Alvarez

Penal Code section 938.1, subdivision (b), provides that grand jury transcripts shall be open to the public after an indictment issues unless the court finds a “reasonable likelihood” that their release will prejudice the defendant’s right to a fair trial. (§ 938.1, subd. (b).) The First Amendment of the United States Constitution guarantees the press and the public a right of access to certain judicial proceedings and precludes their closure unless the court finds that access will create a “substantial probability” of prejudice and finds there are no less restrictive measures that would ameliorate the harm. (Press-Enterprise Co. v. Superior Court (1986) 478 U.S. 1, 13-14 [ 92 L.Ed.2d 1 , 106 S.Ct. 2735 ] (Press-Enterprise II); NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1181 [ 86 Cal.Rptr.2d 778 , 980 P.2d 337 ] (NBC Subsidiary).)

The “reasonable likelihood” standard of section 938.1 places a lesser burden on a defendant seeking to prevent dissemination of grand jury transcripts than would the “substantial probability” standard that applies to public access cases under the First Amendment. (Press-Enterprise v. Superior Court (1994) 22…