Baluyut v. Superior Court

California Court of Appeal, Sixth District

31 Cal.App.4th 1334, 37 Cal.Rptr.2d 741

January 30, 1995

ELIA, Associate Justice.

Petitioners contend they have been denied equal protection of the law by the discriminatory enforcement of Penal Code section 647, subdivision (a) by the Mountain View Police Department. They seek a writ of mandamus to compel the municipal court to grant their previously-denied motion to dismiss on these grounds. We will grant the writ.

Penal Code section 647 defines various forms of disorderly conduct. Subdivision (a) includes every person "[w]ho solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view." Petitioners are men who have been arrested for violating this statute by soliciting a lewd act from a male police decoy in the vicinity of an adult bookstore. They moved in municipal court for dismissal of these charges on the grounds that the statute was being unconstitutionally applied by the Mountain View Police Department. After an evidentiary hearing, the municipal court made comprehensive findings of fact and conclusions of law. The court stated: "I have looked, and frankly, hard, to try to find a way that I could in good conscience grant the motion, because I think it should be granted in this case. But under the law as I understand it, I don't think it can be granted. And as a result, the motion to dismiss is denied." We determine here that, applying the law of discriminatory prosecution to the facts found by the trial court, the motion to dismiss should have been granted.

Mountain View police officers arrested petitioners on separate occasions for soliciting a lewd act, some form of homosexual contact, from a male police decoy. The criminal component of the act is that it is alleged that petitioners intended to perform the act in a place exposed to public view, the decoy officer's car, parked near the adult bookstore. Following their arrests, petitioners filed a motion to dismiss. In December of 1993, the motion was heard and in January of 1994, the municipal court denied the motion. Petitioners filed a petition for a writ of mandate in superior court which was denied without comment. This writ followed.

"'Judgments and orders of a municipal court, just as those of a superior court, are presumed correct; and a reviewing court will not disturb factual determinations expressly or impliedly made as an incident to a judgment or order, if they are supported by any substantial evidence....'" (People v. Superior Court (Hartway), 19 Cal.3d 338, 350 (1977), citing Winton v. Municipal Court, 48 Cal.App.3d 228, 236-237 (1975).)

In its ruling denying petitioners' motion to dismiss, the municipal court judge outlined four factors drawn from People v. Smith, 155 Cal.App.3d 1103 (1984), that he considered in evaluating petitioners' claim of discriminatory enforcement, and made findings of fact as to each. The evidence presented to the court supports the court's factual findings and is summarized below. Our view of the law of equal protection, as enunciated by the United States and California Supreme Courts, compels us to conclude that the court could have done what it thought it "should" and granted the motion.

Petitioners brought a discovery motion, pursuant to Murgia v. Municipal Court, 15 Cal.3d 286 (1975), seeking all solicitation arrests made under Penal Code section 647, subdivision (a) for the past three years. The municipal court granted the motion and the Mountain View Police Department produced copies of ten arrest reports. All of the arrests involved male solicitation of another male.

At the motion to dismiss, the supervisor of this decoy operation testified that he could not recall, with the exception of prostitution cases, any time during his twenty-five years as a police officer that he had made or heard of an arrest of a man soliciting a woman for a sexual act in a public place.

The evidence presented at the motion to dismiss included testimony that petitioners and others were contacted by decoy undercover police officers in the vicinity of the Video Cassette Outlet adult bookstore in Mountain View. Typically, a young, attractive, casually dressed male police officer would "hang around" the bookstore either watching homosexual films from a peep show booth with the door ajar, or wander around the parking lot making eye contact with male customers and engaging them in small talk. If the customer hinted that he might be interested in an encounter with the officer, the decoy would ask him for specifics until the customer made his sexual intentions clear. If the customer suggested that they go to his place, the decoy would decline to accompany the customer. If the customer suggested they go to the decoy's home, the decoy would explain that he wasn't comfortable bringing people there. At some point there would be a suggestion that the customer accompany the decoy to the decoy's car nearby. When the decoy and customer would arrive at the car, the customer would be arrested for soliciting a lewd act to be performed in a public place, the car.

An expert testified that the modus operandi used by the decoy officer amounted to the typical "cruising" patterns of homosexuals and invited strangers who were homosexual to make contact with the decoy officers.

