People v. Martinez

Opinion

BEACH, J.

Respondent Jesus Quiroz Martinez was charged with assaulting a police officer with a deadly weapon in violation of Penal Code section 245, subdivision (b). As authorized by Penal Code section 1238, subdivision (a)(1), the People appeal from the superior court’s order of dismissal entered after the granting of respondent’s Penal Code section 995 motion and contend: “The 995 motion was erroneously

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granted because sufficient evidence was presented at the preliminary hearing to justify the magistrate as trier of fact in entertaining a strong suspicion that respondent in throwing a beer bottle at a marked patrol car which shattered on the elbow of an exiting uniformed police officer had thereby committed an assault on a peace officer by means of force likely to produce great bodily injury.”

The evidence introduced at the preliminary hearing established that on November 25, 1976, at approximately 7:30 p.m. Officer Robert L. Claycomb and his partner, Officer Lester, were in uniform in a black and white police unit when they responded to another officer’s call for assistance directing them to 12905 Carl Place in Pacoima. Upon arrival, Officer Claycomb observed a group of approximately fifty young males and females yelling obscenities directed toward two uniformed officers who were preparing to impound a vehicle which was blocking the road. While the four officers were standing together in a group, unidentified parties threw beer cans and later, beer bottles, in their direction, one of which narrowly missed a small child. Another police unit arrived. Some of the officers then began questioning members of the crowd, including respondent, as to which parties were responsible for throwing the missiles. After the vehicle had been impounded, Officer' Claycomb started his engine and waited for the other two units to leave the scene. Officer Claycomb and Officer Lester were looking.behind them to guard their departure when respondent, a male Latin, wearing a green military style jacket and carrying a brown bottle in his right hand, crouched down in a “military” or “hand grenade stance” and threw the bottle. The bottle first hit one of the departing police cars, bounced off, and then shattered against Officer Claycomb’s elbow as he was alighting from his police vehicle, throwing glass and beer over him and on his eyeglasses. Respondent ran into one of the apartments at 12905 Carl Place where he was apprehended by Officer Lester. At the time respondent threw the bottle, there was no one between him and Officer Claycomb, and the last object that had been launched prior to respondent’s had been hurled two minutes earlier.