I agree with my colleagues that the appropriate standard of review is abuse of discretion. (People v. Ashmus (1991) 54 Cal.3d 932 [2 Cal.Rptr.2d 112, 820 P.2d 214].) However, I would conclude that the trial court abused its discretion by ordering discovery in this case because Peter Baez failed to meet the “rigorous” standard set forth in United States v. Armstrong (1996) 517 U.S. 456, 468 [116 S.Ct. 1480, 1488, 134 L.Ed.2d 687] (Armstrong). In my opinion, Baez failed to produce “ ‘some evidence tending to show the existence of the essential elements of the defense’ ” (ibid.) of discriminatory prosecution: that his prosecution for grand theft was “‘motivated by a discriminatory purpose’ ” (id. at p. 465 [116 S.Ct. at p. 1487]), and that the decision to prosecute him resulted in a discriminatory effect, in that similarly situated persons who were not involved with medical marijuana distribution “could have been prosecuted” for grand theft, but were not (id. at p. 469 [116 S.Ct. at p. 1488]).
Pertinent Facts
Baez, who suffers from AIDS, began receiving housing assistance through the Santa Clara County Housing Authority (SCCHA) in May of 1995. In his *1197original application and during a December 1996 recertification, Baez asserted that his only source of income was his SSI (Supplemental Security Income) benefits and that he had no checking or savings account. During a February 1997 recertification, Baez reiterated those assertions, and he specifically denied receiving any income from the Santa Clara County Medical Cannabis Center (SCCMCC), of which he was a executive director. During a January 1998 recertification, Baez again stated that he had no income other than his SSI benefits, and that he had no checking or savings account.
In fact, as revealed by a March 1998 police investigation, Baez was receiving income from the SCCMCC. He was also using SCCMCC funds to pay for his personal expenses, including his housing and medical expenses, and his water, cable, and garbage services. In addition, Baez had two personal bank accounts. Finally, he had recently purchased a vehicle for $9,600 and he had withdrawn money in order to go on a pleasure cruise.
The March 1998 police investigation was initiated when the police received information that the SCCMCC was providing marijuana to persons without legitimate doctors’ recommendations. (See Health & Saf. Code, § 11362.5). Police executed a search warrant at the SCCMCC and examined files and other business records, including the SCCMCC’s check ledgers.
While examining the check ledgers, San Jose Police Sergeant Scott Savage noticed “[a] number of [Baez’s] personal expenses drawn on the business account.” Sergeant Savage believed Baez’s use of SCCMCC funds to pay for his personal expenses indicated embezzlement or tax fraud. He began to examine Baez’s personal financial records, thereby discovering the bank accounts.
The information discovered by Sergeant Savage was provided to the SCCHA. The SCCHA determined that Baez would not have been eligible for the housing benefits paid on his behalf between October 1996 and April 1998, which amounted to $14,611. A SCCHA analyst, Nicholas Chhlotu, opined that the evidence demonstrated that Baez had “misrepresented his income and assets totally.”
Following the police investigation, the district attorney sought a grand jury indictment of Baez. The indictment charged Baez with five counts of selling marijuana (Health & Saf. Code, § 11360, subd. (a)), one count of maintaining a place for the sale or use of marijuana (Health & Saf. Code, § 11366), and one count of grand theft of money from the United States Department of Housing and Urban Development (Pen. Code, §§ 484, 487, subd. (a)).
*1198 Standard for Discovery
As the majority opinion explains, Proposition 115, approved by the voters in 1990, abrogated traditional principles of criminal discovery in favor of a statutory scheme. (Pen. Code, § 1054, subd. (e); In re Littlefield (1993) 5 Cal.4th 122, 129 [19 Cal.Rptr.2d 248, 851 P.2d 42].) Now, discovery is permitted in criminal cases only where authorized by statute “or as mandated by the Constitution of the United States.” (Pen. Code, § 1054, subd. (e); see Izazaga v. Superior Court (1991) 54 Cal.3d 356, 378 [285 Cal.Rptr. 231, 815 P.2d 304].)