The bookstore contains about eighty percent heterosexual materials and twenty percent homosexual materials. Ninety percent of the customers are men. Some customers did complain to the store owner about being solicited for lewd acts, but the owner didn't notify the police and simply told the offenders to leave. In 1990, the police received complaints about sexual acts in the parking lot behind the bookstore, persons masturbating there, someone backing his car into a fence, and public urination. None of these complaints identified the offenders as homosexuals.

The court reviewed the police reports of the Mountain View Police Department for the two years preceding petitioners' arrests. The court heard testimony concerning the development and continuation of the department's decoy operation. In ruling on petitioners' motion to dismiss, the court related its factual findings to the four "elements" of a discriminatory enforcement defense described in People v. Smith, supra. Smith summarized these elements as causality, improper selectivity, an invidious basis and improper intent.

The first factor the court addressed was

"was there some sort of discrimination on an invidious basis.

“The defense allegation here is that the police discriminated against homosexuals.... And the Court has to agree, and does agree with the defense contention and does find that the defense has sustained its burden of showing discrimination."

The court noted

"that the citizen complaint lodged in April of 1990 had nothing to do with homosexuals. It was a complaint that 'people' were out in the back lot doing this, not that homosexuals as a group were habitually inclined to be in violation of Penal Code Section 647(a), which is lewd acts in public, or anything like that. It was more of a disturbing-the-peace type situation out there. Evidently there was some police response to that complaint, and that police response, which was initiated in 1990, carried on, became sort of a habit, as it were, and every once in a while the police would go back and respond to this alleged problem, even though there were no new complaints by the neighbors or patrons or anybody else complaining about illegal activity there. They would from time to time go back and do undercover operations.

“The undercover operations they did were clearly focused solely upon those persons with a proclivity to engage in homosexual conduct."

The court distinguished this situation from claims of discriminatory prosecution raised in other situations in which the police focused on uncovering homosexual activity because

"in those cases it was because it was the homosexuals who were creating the problem in the particular location.... In those circumstances, the fact of the defendant's homosexuality is not indicative, in my mind, of discrimination because it was the homosexuals and only the homosexuals that were the problem.

“This case is totally different. There is no showing that the homosexuals were ever the problem in the parking lot or anyplace else. So, if and when the police decide to undertake undercover enforcement action, in my mind they must do so in a rational and even-handed manner.

“Here, instead of doing surveillance, drive-bys or other types of investigation that is neutral in terms of sexual orientation, they specifically sought out homosexual suspects in the various different modalities they used."

The court described how its review of the police reports of all the other Penal Code section 647, subdivision (a), arrests by the Mountain View Police Department supported petitioners' claim of discriminatory enforcement. One case in particular the court found

"highly suggestive of the police attitude. [In this case], [the officer] was hanging out by the back door [of the bookstore], the suspect approached, did a little chitchat, the suspect invited [the officer] to go to his house without specifically saying what for--nothing different than what happens in bars and restaurants all over the land between heterosexuals--and at that point the officer arrests the person on the spot for suggesting they go to his house to engage in some mutual masturbation. That, to me, shows homophobia on the part of the officers. The officers later said we didn't know that that wasn't illegal."

The court reviewed other cases, including one in which

"an undercover officer observes the defendant urinate in the parking lot, which allegedly was part of the problem, people urinating in the parking lot, he watches the guy urinate, doesn't do anything, doesn't cite him for a Municipal Code violation or a Penal Code violation....

"[T]he Court does come inevitably to the conclusion that there was discrimination, quote unquote, evidenced by the officers' method of operation; that their method of operation was designed to ferret out homosexuals or those who were likely to engage in homosexual acts, and that it did so without any relationship to the alleged problems at that location for which the citizen complaint had been initially lodged.

“Therefore, the first three elements of the Murgia test, as elucidated in Smith, are objectively shown, in this Court's opinion. Those three elements are the showing that there was some sort of improper selectivity--that goes without saying, based upon what the Court has already said--that there was a causality, and again that goes without saying. But for the discrimination practiced by the Mountain View Police Department, there would have been no detection and prosecution of these people. As a matter of fact, but for their manipulation of the situation to get people to agree to public sex acts rather than going home with them, there wouldn't have been any violation either.

