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Court of Appeal, Fifth District, California.

Jose Guadalupe MURGUIA et al., Petitioners, v. The MUNICIPAL COURT FOR the BAKERSFIELD JUDICIAL DISTRICT OF KERN COUNTY, Respondent; The PEOPLE, Real Party in Interest.

Civ. 2316.

Decided: November 20, 1974

Gerald Blank, Miguel F. Garcia, Peter Haberfeld, Michael Kogan, Richard A. Paez, Barbara Rhine, Dennis Roberts and W. Kenneth Rice, Los Angeles, for petitioners. No appearance for respondent. Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., and Arnold O. Overoye, Marjory Winston Parker and Susan E. Cohn, Sacramento, for real party in interest.


In this case the court is squarely confronted with delineating the boundaries and scope of the right of a defendant to nondiscriminatory law enforcement of state penal statutes under the Equal Protection Clause of the United States Constitution.

It is essential that the Cause be placed in its proper factual and procedural posture.

Petitioners, six in number and all members of the United Farm Workers Union (hereinafter ‘U.F.W.’), are variously charged with misdemeanors in the Municipal Court for the Bakersfield Judicial District of Kern County. Specifically, Jose Guadalupe Murguia is charged with violation of Penal Code section 166, subdivision 41 (Willful disobedience of a court order); Bernardina Sanchez and Refugial Rodriguez are charged with violation of Penal Code section 594 (malicious mischief);2 Jorge Claudio is charged with violation of Vehicle Code section 12951, subdivision (a)3 (driving without a driver's license in possession), 217504 (failing to pass another vehicle to the left at a safe distance without interfering with the safe operation of the overtaken vehicle) and 231035 (reckless driving); and Duane Goff and Enrique Martinez are charged with violation of Vehicle Code section 23103 (see fn. 5) (reckless driving).

The petitioners, through their attorneys in support of a discovery motion, have stated that they ‘will attempt to prove at the time of [their] trial, or prior thereto, that the Kern County District Attorney and Sheriff, and/or their agents have engaged in the unequal, systematic and discriminatory and/or selective enforcement of penal laws, because of their illegal favoritism toward individuals who are associated with ‘growers' in the area; or because of their biased attitude against the United Farmworker's Union and members thereof.’

The discovery motion filed on behalf of the petitioners seeks an order directing the District Attorney of Kern County (Albert Leddy) to produce certain documentary information which petitioners claim is necessary for the further preparation and presentation of their defense of discriminatory enforcement of penal laws. Petitioners also served subpoenas upon the district attorney and the Sheriff of Kern County (Charles Dodge) in order to obtain their oral testimony claimed to be material and relevant to petitioners' defense.

In support of these discovery proceedings, the petitioners have filed with the municipal court 104 affidavits; no counter-affidavits or declarations have been filed by the People, and therefore the statements in the 104 affidavits stand unchallenged before the municipal court and this court.6

After a full hearing on petitioners' motion for discovery and the People's motion to quash the subpoenas served on the sheriff and the district attorney, the court denied the motion for discovery and the subpoenas were quashed. In doing so, the court made an oral finding of fact that petitioners by the evidence they had introduced had established an inference of discriminatory enforcement of the penal laws, but nevertheless denied discovery on the express ground that the defense of discriminatory enforcement of the penal laws was not available to the petitioners.7

The petitioners by these proceedings seek a writ of mandate compelling the municipal court to grant their motion for discovery and ordering that court to deny the motion to quash the subpoenas on the the district attorney and sheriff.

All parties agree that criminal defendants are entitled to discover all relevant and material evidence which will assist them in the preparation and presentation of a legally recognized defense to criminal charges. (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535–537, 113 Cal.Rptr. 897, 522 P.2d 305; Hill v. Superior Court (1974) 10 Cal.3d 812, 816–817, 112 Cal.Rptr. 257, 518 P.2d 1353; Cash v. Superior Court (1959) 53 Cal,2d 72, 75, 346 P.2d 407.) Since the trial court found that the petitioners had established an inference of discriminatory enforcement of the penal statutes involved, the issue is narrowed to whether discriminatory enforcement of the criminal law is a defense to the crimes with which petitioners are charged.