No statute provides for discovery of material relevant to a claim of selective or discriminatory prosecution. However, in Armstrong, supra, 517 U.S. 456, the United States Supreme Court held that the federal Constitution requires that a criminal defendant be permitted to discover such material, as long as he or she first produces “ ‘some evidence tending to show the existence of the essential elements of the defense.’ ” (Id. at p. 468 [116 S.Ct. at p. 1488].) “The claimant must demonstrate that the . . . prosecutorial policy [1] ‘had a discriminatory effect and [2] that it was motivated by a discriminatory purpose.’ [Citations.]” (Armstrong, supra, 517 U.S. at p. 465 [116 S.Ct. at p. 1187], italics added.)
Armstrong made it clear that a defendant seeking discovery to support a claim of selective prosecution has a high burden. The court explained that “[t]he justifications for a rigorous standard for the elements of a selective-prosecution claim . . . require a correspondingly rigorous standard for discovery in aid of such a claim.” (Id. at p. 468 [116 S.Ct. at p. 1488].) It further stated that “the showing necessary to obtain discovery should ... be a significant barrier to the litigation of insubstantial claims.” (Id. at p. 464 [116 S.Ct. at p. I486].)
Baez’s Showing
Baez’s discovery motion was supported by four declarations. David Stein’s declaration recounted the SCCHA’s policies about referring individuals for prosecution by the district attorney and about referring individuals for investigation by law enforcement. The SCCHA will refer an individual for prosecution only if his or her conduct was “flagrant or egregious.” The SCCHA will refer an individual for investigation by law enforcement only when he or she was “less than forthcoming” at a recertification hearing. By contrast, if the individual admitted to a “material change in circumstances,” there is no referral for investigation by law enforcement. Stein’s declaration did not allege that other individuals committed grand theft from the SCCHA but were not prosecuted.
*1199Gerald F. Uelmen’s declaration alleged: “The criminal prosecution in this case appears to be motivated by the desire of an officer of the San Jose Police Department to discredit and demonize the defendant in the eyes of the public. This officer initiated the complaint to the Housing Authority, and this same officer requested the federal Internal Revenue Service to undertake an audit of the defendant’s income taxes.” Uelmen’s declaration further asserted that “[substantially similar allegedly fraudulent claims have been disposed of without criminal prosecution in other cases.” This statement was not supported by any factual references.
John Doherty’s declaration asserted that “[b]ased upon my experience in assisting other clients who were accused of substantially similar conduct, I believe that similarly situated individuals could have been prosecuted, but were not.” He explained that he knew of “at least three clients who were recipients of subsidized housing benefits through the [SCCHA], and whose eligibility for those benefits was questioned because of failure to comply with requirements that would affect their eligibility for housing benefits.” He stated that each of his clients’ cases “was resolved by means of administrative proceedings.” Doherty did not specify facts concerning the “requirements” his clients had failed to comply with, whether the clients were in fact found to be in noncompliance, or the amount of benefits involved in each case.
Doherty also asserted that he was told, by other attorneys, of “at least eight cases in which clients were accused of failure to comply with requirements that would affect their eligibility for housing benefits, including two cases in which clients were accused of underrepresenting their income,” none of which resulted in criminal prosecution.
Thomas Erlich’s declaration described recipients of housing assistance who had been “accused of underreporting their income.” Some of the individuals had been “found not to have underreported their income.” Others were found to have underreported their income, but had agreed to “pay[] off the benefits to which they were not entitled.” None of those individuals had been referred to the district attorney for prosecution, nor actually prosecuted. Erlich identified one particular client who was found to owe the SCCHA $8,319 in benefits; she was terminated from the subsidized housing program but not criminally prosecuted.
Did Baez Meet the Armstrong Standard?
