BORTIN v. PEOPLE (1976)

In the proceedings below, petitioner Michael Alexander Bortin was charged with perjury, in violation of Penal Code section 118. He 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, Bortin made what he described as an ‘unusual’ motion. We interpret is 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 prosecution.¹ Without the discovery it was conceded by Bortin that he would be unable to make the desired showing of invidious selective prosecution. As support for each aspect of his motion, Bortin relied upon the recent case of Murgia v. Municipal Court, 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44.

The superior court held an appropriate hearing on the motion and then, concluding that Bortin had made neither prima facie, nor any, showing of the claimed invidious selective prosecution, ordered the motion denied. We thereupon issued an alternative writ of mandate in order to determine the validity of the order in the light of Murgia.

We have closely considered Murgia and its related authority (i. e., Yick Wo v. Hopkins, supra, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed.2d 220; Two Guys v. McGinley, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551; Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446) in their application to the case before us. We conclude that the superior court acted within its discretion (see Pitchess v. Superior Court, 11 Cal.3d 531, 535, 113 Cal.Rptr. 897, 522 P.2d 305) and without error. Our reasons follow.

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 ruling of Oyler v. Boles, supra, 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 stated by Justice Tobriner, the author of Murgia, in the case of Ballard v. Superior Court, 64 Cal.2d 159, 167, 49 Cal.Rptr. 302, 307, 410 P.2d 838, 843, as follows: ‘[O]ur fundamental concern [is] that an accused be provided with a maximum of information that may illumine his case. . . . A defendant's motion for discovery must nevertheless . . . be sustained by plausible justification.’ (Emphasis added.) More recently the high court in Pitchess v. Superior Court, supra, 11 Cal.3d 531, 536, 113 Cal.Rptr. 897, 901, 522 P.2d 305, 309, stated: ‘[A]n 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.’ (Emphasis added.)

Often, of course, the required ‘plausible justification’ for criminal discovery is readily apparent; but sometimes it is not. In the latter situation, the defendant will be required to make some ‘prima facie’ (i. e., ‘plausible’) showing in aid of his motion. The showing, as indicated, need not be strong, but without it the motion for discovery will properly be denied. (People v. Cohen, 12 Cal.App.3d 298, 323–324, 90 Cal.Rptr. 612; People v. Sewell, 3 Cal.App.3d 1035, 1039, 83 Cal.Rptr. 895; People v. Mason, 259 Cal.App.2d 30, 41, 66 Cal.Rptr. 601.) And such a showing is patently required when the discovery sought would be unduly burdensome to the People. (See Engstrom v. Superior Court, 20 Cal.App.3d 240, 245, 97 Cal.Rptr. 484.)

In the superior court proceedings here at issue Bortin, as we have pointed out, made no contention that he had established, or could establish, the claimed invidious selective prosecution without the requested discovery. He recognized his burden of establishing plausible justification for his motion, and demonstrating that the discovery sought would facilitate the ascertainment of relevant facts and a fair trial. He makes a similar concession here, stating that the ‘allegations [in support of the motion] were intended to demonstrate a sufficient basis to justify the granting of discovery and the opportunity [upon such discovery] to’ make his showing of invidious selective prosecution. The superior court, as pointed out, found ‘that the showing, prima facie or otherwise, that there has been an arbitrary classification [as required by Murgia] has not been shown.’ There was, the court stated, ‘actually no showing.’

We have, on the motion of Bortin, stricken a portion of the record presented to us by the Attorney General, as not having been before the superior court on the motions for discovery. But we have augmented the record in other respects, by including therein the superior court file of the action, the oral proceedings of Bortin's first motion for dismissal for selective prosecution, and the transcribed testimony given the grand jury leading to Bortin's indictment; these were before the superior court at the hearing on the motion here under consideration.

We relate uncontradicted evidence which was before the superior court on Bortin's motion.

Bortin had been found guilty in the Alameda County Superior Court of the offense proscribed by Health and Safety Code section 12305, as follows: ‘Every person not in the lawful possession of an explosive who knowingly has any explosive in his possession is guilty of a felony.’ According to a newspaper clipping submitted by Bortin in support of a previous motion: ‘He was found guilty in 1972 for planning to bomb a Navy Building at the University of California Berkeley campus. Miss Yoshimura was a co-defendant in that case.’ Bortin was placed on probation for that offense.

The so-called ‘Symbioness Liberation Army’ was a widely known terrorist organization reasonably suspected of, and which ‘took credit’ for, a series of violent crimes including murder, bank robbery and kidnaping; the trial court must reasonably be deemed to have had judicial notice of this, pursuant to Evidence Code section 451, subdivision (f).

