Petition for Writ of Certiorari — Ree v. Municipal Court of the Los Angeles Judicial District, County of Los Angeles

FILE Copy | YTrts'

soa pias UL 21 1972

Supreme Court of the United §

October Term, 1972

a 2: 12 5) =

OTHA G. REE, JR., and LOCKHEED SHIPBUILDING AND

CONSTRUCTON COMPANY,

Petitioners,

vs.

MUNICIPAL COURT OF THE Los ANGELES JUDICIAL Dis-

TRICT, COUNTY OF Los ANGELES,

and

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondents.

Petition for a Writ of Certiorari to the Court of Appeal

of the State of California, Second Appellate District.

CHARLES G. BAKALY, JR.,

611 West Sixth Street,

Los Angeles, Calif. 90017,

Attorney for Petitioners.

Of Counsel:

DON H. TERRY,

HOLLOPETER & TERRY,

234 East Colorado Boulevard,

Pasadena, Calif. 91101,

RICHARD N. FISHER,

GORDON E. KRISCHER,

O'MELVENY & MYERS,

611 West Sixth Street,

Los Angeles, Calif. 90017.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

SUBJECT INDEX

Page

AR AEE BIE PEO a indetind ts OA 2

aie 2

Question Presented ......................2...-.....--ceeeecceeceeeeee 2

Constitutional Provision Involved .......................... 3

OE I oh vei chcetbcnessceriterentesceianisescersnee 3

Sepmmemneme GE TD COND oarasasiccnnasincs css cceccncccecnoee 5

Presentation of the Federal Question Below ........ 8

Reasons for Granting the Writ .............................. 9

I natasha See Liaise cndcnbiieccnsaple Reonsereeinds 14

Appendix A. Order of the Court of Appeal........

<nniiciambinieeleaemeninilaaitaliius puitip oii baiiinvatet App. p. 1

Order Denying Hearing After Judgment by the

CTE II oasvirvrecicniinesncdenentieccncseninsepencnmvesones 2

Appendix B. Department of Industrial Relations,

Division of Industrial Safety—-Letter Dated

August 30, 1971 to Mr. Roger Arnebergh .......... 3

Affidavit of Don H. Terry in Support of Motion

SN a FE cept nite thet atinliccincnintionersecs 11

TABLE OF AUTHORITIES CITED

Cases Page

Ashe v. Swenson, 397 U.S. 436 (1970) ...... 10, 11,

Benton v. Maryland, 395 U.S. 784 (1969) ............

Connelly v. Director of Public Prosecutions,

[1964] A.C. 1254, 1359-60 .....2....22-----eeeeeeeeeeeeee

Green v. United States, 355 U.S. 184 (1957) ....10,

Hammerstein v. Superior Court, 341 U.S. 491

CED Spo ccrcuasincnoeablecances aeatebueacs ueoniacaeaoeaieiei

Hoag v. New Jersey, 356 U.S. 464 (1958) ............

Statutes

California Penal Code, Sec. 135 -...0.....02.02000...-

California Penal Code, Sec. 954.0000... eee

California Labor Code, Sec. 6400 ...................... 6,

California Labor Code, Sec. 6401 ........0..000000022....

California Labor Code, Sec. 6402 ...................... 6,

California Labor Code, Sec. 6403 ..............222.......

California Labor Code, Sec. 6404 ..........0.00000..... 6,

California Labor Code, Sec. 6415 ............2222022.....

California Labor Code, Sec. 6416 ..............002......

United States Code, Title 28, Sec. 1257(3) ..........

United States Constitution

United States Constitution, Fifth Amendment ........

United States Constitution, Fourteenth Amendment

13

10

Texts Page

Carroway, Pervasive Multiple Offense Problems—A

Policy Analysis, 1971 Utah L. Rev. 105. 117-19

senobupaeeubaannapahees 12

1971 Report of the Administrative Office of the

California Courts, pp. 100-126 ~....00000020.00020.2.- 12

Study Draft of a New Federal Criminal Code, Sec.

FOBEED 5 CRO icseidna rica deineceescksccimnipibcaccnaaice 12

IN THE

Supreme Court of the United States

October Term, 1972

elt “-

OTHA G. REE, JR., and LOCKHEED SHIPBUILDING AND

CONSTRUCTON COMPANY,

Petitioners,

vs.