The Attorney General argues that discriminatory law enforcement is never a defense to a prosecution for the violation of a penal law; the petitioners argue with equal vigor that if the discrimination is intentional, deliberate and purposeful the defense is always available; both the Attorney General and the petitioners eschew a middle ground. We have concluded there is a middle solution; and, as we shall point out, based upon analysis of the appropriate constitutional and legal principles touching upon the problem, the determination as to the availability of the defense should be made upon the facts and circumstances of each case, including the nature and type of the offense involved. Accordingly, the defense may be available as to some penal offenses and not available as to others.

The Fourteenth Amendment prohibits state action which denies ‘to any person within its jurisdiction the equal protection of the laws.’ Its protection is not limited to the enactment of fair and impartial legislation but necessarily extends to the application of these laws. The landmark case on this subject is Yick Wo v. Hopkins (1986) 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, in which the court expressed this view, holding that ‘[t]hough the law itself be fair on its face, and impartial in appliance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the constitution.’ (118 U.S. 356, 373–374, 6 S.Ct. 1064, 1073.)

Yick Wo had been convicted of violating an ordinance that made it a misdemeanor to maintain a laundry without first obtaining the consent of the board of supervisors, unless the laundry was in a building of brick or stone. Though the court held the ordinance facially valid, it nevertheless reversed the conviction because the board had discriminated against persons of Chinese ancestry by denying their applications for permits to operate laundries in wooden buildings while granting permits to Caucasians. The court characterized the conduct for which petitioners were convicted as a ‘harmless and useful occupation’ and emphasized that the discrimination was not inadvertent or the result of laxity but was intentional, purposeful, and based solely on an impermissible classification of race.

As is apparent, Yick Wo was concerned with the discriminatory activities of a licensing board and not the activities of law enforcement officers, and subsequent cases have not uniformly agreed that Yick Wo extends to activities of law enforcement agencies. Though the Supreme Court of the United States has never precisely held an instance of discriminatory penal enforcement to be within the Yick Wo rule, several cases have indicated or necessarily implied that upon proper proof discriminatory enforcement would be a viable defense to certain criminal charges. (See Two Guys From Harrison-Allentown v. McGinley (1961) 366 U.S. 582, 588, 81 S.Ct. 1135, 1138–1139, 6 L.Ed.2d 551; Oyler v. Boles (1962) 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446; Fowler v. Rhode Island (1953) 345 U.S. 67, 73 S.Ct. 526, 97 L.Ed. 828; Edelman v. California (1953) 344 U.S. 357, 359, 73 S.Ct. 293, 295, 97 L.Ed. 387; Niemotko v. Maryland (1951) 340 U.S. 268, 71 S.Ct. 325, 328, 95 L.Ed. 267, 280; Ah Sin v. Wittman (1905) 198 U.S. 500, 25 S.Ct. 756, 49 L.Ed. 1142.)

For example, Two Guys From Harrison-Allentown v. McGinley, supra, 366 U.S. 582, 81 S.Ct. 1135, 6 L.Ed.2d 551, involved a challenge to Pennsylvania's Sunday closing law. In declining to issue an injunction, the lower court had noted certain factors which tended to indicate that future discriminatory enforcement was not likely to occur. On appeal, the Supreme Court noted that there were still pending prosecutions under the law, but concluded that ‘Since appellant's employees may defend against any such proceeding that is actually prosecuted on the ground of unconstitutional discrimination, we do not believe that the court below was incorrect in refusing to exercise its injunctive powers . . ..’ (366 U.S. at pp. 588–589, 81 S.Ct. at pp. 1138–1139.) As distinguished from Yick Wo, Niemotko and Fowler, Two Guys From Harrison-Allentown clearly indicates that discrimination in the actual enforcement of the criminal law, as well as discrimination in denying miscellaneous permits, will constitute a defense to certain criminal charges.8