As discussed above, in order to obtain discovery under Armstrong, Baez was required to produce “ ‘some evidence tending to show the existence of *1200the essential elements of the defense,’ discriminatory effect and discriminatory intent.” (Armstrong, supra, 517 U.S. at p. 468 [116 S.Ct. at p. 1488].) I would conclude that defendant did not produce some evidence tending to show the existence of either element.
Discriminatory Intent
I would conclude that Baez failed to produce “some evidence” tending to show discriminatory intent, because he failed to demonstrate that his prosecution for grand theft was “ ‘motivated by a discriminatory purpose.’ ” (Armstrong, supra, 517 U.S. at pp. 465, 468 [116 S.Ct. at p. 1487].)
“ ‘ “Discriminatory purpose” . . . implies more than . . . intent as awareness of consequences. It implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group.’. . .” (Wayte v. United States (1985) 470 U.S. 598, 610 [105 S.Ct. 1524, 1532, 84 L.Ed.2d 547], citation omitted.) “Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” (Arlington Heights v. Metropolitan Housing Corp. (1977) 429 U.S. 252, 266 [97 S.Ct. 555, 564, 50 L.Ed.2d 450] (Arlington Heights).)
The “specific sequence of events leading up to the challenged decision” is a factor to be examined in determining whether a prosecution was motivated by a discriminatory purpose. {Arlington Heights, supra, 429 U.S. at p. 267 [97 S.Ct. at p. 564].) Here, the police received information that Baez was engaged in illegal marijuana sales at the SCCMCC. They obtained a search warrant and examined the SCCMCC’s business records, including its check ledgers. In the course of that investigation, the police discovered SCCMCC checks written to Baez and checks written for Baez’s personal expenses. This evidence led the police to suspect Baez of some financial impropriety such as tax evasion or embezzlement. Therefore, they further investigated his financial records to determine if he was in fact committing such offenses. In the course of that investigation, they provided the financial information to the SCCHA as well as to the IRS. When Sergeant Savage was asked if he “routinely do[es] that in every case,” he replied, “I’ve done that in several cases prior to this, and I assume I’d do that afterwards. I would assume I wasn’t following through, if I didn’t do that.”
It is undisputed that the evidence leading to the charge of grand theft was discovered during the investigation into the allegations of illegal marijuana sales. The SCCHA was unaware that Baez was receiving income from *1201the SCCMCC or that he had two personal bank accounts until after the police investigation revealed those facts and reported the information to the SCCHA.
The majority conclude that distribution of Baez’s personal financial records to the SCCHA and the IRS constituted “some evidence” tending to show discriminatory purpose. (Armstrong, supra, 517 U.S. at p. 468 [116 S.Ct. at p. 1488].)They reason: “One of the possible inferences that the trial court could have drawn from the district attorney’s office’s distribution of Baez’s financial records to SCCHA and the IRS is that the district attorney’s office had singled out Baez for prosecution for financial improprieties in order to buttress the marijuana counts with inflammatory evidence of a profit motive. Such a motivation might provide a foundation for a finding of discriminatory intent.” (Maj. opn., ante, at pp. 1194-1195.) I disagree.
I believe that the police were entitled to further investigate when, during the course of their investigation into the alleged marijuana offenses, they discovered evidence that Baez was engaged in financial improprieties. The fact that the police and the district attorney provided the financial information to government agencies does not indicate that they were intentionally singling out Baez for prosecution in order to buttress the marijuana counts. Once the police discovered evidence indicating that Baez was committing additional offenses, the prosecuting authorities were entitled to provide that evidence to the appropriate agencies for a determination of whether Baez had in fact committed such offenses. The police were not required to ignore that evidence or cease their investigation of crimes other than the illegal marijuana sales. Baez provides no authority for the proposition that the police or prosecution may not follow up on evidence discovered during an investigation or prosecution of other crimes.
When the SCCHA was provided with the financial information discovered during the police investigation, they determined that Baez had “misrepresented his income and assets totally” and that he had received $14,611 in benefits to which he was not entitled. The record before us indicates that defendant’s improper conduct was the prosecution’s “motivation” for charging him with grand theft. I find no evidence in the record from which the trial court could infer that defendant’s prosecution for grand theft was “ ‘motivated by a discriminatory purpose.’ ” (Armstrong, supra, 517 U.S. at p. 465 [116 S.Ct. at p. 1187].)