"Thirdly, there is an invidious basis, as that term is defined in Smith. The phrase 'invidious basis,' which is the third element as Smith explains Murgia, sounds in a way worse than it is. As explained in Smith, it means that the defense must show that the main, or at least important reason, for the prosecution is invidious; that is, it must be unjustifiable, arbitrary, or without a rational relationship to legitimate law enforcement interests. The method of operation is without rational relationship to legitimate law enforcement interests at that location that was peculiar or focused on homosexual behavior.

"Under that definition, the court does find an invidious basis."

The court then considered the "most troublesome" element from Smith, the improper intent element. The court, interpreting Smith, held petitioners to the burden of proving by a preponderance of evidence that the "selectivity complained of was deliberate, purposeful or intentional, i.e., done with a specific intent to wrongfully discriminate so as to punish the defendant for membership in a particular class."

The court did say that

"there was a subconscious homophobia at work in the Mountain View Police Department during the timeframe in question, which accounted for this course of conduct on their part, and I think that that subconscious or unconscious homophobia did subtly guide the police officers' thought processes as they went about their business in deciding how to respond to this problem."

The court concluded,

"It appears to me clear that proof of subjective specific intent to punish is required, and that mere general intent to do the act which results in de facto discrimination is not a violation sufficient to justify dismissal under Murgia. So that's a long-winded way of saying I frankly think this issue needs, in this context, needs attention by the appellate courts who have the power to change the law or elucidate the law."

These findings by the municipal court establish that the Mountain View Police Department, in enforcing Penal Code section 647, subdivision (a) engaged in discriminatory enforcement in violation of the equal protection clause. Petitioners were deliberately selected for arrest on an invidious basis for acts which would not have been detected, prosecuted or even criminal had it not been for the police conduct. The court found that homophobia "accounted for this course of conduct" resulting in the arrest of homosexuals and only homosexuals for violating Penal Code section 647, subdivision (a). The court found that homophobia "guided" the police officers thoughts as they designed the method of enforcement that generated petitioners' arrests. Carrying one's burden of proof of these facts should be sufficient to sustain an equal protection violation, and the court seemed inclined to so rule. However, based on Smith, the court believed it must find the subjective specific intent to punish petitioners for engaging in homosexual conduct, and because the court believed the officers' homophobia was "subconscious" or "unconscious," it did not find this specific intent to punish. It is important, then, to determine whether the "intent to punish" element described in Smith is applicable in petitioners' case. We attempt to trace this element to its source to guide our determination.

We first look to Smith, supra, and its discussion of this "element." The defendant in Smith was the wealthy prominent Republican, C. Arnholt Smith. He was prosecuted for various tax fraud and embezzlement charges. The defendant sought to establish the defense of discriminatory prosecution. He was able to establish that the district attorney, a Democrat, took a personal interest in his prosecution. However, there was virtually no evidence that the prosecutor disliked the defendant because he was a Republican or disliked Republicans in general. Thus, the defendant failed to establish that his prosecution had an invidious basis.

Smith, supra, does not purport to state new law, but to interpret Murgia. The Smith court singles out language in Murgia that there must be a "deliberate," "purposeful" or "intentional" character to the discrimination. The Smith court states:

"The [Murgia] opinion repeatedly indicates it is the deliberate singling out on an invidious basis which is impermissible. If it is helpful, this emphasis appears to be made in Murgia in order to ensure the defense of discriminatory enforcement succeeds only when the prosecutor has the proscribed 'specific,' rather than 'general,' intent. It would not be enough to show, for example, that more women than men were being arrested for prostitution. When the consequences of law enforcement produce a pattern of unequal treatment of similarly situated classes, the defense of discriminatory enforcement is not established. The requisite intent is that the prosecutor desired those consequences. The defense is established only when it appears an important factor in the prosecutor's selection of the defendant is the prosecutor wants to punish the defendant for membership in a protected class or exercise of protected rights."

In Murgia v. Municipal Court, supra, labor union members were charged with various misdemeanors. They sought discovery to support their contention that the law enforcement authorities practiced unequal enforcement of the penal statutes against them because of their membership in labor organizations. In directing the trial court to permit these defendants discovery, the Supreme Court held that a showing by a defendant that he would not have been criminally prosecuted except for an invidious discrimination against him establishes a violation of equal protection.

