*1 Dist., Aug. Three. 1986.] First Div. A028074. [No. PEOPLE, Plaintiff Respondent,

THE MOYA, Defendant and Appellant. JOSEPH

FRANK certified partial publication.*]

[Opinion (Cal. 976(b) II, publication. V are not certified for Rules rules III and *Parts 976.1.)

Counsel Bevis,

Bram under the Court of Appeal, appointment Defendant and Appellant. General, Raster de Eugene

John K. Van Attorney Laurence Kamp, R. Sullivan, General, for Plaintiff and Respondent. Deputy Attorneys Opinion Appellant, Frank

SCOTT, jury convicted Moya, J. Code of Penal violation instrument section sharp prisoner, 4502. denied access to his on that he was contentions Among appeal information critical to his defense of violation discriminatory prosecution, of Murgia 204, (1975) 15 Cal.3d 286 44]. (1985) 165 v. Ochoa notwithstanding People We hold that discretion in 4], did not abuse its the trial court and affirm judgment. discovery request,

I 29, 1983, Quentin, was an inmate at San who then On March appellant, a cordon of through a routine search avoiding slipping was observed to inmates their release into prior The officers were several frisking guards. told the officer When yard. appellant supervising exercise questioned, and searched found

that had been searched. The just appellant he supervisor an inmate-made blade in his pocket.

II, III*

IV error in prejudicial that court committed contends Appellant to data his claim of relating his motion compel discriminatory prosecution. trial, for and discovery pursuant moved dismissal

Before appellant 286. who is Mex- Appellant, Murgia ican-American, Attorney District files Penal that the Marin County alleged a percentage minority 4502 charges against disproportionate Code section have been that he would not but for alleged inmates. Appellant a rec- multiplicity investigative He sought discriminatory practice. statements of witnesses and ords, and other documents including reports, Quentin, the staff at San district attorney the administrative from suspects, General, all and charged uncharged relating weapons Attorney and the 1, 1982, Quentin January at from March through incidents San possession 1984. from a declaration Public Defender supported by Deputy

The motion part according which states to Department Horngrad, Douglas 57.6 minority as June inmates comprised report, Corrections ante, footnote, p. 1307. *See of the

percent Quentin.1 felon at San population Horngrad also declared Quentin that 182 San inmates were referred to the district office 1982; possible section 4502 filing charges the public defender’s office all most if not participates cases originating Quentin; of the 21 San defendants represented office inmate, of a weapon (or by prison about 71 were percent) members of “racial minority.” motion, opposition submitted a statement on infor-

mation and belief a district attorney’s investigator that the prison pop- 20, 1983, ulation White, as October was 36 percent 19 percent Mexican- American, Black, and 24 addition, percent percent “other.” In the People *4 a submitted declaration John by Connolly, district deputy who issued the criminal against complaint appellant. declared that Connolly when he issued he neither knew nor complaint, took into consideration ap- race. He issued pellant’s complaint on the basis solely of it whether committed, that the violation had appeared alleged been and whether there awas reasonable likelihood the case could be a proved beyond reasonable doubt. declared there also was no or Connolly policy practice in the district office to discriminate against any group of filing also a The submitted declaration complaints. People senior eight to whom district crimes deputy attorneys reports alleged committed at review, evaluation, were and assigned possible filing declared that in no case did consider a complaints. They they person’s racial Their decisions whether to background. were based prosecute on objective evidence, offense, factors available such as the nature of the and the if defendant’s criminal available. too declared history, They the office had no discrimination. The or trial court policy denied practice motion. criminal a

In course of a defendant proceeding, may to object maintenance of on of deliberate ground the prosecution invidious dis law. (Murgia crimination the enforcement Municipal 300, 306.) at Traditional supra, 15 Cal.3d discovery pp. principles are be may so defendants applicable permitted discover information (Id., 306.) relevant such claim. at p. a moved for Murgia, defendants various documents relating claim.

to their The motion discriminatory was supported over numerous detailing 100 affidavits incidents of allegedly discriminatory 2,954 inmates, page 1A to the motion. That report report was attached states 1,059 1,051 White, Mexican-American, Black, were 456 were were and 49 were “other.” non-White, category “other” is considered makeup If the labeled the racial prison of the approximately percent percent White and non-White. and their United Farm Workers officials toward law enforcement conduct or declarations in no counteraffidavits submitted supporters. established a evidence found that defendants’ trial court

opposition. enforcement, but denied of discriminatory facie case prima (Id., at 291- was unavailable. pp. that the defense on the ground