MUNICIPAL COURT GF THE Los ANGELES JUDICIAL Dis-

TRICT, COUNTY OF Los ANGELES,

and

THE PEOPLE OF THE STATE OF CALIFORNIA,

Respondents.

Petition for a Writ of Certiorari to the Court of Appeal

of the State of California, Second Appellate District.

Petitioners, Otha G. Ree, and Lockheed Shipbuild-

ing and Construction Company, respectfully pray that

a writ of certiorari issue to review the final order of the

Court of Appeal of the State of California Second

Appellate District entered May 23, 1972 denying a

petition for a writ of prohibition.

ae, Re

Opinions Below.

There were no opinions by the state couris below.

In each instance, the petitions filed by petitioners were

denied without opinion by the appellate courts of Cali-

fornia. Neither the order of the California Court of

Appeal denying the petition for a writ of prohibition, nor

the order of the California Supreme Court denying the

petition for a hearing is officially reported, and each is

attached hereto in Appendix A.

Jurisdiction.

The final order of the California Court of Appeal

was entered on May 23, 1972. A timely petition for a

hearing to the California Supreme Court was denied

by that court on June 29, 1972. This Court’s juris-

diction is invoked under 28 U.S.C. §1257(3).

Question Presented.

Whether petitioners’ successive criminal prosecutions

on charges of maintaining an unsafe place of em-

ployment at the same location on July 16, 1971 and-

on June 22, 23, and 24, 1971, deprive petitioners of

liberty and property without due process of law in vio-

lation of Section I of the Fourteenth Amendment to

the United States Constitution, when all facts necessary

to filing the second prosecution arose out of the same

nucleus of facts as in the first prosecution and were

known to the State prior to the filing of the first

prosecution, each prosecution alleges violations of the

same or similar statutes, and all charges could have

been joined without prejudice to the State or to

petitioners?

pa

Constitutional Provision Involved.

Section I of the Fourteenth Amendment to the United

States Constitution reads as follows:

“All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or en-

force any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property; without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.”

Statutes Involved.

The relevant sections of the California Labor Code

are as follows:

“Section 6400. Safe employment and place of em-

ployment

“Every employer shall furnish employment and

a place of employment which are safe for the em-

ployees therein.”

“Section 6401. Safety devices and safeguards

“Every employer shall furnish and use safety

devices and safeguards, and shall adopt and use

practices, means, methods, operations, and proc-

esses which are reasonably adequate to render

such employment and place of employment safe.

Every employer shall do every other thing reason-

ably necessary to protect the life and safety of

employees.”

a

“Section 6402. Employee in unsafe employment

or place

“No employer shall require, or permit any em-

ployee to go or be in any employment or place of

employment which is not safe.”

“Section 6404. Occupancy or maintenance Of un-

safe place

“No employer shall occupy or maintain any

place of employment that is not safe.”

“Section 6414. Misdemeanors; prima facie evi-

dence of violation; burden of proof of compliance

“Except where another penalty is specifically

provided, every person is guilty of a misdemeanor

who does any of the following:

“(a) Violates any safety provision or part

thereof in, or authorized by, this part.

“(b) Fails or refuses to comply with any such

safety provision or any part thereof.

“(c) Directly or indirectly, knowingly induces

another so to do.”

* * *

“Section 6416. Death from employer's gross neg-

ligence; punishment

“Every employer who, through his gross negli-

gence in failing to provide a safe employment and

place of employment, causes the death of his em-

ployee is punishable by imprisonment in the coun-

ty jail for not more than one year or by a fine of

not less than one thousand dollars ($1,000) nor

more than five thousand dollars ($5,000).”

onlin

Statement of the Case.

Petitioner Lockheed Shipbuilding and Construction

Company (“Lockheed”) was at all times relevant here-

to in charge of excavating and constructing the Syl-

mar tunnel project in the San Fernando Valley pur-

suant to a contract with the Metropolitan Water Dis-

trict of Southern California. Petitioner Ree was em-

ployed by Lockheed as Project and Safety Engineer.

On June 23, 1971, there occurred a flash fire within

the tunnel which resulted in several injuries, and on

June 24, 1971, there occurred an explosion within the

tunnel which resulted in 17 deaths and several injuries.