The language from Murgia that Smith used to generate this specific intent to punish element was based on a United States Supreme Court case, Oyler v. Boles, 368 U.S. 448, 456 (1962). Murgia states,

"Over a decade ago, the United States Supreme Court recognized that the equal protection clause is violated if a criminal prosecution is 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.' (Oyler v. Boles).) Neither the federal nor state Constitution countenances the singling out of an invidiously selected class for special prosecutorial treatment, whether that class consists of black or white, Jew or Catholic, Irishman or Japanese, United Farm Worker or Teamster. If an individual can show that he would not have been prosecuted except for such invidious discrimination against him, a basic constitutional principle has been violated, and such a prosecution must collapse upon the sands of prejudice."

Discussing Oyler, Murgia says:

"Oyler thus reiterated the important distinction between 'deliberate invidious discrimination' and 'nonarbitrary selective enforcement' ... Oyler makes it clear that it is 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. At the same time, however, the Oyler decision clearly indicates that if a defendant does establish that the prosecuting authorities, in administering a statute, have followed an enforcement policy 'deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,' a denial of equal protection will have been demonstrated, even if the statute in question is a penal law."

Thus, Murgia does not require a specific intent to punish to sustain a discriminatory prosecution claim, but cites Oyler as drawing a distinction between deliberate selective enforcement that is invidious as opposed to nonarbitrary.

Before examining Oyler further, we note the importance of this distinction. We recognize that the police must have broad power to choose which law violators to arrest and which to leave unpunished. Deliberate selective enforcement is not only necessary, but desirable. The police cannot be expected to discover and arrest all law violators, but they may concentrate their limited resources where they will be of the most benefit to the citizens they serve and protect. The deliberate, selective allocation of police resources will produce inequality in enforcement. For example, directing officers to apprehend every other speeding driver on a particular street will mean that every other speeder on that street, as well as those on other streets, will escape punition. Nothing we say here is intended to frustrate enforcement decisions reasonably related to the fair and effective administration of criminal justice. There may be situations in which the police may elect to proceed against law violators in one area, or certain classes of law violators (see e.g., People v. Superior Court (Hartway), supra) or only at certain times. In other words, they may "deliberately" and "intentionally" single out a particular group, by, for example, making them the target of a decoy operation. The police are free to make these types of classifications if they are reasonable ones. However, when, under the guise of allocation, the police enforce a statute against a class of persons, based on factors irrelevant to the general public welfare, an equal protection problem may arise.

To try to find a source for Smith's specific intent to punish "element," and to further understand the difference between deliberate invidious discrimination and nonarbitrary selective enforcement, we look to Oyler. Unlike petitioners here, the petitioners in Oyler failed to allege that the selective enforcement which resulted in their prosecution was either deliberate or invidious. Oyler involved a challenge to West Virginia's habitual criminal statute which provided a mandatory life sentence upon the conviction of certain crimes.

The equal protection claim in Oyler is described in that case as follows:

"[P]etitioners' contention is that the habitual criminal statute imposes a mandatory duty on the prosecuting authorities to seek the severer penalty against all persons coming within the statutory standards but that it is done only in a minority of cases. This, petitioners argue, denies equal protection to those persons against whom the heavier penalty is enforced. We note that it is not stated whether the failure to proceed against other three-time offenders was due to lack of knowledge of the prior offenses on the part of the prosecutors or was the result of a deliberate policy of proceeding only in a certain class of cases or against specific persons. The statistics merely show that according to penitentiary records a high percentage of those subject to the law have not been proceeded against. There is no indication that these records of previous convictions ... were available to the prosecutors. Hence the allegations set out no more than a failure to prosecute others because of a lack of knowledge of their prior offenses. This does not deny equal protection due petitioners under the Fourteenth Amendment.

“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."