Most of the federal court cases have permitted the defense or authorized its assertion in an action to enjoin the enforcement of a penal statute. (See United States v. Falk (7th Cir. 1973) 479 F.2d 616; United States v. Steele (9th Cir. 1972) 461 F.2d 1148; United States v. Crowthers (4th Cir. 1972) 456 F.2d 1074; Shock v. Tester (8th Cir. 1969) 405 F.2d 852, cert. den. 394 U.S. 1020, 89 S.Ct. 1941, 23 L.Ed.2d 45; Washington v. United States (1968) 130 U.S.App.D.C. 374, 401 F.2d 915; Dixon v. District of Columbia (1968) 129 U.S.App.D.C. 341, 394 F.2d 966; Moss v. Hornig (2d Cir. 1963) 314 F.2d 89; Glicker v. Michigan Liquor Control Commission (6th Cir. 1947) 160 F.2d 96. Contra, Dear Wing Jung v. United States (9th Cir. 1962) 312 F.2d 73, 75; Buxbom v. City of Riverside (S.D.Cal. 1939) 29 F.Supp. 3, 8.)

As shown in the margin, it appears that the California Supreme Court has never directly addressed itself to this point, and the other California appellate tribunals have arrived at conflicting results.9

There appears to be no reason in logic why the constitutional protection should not extend to action by the police and executive authority in enforcing the penal laws in view of the well settled principle that the Equal Protection Clause extends to every form of state action, whether legislative, judicial or executive. (United States v. Raines (1960) 362 U.S. 17, 25–26, 80 S.Ct. 519, 524–526, 4 L.Ed.2d 524; Sunday Lake Iron Co. v. Wakefield Tp. (1918) 247 U.S. 350, 38 S.Ct. 495, 62 L.Ed. 1154; Ex Parte Virginia (1880) 100 U.S. 339, 347, 25 L.Ed. 676; Strauder v. West Virginia (1880) 100 U.S. 303, 307–308, 25 L.Ed. 664.) Grounding our conclusion upon this established constitutional principle and upon the precedents cited, we conclude that discriminatory administration of penal statutes is within the constitutional prohibition. Accordingly, if a defendant meets the requirements for making the right applicable as we shall define them, then discriminatory enforcement is a defense in a prosecution for violation of a penal statute.10

There remains the necessity of defining the scope of the right and its applicability to the facts in the case at bench.

The first prerequisite to this defense is that the alleged discrimination be not merely a lack of uniformity in law enforcement which can be legitimately explained, but that it be intentional, purposeful and deliberate. (Snowden v. Hughes (1944) 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497; Sunday Lake Iron Co. v. Wakefield Tp., supra, 247 U.S. 350, 353, 38 S.Ct. 495, 62 L.Ed. 1154.) As a practical necessity, it is recognized that the police and the prosecutor must retain broad discretionary judgment to engage in reasonable selective law enforcement. In obedience to that principle, the courts have held that mere laxity in enforcement or the existence of violators who have not been punished does not constitute a denial of equal protection to one who is prosecuted. (In re Finn (1960) 54 Cal.2d 807, 812, 8 Cal.Rptr. 741, 356 P.2d 685; People v. Vatelli (1971) 15 Cal.App.3d 54, 58–59, 92 Cal.Rptr. 763; People v. Pearce (1970) 8 Cal.App.3d 984, 988–989, 87 Cal.Rptr. 814; People v. Gray (1967) 254 Cal.App.2d 256, 268, 63 Cal.Rptr. 211; City of Banning v. Desert Outdoor Advertising, Inc. (1962) 209 Cal.App.2d 152, 154, 25 Cal.Rptr. 621; Wade v. City & County of San Francisco (1947) 82 Cal.App.2d 337, 338–339, 186 P.2d 181; People v. Oreck (1946) 74 Cal.App.2d 215, 221, 168 P.2d 186.)

