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 *1314selected 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 results of a statistical analysis compiled by the Marin County Public Defender’s Office. The data indicate a disproportionate number of referrals of weapon possession cases involve racial minorities, in comparison with the racial makeup of the prison population. In response, the district attorney filed a declaration denying that appellant’s race had been considered in the decision to prosecute. Both courts denied the motion, with the superior court judge stating: “I don’t feel that the showing here is sufficient to show discriminatory prosecution.”
The standard articulated by the Supreme Court in Murgia is not that the defendant be able to make a showing of discriminatory prosecution. To the contrary, the court stated: “We emphasize that, in the present proceeding, we are not faced with the question of whether defendant’s showing is adequate to rebut the presumption that official duty has been properly, and hence constitutionally, exercised (see Evid. Code, §§ 664, 606; People v. Gray [1967] 254 Cal.App.2d 256, 265 [63 Cal.Rptr. 211]); the only issue before us is whether discovery on the discriminatory prosecution claim should have been totally foreclosed.” (Murgia v. Superior Court, supra, 15 Cal.3d at p. 305.)
In Griffin v. Municipal Court (1977) 20 Cal.3d 300 [142 Cal.Rptr. 286, 571 P.2d 997], the Supreme Court clarified this issue. The court stated: “Unlike civil discovery, criminal discovery in California is strictly a judicial creation. In Pitchess v. Superior Court (1974) 11 Cal.3d 531, 536-537 [113 Cal.Rptr. 897, 522 P.2d 305], we held that in contrast to the formal statutory requirements for civil discovery, ‘an accused in a criminal prosecution may compel discovery by demonstrating that the requested information will facilitate the ascertainment of the facts and a fair trial. [Citations.] The requisite showing may be satisfied by general allegations which establish some cause for discovery other than “a mere desire for the benefit of all *1315information which has been obtained by the People in their investigation of the crime.”’ [Citations.]
“Applying this reasoning to the defense of discriminatory enforcement, we held in Murgia that the defendants’ right to discovery should be given effect according to ‘traditional principles of criminal discovery.’ (Murgia v. Superior Court, supra, 15 Cal.3d 286, 306.) While at the pretrial stage we are not able to determine what evidence a defendant will ultimately proffer in support of his claim, a motion for discovery ‘must nevertheless describe the requested information with at least some degree of specificity and must be sustained by plausible justification.’” (Griffin v. Municipal Court, supra, 20 Cal.3d 300, 306, italics added.)
In the instant case, the declaration provided by appellant’s counsel stated that as of June 30, 1979, 57.6 percent of San Quentin inmates were from racial minorities; of those weapons cases referred to the public defender’s office from January 1982 to June 1983, 15 of 21 defendants (71.4 percent) were minorities. The data also indicate that the district attorney received 182 referrals from San Quentin for violations of Penal Code section 1982; and the racial makeup of San Quentin inmates was 36 percent White, 21 percent Black, 19 percent Mexican, and 24 percent “other.” In my opinion, the information presented to the court was sufficient to meet the plausible justification standard.
Division Five of this court agreed in People v. Ochoa (1985) 165 Cal.App.3d 885 [212 Cal.Rptr. 4] (petn. for hg. before Cal. Supreme Court den. Apr. 24, 1985). The showing made by appellant was identical to the showing made by the defendants in Ochoa, and the factual situation is remarkably similar. In Ochoa, two San Quentin inmates, one Black and one Mexican-American, were prosecuted for the same offense, possession of a weapon by a prisoner. Both made motions for discovery to bolster their evidence of discriminatory law enforcement. The defendants supported their motions with declarations by the Chief Public Defender of Marin County, and by a deputy public defender, also from Marin County. The declarations relied upon the identical statistical data presented to the court in this case. As in the instant case, the prosecuting attorney filed a declaration denying that race was considered in the issuance of the complaints.
The trial court in Ochoa ordered the discovery. When the People refused to comply with the order, the court dismissed the charges against the defendants. The Court of Appeal affirmed the trial court’s dismissal, stating in part: “The statistical evidence supporting the defendants’ allegations of selective prosecution was not strong. The weakness of their showing, however, was caused largely by the People’s control over more reliable evidence. *1316‘Evidence of discriminatory enforcement usually lies buried in the consciences and files of the law enforcement agencies involved and must be ferreted out by the defendant.’ (People v. Gray (1967) 254 Cal.App.2d 256, 266 [63 Cal.Rptr. 211].) In view of the defendants’ difficulty in providing a stronger showing of discriminatory enforcement, the proffered statistical disparities provided sufficient justification for the court’s discovery order. ” (People v. Ochoa, supra, 165 Cal.App.3d at p. 888, italics added.)
In the present case, the majority claim that the abuse of discretion standard applies here, and that a court could, in its broad discretion, properly decide either that the showing is sufficient, or that it is not. I diságree with both assertions.