Neither Oyler nor Murgia refer to a specific intent to punish as an element of the defense of discriminatory enforcement. How is it then that this "element" appeared in Smith without having been mentioned in the cases upon which Smith relied? As Smith recognized, Murgia "stated the elements of the defense of discriminatory prosecution in several ways." However, nothing in Murgia suggests that by restating elements the court intended to create additional elements. We think a problem arises when one blurs the elements of a discriminatory enforcement defense with the ways in which such a claim may be proved. Fundamentally, the defense embodies the same equal protection principle with each use, but the ways to prove one's claim may vary depending upon the nature of the official action involved. Because Smith speaks to the use of this defense when an individual claims he or she has been singled out by a particular prosecutor, Smith's application to the prosecution of a member of a group by a governmental entity results in confusion. In the prosecution of an individual by a particular prosecutor, the prosecutor's specific intent to punish the defendant must be shown because there is no other evidence from which to infer an invidious basis for the prosecution. Trying to apply this concept to the selective enforcement of a Penal Code statute by a police department is perplexing. Whom must petitioners show had the specific intent to punish them? The arresting officers? The supervising officer who approved the continuation of the decoy operation? The officer responsible for its original design? All the officers involved?

Neither Oyler nor Murgia describe a specific intent to punish element because both involve the prosecution of members of a group by a government body. To hold a defendant to proof of the specific intent of any or all the authorities involved in his or her prosecution would be to eviscerate the equal protection clause of the constitution. But, to paraphrase Murgia, once an individual shows that he or she is a member of an invidiously selected class for special enforcement treatment, and that he or she would not have been prosecuted except for such invidious discrimination against him or her, a basic constitutional principle has been violated.

The situation of an individual claiming he or she has been singled out for unfair treatment, as opposed to a member of a group claiming that his or her group has been treated unfairly, arose in Snowden v. Hughes, 321 U.S. 1 (1944). In Snowden, the petitioner alleged that the Illinois State Primary Canvassing Board had erroneously failed to certify him as a candidate for the General Assembly. Petitioner failed to allege "any facts tending to show that in refusing to certify petitioner as a nominee, the Board was making ... intentional or purposeful discrimination between persons or classes." Petitioner did not contend that class or racial discrimination was involved in the Board's action. The following passage in Snowden, also quoted in Oyler, describes what an equal protection violation is as well as how it may be shown:

"The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person, or it may only be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another not to be inferred from the action itself, Yick Wo v. Hopkins, 118 U.S. 356, 373-[37]4. But a discriminatory purpose is not presumed; there must be a showing of 'clear and intentional discrimination.' Thus the denial of equal protection by the exclusion of negroes from a jury may be shown by extrinsic evidence of a purposeful discriminatory administration of a statute fair on its face. But a mere showing that negroes were not included in a particular jury is not enough; there must be a showing of actual discrimination because of race.

“Another familiar example is the failure of state taxing officials to assess property for taxation on a uniform standard of valuation as required by the assessment laws. It is not enough to establish a denial of equal protection that some are assessed at a higher valuation than others. The difference must be due to a purposeful discrimination, which may be evidenced, for example, by a systematic under-valuation of the property of some taxpayers and a systematic over-valuation of the property of others, so that the practical effect of the official breach of law is the same as though the discrimination were incorporated in and proclaimed by statute. Such discrimination may also be shown to be purposeful, and hence a denial of equal protection, even though it is neither systematic nor long-continued."

Neither Snowden nor the cases cited therein describe an element of a specific intent to punish. The point Snowden makes is that the unequal application of a statute by state officers is a denial of equal protection if there is "shown to be present in it an element of intentional or purposeful discrimination." This element may be shown by the systematic nature of its unfair application, resulting in a discriminatory enforcement pattern that can only be explained by an invidious purpose. This element may also be shown, in the absence of such a systematic application over time, but the method of proof must be different. Certainly evidence that the prosecuting authority did have a specific intent to punish one for membership in a group would support this element of an equal protection claim, but it is not the only method of proof and it is not required in every case in which such a claim is made. One way the element of deliberate discrimination may be shown is by proof that the discrimination was advanced in a systematic manner, or by proof that the prosecuting authority actually intended an invidiously discriminatory result. Deliberate action, such as the decoy operation here, with an invidious basis, as was found here, is one method of proof. Proof that one is being prosecuted with the specific intent to punish for membership in the group is another. Thus, as a member of a group that has been subjected to discriminatory enforcement over time, one might rely on statistical proof that although there are many violators of the same offense in one's community, only members of one group have been prosecuted, and that pursuing the prosecution of one group over the rest of the community bore no rational relationship to the ends of law enforcement. As described in our earlier example, the police are free to decide to allocate their resources and arrest every other speeding driver on a particular street. After three years of such a plan, an African American driver who received a citation might present statistical evidence that for the three preceding years only African Americans had received speeding tickets, that African American drivers accounted for only 10 percent of the drivers in the community, and that countless non-African American drivers violated the speed limit without being cited. The court should be allowed to infer from this statistical evidence that there was an invidious basis to this traffic enforcement plan. The defendant should not be required to prove by a preponderance of the evidence that the particular officer who cited him or her had the specific intent to punish him or her for being African American. The court might also find that this claim lacked the element of deliberateness or intentionality that a speeding enforcement plan designed specifically to arrest only African Americans would embody.