The Federal Bureau of Investigation (FBI) had been endeavoring to apprehend on criminal charges, three so-called ‘urban guerillas' of the Symbionese Liberation Army, William Harris, Emily Harris and Patricia Hearst. Patricia Hearst was arrested in the company of Bortin's recent codefendant, Miss Yoshimura. About the same time, the FBI executed a valid search warrant on premises reasonably believed to be occupied by William Harris and Emily Harris. In the course of the search, an FBI agent found and seized a California motor vehicle driver's license in the name of one Lowell Gale Lawson. The license was found in a closet, where also were discovered different kinds of explosives ‘plus numerous other components for the construction of bomb devices.’ Investigation disclosed that the person described on the license had died in early childhood. Petitioner Bortin was then on probation following his above-mentioned conviction in Alameda County. A likeness was observed between the photograph on the seized driver's license and Bortin, who was known to the FBI. Further investigation turned up a fingerprint, or thumbprint, of Bortin on the application for the driver's license which was in the records of the Department of Motor Vehicles. The FBI turned the information over to the the San Francisco District Attorney who presented it to the county grand jury. Following a hearing the grand jury returned an indictment charging Bortin with perjury, in violation of Penal Code section 118. It is that charge which is the subject of Bortin's instant contention of invidious selective prosecution.

Bortin here argues: ‘That the extraordinary and clearly vindiction manner in which petitioner has been thus singled out derives from the antipathy of law enforcement authorities to petitioner, his political beliefs and his associations.’

We advert to the previously mentioned holding of Murgia (15 Cal.3d, p. 303, fn. 14, 124 Cal.Rptr., p. 215, 540 P.2d, p. 55) that: ‘[P]rosecutorial authorities may well be able to justify . . . 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.'

On the facts before it the superior court could reasonably, and presumably did, conclude that the Symbionese Liberation Army was such an ‘organization’ or ‘gang,’ of which Bortin was a ‘member’ or close associate. It follows, even assuming arguendo the selective prosecution claimed by Bortin, that according to established law it was neither ‘invidious' nor ‘unjustifiable’ nor otherwise constitutionally flawed.

But we opine further that Bortin had not established, nor would the discovery even as hoped for have established, a prima facie, or ‘plausible,’ or any showing of invidious prosecution, selective or otherwise.

We observe initially that Bortin was properly granted, in other areas, broad discovery against the People.

Although it is by no means clear from Bortin's instant petition, or from the oral proceedings on his motion in the superior court, precisely what discovery was sought, we glean the following from the record.

From the district attorney he appears to have sought discovery of information, including ‘facts, statements, documents and reports' calculated to establish that official's uniform practice not to proceed criminally against persons who had forged drivers' license applications. In this respect there was no contention of available express proof of the district attorney's “intentional and purposeful’ invidious discrimination,' as decried by Murgia, against Bortin. He offered to establish only the circumstance that he had been charged with the type of offense at issue, while all similar offenders had not, thus permitting the inference of selective prosecution.

But it is generally known (see Evid.Code, § 451, subd. (f)), as it was to the trial court, that the incumbent district attorney who instituted Bortin's prosecution was newly elected, and had assumed office but five or six weeks before Bortin's grand jury indictment. This short tenure of office reasonably, and as a matter of law, allowed no inference of a policy to invidiously and deliberately single out persons with political affiliations similar to those of Bortin for prosecution. Nor could it reasonably be argued that a prosecutor may not prosecute a certain class of criminal offenders because his predecessor had chosen not to do so.

And even were the incumbent district attorney vicariously responsible in some way for his predecessor's claimed dereliction, no showing or contention was made of the latter official's “intentional and purposeful' invidious [or other] discrimination' against the Symbionese Liberation Army or its members or sympathizers or any other group or organization. It might be argued that there was a prima facie showing of ‘simple laxity of enforcement or the nonarbitrary selective enforcement of a statute [but that, according to Murgia,] has never been considered a denial of equal protection.’ (15 Cal.3d, p. 296, 124 Cal.Rptr., p. 211, 540 P.2d, p. 51.)

The remaining object of Bortin's motion for discovery was the State Department of Motor Vehicles. He sought production of voluminous records of that agency, and to prove thereby that traditionally, and consistently, it had not instituted, or requested, criminal prosecution in relation to fraudulently obtained drivers' licenses. Instead, according to the affidavits, the practice had been to hold administrative hearings pointed toward the revocation of such licenses.

Here we note that unlike the district attorney whose statutory responsibility is to conduct ‘all prosecutions for public offenses' (Gov.Code, § 26500), the Department of Motor Vehicles is charged with no prosecutorial duties. It would be manifestly unreasonable to hold that a claimed policy of that administrative agency in relation to fraudulent drivers' licenses will vicariously be imputed to law enforcement officers charged with the prosecution of criminals. It follows, accepting arguendo the truth of the hearsay and information and belief recitals of Bortin's affidavits in relation to the Department of Motor Vehicles, that they establish no prima facie, or other, ground in support of discovery.