Secondly, the intentional and purposeful discrimination must be based solely on race, color or some other ‘suspect classification’ or based upon an infringement of religious or political beliefs or the exercise of some other ‘fundamental right.’ In Oyler v. Boles, supra, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446, the Supreme Court emphasized the requirement in announcing:

‘Moreover, the conscious exercise of some selectivity in enforcement is not in itself a federal constitutional violation. Even though the statistics in this case might imply a policy of selective enforcement, it was not stated that the selection was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Therefore grounds supporting a finding of a denial of equal protection were not alleged. [Citations.]’

Similarly, in People v. Oreck, supra, 74 Cal.App.2d 215, 221, 168 P.2d 186, 190, the court declared:

‘The appellants next contend that the trial court erroneously sustained objections to certain questions aimed at showing that the police discriminated against horse race betting in that the police did not raid certain establishments specializing in election and other types of bets. Appellants did not offer to prove that they were being prosecuted because of their race, color, religion, or political beliefs. They simply sought to show that others equally guilty were not being prosecuted.’

(See People v. Gray, supra, 254 Cal.App.2d 256, 269–270, 63 Cal.Rptr. 211.)

Assuming a defendant has presented sufficient proof to establish intentional and deliberate discriminatory conduct by law enforcement personnel directed at race, color or some other ‘suspect classification’ or based upon infringement of religious or political beliefs or the exercise of some other ‘fundamental right,’ the analysis does not stop there. A third step is required. Under the teachings of Shapiro v. Thompson (1969) 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600; Serrano v. Priest (1971) 5 Cal.3d 584, 610–614, 96 Cal.Rptr. 601, 487 P.3d 1241; Zeilenga v. Nelson (1971) 4 Cal.3d 716, 721, 94 Cal.Rptr. 602, 484 P.2d 578 and Westbrook v. Mihaly (1970) 2 Cal.3d 765, 787, 87 Cal.Rptr. 839, 471 P.2d 487 (cert. den. 403 U.S. 922, 91 S.Ct. 2225, 29 L.Ed.2d 700), the court should determine whether the legitimate public interest of the state in enforcing the penal provisions of a particular statute is sufficiently compelling to justify the incidental invasion of the defendant's right not to have the laws discriminatorily enforced. In addition to establishing that it has a compelling state interest which justifies unequal treatment under the law, the state has the burden of proving that the distinctions drawn by the law are necessary to further its purpose. (Westbrook v. Mihaly, supra, 2 Cal.3d at p. 785, 87 Cal.Rptr. 839, 471 P.2d 487.) This process requires a balancing of the relative interests of society in prosecuting the particular crime and the competing interests of the defendant and all of society in assuring nondiscriminatory enforcement of the law. It is manifest that counting heavily in the outcome of such a weighing process is the nature and character of the particular criminal offense involved.

Thus several California cases have suggested such a result in holding that the only possible application of the defense of unconstitutional discriminatory enforcement of the law to a criminal prosecution ‘would appear to be in an instance where a person was under prosecution for the commission of some otherwise harmless act which ordinarily had not theretofore been treated as a crime.’ (People v. Montgomery (1941) 47 Cal.App.2d 1, 13–14, 117 P.2d 437, 446; see People v. Van Randall (1956) 140 Cal.App.2d 771, 777, 296 P.2d 68; People v. Flanders (1956) 140 Cal.App.2d 765, 770, 296 P.2d 13; People v. Darcy (1943) 59 Cal.App.2d 342, 353–354, 139 P.2d 118; People v. Winters (1959) 171 Cal.App.2d Supp. 876, 885, 342 P.2d 538.) This distinction undoubtedly reflects an unexpressed policy decision that the needs of society demand that persons committing intrinsically harmful acts be punished even if the punishment is the product of unequal enforcement, while the needs of society do not require that acts not harmful in themselves be punished. While we make no effort here to classify crimes into harmless and harmful categories nor to approve the holding in any specific case, it is significant that those California cases which have permitted the defense (see fn. 8) may generally be classified as affecting conduct which is only harmful because made so by statute or the conduct regulated pertains to business and economic affairs, whereas those that have disallowed the defense (see fn. 8) relate to conduct intrinsically harmful to society and to others.11

