I dissent. Despite the clear language of Penal Code section 647, subdivision (b), prohibiting the solicitation of acts of prostitution by both men and women, customers and prostitutes, the majority today holds that the Oakland police may effectively ignore a sex-neutral statutory mandate by directing its enforcement effort primarily against women. The deliberate failure to enforce the law against male customers cuts the intended coverage of section 647, subdivision (b) in half. In my view, the superior court properly found that the challenged enforcement policy constitutes invidious sex-based discrimination in violation of the equal protection guarantees of the United States and California Constitutions.
It has, of course, long been established that the discriminatory enforcement of ¡jn otherwise valid statutory prohibition constitutes a violation of the Fourteenth Amendment. As the United States Supreme Court declared almost a century ago in Yick Wo v. Hopkins (1886) 118 U.S. 356, 373-374 [30 L.Ed. 220, 227, 6 S.Ct. 1064]: “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 *355hand, 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.” And, more recently, in Murgia v. Municipal Court (1975) 15 Cal.3d 286 [124 Cal.Rptr. 204, 540 P.2d 44], this court unanimously held that a defendant subjected to such discriminatory enforcement may raise such discrimination as a defense to a criminal prosecution.
In the instant case, defendants presented a wealth of statistical evidence which established beyond question that the procedures employed by the Oakland police in enforcing the prostitution solicitation law have resulted in the arrest of a significantly disproportionate number of women, as compared to men. Indeed, the police do not deny that by consciously choosing to employ primarily male decoys, they virtually assured that most of the law violators apprehended would be women, not men. The superior court concluded that this practice constituted invidious, constitutionally proscribed discrimination.
The majority argue, however, that the real parties have failed to demonstrate that the challenged police enforcement policies were motivated by “an intent to discriminate against women.” According to the majority, the disparate treatment of the sexes is simply “a consequence of the department’s sexually unbiased policy of concentrating its enforcement effort on the ‘profiteer’ rather than the customer of commercial vice.” (Ante, p. 349.)
In reaching this conclusion, I believe that the majority err in two respects. First, the majority mistakenly equate concentration of law enforcement efforts on sellers of illegal narcotics with the similar focus of enforcement procedures on the “profiteer” in prostitution transactions. In the case of narcotics transactions the Legislature itself has drawn a distinction between buyers and sellers, and has endorsed the policy of concentrating police resources on the apprehension of sellers. (See Health & Saf. Code, §§ 11350 (possession); 11351 (possession for sale); and 11352 (sale).)
But the Legislature specifically refused to draw such a distinction between prostitutes and their customers in defining the offense of solicitation. (Pen. Code, § 647, subd. (b).) As the Court of Appeal noted in Leffel v. Municipal Court (1976) 54 Cal.App.3d 569, 575-576 [126 Cal.Rptr. 773]; “The words ‘every person . . . who solicits . . . any act of prostitution’ are clear and unambiguous. ‘Every’ means ‘each and all *356within the range of contemplated possibilities’ (Webster’s New Intemat. Dict. (3d ed. 1961) Unabridged, p. 788.) . . . Thus the ordinary meaning of the statute is that all persons, customers as well as prostitutes, who solicit an act of prostitution are guilty of disorderly conduct.... [T]his interpretation is consistent with the legislative purpose and policy behind the statute. [Citation.] The Legislative purpose ... is to eliminate prostitution and its attendant evils. Subjecting the customer to prosecution will further the legislative purpose—probably more so than any other legislative remedy.” (Italics added.)