On June 27, 1971, the State Division of Industrial

Safety (hereinafter the “Division”) declared the tun-

nel to be an unsafe place of employment. From June

24, 1971, to and including July 16, 1971, Lockheed

personnel and Division personnel conducted rescue, re-

covery, repair and maintenance operations in the tun-

nel.

On or about June 27, 1971, the Division commenced

an investigation into the cause of the explosion. On

August 30, 1971, by letter to Roger Arnebergh, Los

Angeles City Attorney, the Division requested prosecu-

tion of petitioners for Labor Code offenses which were

allegedly committed on June 23 and 24, 1971. (App.

B at 3.) On August 30, 1971, the Division also

transmitted its investigatory file to the City Attorney.

The file included statements from all key witnesses to

the events preceding the explosion. (Affidavit of Don

H. Terry, App. B at 11.)

On September 2, 3 and 24, 1971, a representative

of the City Attorney attended California State Assem-

bly hearings on the subject of the Sylmar tunnel dis-

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aster. Those hearings elicited extensive testimony re-

garding the events surrounding the Sylmar tunnel dis-

aster, including an entry into the tunnel by Lockheed

personnel and a police officer on July 16, 1971.*

On November 21, 1971, almost five months after

the tunnel disaster, a misdemeanor complaint was filed

entitled The People of the State of California v. Lock-

heed Shipbuilding and Construction Company and Otha

G. Ree, Jr., No. 402085, hereinafter referred to as the

“first prosecution.” The complaint did not, as was

previously requested by the Division in its letter, seek

to prosecute for Labor Code offenses allegedly commit-

ted on June 23 and 24, 1971. Instead the complaint

alleged that on July 16, 1971, petitioners Ree and Lock-

heed furnished employment and a place of employment

which were unsafe for employees (Labor Code $6400);

required an employee to go and be in an employment

or place of employment which was not safe (Labor

Code §6402); failed and neglected to do everything

reasonably necessary to protect the life and safety of

employees (Labor Code §6403); and occupied and

maintained an unsafe place of employment (Labor

Code §6404).

These allegations in the first prosecution were based

upon the theory that petitioners permitted and required

an employee to enter and work in the tunnel on July

16, 1971, at a time when the tunnel was unsafe due to

the events of June 24, 1971. Specifically, the thrust of

the State’s case at trial was that the tunnel was un

safe on July 16, 1971 because the dangerous levels of

gases and inadequate ventilation which were present

_ *A copy of the official transcript of those hearings is on file

in respondent court.

at the time of the explosion on June 24, 1971, were

likely to remain and reoccur, and because petitioners

utilized insufficient rescue procedures and equipment.

It was never asserted at trial that anything occurred

after June 24, 1971, to make the tunnel any more

unsafe than it was as of that date. On February 25,

1972, following a trial of four weeks’ duration, all

charges were resolved by either verdicts of acquittal or

orders of dismissal.*

On March 30, 1972, a second complaint was filed

entitled The People of the State of California v. Lock-

heed Shipbuilding and Construction Company, et al.,

No. 413019, hereinafter referred to as the “second

prosecution.” This complaint in relevant part alleges

that petitioner Lockheed on June 22, 23 and 24, 1971

and petitioner Ree on June 23 and 24, 1971, furnished

employment and a place of employment which were un-

safe (Labor Code §6400); failed to furnish safety de-

vices and safeguards and to adopt and use practices,

methods, and operations which were reasonably ade-

quate to render the tunnel safe (Labor Code §6401);

required employees to go and be in an unsafe employ-

ment or place of employment (Labor Code §6402); and

occupied and maintained an unsafe place of employ-

ment (Labor Code §6404). The complaint also alleges

that petitioners caused the deaths of 16 employees

through their gross negligence in failing to provide a

safe employment and place of employment on June

24, 1971 (Labor Code §6416). :

*Violations of other sections of the Labor Code and of Cali-

fornia Penal Code §135 (concealing evidence—the gas testing

device used at the time of the explosion) were also alleged but are

not relevant to the issues raised by this petition. Lockheed was

convicted on the Penal Code §135 charge and is presently ap-

—

Prior to the time of filing the complaint in the first

prosecution, the State was aware of all the basic facts

underlying each and every one of the charges sub-

sequently brought in the second prosecution. The

same or similar sections of the California Labor Code

are involved in each prosecution. Also, pursuant to Cali-

fornia Penal Code §954, the two prosecutions could

have been joined without prejudice to either the State

or petitioners.