Thus, the compelling state interest test will accommodate the vital interests of both the individual and the state. The state interest in the prosecution of the more grievous offenses, e. g., homicide or driving while drunk, outweighs the interests of the individual in nondiscriminatory enforcement, while in offenses such as illegal parking or violating a building setback regulation the opposite would be true. The compelling state interest in permitting the prosecution of the former type of offense would be the rational response to any argument that the criminal should go free because there has been intentional and purposeful discrimination in enforcing the penal statutes as to him, thus according due consideration to the high price society would pay if the prosecution were proscribed.

Moreover, there are more effective means of protecting the individual's rights without punishing the victim and offending society by turning the criminal loose to violate again with impunity. We have in mind remedies provided by way of a suit for damages under the Civil Rights Act (42 U.S.C. § 1983 esq.)12 and the possibility of a direct cause of action under the Fourteenth Amendment (see Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc. (1971) 403 U.S. 388, 395–396, 91 S.Ct. 1999, 2004–2005, 29 L.Ed.2d 619; Gabaldon v. United Farm Workers Organizing Committee (1973) 35 Cal.App.3d 757, 762–763 fn. 4, 111 Cal.Rptr. 203), and there are always such indirect remedies as provided by the ballot, the press and public pressure. Indeed, it would seem obvious that if a governmental agency is required to pay damages to citizens when their rights have been violated there would be effective pressure by taxpayers and government leaders to institute measures designed to modify the conduct of the officials involved and overcome the evil of the government's discriminatory enforcement techniques.

In the instant case, the trial court made an oral finding of an inference of discriminatory enforcement against U.F.W. members.13 Arguably, the discrimination is tangentially related to petitioners' ‘fundamental right’ to associate by becoming members of the U.F.W. and to the right to a species of free speech and assembly exercised through their allegedly ‘peaceful’ picketing activities, though there is no finding in this regard.14

Turning to the specific offenses charged, we have concluded that all of them, with the exception of the charge of violating Vehicle Code section 12951, subdivision (a) (driving without a driver's license in possession), are of such an intrinsically harmful and grievous nature and relate to such grave societal values that the state's compelling interest in enforcing them outweighs the lesser interest of the individual in nondiscriminatory enforcement of them.

As to the moving vehicle violations charged (Veh.Code, § 21740 (failing to pass another vehicle to the left at a safe distance without interfering with the safe operation of the overtaken vehicle) and Veh.Code, § 23103 (reckless driving)), we need only take note of the annual wholesale slaughter, maiming and disabling of our citizens on the roadways to place in proper focus the value and importance of strict and sure enforcement of such laws.

The crime of violating Penal Code section 594 (malicious mischief) requires the malicious injury to or destruction of real or personal property. ‘The words ‘malice’ and ‘maliciously’ import a wish to vex, annoy, or injure another person, or an intent to do a wrongful act . . ..' (Pen.Code, § 7, subd. 4.) Thus section 594 prohibits intentionally harmful and grievous conduct and protects vital interests of the state and public.

Violation of Penal Code section 166, subdivision 4 (failure to obey a lawful court order), requires such a ‘willful disobedience’ of a court order as to amount to criminal contempt. Contemptuous disobedience of a court order is a serious affront to the court's authority and is never to be taken lightly. Lawful court orders must be obeyed, and the state has an intense and continuing interest in preserving the integrity and authority of the courts by compelling such obedience, because without it the law is a nullity. It is clear that ‘[t]he conduct which is the subject of this statute—picketing and parading—is subject to regulation even though intertwined with expression and association’ (Cox v. Louisiana (1965) 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487) and that the state interest in protecting the judicial process is substantial (see 379 U.S. at p. 564, 85 S.Ct. at p. 480.) Further:

‘Liberty can only be exercised in a system of law which safeguards order. We reaffirm the repeated holdings of this Court that our constitutional command of free speech and assembly is basic and fundamental and encompasses peaceful social protest, so important to the preservation of the freedoms treasured in a democratic society. We also reaffirm the repeated decisions of this Court that there is no place for violence in a democratic society dedicated to liberty under law, and that the right of peaceful protest does not mean that everyone with opinions or beliefs to express may do so at any time and at any place. There is a proper time and place for even the most peaceful protest and a plain duty and responsibility on the part of all citizens to obey all valid laws and regulations.’ (379 U.S. at p. 574, 85 S.Ct. at pp. 485–486.)