In Murgia, the Supreme Court found that the showing made by the defendant was “clearly sufficient to support a claim of invidious discrimination which is prima facie invalid under the equal protection clause.” (Murgia v. Superior Court, supra, 15Cal.3d at p. 301.) The court concluded; “In light of the materiality of this defense, traditional principles of criminal discovery mandate that defendants be permitted to discover the information relevant to such a claim. Accordingly, the trial court erred in barring all access to such information in the possession of the prosecution.” (Id., at p. 306.) The Supreme Court issued the writ of mandate requested by the appellants, directing the trial court to vacate its order denying discovery and to proceed in accordance with the views expressed in the opinion. (Ibid.) The court did not apply the abuse of discretion standard.
In People v. Municipal Court (Street) (1979) 89 Cal.App.3d 739 [153 Cal.Rptr. 69], this court reviewed another “Murgia” appeal. We noted at that time that “‘The basis for requiring pretrial production of material in the hands of the prosecution is the fundamental principle that an accused is entitled to a fair trial.’ (Cash v. Superior Court (1959) 53 Cal.2d 72, 75 [346 P.2d 407].) Although the California Supreme Court has not yet established a method of ascertaining whether or not discovery of a given item is necessary to accord defendant a fair trial (Louisell & Wally, Modern Cal. Discovery [(2d ed. 1972) § 14.05] at p. 885), underlying the rationale of criminal discovery is the principle first stated in People v. Riser (1956) 47 Cal.2d 566, 586 [305 P.2d 1] (app. dism. 358 U.S. 646 [3 L.Ed.2d 568, 79 S.Ct. 537], disapproved on other grounds in People v. Morse (1964) 60 Cal.2d 631 [36 Cal.Rptr. 201, 388 P.2d 33, 12 A.L.R.3d 810]): ‘Absent some governmental requirement that information be kept confidential for the purposes of effective law enforcement, the state has no interest in denying the accused access to all evidence that can throw light on issues in the case, . . .’ Justice Traynor wrote: ‘There remains to be articulated how much the right [to pretrial discovery] encompasses. The defendant must show better *1317cause for discovery “than a mere desire for the benefit of all information which has been obtained by the People in their investigation of the crime.” A showing, however, that the defendant cannot readily obtain the information through his own efforts will ordinarily entitle him to pretrial knowledge of any unprivileged evidence, or information that might lead to the discovery of evidence, if it appears reasonable that such knowledge will assist him in preparing his defense. Moreover, in the absence of a countervailing showing by the prosecution that the information may be used for an improper purpose, discovery is available not merely in the discretion of the trial court, but as a matter of right. ’ (Traynor, Ground Lost and Found in Criminal Discovery (1964) 39 N.Y.U. L.Rev. 228, 244, italics added.)” (People v. Municipal Court (Street), supra, 89 Cal.App.3d 739, 749-750.)1
The Supreme Court opinions involving “Murgia” motions have not applied the abuse-of-discretion standard, and noting the fundamental constitutional principles involved—equal protection and the right to a fair trial— I would agree with Justice Traynor, that upon meeting the plausible-justification standard the discovery requested should be available to the appellant as a matter of right, rather than within the discretion of the court. Here, as Justice King held in Ochoa, the showing meets this lenient standard.
Moreover, even assuming for the sake of discussion that the abuse-of-discretion standard is applicable, I quarrel with the majority’s conclusion that two trial courts given identical facts may properly decide a legal issue and obtain opposite results. The question of law presented is whether the statistical data proffered by appellant met the plausible-justification standard.
Apparently, the Marin County Public Defender’s office has compiled statistics indicating that the San Quentin weapons cases are being prosecuted on a racially disproportionate basis. The public defenders are presenting this same showing to different judges, and are receiving different responses. At the hearing on the motion in this case, the public defender so informed the court, stating: “And to make this court current, there have been a few of these motions filed in this court in the last six months. Some judges have granted it, some judges have denied it. [11] Judge Breiner had ordered some materials be produced, the prosecutor declined to do that, suffered a dismissal. Other judges have declined to order that discovery. But we did seek *1318that discovery in the municipal court before Judge Zunino, and that was denied.”
Situations like this one violate the important goal of uniformity in the law, and encourage judge shopping. Division Five of this court held that the statistical data offered by the public defender’s office was sufficient to meet the broad plausible-justification standard; in my opinion, that decision was correct and the trial court judges should be required to adhere to it. I would remand the case and instruct the trial court to order the appropriate discovery.
The majority place great emphasis on the fact that the district attorney’s office filed declarations stating that they do not consider race in deciding whether to prosecute. I do not find those declarations persuasive enough to foreclose appellant’s rights to pursue his allegation. And I would add that the prosecution did not suggest that the information may be used for an improper purpose.