motion to clarify had no occasion Court 293.) Accordingly, Murgia when dis- order showing necessary support the minimum have held that defendant Later cases enforcement is claimed. criminatory “plau- need make a only enforcement claiming (Street) Court (People justification” sible 69]; v. Superior Bortin 746-749 (1979) 89 Cal.Rptr. Cal.App.3d [153 30].) Such a 878-879 (Id., need not strong. be justifi- demonstrates plausible If a defendant has filed affidavits which order, if have filed the People cation as matter of law for a discovery counterdeclarations, discretion for it an abuse of or no counterffidavits (See generally, the trial court deny summarily discovery request. 658, 675-684, fn. 19 v. Memro discretion summarily trial court abused its 446] [held: *5 officers certain against police for

denying discovery request complaints Code, that People’s argument § to Evid. 1043 et court rejects pursuant seq.; cause for desired good or defendant failed to show plausible justification hand, v. Bortin 64 information].) Superior supra, On the other 873, weak or that a defendant’s “unweigh- the court Cal.App.3d suggested or otherwise tra- be impeached ty” showing plausible justification may circumstances, Under such versed an by evidentiary by People. stated, discretion to conclude that

the court a trial would be within its court (Id., for showing required discovery. the defendant’s efforts fell short 878-880.) at pp. Ochoa, v. is a case in supra, 165 885 which facts

People Cal.App.3d Ochoa, are similar to the facts in this case. In two San strikingly who were for of a being inmates weapon prisoner with conjunction moved for claims law en- discriminatory with The defendants their motions declarations supported forcement. pre- statistical evidence identical in this case nearly senting presented 1979, to the the number of cases referred prison population with respect possible percentage minority from the prison prosecution, As defender’s office. in this represented inmates district he filed a declaration considered attorney denying prosecuting 887.) (Ochoa, issue the deciding complaints. supra, race in court in Ochoa trial ordered of all referral forms received The production 1, 1982, district from January through officials from prison 1312 30,

November Those 1983. forms the inmate’s race. specify The People refused to and the court dismissed the comply, charges against the defend- ants. court held that trial did court not abuse appellate its discretion It characterized defendants’ granting discovery. as “not

strong,” but that the concluded statistical disparities provided sufficient justification for the court’s order. To the People’s argument the district declaration negated any showing plausible justifi cation, the court “The court could discount replied, properly value this oral declaration when the prosecution, People (Evid. Code, had access to evidence in the referral forms. stronger § The mere introduction of evidence that contradicts the defendants’ allega tions does not automatically destroy justification discovery order.” (Ochoa, 888-889, sum, 165 supra, added.) italics In Cal.App.3d at pp.

Ochoa court held that it was within the discretion of the trial court discount the prosecutor’s declaration and grant The Ochoa must, did not law, hold all trial courts a matter as disregard such declarations. order, order to set aside a trial court’s an appellate an

court must find abuse of discretion. v. (People 885, 888; v. see Cal.App.3d (Street), supra, 89 739, 742-743, 751; Cal.App.3d Serna 426].) judicial term discretion implies the absence determination, capricious or arbitrary disposition, whimsical thinking.

(People Giminez P.2d 65].) Judicial discretion exercise of requires discriminating judgment *6 discretion, within the To judicial bounds reason. exercise a trial court facts, know and all must consider material and all legal principles essential informed, (In to an re just (1971) decision. Cortez intelligent, 78, 307, 819].) P.2d 85-86 490 [98

When a court is reviewing whether trial court considering has abused discretion, its if is insufficient it showing facts which presents merely an A afford for difference opinion. reviewing court opportunity is not its for that the trial judgment (Brown authorized to substitute judge. v. 1018].) 618 words, 39 P.2d In Newby Cal.App.2d other reason, if only discretion is abused the court exceeds the bounds of all of Giminez, (See considered. being circumstances 14 supra, 72.) Cal.3d at p. Ochoa, case,

In this as there was information before the trial that in racial of San Quentin court 1983 was 36 makeup percent White

1313 non-White; the inmates referred to district that few of and 64 percent were charges prosecuted, on office attorney’s weapons the district the inmates referred and about 71 percent between 69.4 were racial on such charges office to the defender’s office court minorities, The Ochoa itself means non-Whites. which presumably supra, strong.” (People this as “not characterized 888.) at p. Cal.App.3d case, rebuttal, in declaration from the district addition

In the declaration of presented who review and evaluate cases involving senior who eight deputies inmates, decisions to all that race entered into prosecute. court. The trial court No similar declaration is mentioned Ochoa it concluded that this case did not exceed the bounds of reason when (See weak refuted declarations.2 People’s Bortin v. Superior

V*

VI is affirmed.

Judgment

Merrill, J., concurred.

