Moya

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,…

I respectfully dissent.

In 1975, the Supreme Court held in Murgia v. Municipal Court (1975) 15 Cal.3d 286 [ 124 Cal.Rptr. 204 , 540 P.2d 44 ], that “[njeither the federal nor the state Constitution countenances the singling out of an invidiously *1314 selected class for special prosecutorial treatment. ... 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 prosecution must collapse upon the sands of prejudice.” (Id., at p. 290.) Consequently, the court held that “[defendants are entitled . . . to pursue discovery with respect to their claim that in the instant case such prejudice was in fact the moving force behind the pending criminal proceedings.” (Id ., at p. 291.)

Appellant, who is Mexican-American, contends that he was prosecuted only because of his racial status. In both the municipal and superior courts, appellant requested discovery of certain statistical data in possession of the district attorney’s office and the Department of Corrections. In support of his motion, appellant filed a declaration made by his public defender, offering the…

[Opinion certified for partial publication. [*] ]

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 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.

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.

.... .... .... .... .... .... .

(1a) Appellant contends that the court committed prejudicial error in denying his motion to compel discovery…