I would conclude that Baez failed to produce “some evidence” tending to show that his prosecution for grand theft was “ ‘motivated by a discriminatory purpose.’ ” (Armstrong, supra, 517 U.S. at pp. 465, 468, 470 [116 S.Ct. *12021480, 1487-1488].) For that reason, I would conclude that he did not meet the discovery standard set forth in Armstrong, which requires “some evidence” of both discriminatory intent and discriminatory effect. (Id. at p. 468 [116 S.Ct. at p. 1488].)
Because Armstrong requires “some evidence” of both discriminatory intent and discriminatory effect, Baez’s failure to produce “some evidence” of discriminatory intent was, in my opinion, fatal to his discovery motion. (Armstrong, supra, 517 U.S. at p. 468 [116 S.Ct. at p. 1488].) However, I write further to explain why I also disagree with the portion of the majority opinion that holds defendant produced “some evidence” tending to show discriminatory effect. (Ibid.)
Discriminatory Effect
I would also conclude that Baez failed to produce “ ‘some evidence tending to show the existence’ of the discriminatory effect element.” (Armstrong, supra, 517 U.S. at p. 469 [116 S.Ct. at p. 1488].) He did not “produce some evidence that similarly situated defendants” who were not involved with medical marijuana distribution “could have been prosecuted [for grand theft from SCCHA], but were not, . . .” (Ibid.)
In U.S. v. Olvis (4th Cir. 1996) 97 F.3d 739 (Olvis), the court examined the discriminatory-effect prong of the Armstrong test. After a police investigation of a large crack cocaine conspiracy, 25 Blacks were indicted on federal charges. There were 55 other people involved in the conspiracy, including five non-Blacks, who were not indicted. The defendants sought discovery of the government’s prosecution criteria, alleging that at least three Whites had been granted immunity despite the fact that they were at least as culpable as the defendants, and that at least two Whites had not been charged. The government responded to the discovery motion, explaining that some of the Whites had agreed to help the prosecution, while there was insufficient evidence to indict the others. “Focusing only on the evidence of the conspirators’ criminal activity, the [district] court found all to have ‘similar involvement’ in the conspiracy” and granted the defendants’ discovery motion. (Id. at p. 744.) On appeal, the court of appeals reversed, explaining that “the district court in this case failed to take into account several factors that play important and legitimate roles in prosecutorial decisions. [Citation.]” (Ibid.)
The court further explained: “Generally, in determining whether persons are similarly situated for equal protection purposes, a court must examine all relevant factors. . . . ‘The goal of identifying a similarly situated class of law breakers is to isolate the factor allegedly subject to impermissible discrimination. ... If all other things are equal, the prosecution of only *1203those persons [to whom the factor applies] . . . gives rise to an inference of discrimination. But where the comparison group has less in common with defendant, then [other] factors . . . may very well play a part in the prosecution.’ ...[![]... Prosecutorial decisions may ... be legitimately influenced by such factors as the strength of the evidence against a particular defendant, the defendant’s role in the crime, . . . , the defendant’s candor and willingness to plead guilty, the amount of resources required to convict a defendant, the extent of prosecutorial resources, the potential impact of a prosecution on related investigations and prosecutions, and prosecutorial priorities for addressing specific types of illegal conduct, [f] Making decisions based on the myriad of potentially relevant factors and their permutations require the very professional judgment that is conferred upon and expected from prosecutors in discharging their responsibilities. . . . [Defendants are similarly situated when their circumstances present no distinguishable legitimate prosecutorial factors that might justify making different prosecutorial decisions with respect to them.” (Olvis, supra, 97 F.3d at p. 744; see also U.S. v. Magana (1st Cir. 1997) 127 F.3d 1, 8.)