WHITE, J., dissent. P. Dissenting. I respectfully v. Municipal Court held in Murgia 44], “[njeither the federal Cal.3d out an singling invidiously Constitution countenances

nor the state identical, not hold that the trial were we would if records in both cases 2Even *7 stated, discovery. already As while denying requested the its discretion in this case abused declaration, it did prosecutor’s that trial could discount held court court Ochoa presenting facts on which required was to do so. A record reasonable the court not hold that establishing is a an abuse discretion. may not record minds differ decided, showing that defendants’ wrongly and urge that Ochoa was People also The prosecutor. We conclude inadequate regardless of the declaration of was in that case denying its discretion in did not abuse notwithstanding the trial court in case unnecessary it consider the merits the Ochoa court’s we find discovery. Therefore argument description that the Ochoa court’s can be made although persuasive a analysis, “plausible justification” in that case did not constitute a showing defendants’ ante, footnote, page 1307. *See selected class treatment. ... If an prosecutorial individual can special show that he would not have been for such prosecuted except invidious him, violated, constitutional against discrimination basic has been principle (Id., and such must the sands of prosecution collapse at upon prejudice.” 290.) held court are . . p. Consequently, entitled . “[defendants claim with their that in the instant respect case such pursue in fact the force behind moving criminal prejudice pending proceedings.” ., 291.) at (Id p. Mexican-American, who is contends that he was

Appellant, courts, his racial status. In both the because of only municipal superior of certain statistical data in appellant requested possession office and the In district Corrections. Department support motion, defender, his filed a declaration made his appellant offering the results of statistical the Marin analysis Public compiled by County data Defender’s Office. The indicate a number of disproportionate referrals minorities, cases involve racial weapon with comparison the racial of the In makeup prison the district population. response, filed a declaration race had been considered in the motion, Both decision to courts denied the with prosecute. the superior “I don’t feel that here is judge stating: showing sufficient show discriminatory prosecution.” standard articulated Court is Supreme Murgia not

defendant able to make a be discriminatory To the prosecution. that, stated: “We the court in the contrary, emphasize present proceeding, we are not faced with of whether defendant’s question to rebut the that official duty has been adequate presumption properly, Code, (see 664, 606; §§ hence exercised Evid. constitutionally, Gray ^[1967] 256, Cal.Rptr. 211]); only issue us is whether on the before claim prosecution totally should have been foreclosed.” (Murgia v. Superior Cal.3d Court Cal.3d 300 Griffin 997], 571 P.2d Court clarified this issue. The court stated: civil “Unlike criminal discovery, discovery California is strictly judicial creation. In Pitchess v. Superior 536-537 [113 305], we held that in contrast to the formal statutory for civil ‘an requirements accused in discovery, a criminal may discovery by that the will compel demonstrating requested information facilitate the ascertainment of the facts and a fair trial. [Citations.] be requisite showing may satisfied which establish by general allegations *8 cause some other than “a mere desire for the benefit of all investigation in their which been obtained by People information has of the crime.”’ [Citations.] enforcement, discriminatory this to the defense of reasoning

“Applying should be given to right we held in that the defendants’ Murgia (Murgia discovery.’ criminal effect ‘traditional according principles Court, 286, 306.) stage While at the pretrial Superior supra, ultimately will are a defendant we not able determine what evidence claim, ‘must nevertheless a motion for his proffer support some degree specificity describe the information with least requested v. Municipal and must justification.’” (Griffin be sustained by plausible 300, 306, added.) 20 italics Cal.3d case, In the counsel stated instant the declaration provided by appellant’s 30, 1979, were from Quentin that as of inmates June 57.6 San percent minorities; racial defender’s cases to the public those referred weapons (71.4 office from 21 defendants January percent) June attorney were received minorities. The data also indicate that the district 1982; 182 referrals from of Penal Code section Quentin for violations White, 21 and the was Quentin racial of San inmates 36 percent makeup Black, Mexican, In my and 24 “other.” opinion, percent percent percent to meet plausible information to the court sufficient presented justification standard.

Division Five of Ochoa this agreed before Cal. Supreme hg. (petn. 4] 24, 1985). to the den. was identical made Apr. by appellant Ochoa, and the factual situation made the defendants in inmates, Black and one similar. one two San remarkably offense, Mexican-American, aof for the same were prosecuted their to bolster Both made motions for discovery weapon by prisoner. their law The defendants supported

evidence of enforcement. Marin County, Defender of motions with declarations the Chief Public defender, The declarations from Marin County. also deputy case. to the court the identical statistical data presented relied upon filed declaration As in the instant prosecuting complaints. race was considered in the issuance of the When the refused court in ordered the discovery. trial Ochoa order, the de- against the charges with the court dismissed comply dismissal, stating court’s The Court of affirmed the trial fendants. Appeal allegations the defendants’ “The statistical evidence part: supporting how- their showing, selective was not The weakness strong.

ever, more reliable evidence. was caused control over largely by People’s *9 of

‘Evidence in con- discriminatory enforcement lies buried usually sciences files of law enforcement involved and must be agencies 256, ferreted out the defendant.’ v. 254 Gray (1967) (People Cal.App.2d 211].) 266 In view of the defendants’ in Cal.Rptr. difficulty providing [63 enforcement, stronger showing proffered statistical ” provided disparities justification the court’s order. discovery sufficient 888, v. 165 (People added.) at italics p. case, In the present claim that the abuse discretion majority standard here, could, discretion, and that a court in its broad applies decide properly sufficient, either that the is I or it is not. both diságree with assertions.