The trial in the second prosecution which is cur-

rently scheduled to commence July 24, 1972, is esti-

mated to last eight to ten weeks with testimony not ex-

pected to begin until August 1, 1972.

Presentation of the Federal Question Below.

On May, 8, 1972, respondent municipal court denied

petitioners’ various motions to dismiss which had been

based on state statutory and decisional grounds and

state and federal constitutional grounds.

On May 12, 1972 petitioners filed original proceed-

ings in the Los Angeles Superior Court, No. C 29671,

seeking a writ of prohibition to restrain respondent

court from proceeding with the trial of the second

prosecution. The federal question for which review by

this Court is sought was stated therein as follows:

“[I]t is petitioners’ position that the actions of

the People in this case in arbitrarily causing peti-

tioners to undergo the expense and humiliation

of two long and complex trials, involving closely

connected facts, events and issues, when there was

no justification for doing so is fundamentally un-

fair and constitutes a denial of due process.”

(Memorandum of Points and Authorities in Sup-

port of Petition for Writ of Prohibition at 2.)

On May 15, 1972 the petition was summarily denied.

aaa

=

On May 17, 1972, the date originally set for com-

mencement of the trial in the second prosecution, peti-

tioners sought a writ of prohibition in the California

Court of Appeal, 2nd Civ. No. 40323, and raised in

virtually identical language the federal question raised

in the Superior Court.

On May 23, 1972, the California Court of Appeal

denied the petition without opinion. Upon a petition for

hearing being filed with the California Supreme Court,

the petition for a writ of prohibition and accompanying

memorandum of points and authorities in the California

Court of Appeal raising the federal question herein-

above described automatically became the record and

the brief before the California Supreme Court. With

said record and brief before it, the California Supreme

Court summarily denied the petition for hearing on

June 29, 1972. Because the California Supreme Court’s

denial of a petition for hearing is discretionary, it is the

California Court of Appeal to which this Court’s writ

of certiorari, if granted, should properly issue. See

Hammerstein v. Superior Court, 341 U.S. 491 (1951).

Reasons for Granting the Writ.

Multiple prosecution of petitioners for offenses

based on a common nucleus of facts under the circum-

stances of this case raises an important constitutional

question under the Due Process Clause of the Four-

teenth Amendment.

Requiring petitioners to undergo the expense and

humiliation of two long and complex criminal trials,

arising out of the same nucleus of facts and involving

closely connected facts, events and issues, is fundamen-

tally unfair and constitutes a denial of due process in

violation of the Fourteenth Amendment of the United

— =

States Constitution. Petitioners recognize that their

second prosecution is not barred by the double jeopardy

clause nor this Court’s recent interpretation of the

double jeopardy clause in Ashe v. Swenson, 397 USS.

436 (1970) and did not urge that ground below. It

is not petitioners’ position that the second prosecution

involves the “same offense” as did the first prosecution.

However, the policies underpinning the double jeopardy

clause, as well as other policy and practical considera-

tions support the due process rule petitioners advance.*

Such a rule would require compulsory joinder in a

“single prosecution of all criminal offenses against an

individual which are known to the prosecutor and are

within his jurisdiction, if the offenses charged are based

on the same conduct or course of conduct, or arise

from the same criminal episode, or are based on the

same nucleus of facts. The policy in support of this

rule was stated by this Court in Green v. United States,

355 U.S. 184, 187-188 (1957), a double jeopardy

case, as follows:

“(T]he State with all its resources and power

should not be allowed to make repeated attempts

to convict an individual for an alleged offense,

*Jt might be argued that in Hoag v. New Jersey, 356 U.S. 464

(1958), Court held by a divided court, that multiple prosecu-

tions of related offenses were not in violation of the due process

clause of the Fourteenth Amendment in the facts of that case.

(Warren, C. J.; Black, J. and Douglas, J. dissenting.) Hoag was

overruled on its facts by Ashe v. Swenson, 397 U.S. 436 (1970)

which held the doctrine of collateral estoppel to be embodied in

the double jeopardy clause of the Fifth Amendment which was

made enforceable against the states in Benton v. Maryland, 395

US. 784 (1969). Moreover, since this Court’s decision in

Hoag, notions of what constitutes fundamental fairness have

expanded and changed, and events have occurred which indicate

that the question of whether a rule of compulsory joinder of

criminal offenses related in their commission by the same nucleus

of facts, criminal episode or course of conduct is required by

due proess, is ripe for consideration by this Court.

me FES

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thereby subjecting him to embarrassment, ex-

pense and ordeal and compelling him to live in a

continuing state of anxiety and insecurity . . .”

