PEOPLE v. GUZMAN (1981)

Real parties in interest (appellants herein) Ramon Guzman and Dwight D. Melcher were arrested on March 1 and 7, 1979, respectively, by the Mountain View Police Department and charged with violation of Vehicle Code section 23102, subdivision (a) (driving under the influence).   Neither was advised of his right to choose a blood, breath, or urine test.  (Veh.Code, § 13353.) ¹  Instead each was told simply to submit to a blood test, which he did.   It is not contended that appellants were unlawfully arrested or that the blood sample was taken in any but a medically approved fashion;  and it is not alleged that either appellant requested any particular test.

Appellants moved to suppress the evidence (blood samples) pursuant to Penal Code section 1538.5.   The municipal court (Judge Miriam Wolff) granted the motion on the ground that these and other cases showed a purposeful violation by one local police department of the mandatory provisions of section 13353, thereby depriving appellants of equal protection of the laws.   The appellate department of the superior court reversed, holding that 1538.5 was not the appropriate legal vehicle to reach the issues presented, and indicating that the trial court could entertain an appropriate motion, citing Murgia v. Municipal Court (1975) 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44 and People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 74 Cal.Rptr. 294, 449 P.2d 230.

Taking their cue from the superior court's citation to Murgia, supra, appellants moved in municipal court for discovery of all Mountain View Police Department reports involving alleged violations of Vehicle Code section 23102 for February through June 1979.   The municipal court took evidence on the motion on July 11 and August 15 and granted the motion on August 26, 1980.   The People sought and obtained a peremptory writ of mandate from the superior court (Judge Bruce Allen) ordering the municipal court to vacate its order granting discovery.   Real parties in interest timely appealed.

DISCUSSION

Appellants contend that denying them the discovery which the municipal court had granted deprives them of the due process right to prepare their defense of discriminatory enforcement.   We disagree and affirm the order.

Murgia v. Municipal Court, supra, 15 Cal.3d 286, 124 Cal.Rptr. 204, 540 P.2d 44, established the defense of discriminatory prosecution in California.   It held that under the state and federal constitutional guarantees of equal protection, prosecuting officials are prohibited “from purposefully and intentionally singling out individuals for disparate treatment on an invidiously discriminatory basis.”  (Id., at p. 297, 124 Cal.Rptr. 204, 540 P.2d 44.)   The court emphasized that statistical showing of selective enforcement alone does not support a finding of denial of equal protection;  the defendant must show that he has been “deliberately singled out for prosecution on the basis of some invidious criterion.”  (Id., at pp. 298, 299, 124 Cal.Rptr. 204, 540 P.2d 44.)   This means that the selective enforcement “ ‘was deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.’  (Italics added.)”   (Id., at p. 302, 124 Cal.Rptr. 204, 540 P.2d 44, quoting Oyler v. Boles (1962) 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446.)   The Murgia court declined to consider the entire range of classifications which might be characterized as arbitrary, “i.e., that bear no rational relationship to legitimate law enforcement interests ․”  (Ibid.)   It did decide that selective enforcement based upon membership in a particular labor organization was presumptively unjustifiable and that the trial court erred in denying defendants discovery of information relevant to their claim of discriminatory prosecution.  (Id., 15 Cal.3d at p. 306, 124 Cal.Rptr. 204, 540 P.2d 44.)

Since deciding Murgia the Supreme Court has twice considered other allegations of discriminatory enforcement.   In People v. Superior Court (Hartway) (1977) 19 Cal.3d 338, 138 Cal.Rptr. 66, 562 P.2d 1315 the court reaffirmed that in California discrimination based upon sex is arbitrary, but found that the evidence did not show, as defendants alleged, that the Oakland Police Department deliberately discriminated against women in enforcing the state's prostitution laws.  (Id., at pp. 347–354, 138 Cal.Rptr. 66, 562 P.2d 1315.)

In Griffin v. Municipal Court (1977) 20 Cal.3d 300, 142 Cal.Rptr. 286, 571 P.2d 997 the court found that defendants, a black and a white police officer, had made a prima facie showing of their claim of discriminatory enforcement of Penal Code section 147 (ill treatment of prisoner) based upon the race of one of the defendants and that therefore they were entitled to pursue discovery with respect to their defense.

A number of decisions of the courts of appeal have dealt with the question of discriminatory enforcement.   We summarize a few which are most enlightening for our purposes.

In Johnson v. Municipal Court (1977) 70 Cal.App.3d 761, 139 Cal.Rptr. 152 this court found no singling out or discrimination when an experimental “civil protective custody” facility in Alameda County was unable to accommodate all inebriates referred to it.