As was said in Wood v. Georgia (1962) 370 U.S. 375, 383, 82 S.Ct. 1364, 1369, 8 L.Ed.2d 569: ‘. . . the right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government and . . . courts necessarily must possess the means of punishing for contempt when conduct tends directly to prevent the discharge of their functions.’

Finally, it is apparent that the offense of driving without a license in one's possession (Veh. Code, § 12951) is a relatively harmless offense. However, the petitioners have the initial burden of demonstrating that the evidence sought to be discovered would be helpful to their defense. (Pitchess v. Superior Court, supra, 11 Cal.3d 531, 536–537, 113 Cal.Rptr. 897, 522 P.2d 305.)

Under subdivision (a) of Vehicle Code section 12951 (see fn. 3) the court is required to dismiss the charge of driving without a license in possession if the defendant has not been twice previously charged with the same offense and if he presents his license to the court. Since petitioner Claudio has not alleged that this statutory relief is not available to him, he has not established his need established his need for the Defense of discriminatory law enforcement. Accordingly, discovery for the purpose of assisting in presenting the latter defense at this stage should not be allowed.

The petition for writ of mandate is denied.


1.  Penal Code section 166 provides in pertinent part:‘Every person guilty of any contempt of Court, of either of the following kinds, is guilty of a misdemeanor:‘. . .‘4. Willful disobedience of any process or order lawfully issued by any Court . . .’

2.  Penal Code section 594 provids:‘Every person who maliciously injures or destroys any real or personal property not his own, in cases otherwise than such as are specified in this Code, is guilty of a misdemeanor.’

3.  Vehicle Code section 12951 provides in pertinent part:‘(a) The licensee shall have the license issued to him in his immediate possession at all times when driving a motor vehicle upon a highway.‘Any charge under this subdivision shall be dismissed when the person charged produces in court a driver's license duly issued to such person and valid at the time of his arrest, except that upon a third or subsequent charge the court in its discretion may dismiss the charge. When a temporary, interim, or duplicate driver's license is produced in court, the charge shall not be dismissed unless the court has been furnished Proof by the Department of Motor Vehicles that such temporary, interim, or duplicate license was issued prior to the arrest, that the driving privilege and license had not been suspended or revoked, and that the person was eligible for such, temporary, interim, or duplicate license.’

4.  Vehicle Code section 21750 provides:‘The driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left at safe distance without interfering with the safe operation of the overtaken vehicle, subject to the limitations and exceptions hereinafter stated.’

5.  Vehicle Code section 23103 provides in pertinent part:‘Any person who drives any vehicle upon a highway in wilful or wanton disregard for the safety of persons or property is guilty of reckless driving and upon conviction thereof shall be punished by imprisonment in the county jail for not less than five days not more than 90 days or by fine of not less than twenty-five dollars ($25) nor more than two hundred fifty dollars ($250) or by both such fine and imprisonment . . ..’

