People v. Municipal Court (Street)

• Decision Date: 26 February 1979
• Citation: 153 Cal.Rptr. 69,89 Cal.App.3d 739
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. MUNICIPAL COURT, CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent; Lomia STREET et al., Real Parties in Interest and Appellants. Civ. 44563.

Page 69

153 Cal.Rptr. 69

89 Cal.App.3d 739

PEOPLE of the State of California, Plaintiff and Respondent, v. MUNICIPAL COURT, CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent;

Lomia STREET et al., Real Parties in Interest and Appellants.

Civ. 44563.

Court of Appeal, First District, Division 3, California.

Feb. 26, 1979.

Hearing Denied April 26, 1979.

Susan B. Jordan, Cumings, Jordan & Morgan, San Francisco, for appellant Lomia Street.

Gilbert Eisenberg, Filippelli & Eisenberg, San Francisco, for appellants Alice Tanner and Mary Chateauvert.

Robert Nicco, Public Defender, City and County of San Francisco, San Francisco, Ann S. Kaplan, Berkeley, for amicus California Attys. for Criminal Justice.

Ephraim Margolin, Nicholas C. Arguimbau, San Francisco, for amici Municipal Court Judges Dorothy von Beroldingen, Ollie Marie-Victoire, John E. Dearman, Louis Garcia, J. Dominque Olcomendy.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., W. Eric Collins, Dane R. Gillette, Deputy Attys. Gen., San Francisco, for respondent.

WHITE, Presiding Justice.

Appellants, real parties in interest herein (hereafter referred to as defendants), appeal from a writ of mandate issued by the Superior Court of San Francisco County ordering the municipal court to vacate its discovery order. ¹ In this appeal the ultimate question presented is whether the municipal court in the proper exercise of its discretion was required to deny real parties in interests' discovery motion. Although the extraordinary writ of mandamus will issue to compel a court to exercise its discretion, it may not be used to control a court's discretion unless that discretion could properly be exercised only in one way. (Harris v. Superior Court (1977) 19 Cal.3d 786, 796, 140 Cal.Rptr. 318, 567 P.2d 750; Payne v. Superior Court (1976) 17 Cal.3d 908, 925, 132 Cal.Rptr. 405, 553 P.2d 565; Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379; 5 Witkin, Cal. Procedure (2d ed. 1971) Extraordinary Writs, §§ 79, 80, pp. 3856-3857.) Hereinafter we determine that in properly applying the principles of criminal discovery, the municipal court's order granting discovery was not an abuse of discretion. Therefore, we conclude that the superior court erred in issuing a writ of mandate vacating the municipal court order granting discovery.

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 heterosexual prostitution and related offenses, ² but not against adult male homosexuals where these violations occur in certain types of homosexual-owned, operated or patronized homosexual commercial establishments or coincident with the operation of male escort services. In support of this general allegation, the declarations allege that this discriminatory enforcement of the pertinent statutes is the result of a policy decision of the San Francisco District Attorney instituted as a result of his election campaign promises to members of the homosexual community and evidenced (1) by the refusal of the district attorney to prosecute three homosexual men arrested for engaging in lewd conduct on January 5, 1978; (2) a meeting between the district attorney, the Chief of the San Francisco Police Department and the owners of homosexual bathhouses in San Francisco shortly after that incident during which it was agreed that there would be no further arrests or investigations into those bathhouses; and (3) an inter-departmental memo from one Captain Eimil of the San Francisco Department to his superior(s) dated approximately July or August 1977 confirming that he would not investigate any possible adult violations of law relating to any male escort service in San Francisco. ³ Finally, the declarations allege that all police officers and members of the district attorney's office have been instructed not to speak with defense counsel and/or their investigators regarding this policy, but that the police officers can be subpoenaed and will testify truthfully. The declarations here refer to the records and files of a similar action in the superior court in which a private investigator filed an affidavit to the effect that he could elicit no information from police officers regarding their prostitution arrest policies.

The trial court granted the majority of the requests for discovery, whereupon the People successfully sought a writ of mandate in the superior court directing the municipal court to vacate its order on grounds that the trial court had exceeded its jurisdiction. ⁴ A stay was granted in the municipal court proceedings pending this appeal.

Murgia v. Superior Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44, established and the People do not dispute, that a defendant may raise a claim of intentional and purposeful invidious discrimination in the enforcement of all laws, including penal statutes, as grounds for dismissal of a criminal prosecution and that he may obtain a pretrial discovery order requiring the prosecutor to produce information relevant to that claim. The People argue in the instant case, however, that defendants have failed to establish plausible justification for the discovery they seek.

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 discovery 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, 124 Cal.Rptr. 204, 540 P.2d 44.)

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, 82 S.Ct. 501, 7 L.Ed.2d 446, 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 arbitrary classification." (15 Cal.3d at p. 299, 124 Cal.Rptr. at p. 213, 540 P.2d at p. 53.) 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 defense of discriminatory enforcement is claimed, the defendant's right to discovery should be given effect according to " 'traditional principles of criminal discovery.' " These principles are therefore applicable to the instant case if defendants have properly made such a claim.

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 "(homosexua...