Murder Case Is Dismissed Over Defense’s Opposition : Courts: A public defender wants his client prosecuted for three killings to force the disclosure of police files.

A defense lawyer failed Tuesday in an unusual attempt to force the Los Angeles County district attorney’s office to prosecute his client on three counts of murder.

Over the objections of the defense, San Fernando Municipal Judge Stephen A. Marcus granted a prosecution request to dismiss murder charges against Alfredo Olivas, 19, of Hollywood, who survived a shoot-out with police that left three alleged accomplices dead after a robbery at a McDonald’s in Sunland on Feb. 12.

The ruling was a partial setback for Olivas’ attorney, Deputy Public Defender Howard C. Waco, who surprised the court Friday by objecting to the proposed dismissal. Waco said he wanted the murder case to go forward so that, under the discovery privileges granted defendants, he could obtain confidential police records about the shooting that otherwise would be unavailable.

Olivas could have been sentenced to death if convicted of the charges.

The judge closely questioned Olivas on whether he realized that his attorney’s tactical maneuver exposed him to the risk of the gas chamber. Olivas said he did and would “go along with what he’s saying.” The judge said, however, that he agreed with prosecutors’ contentions that Olivas may not have provoked the shooting. Deputy Dist. Atty. Kenneth L. Barshop said such a conclusion would have been necessary to find Olivas guilty of murder.

Norman Koplof, head of the public defender’s San Fernando office, declined to comment when asked whether he approved of Waco’s tactic.

Olivas’ alleged accomplices were shot and killed by police officers staking out the restaurant. The murder charges were filed under the law that holds criminals responsible for deaths that occur during the commission of crimes, even if the victims are accomplices.

Olivas still could be sentenced to life in prison if convicted of the remaining 19 kidnaping, robbery and assault charges stemming from a string of robberies of fast-food restaurants, including the Feb. 12 McDonald’s holdup.

The shooting was carried out by nine members of the Los Angeles Police Department’s Special Investigations Section as they approached the robbers’ parked getaway car. Barshop initially said that Olivas provoked the shooting by pointing a gun at the officers, but on Friday he announced that he did not have enough evidence to prove that contention.

Waco, who on Friday declined to say why he wanted the confidential information, said Tuesday that one of the reasons was to eliminate from Olivas’ criminal record any mention that he was arrested or charged on suspicion of the murders.

To do so, a judge must make a so-called factual finding of innocence, which Waco contends can only be done if the facts of the case, as described in the police documents, are made public. Without such a finding, Olivas’ record will reflect that he was charged with the murders, even though the charges were dismissed, Waco said.

The judge reassured the public defender that dismissal of the murder charges will not hinder his ability to subpoena some police records of the shooting. He said releasing the documents may be necessary for Waco to defend Olivas against the charge of robbing the McDonald’s.

“Anything that aids him in that charge will be given to him,” Marcus said. “I cannot see any way that the defendant will be prejudiced by having these most serious of charges dismissed.”

However, Marcus reversed his earlier ruling that Waco also be given sealed documents about past shootings involving the Special Investigations Section, saying the dismissal of murder charges made access to that information unnecessary.

Waco said Tuesday that there also were “two or three other reasons” for wanting to go ahead with the murder charges, but he declined to reveal what they were. Waco had said a trial on the murder charges could have embarrassed the Police Department by exposing the tactics of the Special Investigations Section.

Critics have said officers of the unit, which shadows suspected criminals, have not intervened when they witnessed comparatively minor crimes being committed, because they were waiting for the subjects to commit a major crime that would result in a long prison term.

Bail for Olivas, who had been held without bail, was set at $250,000 after the murder charges were dismissed Tuesday.