6.  The declarations are divided into several categories. The first category attests to numerous incidents of alleged criminal conduct on the part of growers, members of the Teamsters Union and ‘private security groups' perpetrated against the members of the U.F.W. which were observed and ignored by the sheriff's deputies and, although complained of, the deputies chose either to ratify the acts or to arrest the victims (members of the U.F.W.). The second category of declarations attests to the pervasive use of excessive force and brutality by sheriff's deputies against the members of the U.F.W. The third category relates to numerous incidents that allegedly demonstrate an anti-U.F.W. bias and racial prejudice against Mexican-Americans by the Sheriff's deputies. The fourth category documents instances in which the sheriff's department was allegedly acting as the private security force of the growers. The remaining sets of declarations document instances that allegedly show many members of the U.F.W. were not only unjustly arrested but that once arrested they were treated worse than other prisoners.One affidavit introduced also details participation in meetings by representatives of the district attorney's office and the sheriff's office and several private citizens, including growers and lawyers, wherein several standard form injunctions and affidavits (complete with blanks and spaces for marks) which had been prepared by the district attorney were distributed and discussed. Also allegedly discussed were various other methods of protecting growers, and various admissions were allegedly made by some of the above mentioned public officials which tend to support petitioners' allegations of discriminatory enforcement of the criminal law against the U.F.W.The court also took judicial notice of four superior court actions wherein the district attorney appeared as counsel on behalf of the growers in civil contempt proceedings for violation of civil injunctions against the U.F.W.

7.  The court did not pass upon the discoverability of the specific items requested nor on the permissible scope of the oral examination of the district attorney and sheriff but reserved those questions for future determination should discovery be permitted. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal.Rptr. 897, 522 P.2d 305; Hill v. Superior Court (1974) 10 Cal.3d 812, 816, 112 Cal.Rptr. 257, 518 P.2d 1353.)

8.  The Attorney General asserts that the above quoted language from Two Guys from Harrison-Allentown is mere dicta and thus of no precedential value. (But see People v. Gray (1967) 254 Cal.App.2d 256, 263–264, 63 Cal.Rptr. 211.) It would appear, however, that the availability of discriminatory enforcement as a defense was one of the primary reasons why the court upheld the lower court's denial of the injunction; as such, it was part of the ratio decidendi of the case, not dicta. (See 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, §§ 676–677, pp. 4589–4591.)

9.  Those cases recognizing the applicability of the Equal Protection Clause to discriminatory enforcement of penal statutes are: People v. Gray (1967) 254 Cal.App.2d 256, 63 Cal.Rptr. 211 (ordinance prohibiting the posting of any handbill on a building); City of Banning v. Desert Outdoor Advertising, Inc. (1962) 209 Cal.App.2d 152, 25 Cal.Rptr. 621 (suit to enjoin maintenance of a billboard in violation of setback ordinance); People v. Van Randall (1956) 140 Cal.App.2d 771, 777, 296 P.2d 68 (prosecution for gambling); People v. Gordon (1951) 105 Cal.App.2d 711, 721, 234 P.2d 287 (prosecution for selling products at less than cost in violation of the Unfair Trade Practices Act); Downing v. Cal. State Board of Pharmacy (1948) 85 Cal.App.2d 30, 36, 192 P.2d 39 (relief denied but holds court will restrain the discriminatory enforcement of a criminal statute); Wade v. City & County of San Francisco (1947) 82 Cal.App.2d 337, 186 P.2d 181 (suit to enjoin discriminatory enforcement of antimagazine solicitation ordinance); People v. Oreck (1946) 74 Cal.App.2d 215, 168 P.2d 186 (bookmaking charge); People v. Harris (1960) 182 Cal.App.2d Supp. 837, 842, 5 Cal.Rptr. 852 (prosecution for gambling); People v. Winters (1959) 171 Cal.App.2d Supp. 876, 342 P.2d 538 (prosecution for gambling).Others have denied its applicability: People v. Vatelli (1971) 15 Cal.App.3d 54, 59, 92 Cal.Rptr. 763 (prosecution for possession of a knife by a prisoner); People v. Pope (1959) 168 Cal.App.2d 666, 669, 336 P.2d 236 (prosecution for possession of a knife by a prisoner); People v. Hess (1951) 104 Cal.App.2d 642, 684–685, 234 P.2d 65 (prosecution for embezzlement and falsification of accounts by a public officer); People v. Darcy (1943) 59 Cal.App.2d 342, 351–354, 139 P.2d 118 (prosecution for perjury); People v. Montgomery (1941) 47 Cal.App.2d 1, 14, 117 P.2d 437 (prosecution for pandering) People v. Sipper (1943) 61 Cal.App.2d Supp. 844, 847–848, 142 P.2d 960 (prosecution for practicing law without a license).