Though originally written to apply to the “same of-

fense,” the concept articulated by this language applies

equally to different offenses related in their commission

by the same nucleus of facts, criminal episode, or course

of conduct. Cf. the concurring opinion of Mr. Justice

Brennan, Ashe v. Swenson, supra, at 448-460.

As noted in Green, supra, a criminal trial is an “or-

deal.” It is an ordeal for the defendant emotionally,

mentally, and financially. In view of this, an individual

charged with criminal offenses should have to endure

as few criminal trials in his life as is reasonably pos-

sible. In cases where one trial would suffice, and in

which all criminal charges outstanding against an indi-

vidual arising out of the same nucleus of facts could

be handled in that one trial without prejudice to the

state or defendant, only one trial should be permitted.

In addition to according defendants due process of

law guaranteed them by the Fourteenth Amendment,

such a rule would prevent the needless waste of court

time, waste of public funds and needless repetition of

evidence, which are now caused by a failure to join

criminal offenses related in their commission as is evi-

dent in the instant case.* Such a compulsory joinder

*Much of the lengthy proceedings and testimony which oc-

curred in the first prosecution on many subjects and issues would

be necessarily duplicated in the second prosecution. In the first

prosecution much time and effort was involved in acquainting

the court and jury with such matters as the physical layout,

dimensions and appearance of the tunnel project, above ground

as well as within the tunnel; the tunnel’s electrical system; the

communication methods and equipment; the tunnel’s transporta-

tion system; the tunnel’s ventilation system; the safety methods

(This footnote is continued on next page)

a

rule has been recommended by commentators, see Car-

roway Pervasive Multiple Offense Problems—A Policy

Analysis, 1971 Utah L. Rev. 105, 117-19; and has

been fashioned by English Courts from principles de-

rived from the common law. Connelly v. Director of

Public Prosecutions, [1964] A.C. 1254, 1359-60. A

similar rule has also been recommended by the National

Commission on Reform of Federal Criminal Laws in

their Study Draft of a New Federal Criminal Code

§703(2) (1970).

Further, the criminal case load at both the federal

and state leveis has continued to grow and become

further burdened at an increasing rate. For example,

in California alone, between the years 1965 and 1970,

the number of criminal cases awaiting trial in the 16

largest counties nearly tripled. 1971 Report of the Ad-

ministrative Office of the California Courts, pp. 100-

126.

Moreover, the appropriateness of applying such a

compulsory joinder rule in this case is further made

apparent by the nature of the statutory scheme under

which petitioners are being prosecuted. Each day’s

and equipment utilized; the construction methods and equipment

used at the project; the personnel who worked at the project, in-

cluding the identity, skills, duties, functions, schedules and

authority of the various managers, engineers, supervisors, and

construction employees; the personnel responsible for safety

matters at the tunnel, including petitioners’ employees and repre-

sentatives of the Division, and the duties and authority of each;

the gas meter which was used to detect dangerous levels of gas,

including its physical appearance, method of operation, method

of calibration after the flash fire of June 23, 1971, and immedi-

ately prior to the explosion of June 24, 1971, and the facts sur-

rounding its subsequent recovery, custody, and testing; the rela-

tive safety of the project prior to the explosion of June 24, 1971,

including the inspection trip made by Division representatives on

June 23, 1971; and the physical appearance of the tunnel sub-

sequent to the June 24, 1971 explosion.

a

continuance of any violation of the sections under which

petitioners are charged constitutes a separate and distinct

offense. California Labor Code §6415. For example,

petitioners’ second prosecution concerns the events of

June 22, 23 and 24, 1971. The first prosecution con-

cerned events at the same place of employment on

June 16, 1971. Without adoption of a rule prescribing

more equitable and ascertainable standards limiting the

number of successive prosecutions, petitioners could

have been subject to separate criminal trials for each

of the intervening dates between the two prosecutions

which have already been filed. The State in these sub-

sequent prosecutions may argue, as it has below, that

the conditions in the tunnel varied on each of those

intervening dates—more or less gas or a different kind

of gas could have been in the tunnel on those dates—

thus precluding petitioners from effectively asserting

the double jeopardy-collateral estoppel defense made

available by Ashe, supra.