If one is prosecuted alone, as the defendant in Smith, one will not have the statistical evidence to support the inference of a deliberate discriminatory design. In such a case, one must rely on more direct proof of both the deliberate and the invidious basis of one's prosecution, such as the specific intent of the prosecutor to punish the defendant. However, none of the cases cited in Murgia, Oyler, or Snowden require a petitioner to prove both deliberate systematic discrimination and a prosecutor's specific intent to punish. In the case of deliberate systematic discrimination, its unjustifiable application may speak for itself as to its invidious nature, despite the disclaimers of the prosecuting authorities.

In 1942, in Hill v. Texas, 316 U.S. 400, the Supreme Court considered the issue of whether the exclusion from the grand jury by jury commissioners of all "negroes" whom they did not know to be qualified, without knowing or seeking to learn whether there were in fact "negroes" qualified to serve, constituted discrimination in violation of the equal protection clause. The court held that it did, despite the fact that the commissioners testified "that members of the commission had no prejudice against the colored race."

Despite the commissioners' disavowal of any racist intent, the court said "chance or accident could hardly have accounted for the continuous omission of negroes from the grand jury lists for so long a period as sixteen years or more." The commissioners' actions spoke to the court louder than their words. Faced with this statistical evidence, the Supreme Court did not engage in a discussion of whether the jury commissioners were conscious of their racism or not. Nor should they have. When a discriminatory pattern emerges on an invidious basis, and it is apparent to the court that it stems from the racism or other bigotry of the enforcement officials, should the officials' lack of awareness (or lack of candor) of their motives defeat one's claim that one has been denied equal protection? Such a way of viewing the problem would mean that the more deeply entrenched the bigotry, so that its application to enforcement decisions is automatic rather than reflective, the less relief a defendant would be afforded. Rarely will a defendant be able to muster evidence of the inner workings of the officials' minds, and the more officials that are involved, the more difficult the defense would be to prove. C. Arnholt Smith failed in his attempt to prove that a single prosecutor had the specific intent to punish him. The more widespread the invidiously discriminatory pattern and the greater the number of officials involved, the more difficult it would be to prove this specific intent element. We will not read Murgia or Smith as supporting the proposition that the more expansive the program of discrimination the less likely the defendant should be of securing constitutional protection.

In the case at bar, the trial court found that petitioners would not have been arrested except for the invidious discrimination against them and that homophobia accounted for this course of conduct by the Mountain View Police Department. This is all that Murgia and the cases on which it relies would require of petitioners to establish their discriminatory enforcement defense. However, the trial court believed that petitioners were required to prove that the police department had the specific intent to punish them. The court found that proof of this specific intent was lacking because their homophobia was subconscious. Smith's specific intent to punish "element" is a misnomer, and neither Murgia nor its progenitors support the characterization of this concept as an "element" of the defense of discriminatory prosecution. Proof of a prosecutor's specific intent to punish a defendant for membership in a group may be one method of proof of this defense, but is not the only method, and should not be required of petitioners here.

The court's observation concerning the level of consciousness of the Mountain View Police Department's homophobia is of no consequence. A decoy operation continued for some years is certainly a deliberate and intentional official activity, and once the invidious discrimination it produced is established, a defendant should not be required to psychoanalyze the enforcement authorities to receive the constitutional protections to which he or she is entitled. The notion of distinguishing between one's conscious and one's subconscious biases would have been astounding to the authors of the seminal equal protection case, Yick Wo v. Hopkins, 118 U.S. 356, 373-374 (1886).

In Yick Wo, the Supreme Court reviewed San Francisco ordinances that gave the board of supervisors discretionary authority to refuse permission to those wishing to carry on laundries, except where located in buildings of brick or stone. Except for one, all the applications made by non-Chinese petitioners to operate laundries were granted. All of the applications by two hundred Chinese were denied.