In People v. McPeters (1992) 2 Cal.4th 1148 [9 Cal.Rptr.2d 834, 832 P.2d 146], decided before Armstrong, the defendant sought discovery to support his claim that the district attorney was selectively seeking the death penalty or life without parole sentences against homicide defendants whose victims were White. He submitted in support of his discovery motion a study listing homicide victims, indicating their race and whether or not a death penalty or a life without parole sentence had been imposed. The study showed that all death or life without parole sentences were meted out in cases involving White victims, although only one-third of all willful homicide victims in the county were White. As the court explained, this did not provide a basis for the requested discovery: “The study did not describe or analyze the facts or circumstances of any case, other than the sentence and the race of [the] victim. For example, it did not attempt to distinguish between single and multiple homicide cases, nor did it attempt to account for nonracial factors that could have explained differences in charging and sentencing.” (Id. at p. 1170)
Clearly, in order for a trial court to examine “all relevant factors” and determine whether “distinguishable legitimate prosecutorial factors” justify a decision to prosecute one individual but not others, it must have before it sufficient facts about the other individuals and their conduct. (Olvis, supra, 97 F.3d at p. 744.)
Here, neither the Stein declaration nor the Uelmen declaration contains any facts about any individuals who were not involved with medical marijuana distribution and could have been prosecuted for grand theft from SCCHA, but were not.
*1204Doherty’s declaration was also insufficient. He identified “at least three clients” whose eligibility for housing benefits was “questioned because of failure to comply with requirements that would affect their eligibility for housing benefits.” He did not specify the particular “requirements” that the clients had failed to comply with. Thus, the trial court could not have determined whether those individuals’ conduct was similar to defendant’s conduct, in that they had underreported income and assets or received a significant amount of benefits to which they were not entitled.
Doherty also described cases he had learned about through other attorneys, “in which clients were accused of failure to comply with requirements that would affect their eligibility for housing benefits, including two cases in which clients were accused of underrepresenting their income.” He alleged his belief, based upon his “experience,” that “similarly situated individuals could have been prosecuted, but were not.”
In Armstrong, the defendants submitted similar affidavits in support of their discovery motion, which alleged that they were being federally prosecuted for crack cocaine offenses because they were Black. One affidavit, from a defense attorney, alleged “that an intake coordinator at a drug treatment center had told her that there are ‘an equal number of [Caucasian users and dealers to minority users and dealers.’” (Armstrong, supra, 517 U.S. at p. 460 [116 S.Ct. at p. 1484].) Another affidavit was from a criminal defense attorney who alleged “that in his experience many nonblacks are prosecuted in state court for crack offenses.” (Ibid.) The court concluded that these affidavits did not constitute “some evidence” of discriminatory effect: “Respondents’ affidavits . . . recounted hearsay and reported personal conclusions based on anecdotal evidence.” (Id. at p. 470 [116 S.Ct. at p. 1489].)
As Armstrong makes clear, a bare allegation that similarly situated individuals were not prosecuted, without supporting facts, does not provide “some evidence” tending to show discriminatory effect. (Armstrong, supra, 517 U.S. at p. 468 [116 S.Ct. at p. 1488].) Armstrong also makes clear that a declaration based on hearsay is insufficient to meet the standard for discovery. Doherty’s declaration suffers from both of these defects and it therefore did not provide sufficient evidentiary support for defendant’s discovery motion.
The Erlich declaration identifies individuals who, like defendant, had been “accused of underreporting their income.” Only some of those individuals were found to have actually underreported their income, and each of them had agreed to “pay[] off the benefits to which they were not entitled.” None of the individuals had been referred to the district attorney for prosecution and none of the individuals had been prosecuted. One individual was found to owe the SCCHA $8,319 in benefits; she was terminated from the subsidized housing program but not criminally prosecuted.