Certainly, the state should not be entitled to separate

trials for each day of violation. Petitioners submit that

the rule which is required by the due process clause,

and which is most in accord with the fair and efficient

administration of the Anglo-American system of crim-

inal justice as it is presently constituted, is one limiting

the number of criminal prosecutions brought against an

individual to as few as is necessary. For petitioners to

be required to endure two lengthy, duplicative, expensive

and highly-publicized trials for the closely related

charges arising out of the Sylmar tunnel explosion, when

there is no good reason for doing so, is simply indefens-

ible from a standpoint of either fundamental fairness or

the sensible administration of criminal justice.

a

Conclusion.

For the foregoing reasons, it is urged that this petition

for writ of certiorari be granted.

Respec‘fully submitted,

CHARLES G. BAKALY, JR.,

Attorney for Petitioners.

Of Counsel:

Don H. TERRY,

HOLLOPETER & TERRY,

RICHARD N. FISHER,

GORDON E. KRISCHER,

O'MELVENY & MYERS,

July 20, 1972.

APPENDIX A.

Order of the Court of Appeal.

In the Court of Appeal of the State of California,

Second Appellate District, Division Four.

Lockheed Shipbuilding and Construction Company,

et al., Petitioners, vs. Municipal Court, Respondent.

Civil No. 40323.

Loren G. Savage, et al., Petitioners, vs. Municipal

Court, Respondent. Civil No. 40331.

The People, Petitioners, vs. Municipal Court, Re-

spondent. Civil No. 40347.

Filed: May 23, 1972.

THE COURT:

In each of the above entitled proceedings, the peti-

tion is denied.

To give petitioners the opportunity to peti ion the

Supreme Court, the temporary stay of the trial in the

case entitled People v. Lockheed Shipbuilding and Con-

struction Company, et al., Los Angeles Municipal

Court No. 413019 as ordered by this court on

May 17, 1972, is continued in effect for 10 days from

the date of this order unless sooner vacated by order

of this court or of the Supreme Court.

| {SPENT OTE

PRA YAEL EI PRE AEA RE OES SOO

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—

a

Order Denying Hearing After Judgment by the

Court of Appeal.

Order Due July 21, 1972.

In the Supreme Court of the State of California, in

Bank. 2nd District, Division 4, Civil No. 40323, Civil

No. 40331, Civil No. 40347.

Lockheed Shipbuilding & Construction Company

Et Al. v. Municipal Court, Los Angeles Judicial Dis-

trict (And Companion Cases)

Petition for hearing DENIED.

McComb, J., is of the opinion that the petition

should be granted.

Wright, Chief Justice

Filed June 29, 1972.

— on

APPENDIX B.

Ronald Reagan, Governor

State of California—Human Relations Agency

Department of Industrial Relations

Division of Industrial Safety

3460 Wilshire Boulevard, Los Angeles,

California 90005

August 30, 1971

Mr. Roger Arnebergh

Los Angeles City Attorney

Room 2101, City Hall

Los Angeles, California 90012

Dear Sir

This Division sets forth the following circumstances to

wit:

Defendants:

Lockheed Shipbuilding and Construction Com-

pany

2929 16th Avenue SW

Seattle, Washington 98134

A. M. Folden, President

Lockheed Shipbuilding and Construction Com-

pany

2929 16th Avenue SW

Seattle, Washington 98134

R. N. Waters, Vice President

Lockheed Shipbuilding and Construction Com-

pany

2929 16th Avenue SW

Seattle, Washington 98134

W. E. McDanniel, Manager-Const. Division

“d

fo

Lockheed Shipbuilding and Construction

pany

2929 16th Avenue SW

Seattle, Washington 98134

R. E. Hix, Manager-Construction Division

Lockheed Shipbuilding and Construction

pany ‘

12800 Fenton Avenue

Sylmar, California 91342

L. G. Savage, Project Manager

Lockheed Shipbuilding and Construction

pany

12800 Fenton Avenue

Sylmar, California 91342

O. G. Ree, Project Engineer

Lockheed Shipbuilding and Construction

pany

12800 Fenton Avenue

Sylmar, California 91342

Complainants:

