People v. Ulsh

• Decision Date: 21 December 1962
• Citation: 27 Cal.Rptr. 408,211 Cal.App.2d 258
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Appellant, v. Gayle Vincent ULSH and Warren Leonard Evernden, Defendants and Respondents. Civ. 8333.

Page 408

27 Cal.Rptr. 408

211 Cal.App.2d 258

The PEOPLE of the State of California, Plaintiff and Appellant, v. Gayle Vincent ULSH and Warren Leonard Evernden, Defendants and Respondents.

Civ. 8333.

District Court of Appeal, Second District, Division 1, California.

Dec. 21, 1962.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., County of Los Angeles, Harry Wood, Deputy Dist. Atty., and Robert J. Lord, Deputy Dist. Atty., for appellant.

Brinton N. Bowles, Montrose, for respondent Gayle Vincent Ulsh.

Alvin Calof, Deputy Public Defender, County of Los Angeles for respondent Warren L. Evernden.

FOURT, Justice.

This is an appeal by the People from an order granting a dismissal under the provisions of section 995, Penal Code.

In an information filed in the Superior Court in Los Angeles County on October 11, 1961, the defendants above named were charged in Count I with murdering Richard Earl McKain on or about September 15, 1961. Ulsh was also charged with two prior felony convictions (burglary and receiving stolen property). On October 13, 1961, the defendants were arraigned. On October 20, 1961, the defendants pleaded not guilty and trial was set for January 15, 1962. The public defender made a motion to be relieved as attorney for Ulsh. On January 15, 1962, the court apparently found that there was a conflict of interest between the defendants and appointed present counsel for Ulsh. Ulsh denied the two prior convictions and the cause was from time to time continued for trial. On February 2, 1962, Evernden's motion for severance of trial was granted. Ulsh admitted the burglary prior conviction.

Evernden stipulated on February 2, 1962, that a jury be waived and the cause submitted upon the testimony contained in the transcript of the proceedings had at the preliminary hearing. The matter as to Evernden was continued to February 15, 1962.

On February 5, 1962, the trial of Ulsh commenced. A jury was selected and the cause was continued to February 8, 1962.

On February 6, 1962, the minutes recite both defendants and their respective counsel were present in court. By stipulation of each party the cause was advanced to that date for further disposition. It was stipulated that a mistrial might be declared as to each defendant and such was declared by the court. Permission was given to each defendant to withdraw his plea of not guilty and each defendant waived his right to aswert the defense of former jeopardy and thereupon each defendant moved the court to dismiss the action under section 995, Penal Code. The motion to dismiss was granted upon the grounds that there was no probable cause to hold the defendants to trial. A notice of appeal was filed by the prosecution within due time.

The facts are that the defendants at about 7:45 p. m. September 15, 1961, went to the liquor store located at 842 North Prairie Avenue, Hawthorne, California, for the express purpose of committing a robbery. One of the defendants covered the patrons in the store with a gun and the other defendant with a gun took the money from a clerk. One of the patrons was compelled to give up his wallet to one of the armed defendants. An employee of the store sounded a secret alarm which actuated a signal at the police station and gave an indication to the police department that a robbery was then and there taking place at the above mentioned establishment

A policeman at the station received the alarm and immediately dispatched four police units (two automobiles and two motorcycles) to the scene. The policeman who dispatched the vehicles requested that the officers in such vehicles acknowledge his calls and Officer Sundquist (who was driving one of the dispatched automobiles) replied in approximately two minutes that he was in pursuit.

