People v. Municipal Court

Defendants were charged by complaint filed in San Francisco Municipal Court of violating various Penal Code sections relating to prostitution. (Pen. Code, §§ 315—keeping a house of ill-fame; 318—prevailing upon a person to visit a place of prostitution; 647, subd. (b)—soliciting prostitution.) Although the three real parties in interest were not charged as codefendants, their cases were joined for purposes of the instant litigation. Defendants filed a pretrial motion to dismiss the charges filed against them and a supplemental motion for discovery. In their pretrial motion for dismissal and discovery, defendants alleged that trial or conviction on the charges filed against them would violate their constitutional right to equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution and article I, section 7, subdivision (a) of the California Constitution, because the charges were the result of intentional and purposeful discriminatory enforcement of the law. In declarations signed by their attorneys, defendants made a showing to justify their discovery requests, which they alleged would provide information to support their motion to dismiss on constitutional grounds. Defendants’ declared belief is that the information is possessed by the District Attorney and/or the Police Department of the City and County of San Francisco.

In summary, the declarations alleged, on information and belief, that the San Francisco District Attorney enforces Penal Code sections 315, 318 and 647, subdivisions (a) and (b) against women who allegedly deal in

In Murgia, the defendants (petitioners), members of the United Farm Workers, filed motions to dismiss on the ground that the prosecutions violated their constitutional rights to equal protection of the law, because, they alleged, Kern County law enforcement authorities engaged in a deliberate, systematic practice of discriminatory enforcement of the criminal law against them. In conjunction with these motions, defendants filed a discoveiy motion seeking to obtain evidence which they said related to their discriminatory prosecution claim. The trial court found that defendants had established a prima facie case of discriminatory enforcement, but denied the discovery motion because it felt that such discrimination was no defense to a criminal prosecution. In overruling the trial court, the Supreme Court said that the equal protection clause fully applies to all criminal law and so, as in any criminal prosecution, the established principle which entitles the defendant to all relevant and material information which the prosecution possesses which will assist him in the preparation and presentation of his defense is applicable. (15 Cal.3d at p. 293.)

In Murgia, the court held that a clear allegation of a practice of “intentional, purposeful and unequal enforcement of penal statutes” against a class of individuals was sufficient to support a claim of invidious discrimination. The court distinguished Oyler v. Boles (1962) 368 U.S. 448 [ 7 L.Ed.2d 446 , 82 S.Ct. 501 ], where a defendant’s contention that a criminal statute had been discriminatorily enforced against him was rejected because he failed to allege that the discrimination was the result of “race, religion or other arbitraiy classification.” (15 Cal.3d at p. 299.) In California, sex is such an arbitrary classification. (People v. Superior Court (Hartway) (1977) 19 Cal.3d 338 , 348 [ 138 Cal.Rptr. 66 , 562 P.2d 1315 ].)

Griffin v. Municipal Court (1977) 20 Cal.3d 300 , 306 [ 142 Cal.Rptr. 286 , 571 P.2d 997 ], reaffirmed the Murgia holding that when a

Defendants argue that they have demonstrated a plausible justification for the discovery they need to support their claim of invidious discrimination, a proper defense in this case. As heretofore stated, the People advocate that the defendants failed to show plausible justification. They argue for three reasons: (1) the declarations in support of discovery are inadequate; (2) defendants have not shown themselves unable to make a more complete showing; and (3) defendants fail to make a prima facie showing of discriminatory enforcement. The People attack the sufficiency of the defendants’ “information and belief” declarations asserting they contain “no indication of any support for the belief.” Specifically referring to the described alleged meeting between law enforcement officers and members of the “[homosexual] community,” and in Captain Eimil’s memorandum, it is contended that defendants’ “declarations suggest little but rumors and beliefs . . . with nothing to establish the reasonableness of these beliefs, or the sources of the information.” Describing defendants’ showing as “weak” and relying upon Bortin v. Superior Court (1976) 64 Cal.App.3d 873 [ 135 Cal.Rptr. 30 ], the People urge that we find the supporting declarations to be “unweighty evidence” which fails to establish a plausible justification for discovery.

Bortin, a defendant charged with perjuiy (Pen. Code, § 118) for allegedly making a material false statement under oath in a driver’s license application, sought a dismissal on the grounds of invidious selective prosecution. He alleged on “information and belief” that the perjury charges were motivated entirely because of his and his associates’ anti-American foreign and domestic policy political beliefs. Further, he, after investigation, alleged a “belief” that though “thousands” of San Franciscans have been found to have fraudulently obtained licenses, none had been prosecuted under the felony perjury statute. His declaration also made it appear that the State of California through the Department of Motor Vehicles adopted and pursued a policy, with one exception, not to enforce the criminal sanction for such a false statement. Importantly, Bortin concluded that without the requested discovery he would not be able to adequately show and sustain his defense of invidious selective prosecution. The Bortin court, observing that the prosecution had in effect defaulted in the trial court, remanded to give the People in the interest of justice an opportunity to traverse Bortin’s “unweighty