It will thus be seen that, giving full effect to Bortin's affidavits, contentions and theories, he has made as found by the trial court, no showing, prima facie, ‘plausible’ or otherwise, that even the hoped for discovery would establish ‘invidious' or ‘unjustifiable’ selective enforcement of the criminal law. Therefore, according to ‘traditional principles of criminal discovery’ (15 Cal.3d, p. 306, 124 Cal.Rptr. 204, 540 P.2d 44), he has established no entitlement to the discovery he seeks.

The wisdom of the law's requirement of such a prima facie showing, where reasonably necessary, becomes evident in this case. The discovery here sought would be extensive and burdensome, and would take much time of public employees away from other duties. And if the mere demand for such criminal discovery entitled one thereto, any defendant would have at hand the ready means of disruptive and time-taking delays.

Bortin's final effort toward meeting the requirement of a prima facie showing of the need for discovery is found in his personal affidavit. There he stated: ‘I believe that the prosecution against me is motivated entirely by the prosecution's awareness of my political beliefs in opposition to American foreign and domestic policies, and my association with others who hold such views, including some persons whom the prosecution believes to be guilty of other criminal acts of which I am not accused.’ This conclusionary declaration is obviously without any probative effect.

We consider now Bortin's repetitious insistence in his petition to this court that the superior court had somehow ‘refused’ to allow him a hearing on his motion.

Although Bortin's earlier motion to dismiss had been denied, the court, in its discretion and over objection, held a hearing and reconsidered the motion. It is notable that elsewhere in his instant petition Bortin concedes: ‘A hearing was held on petitioner's motion in department 21 of respondent court, Honorable Claude D. Perasso presiding, on May 20, 1976, and the motion was denied.’ At that hearing the court considered Bortin's several previously adverted to affidavits and his written and oral arguments. He was accorded full freedom in making the necessary prima facie or ‘plausible’ showing on his motion for discovery. He made no request to produce additional evidence, or to augment the affidavits already before the court. Bortin's instant contention that the court ‘repeatedly rejected’ his offer to ‘amplify any portion of the showing which might be considered ambiguous or insufficient,’ is utterly without record support. It was after the motion was ‘argued [and] submitted'² that the court denied it. And it was after Bortin's motion had been denied that he asked: ‘Is the court not going to permit me to make my showing at this time?’ ‘. . . my showing comprises simply an explanation of what exists here, to clarify it to the court.’ The court thereupon indicated that it desired no further explanation or clarification.

It was not necessary, as apparently contended by Bortin, that the superior court separately and formally rule on his motion to reopen, his motion for discovery, and his motion to dismiss. The holding of the hearing was an implied grant of the motion to reopen, and the denial of Bortin's ‘motion’ was patently a denial of the motion for discovery as well as the motion to dismiss. “If the language used in determining a motion is such as to identify with reasonable certainty the order which is made, such order, if otherwise tenable, will be given effect.” (Western Greyhound v. Superior Court, 165 Cal.App.2d 216, 219, 331 P.2d 793, 795; Cox v. Tyrone Power Enterprises, 49 Cal.App.2d 383, 389, 121 P.2d 829.) And it is noted that Bortin sought no separate rulings in the superior court.

The peremptory writ of mandate is denied, and the alternative writ heretofore issued is discharged.

FOOTNOTES

1.  On making the motion Bortin stated:‘With regard to our motion this morning, the contention of the motion, I should just clarify that we are asking here for a very simple thing, only a preliminary matter; that is, we are asking the court to allow us a hearing and allow us discovery pending that hearing so that we may prove our claim. We do not pretend that we have proved the claim. We do not even pretend that we have made a prima facie showing sufficient to shift the burden to the People. That is the ultimate test that we have to conform to, but that is not what we have done thus far. We will concede that is not what we have done thus far, but what we have done is made a sufficient showing to justify a hearing and to justify discovery, at which time we will be required to make a sufficient showing to shift the burden. So that our position is that this is a two-step process. First we have to present the court with enough reason to believe that there may be a prima facie case here to allow us to prove that prima facie case, and at the second stage if we prove our prima facie case, then the burden is to be shifted to the People.‘As to the prima facie showing that we are required to make for the purpose of obtaining discovery and having a hearing, that I believe we have clearly made. We have presented affidavits to the court based on investigation with the DMV and based on investigation with the District Attorney's Office here.’

2.  The record shows the following:‘The court: All right. At any rate, the matter having been submitted, I take it? Mr. Weinberg [Bortin's attorney]: Yes, your Honor. Mr. Cassart [district attorney]: Yes, your Honor.’

ELKINGTON, Associate Justice.

MOLINARI, P. J., and SIMS, J., concur.