George O. Denton

Safety Engineer—Construction

State of California

Department of Industrial Relations

Division of Industrial Safety

3460 Wilshire Boulevard, Room 910

Los Angeles, California 90010

Telephone: 381-3951

Wallace J. Zavattero

Safety Engineer—Construction

State of California

Department of Industrial Relations

Com-

Com-

Com-

—

alien

Division of Industrial Safety

3460 Wilshire Boulevard, Room 910

Los Angeles, California 90010

Telephone: 381-3951

Date of Offense:

June 23, 1971 and June 24, 1971

Location:

San Fernando Tunnel Project

12800 Fenton Avenue

Sylmar, California 91342

Statement of Conditions: At the above location in

the City of Los Angeles, the defendants, or some of

them, on June 23rd and 24th, 1971 directed that a

tunnel excavation be made. Said excavation was pro-

ceeding and defendants, or some of them, failed to

provide the necessary safeguards so as to afford their

employees and invitees a safe place of employment.

Said defendants, or some of them, were in the process

of directing said employees in said tunnel excavation

work when an explosion took place that was the

actual and proximate cause of death for sixteen (16)

employees and one (1) inspector employed by the

Metropolitan Water District of Southern California.

Names of workers killed in the accident:

Forrest E. Aldrich

William I. Ashe

Robert E. Ballow

Danny J. Blaylock

Jose R. Carrasco

William Carter

Ronald E. Demo

John P. Drobot

Sn PYPPY LYN

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—b— |

9. Mike Guitierrez

10. Gary A. Nichols

11. Russell M. Overstreet

12. Jonas V. Peters

13. William J. Snodgress

14. Alvin H. Spreen

15. Robert K. Stowers

16. Robert W. Warner

17. Louis L. Richardson (Inspector for M.W.D.).

Count No. 1: Labor Code 6400. It is alleged that

the defendants committed an act and/or acts which

constitute a misdemeanor; to wit: Violations of Section

6414 of the California Labor Code in that they failed

to comply with the provisions of California Labor Code

Section 6400 and the California Administrative Code,

Title 8, Tunnel Safety Orders 8410, (a) (c), 8422

(a) (b), 8425 (a) (b) (c), 8431 (a) (c) (d) (e)

by reason of their failure to furnish a safe place of

employment for their employees.

Count No. 2: Labor Code 6401. It is alleged that

the defendants committed an act and/or acts which

constitute a misdemeanor; to wit: Violation of Section

6414 of the Labor Code in that they failed to comply

with the provisions of Labor Code Section 6401 which

states that every employer shall furnish and use safety

devices and safeguards which are reasonably adequate

to render such employment and place of employment

safe.

Count No. 3: Labor Code 6402. It is alleged that the

defendants committed an act and/or acts which con-

stitute a misdemeanor; to wit: Violation of Section 6414

of the Labor Code in that they failed to comply with

the provisions of Labor Code Section 6402 which

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stipulates that no employer shall require or permit any

employees to go or be in any employment or place of

employment which is not safe.

Count No. 4: Labor Code 6403: It is alleged that the

defendants committed an act and/or acts which con-

stitute a misdemeanor; to wit: Violation of Section 6414

of the Labor Code in that they failed to comply with

the provisions of Labor Code 6403 in that no employer

shall fail or neglect: (a) To provide and use safety

devices and safeguards. (b) To adopt and use meth-

ods and processes reasonably adequate to render the

employment and place of employment safe. (c) To do

every other thing reasonably necessary to protect the

life and safety of employees. :

Count No. 5: Labor Code 6404. It is alleged that

the defendants committed an act and/or acts which

constitute a misdemeanor; to wit: Violation of Section

6414 of the Labor Code in that they failed to comply

with the provisions of Labor Code 6404 which states

that no employer shall occupy or maintain any place

of employment that is not safe.

Count No. 6: Labor Code 6416. It is alleged that

the defendants through their gross negligence in failing

to provide a safe employment and place of employ-

ment, caused the death of their employees (listed

above) and should be punished by imprisonment

in the county jail for not more than one year or by a

fine of not less than one thousand dollars ($1000)

nor more than five thousand dollars ($5000).

