Bortin v. Superior Court

• Decision Date: 16 December 1976
• Citation: 64 Cal.App.3d 873,135 Cal.Rptr. 30
• Court: California Court of Appeals Court of Appeals
• Parties: Michael Alexander BORTIN, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; The PEOPLE, Real Party in Interest. Civ. 39202.

Page 30

135 Cal.Rptr. 30

64 Cal.App.3d 873

Michael Alexander BORTIN, Petitioner, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent The PEOPLE, Real Party in Interest.

Civ. 39202.

Court of Appeal, First District, Division 1, California.

Dec. 16, 1976.

Larson, Stang & Weinberg and Doron Weinberg for petitioner.

No appearance for Respondent.

Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins and Dane R. Gillette, Deputy Attys. Gen., for real party in interest.

ELKINGTON, Associate Justice.

In this proceeding in mandate we first denied, without hearing or opinion, petitioner Michael Alexander Bortin's petition as unmeritorious. Thereafter the Supreme Court granted a hearing following which the matter was retransferred to this court 'with directions to issue an alternative writ of mandamus to be heard . . . when the proceeding is ordered on calendar. (See Murgia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44.)' Thereafter, having considered the cause in the light of Murgia, we again denied Bortin's petition. On his petition for rehearing of the matter we concluded that we had probably erred, and granted the rehearing.

We therefore again consider Bortin's contentions.

In the proceedings below, Bortin was charged with perjury, a violation of Penal Code section 118. It was alleged that he had made a material false statement, under oath, in an application to the Department of Motor Vehicles for a driver's license. Bortin moved for a dismissal of the charge on the ground that he was the object of 'invidious selective prosecution' and was thus denied equal protection of the laws, in abrogation of the rule expounded in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. The motion was denied.

Thereafter, with different counsel and relying on Murgia, Bortin made what he described as an 'unusual' motion. We interpret it as a renewal of the motion (1) to dismiss on the ground of invidious selective prosecution, and that prior to the hearing thereon the court (2) order certain discovery against the People. Without the requested discovery Bortin conceded that he would be unable to make the desired showing of invidious selective prosecution. The superior court will be deemed to have permitted renewal of the earlier motion, for it thereupon heard and considered it.

In support of his motion Bortin offered several written declarations made under penalty of perjury. We summarize their relevant and material allegations. There was alleged a belief that the perjury charge was 'motivated entirely by the prosecution's awareness of (Bortin's) political beliefs in opposition to American foreign and domestic policies, and (his) association with others who hold such views, including some persons whom the prosecution believes to be guilty of other criminal acts of which (Bortin was) not accused.' It was further alleged that there was 'discriminatory animus on the part of the District Attorney's office'; and that as a result of investigation, and on 'information and belief,' it appeared 'that No previous prosecution for false information supplied in a driving license application under the felony perjury statute has ever been instituted in the City and County of San Francisco, though literally thousands of San Franciscans have been found to have fraudulently obtained licenses.' And it was made to appear from the declarations generally that, with one exception, the State of California including its Department of Motor Vehicles and its many district attorneys' offices, had adopted, and pursued, a policy not to criminally prosecute anyone for such an offense as was charged against Bortin.

The superior court denied Bortin's motion, and thus by necessary implication denied the requested discovery.

We consider, as directed, the impact of Murgia upon Bortin's superior court motion and upon the proceedings here before us.

In Murgia several members of the United Farm Workers Union had been charged with various misdemeanors in the municipal court. They contended that law enforcement officers of the entire county had 'engaged in a deliberate, systematic practice of discriminatory enforcement of the criminal law against UFW members and supporters.' They filed a discovery motion seeking to obtain documentary and testimonial information and evidence from law enforcement officials in relation to their claim. By more than 100 affidavits and much other competent evidence, and as found by the superior court, 'the defendants established a prima facie case of discriminatory enforcement of the laws.' Nevertheless the municipal court denied the discovery motion, 'because it felt that existing California decisions' afforded the defendants no relief.

On the defendants' petition for mandate the high court held: '(A) criminal defendant may defend a criminal prosecution on the ground that he has been the subject of such 'intentional and purposeful' invidious discrimination. In light of the materiality of this defense, traditional principles of criminal discovery mandate that defendants be permitted to discover information relevant to such a claim. Accordingly, the trial court erred in barring all access to such information in the possession of the prosecution.' (15 Cal.3d, p. 306, 124 Cal.Rptr. p. 217, 540 P.2d p. 57.)

The Murgia court broadly considered the concept of selective enforcement of the criminal law. It concluded that all such selective enforcement was not constitutionally condemned. It quoted and followed the rulling of Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 7 L.Ed.2d 446: '(T)he conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation.' (15 Cal.3d, p. 299, 124 Cal.Rptr. p. 213, 540 P.2d p. 53.) The selectivity, it held, must be 'invidious.' Care was taken by the court to define its usage of the term; it was 'only 'deliberate' (i.e., 'purposeful or intentional') discriminatory enforcement based upon an 'unjustifiable' (i.e., 'invidious') standard which is proscribed by the equal protection clause.' (15 Cal.3d, p. 300, 124 Cal.Rptr. p. 213, 540 P.2d p. 53; emphasis added.) While the court understandably hesitated to delineate the bounds of Unjustifiable selective enforcement, its existence was found when it was based upon "the exercise of protected First Amendment activities," or 'religion,' or 'race,' or 'labor union' membership, or the singling out of a class for special prosecutorial treatment such as 'black or white, Jew or Catholic, Irishman or Japanese, United Farm Worker or Teamster.'

Illustrating the distinction between legitimate, and 'unjustifiable' and thus 'invidious,' selective enforcement of the criminal law, the Murgia, court stated: 'Although a selective enforcement policy based on organizational association is presumptively suspect, prosecutorial authorities may well be able to justify such a selective enforcement policy when the 'organization' in question is itself involved in perpetrating criminal activities. Under such circumstances, legitimate law enforcement interests may justify a policy which concentrates enforcement operations on the conduct of members of a particular 'gang' of lawbreakers. By demonstrating the criminal proclivities of the organization involved in such a case, the People may rebut any inference that its selective enforcement policy rests on an invidious basis.' (15 Cal.3d, p. 303, fn. 14, 124 Cal.Rptr. p. 215, 540 P.2d p. 55.)

Adverting to the case there under consideration, the Murgia court discussed the petitioners' Right to discovery. Such right, it was held, should be given effect according to 'traditional principles of criminal discovery.' (15 Cal.3d, p. 306, 124 Cal.Rptr. 204, 540 P.2d 44.) These principles had earlier been tersely...