Brooks v. Superior Court of Los Angeles County

• Decision Date: 24 January 1966
• Citation: 239 Cal.App.2d 538,48 Cal.Rptr. 762
• Court: California Court of Appeals Court of Appeals
• Parties: Philip Bentley BROOKS, Petitioner, v. SUPERIOR COURT OF the COUNTY OF LOS ANGELES, Rrspondent, and PEOPLE of the State of California, Real Party in Interest. Civ. 29878.

Page 762

48 Cal.Rptr. 762

239 Cal.App.2d 538

Philip Bentley BROOKS, Petitioner, v. SUPERIOR COURT OF the COUNTY OF LOS ANGELES, Rrspondent and PEOPLE of the State of California, Real Party in Interest.

Civ. 29878.

District Court of Appeal, Second District, Division 2, California.

Jan. 24, 1966.

Hearing Denied March 22, 1966.

Kenneth Thomas, Los Angeles, for petitioner Brooks.

Evelle J. Younger, Dist. Atty. of Los Angeles County, Harold J. Ackerman, Chief Deputy Dist. Atty., Harry Wood, Chief, Appellate Division, for real party in interest.

ROTH, Presiding Justice.

Petitioner Philip Bentley Brooks seeks a writ of prohibition restraining respondent court from proceeding upon an indictment returned by the grand jury for murder in violation of Penal Code, § 187. Peremptory writs of prohibition have previously been issued by this court in favor of Joseph Lavine and Harold Gene Potts, who were indicted with petitioner Brooks (Lavine and Potts v. Superior Court, Cal.App., 48 Cal.Rptr. 8).

The facts, as disclosed by the transcript of proceedings before the grand jury, are related in detail in the Lavine case. They may be summarized as follows:

Donald E. Ludlow, a deputy sheriff, died on August 13, 1965 as a result of a shotgun wound accidentally inflicted on that date by another deputy sheriff, William B. Lauer, Jr., Ludlow's partner.

In the days preceding and including August 13, 1965, violence had erupted in South Los Angeles in an area, commonly referred to by the community as the riot area, which was bounded roughly by Slauson Avenue on the north, on the south by Rosecrans, on the east by Alameda, and on the west by Broadway.

On August 12 and 13, Lauer had been on duty in the riot area and had witnessed or was otherwise aware of countless incidents of looting, arson, assaults on police with bricks, bottles and other objects, and similar assaults on firemen who were repeatedly called to the riot area to put out fires criminally started.

At or about 9:00 p. m. on August 13, Lauer was ordered to the southeast corner of Imperial and Wilmington to assist other officers with regard to a fire in a liquor store. On arrival at that location, he saw a small crowd on the west side of Wilmington, north of Imperial. Lauer attempted to clear the area of all vehicular traffic, and in doing so, he observed an automobile westbound on Imperial stopped in the left lane about 50 feet from the intersection. There were three occupants in the vehicle, talking amongst themselves. The occupants were Negroes, later identified as petitioner Brooks in the driver's seat, Joseph Lavine, in the front passenger seat, and Harold Potts, in the right rear seat.

Lauer, speaking from a distance of 20 or 30 feet, ordered the vehicle to leave. When the car did not move, he shouted 'Get the hell out of there', but again the vehicle did not move, nor did he receive a reply. At this point, Lauer, dressed in full uniform, approached the vehicle on the driver's side at a slow walk, carrying his loaded shotgun at port arms with his finger on the trigger. When he reached the car, Lauer heard the occupants talking but was unable to make out what they were saying, except for the opprobrious phrase 'white mother-fucker.' Lauer then testified that just as he was going to again order them from the area, the driver, Brooks, reached up and 'put his hand over the top of the shotgun in the center portion of the gun.' Brooks neither pushed nor pulled the gun, but as he grasped it, Lauer, being startled and thinking Brooks was trying to disarm him, jumped and 'yanked backwards on the gun.' As he pulled the gun away, it discharged. Brooks did not pull the trigger and did not have his finger on it. Deputy Ludlow, whose presence was unknown to Lauer, was standing about ten feet behind and to the left of Lauer, and was fatally shot.

The admitted facts demonstrate a most sensitive specific situation in an area in the throes of a widespread and explosive riot. Petitioner plainly saw a law enforcement officer in uniform carrying a loaded shotgun at port arms with his finger on the trigger, approaching him in the vehicle in which he had been seated, which vehicle he had been ordered to but did not move. Opprobrious language was plainly directed to the officer approaching them, which certainly did not indicate either good will or any desire to cooperate with the order which they had received or in any other respect. In these circumstances for petitioner to reach for the gun or to '* * * put his hand over the top * * *' was fraught with grave and inherent danger to human life. The record recounted does not permit this court to say there is not substantial evidence to support an indictment for murder.

In People v. Gilbert, 63 A.C. 722, at page 736, 47 Cal.Rptr. 909, 917, 408 P.2d 365, 373, the court says:

'* * * 'Murder is the unlawful killing of a human being, with malice aforethought.' (Pen.Code § 187). Such malice is implied under Penal Code section 188 when the defendant or his accomplice "for a base, anti-social motive and with wanton disregard for human life, does an act which involves a high degree of probability that it will result in death".'

Greenberg v. Superior Court, 19 Cal.2d 319, 121 P.2d 713, announces the rule that a writ of prohibition will lie where an indictment 'is unsupported by any evidence before the grand jury.' (Greenberg v. Superior Court, supra, p. 322, 121 P.2d p. 715.) However, '[i]f there is some evidence to support the indictment the courts will not inquire into its sufficiency * * *' (id. at p. 322, 121 P.2d p. 715; emphasis added) and the cause should be determined by a trial on the merits. (See also, Rogers v. Superior Court, 46 Cal.2d 3, 7, 291 P.2d 929; Whitlock v. Superior Court, 97 Cal.App.2d 26, 30, 217 P.2d 158; Callan v. Superior Court, 204 Cal.App.2d 652, 662, 22 Cal.Rptr. 508). It is not necessary that the evidence be strong enough to support a verdict of guilty to...