The court considered the petitioners' contentions whether "the ordinances for violations of which they are severally sentenced to imprisonment are void on their face, as being within the prohibitions of the Fourteenth Amendment; and, in the alternative, if not so, that they are void by reason of their administration, operating unequally, so as to punish in the present petitioners what is permitted to others as lawful, without any distinction of circumstances--an unjust and illegal discrimination, it is claimed, which, though not made expressly by the ordinances, is made possible by them."

The court reversed the convictions of the petitioners, holding that the ordinances, as applied, violated the Fourteenth Amendment. The court was concerned with the "naked and arbitrary power to give or withhold consent" to operate the laundry. It is this unbridled discretion which proved fatal to the ordinances. The court noted that an action which can proceed through the unchecked discretion of the enforcing authorities "may proceed from enmity or prejudice, from partisan zeal or animosity, from favoritism and other improper influences and motives easy of concealment and difficult to be detected and exposed, it becomes unnecessary to suggest or to comment upon the injustice capable of being brought under cover of such a power, for that becomes apparent to every one who gives to the subject a moment's consideration." Thus having acknowledged the problems which arise in assessing the operation of the ordinances in the abstract, the court considered the method of proof used by Yick Wo.

"In the present cases, we are not obliged to reason from the probable to the actual, and pass upon the validity of the ordinances complained of, as tried merely by the opportunities which their terms afford, of unequal and unjust discrimination in their administration. For the cases present the ordinances in actual operation, and the facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion, that, whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration, and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States. Though the law itself be fair on its face and impartial in appearance, 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."

The pre-Freudian Yick Wo court did not concern itself with a psychological dissection of the San Francisco Board of Supervisors. Rather, it noted the clear statistical evidence of discrimination and stated, "No reason for it is shown, and the conclusion cannot be resisted, that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified."

Here, no rational reason for the deliberate structuring of the decoy operation to focus on homosexuals was shown, and in light of the court's other findings, the conclusion cannot be resisted that no reason for it existed other than hostility toward homosexuals. This showing was sufficient to establish an equal protection violation in 1886. It suffices today as well.

Accordingly, the relief prayed for is granted and the municipal court is directed to grant petitioners' motion to dismiss.

PREMO, Acting Presiding Justice, concurring:

I concur. I write separately to dispel any misconceptions about the record which might arise from a reading of the concurring and dissenting opinion of Justice Bamattre-Manoukian.

My colleague concurs with the majority opinion to the extent that we are all in agreement that the "specific intent to punish" (People v. Smith, 155 Cal.App.3d 1103 (1984)) is not a requisite element of an equal protection claim. We agree that it is sufficient to prove a claim by demonstrating a "purposeful and intentional singling out" of the discriminated member or class. (Murgia v. Municipal Court, 15 Cal.3d 286 (1975).)

My dissenting colleague further agrees that the "purposeful and intentional singling out" of Murgia can be proved by either direct or circumstantial evidence. She contends that the trial court record fails to make findings of such evidence.

This last assertion is incorrect. The trial court expressly found that the Mountain View City Police Department's "method of operation was designed to ferret out homosexuals...." The trial court expressly found that "The undercover operations they did were clearly focused solely upon those persons with a proclivity to engage in homosexual conduct." The trial court expressly found that "The police activity here focused solely on detecting people engaged in or soliciting homosexual activity." And the trial court expressly found that "they specifically sought out homosexual suspects in the various different modalities they used." These are findings of a "purposeful and intentional singling out."

BAMATTRE-MANOUKIAN, Associate Justice, concurring and dissenting:

I agree with my colleagues that the suggestion in People v. Smith, 155 Cal.App.3d 1103, 1136 (1984), that to show discriminatory enforcement or discriminatory prosecution a defendant must prove a " 'specific' ... intent" to "punish the defendant for membership in a protected class or exercise of protected rights" overstates the holding of California's leading case, Murgia v. Municipal Court, 15 Cal.3d 286 (1975), by which we are bound.

But in my view Murgia does clearly require that, to constitute a violation of the equal protection clauses, the arrest or the criminal charge have been directly attributable to a "purposeful" and "intentional" decision to discriminate against a defendant, either individually or as a member of an identifiable class of persons, on a basis that bears "no rational relationship to legitimate law enforcement interests...."