10.  The Attorney General, with support from statements in some cases, argues that no one has a constitutional right to commit a crime and that the Equal Protection Clause does not extend to such conduct as distinguished from the fundamental right to carry on a lawful business, to freedom of speech, religion and other fundamental rights. (People v. Montgomery, supra, 47 Cal.App.2d 1, 13–14, 117 P.2d 437; People v. Flanders (1956) 140 Cal.App.2d 765, 769–770, 296 P.2d 13; People v. Darcy, supra, 59 Cal.App.2d 342, 352–354, 139 P.2d 118.) While having superficial appeal, this sophistical argument misses the mark. It is not contended that a citizen has a right to commit a crime. The contention is that having committed a penal offense a person does have the constitutional right to the evenhanded enforcement of the criminal law under certain conditions.

11.  As Chief Justice Burger has stated in a dissent in another context, ‘[f]reeing either a tiger or a mouse in a schoolroom is an illegal act, but no rational person would suggest that these two acts should be punished in the same way.’ (Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc. (1971) 403 U.S. 388, 419, 91 S.Ct. 1999, 2016, 29 L.Ed.2d 619.)

12.  The court takes judicial notice of two class action injunction and damage suits commenced pursuant to 42 U.S.C. § 1938 et seq. and now pending in the United States District Court, Eastern District of California by the U.F.W. on behalf of its members and supporters and named individuals. These suits are actions Nos. F–74–81–civ. and F–74–96–civ. Both arise out of U.F.W. union picketing activity in Kern County during the summer of 1973 and alleged misconduct by Kern County officials, including the sheriff and district attorney, as well as members of the Teamsters Union.

13.  Among those presumptions which the Legislature has designated as affecting the burden of proof is the presumption that ‘official duty has been regularly performed.’ (Evid.Code, § 664.) Since the defense of discriminatory enforcement is a claim that official duty has not been regularly performed, the presumption is applicable. Its effect is ‘to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.’ (Evid.Code, 606; People v. Gray, supra, 254 Cal.App.2d 256, 265, 63 Cal.Rptr. 211.)We assume the trial court's finding of an inference was intended to satisfy the above requirement, though the affidavits on file do not directly show discrimination against the individual petitioners with respect to the specific charges. They allege discriminatory conduct by enforcement personnel in other respects. For example, as to all of the violations charged, there is no statement that others violated these specific statutes or, if they did, were not charged or, if charged, were not prosecuted. As to the violation of the court order, there is no statement that like injunctions were not issued against guilty persons, that other injunctions exist which are not being enforced of that the injunctions which were allegedly violated by petitioners prohibited conduct by anyone else. Therefore, the court's finding of an inference must be founded upon the premise that if such enforcement personnel acted as alleged in the instances stated, they must have also acted discriminatorily in the bringing and prosecution of the specific violation charged in the present case. While such proof is probably sufficient to create the inference necessary to authorize discovery, we do not pass upon the sufficiency of such evidence to constitute a defense at trial. (See Ah Sin v. Wittman, supra 198 U.S. 500, 507–508, 25 S.Ct. 756, 758–759, 49 L.Ed. 1142; People v. Darcy, supra, 59 Cal.App.2d 342, 351–353, 139 P.2d 118.)

14.  While there is a suggestion by petitioners that there is discrimination based on the Mexican-American race of members of the U.F.W., the court takes judicial notice of the fact that though the U.F.W. is predominantly Mexican-American it has members who are not Mexican-American and that the field workers belonging to the Teamsters Union, with which the U.F.W. has been locked in mortal combat, are also predominantly Mexican-American.

GEO. A. BROWN, Presiding Justice.

GARGANO and FRANSON, JJ., concur.

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Docket No: Civ. 2316.

Decided: November 20, 1974

Court: Court of Appeal, Fifth District, California.

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