Despite the clear legislative mandate to arrest and prosecute customers as well as prostitutes, the Oakland police have adopted an enforcement policy that directly contravenes the judgment of the Legislature. Although the police unquestionably may exercise discretion in the allocation of scarce resources, such discretion is not so unbridled as to permit the police to carve out invidious exceptions to a statutory prohibition, exceptions which the Legislature has specifically declined to enact. As the court noted in People v. Gray (1967) 254 Cal.App.2d 256, at page 266[63 Cal.Rptr.211]: “[T]herecognitionofthediscriminatoryenforcement of a penal law as a defense to a criminal action is one of the few means the individual citizen has to force public officials to do their job properly.... The availability of discriminatory enforcement as a defense . . . serves a good purpose; it acts as a constant reminder to the executive that the will of the people, expressed through the legislative branch, should be obeyed.” Thus, just as the police “may not enforce a facially fair gambling statute as if it were explicitly directed only at blacks” (Murgia v. Municipal Court, supra, 15 Cal.3d 286, 296 (citing People v. Harris (1960) 182 Cal.App.2d Supp. 837 [5 Cal.Rptr. 852] and People v. Winters (1959) 171 Cal.App.2d Supp. 876 [342 P.2d 538])), they may not enforce a facially fair solicitation statute as if it were directed only at women.
In addition to drawing an inappropriate analogy to the enforcement of drug laws, the majority err in accepting at face value the People’s contention that the challenged “profiteer—oriented” enforcement policy bears no relation to traditional sex-based stereotypes but instead simply represents the most efficient means of reducing the incidence of prostitution. (Cf. Castaneda v. Partida (1977) 430 U.S. 482,492 [51 L.Ed.2d 498, 509, 97 S.Ct. 1272].) Several centuries of law enforcement histoiy belie any claim that a “profiteer”-directed enforcement program is an effective *357means of eliminating prostitution, and the record in the instant case demonstrates quite unmistakenly that the arrest of male customers in addition to female prostitutes is a singularly more effective law enforcement strategy than the approach traditionally employed by the police.
From February 26, 1975, through April 22, 1975, the Oakland police were compelled by order of the Alameda County Superior Court to employ female decoys and to arrest male customers guilty of section 647, subdivision (b) violations. (Riemer v. Jensen, No. 455371-9.) During this brief period of even-handed enforcement, the arrest of male customers, coupled with newspaper publicity surrounding the sex-neutral police procedures, resulted, according to the testimony of the senior vice squad officer, in a “devastating” reduction in observed levels of prostitution related offenses. Similar results have been achieved in other jurisdictions in which enforcement efforts have been directed at male customers as well as female prostitutes. (See, e.g., United States v. Moses (D.C. App. 1975) 339 A.2d 46; Kanowitz, Women and the Law (1969) p. 17. See generally Jennings, The Victim as Criminal: A Consideration of California’s Prostitution Law (1976) 64 Cal.L.Rev. 1235.)
In light of the demonstrated success of an enforcement policy which encompasses both customers and prostitutes, I cannot accept the suggestion that the police department’s resumption of its traditional enforcement policy, directed primarily at women, is explicable by reference to legitimate law enforcement objectives. Although the majority discern no discriminatory intent in the action of the Oakland police, I agree with the American Bar Association’s section of Individual Rights and Responsibilities which has characterized such police practices as “one of the most direct forms of discrimination against women in this country today. In accordance with society’s double standard of sexual morality, the woman who sells her body is punished criminally and stigmatized socially while her male customer ... is left unscathed.” (ABA Section of Individual Rights and Responsibilities, Rep. to House of Delegates, Rep. No. 101B, p. 1 (1974).)
More than a half century ago, a New York court observed: “The men create the market, and the women who supply the demand pay the penalty. It is time this unfair discrimination and injustice should cease.” {People v. Edwards (N.Y. Co. Ct. 1920) 180 N.Y.S. 631, 634-635.) *358Hopefully, it will not be yet another half century before this discriminatory practice is eliminated.
I would deny the requested writ.
Wright, J.,* concurred.
The petition of the real parties in interest for a rehearing was denied May 26, 1977. Bird, C. J.; and Tobriner, J., were of the opinion that the petition should be granted.
Retircd Chief Justice of California sitting under assignment by the Acting Chairman of the Judicial Council.