In Murgia, Court that the found made Supreme defendant was sufficient to a claim invidious “clearly support discrim which ination is facie under the invalid clause.” prima equal protection concluded; (Murgia v. Superior supra, 15Cal.3d at p. defense, “In light materiality traditional of criminal principles mandate that defendants be to discover the information permitted relevant such a claim. the trial court erred in all Accordingly, barring such in access to information of the (Id., at prosecution.” 306.) The Court writ of p. issued the mandate Supreme requested by the trial court vacate its order appellants, directing denying discovery and to in with (Ibid.) accordance the views in proceed expressed opinion. did The court not the abuse of discretion standard. apply v. People (Street) (1979) Court 89 Cal.App.3d 739 [153 69], this court reviewed another at “Murgia” appeal. We noted that time “‘The basis for requiring pretrial of material production the hands of the is the fundamental principle an accused (Cash is to a fair (1959) 72, entitled trial.’ 75 Superior Cal.2d 407].) P.2d Although California Court has estab [346 not yet method lished a or ascertaining whether not of a item given necessary (Louisell accord defendant a fair trial Cal. & Modern Wally, [(2d 1972) § ed. Discovery 885), the rationale underlying 14.05] criminal is the stated principle first v. Riser 566, Cal.2d P.2d dism. 358 U.S. 646 L.Ed.2d (app. [305 1] 537], 79 S.Ct. on other disapproved grounds Morse Cal.2d 631 810]): ‘Absent A.L.R.3d some governmental that information be confidential requirement kept enforcement, law effective purposes the state has no interest the accused access to all on evidence that can throw issues in the light . . .’ Justice wrote: how much Traynor ‘There remains to be articulated better show right pretrial The defendant must discovery] encompasses. [to *10 all information “than a desire for the benefit of cause mere discovery of the crime.” has their investigation which been obtained the however, obtain the information A that the defendant cannot showing, readily knowledge his own efforts will entitle him ordinarily pretrial through evidence, lead to the might or information that any unprivileged evidence, him will assist knowledge if it that such reasonable appears Moreover, his defense. in the absence of a countervailing showing preparing an the that the be used for may purpose, information prosecution improper court, is the but as available not in the discretion trial merely ’ Discovery a matter Lost and Found Criminal right. (Traynor, Ground 228, 244, added.)” v. Municipal 39 N.Y.U. L.Rev. italics (People 739, 749-750.)1 (Street), Court not

The motions have involving opinions “Murgia” ap- standard, the fundamental consti- abuse-of-discretion plied noting trial— tutional and the to a fair right principles involved—equal protection I would with Justice that agree meeting Traynor, upon plausible-justi- fication standard the be to the should available discovery requested appellant Here, as a matter rather court. as than within discretion right, Justice held meets this lenient standard. King Moreover, even for the sake of discussion that the abuse-of- assuming discretion I with the conclusion standard applicable, quarrel majority’s that two trial facts issue given legal courts identical decide may properly results. and obtain of law is whether presented opposite question met stan- statistical data proffered by plausible-justification appellant dard. Marin has compiled Public Defender’s office

Apparently, County statistics that the cases are indicating being weapons on a are racially basis. defenders disproportionate public presenting receiving this same different are different judges, responses.

At the on the motion in this defender so informed hearing public current, court, “And there been a few to make this court have stating: have filed in this court in the last six months. Some judges of these motions granted it, some judges have denied it. ^[11] Judge Breiner had ordered some that, a dis- be declined to do suffered materials produced, prosecutor But we did seek have to order missal. Other declined judges attorney’s office filed great emphasis fact the district majority place 1The on the I prosecute. do they deciding whether to stating that do consider race in declarations not his rights pursue enough persuasive find those declarations foreclose not may suggest that information allegation. And would add that did not I an improper purpose. be used for Zunino, in the court before municipal and that Judge denied.”

Situations like this one violate the in the important goal uniformity law, and encourage judge Division Five of shopping. this court held that the statistical data offered defender’s office was sufficient to meet the broad standard; in plausible-justification my decision opinion, *11 was correct and the trial court should be judges adhere to it. I required would remand the case and instruct the trial court to order the appropriate