Brooks v. Superior Court

ROTH, P. J.

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, section 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

v.

Superior Court,

238 Cal.App.2d 540 [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 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