In support of their contention that defendants failed to make a “prima facie” (plausible) showing of discriminatory prosecution, the People point out that defendants’ “declarations do not show that they were arrested because of a discriminatory enforcement policy” or as they later conclude, defendants “fail to show that they would not have been arrested except for this alleged policy.” However, it does not follow that the declarations are totally insufficient. When read in the light of permissible, reasonable inferences, they are sufficient. It is certainly true that Murgia v. Municipal Court, supra, 15 Cal.3d 286 , 298, teaches that in order to establish a defense of discriminatory enforcement a defendant must demonstrate or prove that he has been deliberately singled out for prosecution. Further, if successful, such a defendant as the victim of a discriminatory practice is entitled to a dismissal of the criminal charge, since the prosecution would not have been pursued except for the discriminatory design of the prosecution authorities. However, such a defendant, in demonstrating his entitlement to a discovery order, is not required to meet the standard of proof requisite to the dismissal of a discriminatory prosecution. As the Murgia court said: “[I]n the present proceeding, we are not faced with the question of whether defendants’ showing is adequate to rebut the presumption that official duty has been properly, and hence constitutionally, exercised (see Evid. Code, §§ 664, 606; People v. Gray, supra, 254 Cal.App.2d 256 , 265): the only issue before us is whether discovery on the discriminatory prosecution claim should have been totally foreclosed. At this stage of the proceedings, it is impossible to determine what evidence defendants will ultimately proffer in support of their claim; the discovery motions before us seek to uncover both direct evidence of purposeful, discriminatory conduct as well as circumstantial evidence which might be relevant in raising an inference of such purposeful invidious discrimination. Under these circumstances, we believe the trial court erred in totally denying discovery with respect to defendants’ equal protection claim.” (15 Cal.3d at p. 305.)

In our view the herein defendants’ allegations set forth a claim that they have been victims of an intentional and purposeful and therefore unconstitutional, discriminatory enforcement of the statutes in question. When read and viewed in their entirety, including the rational

As the Griffin court stated: “Unlike civil discovery, criminal discovery in California is strictly a judicial creation” (20 Cal.3d at p. 306) and the courts have established that the discovery capacity of tíre defendant is almost an absolute right. (Louisell &. Wally, Modern Cal. Discovery (2d ed. 1972) § 14.05, p. 880.) “The basis for requiring pretrial production of material in the hands of the prosecution is the fundamental principle that an accused is entitled to a fair trial.” (Cash v. Superior Court (1959) 53 Cal.2d 72 , 75 [ 346 P.2d 407 ].) Although the California Supreme Court has not yet established a method of ascertaining whether or not discovery of a given item is necessary to accord defendant a fair trial (Louisell & Wally, Modern Cal. Discovery, supra, at p. 885), underlying the rationale of criminal discovery is the principle first stated in People v. Riser (1956) 47 Cal.2d 566 , 586 [ 305 P.2d 1 ] (app. dism. 358 U.S. 646 [ 3 L.Ed.2d 568 , 79 S.Ct. 537 ], disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631 [ 36 Cal.Rptr. 201 , 388 P.2d 33 , 12 A.L.R.3d 810 ]): “Absent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case, . . .” Justice Traynor wrote: “There remains to be articulated how much the right [to pretrial discovery] encompasses. The defendant must show better cause for discovery ‘than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.’ A showing, however, that the defendant cannot readily obtain the information through his own efforts will ordinarily entitle him to pretrial knowledge of any unprivi

This broad allowance of discovery granted to criminal defendants has been continuously reaffirmed. In Pitchess v. Superior Court, supra, 11 Cal.3d 531 , 536, the court said: “[I]n contrast to the formal requirements for civil discovery, an accused in a criminal prosecution may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial.” A sufficient showing is made by “general allegations which establish some cause for discovery other than ‘a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.’ ” (P. 537.) In Pitchess, the defendant was charged with battery. He asserted in a pretrial discovery motion that he intended to establish that he had acted in self-defense, and to that end he sought to discover evidence of the complaining witness’ sheriff’s deputies’ propensity for violence, specifically requesting records of investigations into complaints of official misconduct conducted by a unit of the sheriff’s department. The trial court granted discovery and was upheld by the Supreme Court. Defendant had filed affidavits stating that four named individuals had filed complaints against the deputies in question and that defendant needed copies of those complaints to refresh the recollection of the complainants or because the complainants were unavailable for interview. Additionally, the defendant alleged that disciplinary records were necessary as character evidence of the deputies’ tendency to violence in support of this theory of self-defense. The court held that the affidavits were clearly sufficient to justify discovery under the applicable standard. ( 11 Cal.3d 531 , 534, 537; see also Cadena v. Superior Court (1978) 79 Cal.App.3d 212 [ 146 Cal.Rptr. 390 ]; Hill v. Superior Court (1974) 10 Cal.3d 812 [ 112 Cal.Rptr. 257 , 518 P.2d 1353 ].)

Discovery is denied where information sought is privileged (Pitchess v. Superior Court, supra, 11 Cal.3d 531 ), where it represents the work product of the prosecution (People v. Boehm (1969) 270 Cal.App.2d 13 [ 75 Cal.Rptr. 590 ]), where it has no relevance to the defense (Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692 [ 127 Cal.Rptr. 664 ]), and where it is requested with such lack of specificity that it appears to be

The municipal court properly applied the principles of criminal discovery to the instant case where defendants claimed the recognized defense of discriminatory enforcement, and granting discovery was not an abuse of discretion. The learned superior court therefore erred in issuing a writ of mandate vacating the municipal court order.

The superior court’s order granting a writ of mandate is vacated. We direct that the order of the municipal court granting discovery be reinstated.

Scott, J., and Feinberg, J., concurred.

A petition for a rehearing was denied March 27, 1979, and the petition of the plaintiff and respondent for a hearing by the Supreme Court was denied April 26, 1979.