D.A. Tries to Drop Charges but Defense Is Hesitant : Hearings: Alfredo Olivas is accused of murder after a police shoot-out in which three men died. Prosecutors are uncertain they could prove he provoked the shooting.

In an unexpected turn of events, Los Angeles County prosecutors on Friday requested--and a defense attorney opposed--the dismissal of murder charges against the lone survivor of a police shoot-out that left three alleged robbers dead in February.

Deputy Dist. Atty. Kenneth L. Barshop asked a San Fernando Municipal judge to dismiss the charges because prosecutors are uncertain they could prove that the defendant, Alfredo Olivas, provoked the shooting, which occurred outside a McDonald’s restaurant in Sunland. Such a finding is necessary to convict Olivas of murder in the deaths of the men who died in police gunfire after allegedly robbing the restaurant.

Olivas’ attorney, Deputy Public Defender Howard C. Waco, surprised the courtroom by objecting to the request.

Waco declined to say why he wants prosecutors to proceed with the charges that could result in his client being sentenced to death if upheld by a jury. But he indicated that continuing the murder case would entitle him to information about police tactics in the shooting that would otherwise be unavailable.

“I’d like to think about it,” Waco said. “It doesn’t necessarily act in his best interests to have the counts dismissed at this time.”

A hearing on Waco’s objection was scheduled for Tuesday. Judge Stephen A. Marcus, who has presided over the case, said he intends to dismiss the charges unless Waco can show on the basis of previous court rulings that his objection is valid.

“I didn’t expect this response,” Marcus told Waco. “It’s hard for me to see how you could possibly be disadvantaged by having those charges dismissed.”

Dismissal of the charges would spare the Police Department potentially embarrassing exposure of its officers’ conduct during the shooting, Waco said later. Waco had asked for an unprecedented amount of information about the shooting, including the psychiatric histories and shooting records of the nine officers involved.

The officers are members of the department’s Special Investigations Section, which has been criticized for following violent criminals but not arresting them until after robberies or burglaries occurred, in many cases leaving victims terrorized or injured.

Barshop denied that public exposure of the department’s tactics was a factor in the decision to drop the charges. Waco, while saying his defense strategy would have been to put the Special Investigations Section on trial, denied that he wants the murder charges retained to embarrass the Police Department.

“I don’t keep cases against my client just for kicks,” he said. “It’s not done that way.”

Barshop said that even if the murder counts are dismissed, Olivas, who is 19, could still spend the rest of his life in prison if convicted of the 19 assault, robbery and kidnaping counts still pending.

Those charges stem from a string of at least nine similar robberies of fast-food restaurants that Olivas and his three companions allegedly committed in the Los Angeles area. It was in connection with those robberies that the Special Investigations Section was monitoring the group before the shoot-out early Feb. 12.

The shooting resulted in the deaths of Herbert Burgos, 27, and Jesus Arango, 25, both of Venice, and Javier Trevino Cruz, 20, of Hollywood. Olivas was shot twice but recovered.

Police said the men were shot as they sat in their getaway car after robbing the Foothill Boulevard restaurant and tying up the store’s manager. According to police, officers opened fire after one of the suspects allegedly pointed a weapon in their direction. The weapon turned out to be a pellet gun.

Barshop would not specify Friday what led him to believe Olivas may not have provoked the shooting, as he had previously alleged, saying the information came from sealed police documents.

The man in charge of investigating the shooting, Los Angeles Police Lt. William Hall, said at a news conference Feb. 12 that the gun-wielding suspect sat in the car’s front seat. When Olivas was charged with three murders, Barshop said Olivas made the move with a gun which brought on the police fire that killed his three accomplices.

But according to police and autopsy reports, Olivas was in the back seat, indicating that he was not the man police initially said pointed the gun.

Stephen Yagman, an attorney representing Olivas in a federal civil suit against the Police Department and members of the special investigation squad, said the murder charges against Olivas had been compromised because public statements by police and prosecutors were contradictory.

But Yagman was quick to say that there was never a valid murder case against Olivas in the first place because his client had done nothing to draw fire from police. He said Olivas was “overcharged” by the district attorney’s office.

“He was overcharged for political reasons. Ira Reiner wanted to show how he is a tough district attorney.”

Yagman said the move to drop the murder charges may also be an effort by prosecutors to avoid having to turn over detailed records of the investigation squad, which Yagman called “a death squad,” to Olivas’ criminal defense attorney.

Next week Yagman is scheduled to begin an unrelated lawsuit against squad members, stemming from the shooting of two bank robbers in 1982.