Filed 8/24/16 P. v. Suarez CA2/1
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SECOND APPELLATE DISTRICT

                                                  DIVISION ONE


THE PEOPLE,                                                         B267996

         Plaintiff and Respondent,                                  (Los Angeles County
                                                                    Super. Ct. No. MA062937)
         v.

JUAN CARLOS SUAREZ

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Kathleen Blanchard and Christopher G. Estes, Judges. Affirmed.
         Juan Carlos Suarez, in pro. per.; and James R. Bostwick, Jr., under appointment by
the Court of Appeal, for Defendant and Appellant.
         No appearance for Plaintiff and Respondent.
                                 _________________________________
       Juan Carlos Suarez entered a negotiated plea of no contest to a charge of
possessing heroin in prison (Pen. Code, § 4573.6, subd. (a)). In conformity with the plea
agreement, the trial court sentenced him to four years, running consecutively to the term
he was already serving. Defendant’s plea was based on a February 18, 2013 incident in
which he tossed aside a folded piece of paper later found to contain 0.80 grams of heroin
just before a correctional officer searched him as part of a search of all inmates entering a
particular prison building.
       Defendant obtained a certificate of probable cause limited to denial of two
motions: a motion to dismiss for violation of due process based on charging delay and a
motion for discovery to support a motion to dismiss on the ground of discriminatory
prosecution. Defendant filed a timely appeal. We appointed counsel to represent
defendant on appeal. After examination of the record, counsel filed an opening brief
raising no issues and asking this court to independently review the record. Defendant
thereafter filed a supplemental brief regarding the discovery motion.
       Defendant’s motion sought production of all incident reports involving allegations
of possession of controlled substances in his prison for one year prior to February 18,
2013; a “record of all such incidents that were referred to the District Attorney’s office
for filing consideration”; a copy of the referral agreement between the prison and the
district attorney’s office regarding cases arising at the prison; and a record of all cases
filed by the Lancaster branch of the district attorney’s office for violations of Penal Code
section 4573.6, subdivision (a) at the prison in the year prior to February 18, 2013. The
declaration of defense counsel in support of the motion stated, on information and belief,
that defendant was a member of the Inmate Advisory Council for B-Yard at the prison on
or near February 18, 2013. Such advisory councils act as liaisons between inmates and
prison administration, forwarding inmates’ complaints to administration and seeking
remedies therefor. The declaration stated that some advisory council members “complain
of being singled out for more frequent body and cell searches than other inmates as
retribution for their [Council] activities” and “feel that their participation in the . . .


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Council is an exercise of their constitutionally protected rights to Freedom of Speech and
Freedom of Assembly.”
       Defendant argues the trial court erred by denying his motion on the grounds the
information sought was privileged and involved protected privacy interests without
reviewing the documents to see if they could be redacted. He also argues the court
erroneously focused on whether inmates who are caught with contraband are prosecuted.
The trial court did not abuse its discretion. Discriminatory prosecution, not searching, is
the basis for and nature of a discriminatory prosecution motion. Counsel’s declaration
addressed discriminatory searching of council members, not discriminatory prosecution.
That is why the trial court addressed the necessity of focusing on whether inmates who
are caught with contraband are prosecuted. Defendant failed to make the required
showing of some evidence tending to show both discriminatory effect and discriminatory
intent. (People v. Superior Court (Baez) (2000) 79 Cal.App.4th 1177, 1187.) With
respect to discriminatory effect, he was required to “ ‘produce some evidence that
similarly situated defendants . . . could have been prosecuted, but were not . . . .’ ” (Id. at
p. 1190, quoting United States v. Armstrong (1996) 517 U.S. 456, 469.) Thus, defendant
was required to show that other inmates who were not council members who could have
been prosecuted for possession of controlled substances in prison were not prosecuted,
not that council members were searched more often. In addition, defendant was required
to produce some evidence of discriminatory intent. Because the discovery motion lacked
the required evidentiary support, the trial court properly denied it.
       We have examined the entire record and are satisfied that defendant’s attorney has
fully complied with his responsibilities and that no arguable issues exist. (People v.
Kelly (2006) 40 Cal.4th 106, 109–110; People v. Wende (1979) 25 Cal.3d 436, 441.)




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                                  DISPOSITION
      The judgment is affirmed.
      NOT TO BE PUBLISHED.


                                           LUI, J.
We concur:


      CHANEY, Acting P. J.


      JOHNSON, J.




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