Pena v. Municipal Court, TULARE-PIXLEY

• Court: California Court of Appeals
• Writing for the Court: ZENOVICH; FRANSON, Acting P. J., and HOPPER
• Citation: 96 Cal.App.3d 77,157 Cal.Rptr. 584
• Parties: Gloria PENA, Plaintiff and Appellant, v. The MUNICIPAL COURT FOR theJUDICIAL DISTRICT OF TULARE COUNTY, Defendant and Respondent; The PEOPLE, Real Party in Interest and Respondent. Civ. 4418.
• Docket Number: TULARE-PIXLEY
• Decision Date: 16 August 1979

Page 584

157 Cal.Rptr. 584 96 Cal.App.3d 77 Gloria PENA, Plaintiff and Appellant,
v.
The MUNICIPAL COURT FOR the TULARE-PIXLEY JUDICIAL DISTRICT OF TULARE COUNTY, Defendant and Respondent;
The PEOPLE, Real Party in Interest and Respondent. Civ. 4418. Court of Appeal, Fifth District, California. Aug. 16, 1979.
Hearing Denied Oct. 11, 1979.

[96 Cal.App.3d 78] Walter L. Gorelick, Public Defender, Jesse J. Avila, Deputy Public Defender, Tulare County Legal Service Ass'n, Randall C. Lyon and Richard Barron, Visalia, for plaintiff and appellant.

Hugh R. Manes, Hollywood, amicus curiae on behalf of plaintiff and appellant.

[96 Cal.App.3d 79] George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Gregory W. Baugher and James Ching, Deputy Attys. Gen., Sacramento, for real party in interest and respondent.

OPINION

ZENOVICH, Associate Justice.

Appellant Gloria Pena was charged with making a false report of a criminal offense to a police officer (Pen.Code, § 148.5) by a complaint filed in Tulare County Municipal

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Court on June 12, 1978. Appellant moved to dismiss the complaint on the grounds of discriminatory prosecution alleging the complaint was filed solely because she had filed a grievance with the chief of police charging that officers who had arrested her for an offense had used excessive force and had not returned $25 following her release. The municipal court held appellant had failed to make a prima facie showing of discrimination and denied the motion.

Appellant filed a petition for a writ of mandate or prohibition in the Tulare County Superior Court alleging the municipal court had abused its discretion because she had demonstrated sufficient discrimination. The superior court held there had been an inadequate showing of discrimination in the trial court and that therefore the trial court had not abused its discretion by denying appellant's motion.

Appellant filed a timely notice of appeal.

On March 8, 1978, at approximately 2 a. m., Tulare police officers, responding to a disturbance report at a cafe, arrested appellant's husband and another man for being intoxicated in public and disturbing the peace.

According to the police reports and statements of the waitress who was working at the cafe, appellant then became very abusive towards the waitress and the police officers. Following a warning by the officers, she was placed under arrest. While being placed under arrest, she became violent and kicked at the officers.

[96 Cal.App.3d 80] Appellant's version of the incident, as contained in her April 14, 1978, grievance letter to the chief of police, was that she was leaving the cafe following the arrest of her husband when an officer grabbed her by the arm, used abusive language towards her and hit her. After being placed under arrest, the officers used excessive force in placing her in the patrol car and at the police station, ransacked her purse, refused to allow her to make a phone call or contact her doctor, and pulled her by the hair and threw her into a cell.

On May 18, 1978, appellant was found not guilty on the charges of being under the influence of intoxicants in a public place (Pen.Code, § 647, subd. (f)) and a mistrial was declared as to the charge of disturbing the peace (Pen.Code, § 415).

The police department's investigation of appellant's grievance letter concluded there was no basis for crediting appellant's complaint, according to a report filed on May 26, 1978.

The only grounds for dismissal appellant argued in the trial court were contentions that she was the victim of discriminatory prosecution because she had filed a grievance with the chief of police, and that she was therefore entitled to discovery on the issue of selective prosecution after establishing a prima facie showing on the claim of discrimination. The trial court denied appellant's motion for dismissal, concluding appellant had not made a showing of discrimination.

In seeking a writ of mandate to compel the trial court to dismiss the action, and on appeal to this court, appellant raised issues other than those raised in the trial court, including contentions that the...