Opinion
SCOTT, J. Appellant, Frank Moya, was convicted by a jury of possession of a sharp instrument by a prisoner, in violation of Penal Code section 4502. Among his contentions on appeal is that he was denied access to information critical to his defense of discriminatory prosecution, in violation of Murgia [1309]v. Municipal Court (1975) 15 Cal.3d 286 [124 Cal.Rptr. 204, 540 P.2d 44]. We hold that notwithstanding People v. Ochoa (1985) 165 Cal.App.3d 885 [212 Cal.Rptr. 4], the trial court did not abuse its discretion in denying appellant’s discovery request, and affirm the judgment.
I
On March 29, 1983, appellant, who was then an inmate at San Quentin, was observed avoiding a routine search by slipping through a cordon of guards. The officers were frisking several inmates prior to their release into the exercise yard. When questioned, appellant told the supervising officer that he had just been searched. The supervisor searched appellant and found an inmate-made blade in his pocket.
II, III*
IV
Appellant contends that the court committed prejudicial error in denying his motion to compel discovery of data relating to his claim of discriminatory prosecution.
Before trial, appellant moved for dismissal and discovery pursuant to Murgia v. Municipal Court, supra, 15 Cal.3d 286. Appellant, who is Mexican-American, alleged that the Marin County District Attorney files Penal Code section 4502 charges against a disproportionate percentage of minority inmates. Appellant alleged that he would not have been prosecuted but for this discriminatory practice. He sought a multiplicity of investigative records, reports, and other documents including statements of witnesses and suspects, from the administrative staff at San Quentin, the district attorney and the Attorney General, relating to all charged and uncharged weapons possession incidents at San Quentin from January 1, 1982, through March 1984.
The motion was supported by a declaration from Deputy Public Defender Douglas Horngrad, which states in part that according to a Department of Corrections report, as of June 30, 1979, minority inmates comprised 57.6 [1310]percent of the felon population at San Quentin.1 Horngrad also declared that 182 San Quentin inmates were referred to the district attorney’s office for possible filing of section 4502 charges in 1982; that the public defender’s office participates in most if not all cases originating at San Quentin; and that of the 21 San Quentin defendants represented by that office in 1982 and 1983 for possession of a weapon by a prison inmate, 15 (or about 71 percent) were members of a “racial minority.”
In opposition to the motion, the People submitted a statement on information and belief by a district attorney’s investigator that the prison population as of October 20, 1983, was 36 percent White, 19 percent Mexican-American, 21 percent Black, and 24 percent “other.” In addition, the People submitted a declaration by John Connolly, the deputy district attorney who issued the criminal complaint against appellant. Connolly declared that when he issued the complaint, he neither knew nor took into consideration appellant’s race. He issued the complaint solely on the basis of whether it appeared that the violation alleged had been committed, and whether there was a reasonable likelihood the case could be proved beyond a reasonable doubt. Connolly also declared that there was no policy or practice in the district attorney’s office to discriminate against any group in the filing of complaints. The People also submitted a declaration by the eight senior deputy district attorneys to whom reports of alleged crimes committed at San Quentin were assigned for review, evaluation, and possible filing of complaints. They declared that in no case did they consider a person’s racial background. Their decisions whether to prosecute were based on objective factors such as the available evidence, the nature of the offense, and the defendant’s criminal history, if available. They too declared that the office had no policy or practice of discrimination. The trial court denied appellant’s motion.
In the course of a criminal proceeding, a defendant may object to maintenance of the prosecution on the ground of deliberate invidious discrimination in the enforcement of the law. (Murgia v. Municipal Court, supra, 15 Cal.3d at pp. 300, 306.) Traditional discovery principles are applicable so that defendants may be permitted to discover information relevant to such a claim. (Id., at p. 306.)
In Murgia, defendants moved for discovery of various documents relating to their discriminatory prosecution claim. The motion was supported by over 100 affidavits detailing numerous incidents of allegedly discriminatory [1311]conduct by law enforcement officials toward United Farm Workers and their supporters. The People submitted no counteraffidavits or declarations in opposition. The trial court found that defendants’ evidence established a prima facie case of discriminatory enforcement, but denied the discovery motion on the ground that the defense was unavailable. (Id., at pp. 291-293.) Accordingly, in Murgia the Supreme Court had no occasion to clarify the minimum showing necessary to support a discovery order when discriminatory enforcement is claimed. Later cases have held that a defendant claiming discriminatory enforcement need only make a showing of “plausible justification” for the discovery. (People v. Municipal Court (Street) (1979) 89 Cal.App.3d 739, 746-749 [153 Cal.Rptr. 69]; Bortin v. Superior Court (1976) 64 Cal.App.3d 873, 878-879 [135 Cal.Rptr. 30].) Such a showing need not be strong. (Id., at p. 879.)
If a defendant has filed affidavits which demonstrates plausible justification as a matter of law for a discovery order, and if the People have filed no counterffidavits or counterdeclarations, it is an abuse of discretion for the trial court to deny summarily the discovery request. (See generally, People v. Memro (1985) 38 Cal.3d 658, 675-684, and fn. 19 [214 Cal.Rptr. 832, 700 P.2d 446] [held: trial court abused its discretion in summarily denying discovery request for complaints against certain police officers pursuant to Evid. Code, § 1043 et seq.; court rejects People’s argument that defendant failed to show plausible justification or good cause for desired information].) On the other hand, in Bortin v. Superior Court, supra, 64 Cal.App.3d 873, the court suggested that a defendant’s weak or “unweighty” showing of plausible justification may be impeached or otherwise traversed by an evidentiary showing by the People. Under such circumstances, the court stated, a trial court would be within its discretion to conclude that the defendant’s efforts fell short of the showing required for discovery. (Id., at pp. 878-880.)