Officer Sundquist and Officer Whittaker were in a patrol car on the occasion and immediately proceeded northbound on Prairie Avenue between 134th and 133rd Streets, where they saw a southbound vehicle going at an excessive rate of speed and making sharp movements. The passenger in that car appeared to lurch or to duck down in the seat. Officer Sundquist turned around and pursued the white convertible Pontiac automobile which they had noted. The red lights on the police car were turned on. The chase continued on Prairie Avenue to 139th Street where the defendants turned the Pontiac car to the right. The officers followed and found the Pontiac car parked in the middle of the street approximately 40 yards from the intersection. The officers were met with gunfire from the Pontiac car. About 15 shots were fired when the defendants drove away. The officers followed with red lights showing and their siren sounding. The defendants turned left (southbound) on Jefferson Avenue without making a legally required boulevard stop. Both cars were southbound on Jefferson Avenue approximately a block apart when the officers were confronted with more gunfire from the defendants in the Pontiac automobile. The defendants turned west onto Rosecrans Avenue and Officer Sundquist fired a shot at the defendants and Officer Whittaker fired twice at the defendants. At Rosecrans Avenue (144th) and Larch Street the defendants turned south and the police followed about a block behind. Between Rosecrans Avenue and 145th Street more shots were fired from both cars. One shot from the defendants' car hit the police car windshield and the bullet or flying glass hit Sundquist in the eye. After stopping the police car at 145th Street Sundquist fired five shots at the defendants and the defendants fired three shots in return at the police.

The defendants' car proceeded very rapidly down Larch Street as it approached the intersection of Larch Street and 147th Street. Richard Earl McKain was a passenger in an automobile travelling in an easterly direction on 147th Street in the intersection of said street with Larch Street when the Pontiac car driven by the defendants crashed into the automobile in which McKain was riding: McKain suffered injuries from which he died shortly thereafter. The crash of the two automobiles in the intersection was very soon after the last-mentioned shooting.

Following the collision Ulsh apparently got out of the Pontiac and ran south on Larch Street. There was a gun upon the floor of the Pontiac car when the police arrived. Ulsh was seen running across a parking lot and claimbing a concrete wall. He was found shortly thereafter hiding under a trailer nearby. Evernden was in the Pontiac automobile after the collision. The Pontiac car was searched and a Ruger automatic pistol with clip, money in the sum of $111.20, some empty shells, and a 357 Magnum revolver and several rounds of live ammunition were found. The plastic rear window of the Pontiac convertible was pierced with many holes from bullets which were fired from within the automobile.

The defendants were questioned and an officer testified that the defendants had stated that they planned to rob the liquor store, that they had parked their white Pontiac convertible automobile on 115th Street east of Prairie Avenue, that Evernden went into the store first and herded the people therein to the back of the store with a loaded Ruger gun. Ulsh came in shortly afterward and stopped a man in the store and told him to put the money in a brown bag. After the money was so placed Ulsh yelled to Evernden to leave the place. They ran to their automobile and Ulsh drove with Evernden as a passenger in the Pontiac car. At about 136th Street Ulsh looked in the rear view mirror and saw the police car with its red lights on. Ulsh speeded up the Pontiac car and tried to evade arrest. At about 139th Street Ulsh started shooting at the police car. Ulsh was asked if he realized that he could kill somebody by shooting in such a fashion and he answered that he did so realize that he could kill someone but that he had to get away. Evernden stated that he shot at the police car, 'but at the radiator,' apparently attempting to indicate that he did not shoot to kill anybody but to the contrary just to damage the radiator.

The officers further testified that the defendants had stated to them that when the police car came to a stop Ulsh handed his gun to his codefendant and told him to reload it; Evernden stated to Ulsh that he had better reload his gun too; at about this time something came through the rear window of the Pontiac and apparently a bullet from a police gun hit the dashboard of the Pontiac and Ulsh said to Evernden 'Duck they are shooting'--that he, Ulsh, then threw his arms up over the steering wheel and ducked down and the next thing he remembered they were in an accident.

The defendants identified the respective guns which they had used in the robbery and in the shooting at the police. No denials were made by either of the defendants to the statements made by the other.

The distance from the liquor store to the point of impact where the collision occurred, taking the route the defendants said they took, was 3.2 miles. The total elapsed time from the holdup in the liquor store to the collision was approximately eight minutes. The motion to dismiss the case was granted by the judge as to each defendant.

The trial judge indicated that he ruled as he did because he doubted that the 'killing occurred during the course of a so-called hot pursuit'--that the officers 'were in pursuit in fact, but without knowledge that these defendants were the robbers.' Further that the death 'appears to be accidental and could not have occurred as part of the plan of defendants as co-conspirator.' The court also expressed doubt as to when 'does perpetration cease so that the act is complete.'

The sole question involved in this matter is whether the magistrate was correct in determining that there was probable cause to believe a death under the circumstances is murder by reason of its occurring in the perpetration of a robbery.

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