In People v. Garner (1977) 72 Cal.App.3d 214, 139 Cal.Rptr. 838 the court found that the Los Angeles Police Department was discriminatorily enforcing Penal Code section 337a against bookmakers and in favor of bettors but that the selective enforcement was not based on an invidious and unjustifiable standard.   The court said, “A distinction drawn on the basis of the difference in the kind of criminal conduct, even though of equal culpability under the law, is neither suspect nor invidious.   Moreover, this prosecutorial distinction may be justified on the basis that the police and the district attorney feel that their limited resources may be used most effectively in prosecuting those who generally profit most from the criminal activity and whose frequency of violation is generally much greater than those of their customers.  [Citation, fn. omitted.]”  (Id., at pp. 217–218, 139 Cal.Rptr. 838.)

In United States v. Berrios (2d Cir. 1974) 501 F.2d 1207, 1211, the court held:  “To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.   These two essential elements are sometimes referred to as ‘intentional and purposeful discrimination.’  [Citations.]”  Defendants having failed to meet this burden, the defense was not tenable.

In People v. Municipal Court (Street) (1979) 89 Cal.App.3d 739, 153 Cal.Rptr. 69, this court found that defendants were entitled to discovery because they had made the sufficient prima facie showing of discriminatory enforcement based upon sex and place of crime (female prostitutes prosecuted for heterosexual acts in private apartments, but male prostitutes not prosecuted for comparable homosexual acts in public bathhouses).   This court found that “[b]oth of the classifications are arbitrary and unjustifiable and, if proved, would be sufficient to establish a denial of equal protection.”   (Id., at p. 749, 153 Cal.Rptr. 69.)

The most recent case, Perakis v. Superior Court (1979) 99 Cal.App.3d 730, 160 Cal.Rptr. 445, was decided by Division One of this district.   The essence of the defendants' claim was that they were being discriminated against in the enforcement of bookmaking statutes “because they are ‘neighborhood restaurants and bars,’ distinguishable as a class by location, type patronage, and ‘distinct social-economic standing [sic ].’ ”  (Id., at p. 732, 160 Cal.Rptr. 445.)   The court held that defendants had properly been denied discovery to support this claim, reasoning as follows (id., at p. 734, 160 Cal.Rptr. 445):  “It is not necessary that the ‘class' be one against which there has not been traditional or historical discrimination.   Even so disparate and amorphous a group as ‘neighborhood bars' might be a cognizable ‘class,’ provided some prosecutorial animus toward the class appears.   What is imperative, however, is a prima facie showing that the prosecution was inspired by a discriminatory and hence unjustifiable motive.

“The case before us does not meet the requirement of a threshold or prima facie showing of selective prosecution based solely upon geographic and/or socio-economic factors.   A naked allegation that petitioners are members of a class of ‘local neighborhood bars' does not give rise to a rational inference of selective enforcement based upon the invidious criteria condemned in Murgia v. Municipal Court, supra, 15 Cal.3d 286 [124 Cal.Rptr. 204, 540 P.2d 44], and related cases.   We conclude accordingly that petitioners have not established plausible justification for their motion by ‘demonstrating that the discovery sought would facilitate the ascertainment of relevant facts and a fair trial.’  (Bortin v. Superior Court, supra [1976], 64 Cal.App.3d [873] at p. 878 [135 Cal.Rptr. 30].)”

When the law as interpreted in the above cases is applied to the facts in the case at bench, it is clear that appellants did not meet their burden of making a prima facie showing of selective prosecution and that therefore the superior court properly granted the writ.

The evidence presented at the hearing on appellants' discovery motion was inconclusive in several respects.   Robert K. Schatz, the chief of police of Mountain View, testified that it had been the department's policy since 1975 to comply with section 13353 in every drunk driving arrest.   However, all parties acknowledged that a Mountain View police officer had testified in another case that the district attorney had directed the police that they could first ask the driver to take a blood test and then, if the subject refused, read him the section 13353 admonition.   The court reasonably concluded that all of this evidence might be truthful, i.e., that although the official department policy called for reading section 13353 at the appropriate time, that policy might not have been complied with, particularly during the time when Mountain View was receiving federal money to assist it in enforcing drunk driving laws.

Clinical Laboratory Technician John Steinwinder also testified.   He administered clinical tests in almost every 23102 arrest in Mountain View and was present during compliance or noncompliance with 13353.   Furthermore, he kept detailed records of each transaction.   He compiled the following statistics.   From February 1 to June 1, 1979, there were 524 subjects of chemical tests for drunk or drugged driving.   These could be divided into five categories:  (1) Vehicle Code section 13353 statement read verbatim by officer;  (2) subject advised of Vehicle Code section 13353 options and consequences ad lib;  (3) statement not read;  test requested by officer and given without force;  (4) subject requested test before officer had opportunity to comply with Vehicle Code section 13353;  and (5) Mr. Steinwinder not present.   The 524 arrests during the period in question fell into these five categories in these numbers and percentages:

These statistics did not satisfy the court that the defense allegations were incorrect.   The court reasoned that in many cases the arresting officer might have told the subject that a blood test was required before they reached Mr. Steinwinder's presence.

