regarding the defendant's guilt or innocence.  (Associated Press v. U.S. Dist. Ct. for C.D. of Cal., supra, 705 F.2d at p. 1146.)   Since the population in Riverside County is substantially smaller, these alternatives would be less effective.   The release of the transcript and employment of these alternatives would tend to exacerbate the existing prejudice.  (See Cromer v. Superior Court, supra, 109 Cal.App.3d at p. 735, 167 Cal.Rptr. 671.)

A change of venue would not only impinge on Diaz' constitutional right to be tried by a Riverside County jury, but would also subject many people to great inconvenience.   Postponement would delay what has been projected to be the longest criminal trial in Riverside County history while possibly violating Diaz' right to a speedy trial.   Finally, we reject petitioner's contention that selective release of the transcript is indicated.   Even if the administrative burden of such a task could be overcome, the selective release would be impossible in view of the overall tone of the transcript.

The public's right of access to preliminary hearings and transcripts under section 868 is an important interest which should only be denied when there is a reasonable likelihood of substantial prejudice to a defendant's fair-trial rights.   There was such reasonable likelihood as long as this case awaited a jury trial.

DISPOSITION

The alternative writ of mandate is discharged;  the peremptory writ is denied.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise stated.

2.   We note that the public necessarily includes the press because the media has no privileges beyond those of the public generally.   (Houchins v. KQED, Inc. (1978) 438 U.S. 1, 11, 15–16, 98 S.Ct. 2588, 2594, 2597–2598, 57 L.Ed.2d 553, 562;  San Jose Mercury-News v. Municipal Court (1982) 30 Cal.3d 498, 503, 179 Cal.Rptr. 772, 638 P.2d 655 (hereafter Mercury-News ).)

3.   Although the issue may now be technically moot, we are empowered to decide moot issues which escape appellate review due to their short durational life, and which present significant questions affecting the public interest.  (E.g., Hardie v. Eu (1976) 18 Cal.3d 371, 379, 134 Cal.Rptr. 201, 556 P.2d 301, cert. den., 430 U.S. 969, 97 S.Ct. 1652, 52 L.Ed.2d 360.)

4.   “The Sixth Amendment, applicable to the States through the Fourteenth, surrounds a criminal trial with guarantees ․ personal to the accused.”  (Gannett Co. v. DePasquale, supra, 443 U.S. at pp. 379–380, 99 S.Ct. at pp. 2905–2906.)  “The history upon which the petitioner and amici rely totally fails to demonstrate that the Framers of the Sixth Amendment intended to create a constitutional right in strangers to attend a pretrial proceeding, when all that they actually did was to confer upon the accused an explicit right to demand a public trial.”  (At pp. 385–386, 99 S.Ct. at pp. 2908–2909, fn. omitted.)

5.   In a concurring opinion Justice O'Connor stated that she did not interpret Richmond Newspapers “to shelter every right that is ‘necessary to the enjoyment of other First Amendment rights.’  [Citation.] ․  Thus, I interpret neither Richmond Newspapers nor the Court's decision today to carry any implications outside the context of criminal trials.”   (Globe Newspaper Co. v. Superior Court, supra, 457 U.S. at p. 611, 102 S.Ct. at p. 2623, 73 L.Ed.2d at p. 260, emphasis added, conc. opn. of O'Connor, J.)

6.   Section 868, as amended, reads in pertinent part:  “The examination shall be open and public.   However, upon the request of the defendant and a finding by the magistrate that exclusion of the public is necessary in order to protect the defendant's right to a fair and impartial trial, the magistrate shall exclude from the examination every person except the clerk, court reporter and bailiff, prosecutor and his or her counsel, the Attorney General, the district attorney of the county, ․”  (Stats.1982, ch. 83, § 3 [operative March 1, 1982].)Before the 1982 amendment section 868 read in pertinent part:  “The magistrate must also, upon the request of the defendant, exclude from the examination every person except his clerk, court reporter and bailiff, the prosecutor and his counsel, the Attorney General, the district attorney of the county, ․”  (Stats.1976, ch. 1178, § 2.)Diaz' preliminary hearing commenced on July 6, 1982, over four months after the operative date of the 1982 amendment.

7.   Diaz filed a response to the order to show cause contained in the alternative writ.  (Cal.Rules of Court, rule 56(c).)   As Diaz correctly notes, his right to a speedy trial in the vicinage has common law and constitutional antecedents.  (U.S. Const., Amends. VI, XIV;  Cal. Const., art. I, § 15;  People v. Jones (1973) 9 Cal.3d 546, 556, 108 Cal.Rptr. 345, 510 P.2d 705.)  “[A] defendant has a right to have his case tried in the place of his residence, and no change of venue can be forced down his throat by publicity in the press.  [Citation.]”  (Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 210, 124 Cal.Rptr. 427, cert. den., 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1204.)

MORRIS, Presiding Justice.

KAUFMAN and McDANIEL, JJ., concur.