*1205The Erlich declaration does contain some facts from which the trial court could have determined whether or not “distinguishable legitimate prosecu-torial factors” justified defendant’s prosecution for grand theft. It specifies the nature of the conduct (underreporting income) and, in one case, the amount of benefits improperly received ($8,319). However, based on the information contained in this declaration and the Stein declaration, I would find that there are legitimate prosecutorial factors that distinguish defendant’s case from the individuals identified in the Erlich declaration. These factors indicate that the individuals identified in the Erlich declaration are not similarly situated to defendant.
First, the police discovered evidence of Baez’s alleged grand theft during an independent investigation into allegations of illegal marijuana sales. It does not appear that any of the individuals identified in the Erlich declaration were being investigated for other offenses at the time their misrepresentations were discovered. Rather, their misrepresentations were discovered during SCCHA administrative proceedings, and the SCCHA was able to resolve those cases without referring them to law enforcement for investigation or to the district attorney for prosecution. Thus, they were not similarly situated to Baez. The district attorney could reasonably and legitimately decide to use its prosecutorial resources to prosecute Baez for grand theft of housing assistance funds because evidence of that offense was discovered during an independent investigation, and because that offense was related to the other substantive offenses.
Second, the evidence indicates that the individuals identified in the Erlich declaration who were found to have underreported income were forthcoming about their underreporting, and that their misrepresentations were not “flagrant or egregious,” since none of them were referred for investigation or prosecution. According to the Stein declaration, if the SCCHA believes that a recipient was “less than forthcoming” during a recertification, it will refer that individual to law enforcement for investigation, and if the SCCHA believes that a recipient’s misrepresentations were “flagrant or egregious,” it will refer that individual for prosecution. Thus, the only reasonable inference that can be drawn from the evidence is that the individuals who were found to have underreported their income were forthcoming and did not make flagrant or egregious misrepresentations, since each case was resolved without a referral for investigation or prosecution.14
The evidence did not show that Baez was similarly situated to the individuals identified in the Erlich declaration who were found to have under-reported their income. In contrast to those cases, here there was strong *1206evidence that Baez was “less than forthcoming” about his income and assets and that his conduct was “flagrant or egregious.” Baez was subject to an interim recertification during which he was specifically questioned about receiving income from the SCCMCC. At that time, and during a subsequent annual recertification, he failed to admit that he was receiving income from the SCCMCC, that he was using SCCMCC funds to pay for his personal expenses, that he had purchased a vehicle for $9,600, and that he had two personal bank accounts. Had he admitted these misrepresentations at one of the recertifications, the SCCHA might have followed the same procedures it used in the other cases: recalculated his eligibility and set up a payment plan.
The district attorney could legitimately choose to prosecute Baez, who failed to admit that he was underreporting income, and who had “misrepresented his income and assets totally.” Defendant was not similarly situated to individuals who were “forthcoming,” whose conduct was neither flagrant nor egregious, and who were never referred for investigation by law enforcement or prosecution by the district attorney. (See U.S. v. Magana, supra, 127 F.3d at pp. 8-9 [other individuals’ prompt confessions and cooperation were “readily apparent nondiscriminatory reasons” justifying decision not to charge].)
In my opinion, defendant failed to produce “some evidence that similarly situated defendants” who were not involved with medical marijuana distribution “could have been prosecuted [for grand theft from the SCCHA], but were not.” (Armstrong, supra, 517 U.S. at p. 469 [116 S.Ct. at p. 1488].)
Conclusion
Since Baez did not produce “some evidence” tending to show either discriminatory intent or discriminatory effect (Armstrong, supra, 517 U.S. at p. 468 [116 S.Ct. at p. 1488]), I would conclude that the trial court abused its discretion by granting Baez’s motion for discovery. I would grant the district attorney’s petition for a writ of mandate.
A petition for a rehearing was denied May 11, 2000. Bamattre-Manoukian, J., was of the opinion that the petition should be granted. Petitioner’s application for review by the Supreme Court was denied August 9, 2000.
Of course, the SCCHA did not refer Baez for prosecution or investigation by law enforcement, either—because law enforcement initiated the investigation and discovered the evidence of his misrepresentations.