After this evidence was received, the district attorney argued that appellants had not met their burden of making a prima facie showing, since they had not demonstrated that they were members of any class which was being invidiously discriminated against.   The defense argued that the requisite showing did not include the nature of the class.   The trial court ultimately ruled in their favor.

Viewing the evidence in a light most favorable to the defendants, we find that they did not meet their burden.   If we assume arguendo that members of the Mountain View Police Department violated department policy and told each Vehicle Code section 23102 arrestee that a blood test was required, all that has been shown is a deliberate violation of Vehicle Code section 13353's mandate that arrestees be advised of their options.   Paraphrasing Justice Newsom's statement in Perakis, quoted above, even so disparate and amorphous a group as “drunk drivers arrested in Mountain View” might be a cognizable “class,” provided some prosecutorial animus toward the class appears.   What is imperative, however, is a prima facie showing that the prosecution was inspired by a discriminatory and hence unjustifiable motive.   The case before us does not meet the requirement of a threshold or prima facie showing of selective prosecution based solely upon geographic and/or socio-economic factors.   A naked allegation that appellants are members of a class of “drunk drivers arrested in Mountain View” does not give rise to a rational inference of selective enforcement based upon the invidious criteria condemned in Murgia and related cases.

In other words, appellants did not make a showing that they had been “singled out” for prosecution based upon such impermissible considerations as race, religion, or the desire to exercise constitutional rights.   These elements are essential to a showing of intentional and purposeful discrimination within the meaning of Murgia.  (People v. Milano (1979) 89 Cal.App.3d 153, 165, 152 Cal.Rptr. 318.)

 We are not unmindful of the fact that appellants, as we stated above, took their cue in pursuing the Murgia motion from the superior court's opinion reversing the granting of their 1538.5 motion.²  Neither do we intend by our decision to encourage the intentional violation of Vehicle Code section 13353's mandate that arresting officers inform arrestees of their statutory right to the chemical test of their choice.   We simply hold that appellants did not meet their burden of making a prima facie showing of discriminatory enforcement.

The judgment granting the peremptory writ of mandate is affirmed.

FOOTNOTES

FOOTNOTE.  

1.   At the time of the arrests the cited section read, in pertinent part:“(a) Any person who drives a motor vehicle upon a highway shall be deemed to have given his consent to a chemical test of his blood, breath or urine for the purpose of determining the alcoholic content of his blood if lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor.   The test shall be incidental to a lawful arrest and administered at the direction of a peace officer having reasonable cause to believe such person was driving a motor vehicle upon a highway while under the influence of intoxicating liquor.   Such person shall be told that his failure to submit to or complete such a chemical test will result in the suspension of his privilege to operate a motor vehicle for a period of six months.“The person arrested shall have the choice of whether the test shall be of his blood, breath or urine, and he shall be advised by the officer that he has such choice.   If the person arrested either is incapable, or states that he is incapable, of completing any chosen test, he shall then have the choice of submitting to and completing any of the remaining tests or test, and he shall be advised by the officer that he has such choice.“Such person shall also be advised by the officer that he does not have the right to have an attorney present before stating whether he will submit to a test, before deciding which test to take, or during administration of the test chosen.“Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent and such tests may be administered whether or not such person is told that his failure to submit to or complete the test will result in the suspension of his privilege to operate a motor vehicle.”[Subds. (b) and (c) provide for suspension of license for refusal to take a test.][Subds. (d) and (e) exempt persons with certain illnesses from the blood test requirement.]“(f) A person lawfully arrested for any offense allegedly committed while the person was driving a motor vehicle under the influence of intoxicating liquor may request the arresting officer to have a chemical test made of the arrested person's blood, breath or urine for the purpose of determining the alcoholic content of such person's blood, and, if so requested, the arresting officer shall have the test performed.”

2.   We note that failure to comply with section 13353 deprives the subject of no constitutional right and that therefore evidence obtained as a result of that statutory violation is not inadmissible in evidence and is therefore not the proper subject of a motion pursuant to Penal Code section 1538.5.  (People v. Brannon (1973) 32 Cal.App.3d 971, 108 Cal.Rptr. 620;  accord, People v. Puccinelli (1976) 63 Cal.App.3d 742, 135 Cal.Rptr. 534;  cf. People v. Superior Court (Hawkins) (1972) 6 Cal.3d 757, 100 Cal.Rptr. 281, 493 P.2d 1195 [1538.5 motion lies where blood taken not incident to arrest and with invalid consent].)

ANELLO,* Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

SCOTT, Acting P. J., and BARRY–DEAL, J., concur.