People v. Breen

TAYLOR, J. On this appeal from a judgment of conviction entered on a jury verdict finding defendant, David Breen, guilty of second degree murder (Pen. Code, § 189) and accessory to murder (Pen. Code, § 32), the only question is whether four statements made by defendant after his arrest were admitted in violation of the rule announced in People v. Dorado, 62 Cal.2d 338 [42 Cal.Rptr. 169, 398 P.2d 361], and Escobedo v. Illinois, 378 U.S. 478 [84 S.Ct. 1758, 12 L.Ed.2d 977].

Since no contentions are raised concerning the sufficiency of the evidence, a brief summary of the facts will suffice. About 12:30 a.m. on February 9, 1964, the decedent, Charles Ross, a Richmond police officer, was on duty near the corner of Ninth and Bissell. At this time, defendant, then 19 years old, and his contemporary, Frank Gomez, were walking in that vicinity on their way to defendant’s home, after drinking at several parties. Both of them appeared to be drunk to the witnesses who saw them stop in front of 916 Bissell Avenue, around the corner from defendant’s apartment at 160 Ninth Street.

Officer Ross’ chief, Sergeant Gustafson, drove by and noticed Ross’ patrol car parked on the wrong side of the street opposite 916 Bissell and saw Ross talking to two boys, one of whom he recognized as defendant. The sergeant drove slowly, attracted Officer Ross’ attention and made the signal customarily used to inquire if a fellow officer required assistance. As Ross did not respond to the sergeant’s signal, the sergeant drove on. A few minutes later, Officer Ross was mortally wounded by a bullet from his own gun and died.

Several witnesses heard four shots, with a pause between the first volley and the last three, as well as two voices talking before the shooting. One of the witnesses, Mrs. Dunn, who lived a few houses from defendant, heard footsteps running by her front window immediately after the shooting and saw [166]two boys proceeding to 160 Ninth Street. Mrs. Dunn noted that the lights were on in the lower apartment at that address and subsequently were turned out. About an hour later, she heard more noises coming from the rear of 160 Ninth Street.

When Sergeant Gustafson returned to the police station, he obtained the report of a prior incident involving defendant and confirmed his identification. He also contacted defendant’s mother who gave him defendant’s address. The shooting of Officer Ross was discovered immediately. Between 6:10 and 6 :30 a.m., Sergeant Gustafson and several other officers knocked on defendant’s door a number of times. When no one answered, Sergeant Gustafson left, leaving two officers at the apartment. About 9 a.m., the two officers were relieved by several others who entered and arrested defendant, his wife Carmen, Frank Gomez, and Gomez’s half-brother, Edmund Bally. Officer Ross’ gun with four expended cartridges was found in the back yard of 914 Bissell Avenue. Defendant’s blood-stained clothing was found in the house. There was much physical evidence of a violent struggle at the scene of the shooting.