People v. Ochoa, supra, 165 Cal.App.3d 885 is a case in which the facts are strikingly similar to the facts in this case. In Ochoa, two San Quentin inmates who were being prosecuted for possession of a weapon by a prisoner moved for discovery in conjunction with claims of discriminatory law enforcement. The defendants supported their motions with declarations presenting statistical evidence nearly identical to that presented in this case with respect to the prison population in 1979, the number of cases referred from the prison for possible prosecution, and the percentage of minority inmates represented by the public defender’s office. As in this case, the prosecuting district attorney filed a declaration denying that he considered race in deciding to issue the complaints. (Ochoa, supra, at p. 887.)
The trial court in Ochoa ordered production of all referral forms received by the district attorney from prison officials from January 1, 1982, through [1312]November 30, 1983. Those forms specify the inmate’s race. The People refused to comply, and the court dismissed the charges against the defendants.
The appellate court held that the trial court did not abuse its discretion in granting the discovery. It characterized defendants’ showing as “not strong,” but concluded that the statistical disparities provided sufficient justification for the court’s discovery order. To the People’s argument that the district attorney’s declaration negated any showing of plausible justification, the court replied, “The court could properly discount the value of this oral declaration denying discriminatory prosecution, when the People had access to stronger evidence in the referral forms. (Evid. Code, § 412.) The mere introduction of evidence that contradicts the defendants’ allegations does not automatically destroy justification for the discovery order.” (Ochoa, supra, 165 Cal.App.3d at pp. 888-889, italics added.) In sum, the Ochoa court held that it was within the discretion of the trial court to discount the prosecutor’s declaration and grant the discovery. The Ochoa court did not hold that all trial courts must, as a matter of law, disregard such declarations.
In order to set aside a trial court’s discovery order, an appellate court must find an abuse of discretion. (People v. Ochoa, supra, 165 Cal.App.3d 885, 888; see People v. Municipal Court (Street), supra, 89 Cal.App.3d 739, 742-743, 751; People v. Serna (1977) 71 Cal.App.3d 229, 235 [139 Cal.Rptr. 426].) The term judicial discretion implies the absence of arbitrary determination, capricious disposition, or whimsical thinking. (People v. Giminez (1975) 14 Cal.3d 68, 72 [120 Cal.Rptr. 577, 534 P.2d 65].) Judicial discretion requires the exercise of discriminating judgment within the bounds of reason. To exercise judicial discretion, a trial court must know and consider all material facts, and all legal principles essential to an informed, intelligent, and just decision. (In re Cortez (1971) 6 Cal.3d 78, 85-86 [98 Cal.Rptr. 307, 490 P.2d 819].)
When a reviewing court is considering whether the trial court has abused its discretion, the showing is insufficient if it presents facts which merely afford an opportunity for a difference of opinion. A reviewing court is not authorized to substitute its judgment for that of the trial judge. (Brown v. Newby (1940) 39 Cal.App.2d 615, 618 [103 P.2d 1018].) In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. (See People v. Giminez, supra, 14 Cal.3d at p. 72.)
In this case, as in Ochoa, there was information before the trial court that in 1983 the racial makeup of San Quentin was 36 percent White [1313]and 64 percent non-White; that few of the inmates referred to the district attorney’s office on weapons charges in 1982 were prosecuted, and that between 69.4 and about 71 percent of the inmates referred by the district attorney’s office to the public defender’s office on such charges were racial minorities, which presumably means non-Whites. The Ochoa court itself characterized this showing as “not strong.” (People v. Ochoa, supra, 165 Cal.App.3d at p. 888.)
In this case, in rebuttal, in addition to the declaration from the district attorney who prosecuted the case, the People presented the declaration of the eight senior deputies who review and evaluate cases involving San Quentin inmates, all denying that race entered into decisions to prosecute. No similar declaration is mentioned by the Ochoa court. The trial court in this case did not exceed the bounds of reason when it concluded that appellant’s weak showing was refuted by the People’s declarations.2 (See Bortin v. Superior Court, supra, 64 Cal.App.3d at p. 879.)
V*
VI
Judgment is affirmed.
Merrill, J., concurred.
See footnote, ante, p. 1307.
A page of the report was attached to the motion. That report states that of 2,954 inmates, 1,051 were White, 456 were Mexican-American, 1,059 were Black, and 49 were “other.” If the category labeled “other” is considered non-White, the racial makeup of the prison was approximately 40 percent White and 60 percent non-White.
Even if the records in both cases were identical, we would not hold that the trial court in this case abused its discretion in denying the requested discovery. As already stated, while the Ochoa court held that the trial court could discount the prosecutor’s declaration, it did not hold that the court was required to do so. A record presenting facts on which reasonable minds may differ is not a record establishing an abuse of discretion.
The People also urge that Ochoa was wrongly decided, and that the defendants’ showing in that case was inadequate regardless of the declaration of the prosecutor. We conclude that notwithstanding Ochoa, the trial court in this case did not abuse its discretion in denying discovery. Therefore we find it unnecessary to consider the merits of the Ochoa court’s analysis, although a persuasive argument can be made that the Ochoa court’s description of defendants’ showing in that case did not constitute a “plausible justification” for discovery.
See footnote, ante, page 1307.