In Murgia the Supreme Court explicitly acknowledged that "the allegedly 'unequal' treatment which may result from simple laxity of enforcement or the nonarbitrary selective enforcement of a statute has never been considered a denial of equal protection" (original emphasis). To maintain the distinction between selective enforcement of less than constitutional significance and selective enforcement which operates to deny equal protection, the Supreme Court emphasized that:

"'The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.' (Italics added.)

“... [A]n equal protection violation does not arise whenever officials 'prosecute one and not [another] for the same act'; instead, the equal protection guarantee simply prohibits prosecuting officials from purposefully and intentionally singling out individuals for disparate treatment on an invidiously discriminatory basis.... 'The protection afforded is against unlawful discrimination which uses law enforcement as its vehicle.'"

The Supreme Court also implicitly acknowledged that the defense of discriminatory enforcement does not reach the question of guilt or innocence, and that society's interest in pursuing meritorious criminal charges will inevitably be in the balance to be weighed against the defendant's request for dismissal of those charges on equal protection grounds:

"[I]n order to establish a claim of discriminatory enforcement a defendant must demonstrate that he has been deliberately singled out for prosecution on the basis of some invidious criterion. Because the particular defendant, unlike similarly situated individuals, suffers prosecution simply as the subject of invidious discrimination, such defendant is very much the direct victim of the discriminatory enforcement practice. Under these circumstances, discriminatory prosecution becomes a compelling ground for dismissal of the criminal charge, since the prosecution would not have been pursued except for the discriminatory design of the prosecuting authorities."

To sustain a discriminatory enforcement defense it is not sufficient to find that agents of the state deliberately and intentionally acted in a manner which produced (whether intentionally or unintentionally) discrimination definable as invidious. I believe Murgia 's clear rule to be that an action not undertaken for a discriminatory purpose will not amount to a denial of equal protection simply because it produces a discriminatory result.

I agree that the "purposeful" and "intentional" and "deliberate" singling out required by Murgia need not be proved by direct evidence but can and almost always will be proved circumstantially, by inference from other evidence.

Here the trial court applied the Smith specific-intent-to-punish standard which overstated the holding of Murgia. Further, the trial court improperly attempted to inquire into the subconscious or unconscious biases of the police officers which he believed "did subtly guide the police officers' thought processes as they went about their business in deciding how to respond to this problem." Murgia does not require the trial court to inquire into the subconscious or unconscious biases of police officers or prosecutors, matters which may or may not have any significant bearing on actions taken by these officers or prosecutors in a particular case. Based on my understanding of Murgia, I believe that it is purposeful, intentional and deliberate invidious discrimination with which the courts can and should concern themselves, and such discrimination does lend itself to circumstantial proof. To justify dismissal of criminal charges I would require, as I believe the Supreme Court, by its opinion in Murgia intended, that there be a finding (among others) of a "[purposeful] and [intentional] singling out [of] individuals for disparate treatment on an invidiously discriminatory basis."

Here there was no such finding--but rather there were a number of findings which concluded with the trial court stating that "It appears to me clear that proof of subjective specific intent to punish is required, and that mere general intent to do the act which results in de facto discrimination is not a violation sufficient to justify dismissal under Murgia. So, that's a long-winded way of saying I frankly think this issue needs, in this context, needs attention by the appellate courts who have the power to change the law or elucidate the law."

I fully agree with my colleagues' discussion of the Smith case, and I believe that their analysis clarifies the law and the trial court's responsibilities under Murgia.

The municipal court was the trier of fact in this case and the burden of proof was upon Baluyut and Lopez to persuade the court that the police had purposely and intentionally discriminated against them. Because the trial court failed to make this finding required by Murgia, applied the overly broad Smith standard, and twice commented on the state of the record before it, I would remand this case to the trial court for further proceedings and findings consistent with directions that have been provided in this opinion. I would not substitute findings on the appellate level for findings of the trier of fact unless I was convinced that those findings were the only findings that could have been made, and thus that the municipal court was compelled to make them. (Cf. Roesch v. De Mota, 24 Cal.2d 563, 570-571 (1944); cf. also Caron v. Andrew, 133 Cal.App.2d 402, 409 (1955).)