Se ad & nas

SF Es RES

PARES

Facts: The following Tunnel Safety Orders were

violated:

Tunnel Safety Order 8410. General. (a) Every

reasonable precaution shaJl be taken to insure the

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safety of the workmen in all cases, whether or not pro-

vided for in these orders. (c) No man shall be required

to work in an unsafe place unless for the purpose of

making it safe, and then only after proper precautions _

have been taken to protect him while doing such work.

Tunnel Safety Order 8422. Oxygen Breathing Ap-

paratus. (a) At all tunnels where flammable or nox-

jous gases are encountered or anticipated, there shall

be provided and properly maintained permissible self-

contained oxygen breathing apparatus, in number and

type as the division so directs. A sufficient supply of

replacement parts and regeneraiing material shall be

maintained. Where there is more than one tunnel op-

erated by the same employer as one project, only one

group of five (5) sets of oxygen breathing apparatus

will be required. Apparatus shall be kept in repair and

ready for use at all times.

(b) Where the apparatus is required by the division

there must be enough physically fit and trained men

outside the tunnel to provide one or more crews of

five (5) men within reach by telephone or other means

and available for service at the tunnel within two hours.

Training shall be given annually and shall be at least

equivalent to that offered by the U. S. Bureau of

Mines. These men shall be required to practice at least

thirty (30) minutes a month in the use of the ap

paratus.

Tunnel Safety Order 8425. Dangerous or Poisonous

Gases. (a) When the air in any part of a tunnel is

known to contain or is suspected of containing an

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explosive gas, it shall be tes‘ed by means of a permis-

sible miner’s safety lamp, or by other means accept-

able to the Division of Industrial Safety before men

are allowed to work therein. These tests shall be

made by a man who is competent to make them. If

the main return air in the tunnel contains more than

one percent by volume of an explosive gas, any work

therein shall be conducted with extreme care and steps

shall be taken to improve ventilation. The tests shall

then be made at least every four hours during the work-

ing shift and the Division of Industrial Safety notified

of the condition.

(b) When two percent (2%) or more of an ex-

plosive gas or a poisonous or suffocating gas in con-

centrations dangerous to life is encountered, normal

operations shall cease in those places, except that un-

der competent direction, necessary steps may be taken

to make the place safe. The Division of Industrial

Safety shall be notified when such conditions are

encountered.

(c) Before installing or using any electrical equip-

ment in places containing methane gas or other ex-

plosive gases, the Division of Industrial Safety should

be advised of the actual conditions. Such installations

or operations must comply with existing Electrical

Safety Orders and may be subject to specific orders

to be issued by the division.

Tunnel Order 8431. Ventila‘ion. (a) Fresh air shall

be delivered in adequate quantities to all underground

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work areas. The supply shall at least be sufficient

to prevent dangerous or harmful accumulations of

dust, fumes, vapors or gases, and shall not be less than

30 feet per minute in those tunnels where blasting or

rock drilling is conducted, or where there are other

conditions that are likely to produce dusts, fumes,

vapors or gases in harmful quantities. The ventilation

system shall be so arranged that the air flow can be

reversed if a fire or some other emergency makes this

advisable. (Also, see Order 8440)

(d) No man, unless he is wearing permissible self-

contained oxygen breathing apparatus shall be per-

mitted to work in a place where a flame safety lamp

or a candle will not burn.

(e) Where flammable gas is encountered normal

operations cannot proceed unless sufficient air is fur-

nished to hold the percentage of flammable gas to

not more than one per cent (1%) by volume in the

return air of the tunnel. (See Order 8425)

Note: Copy of Tunnel Safety Orders is attached.

Exhibits: (Will be duplicated and forwarded under

separate cover.)

Witnesses: (Testimony of witnesses will be for-

warded under separate cover )

This Division, therefore, requests that a complaint

of gross negligence be issued against subject employer.

Very truly yours

H. A. Crabtree

Senior Safety Engineer

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Affidavit of Don H. Terry in Support of Motion

Under P.C. 654.

In the Municipal Court of the Los Angeles Judicial

District County of Los Angeles, State of California.

The People of the State of California, Plaintiff, v.

Lockheed Shipbuilding and Construction Company, a

corporation doing business in California, and Loren G.

Savage, Otha G. Ree, Jr., Russell Van Guilder, Eugene

Pedigo, Defendants. No. 413019.

AFFIDAVIT OF DON H. TERRY

State of California, County of Los Angeles—ss.

DON H. TERRY deposes and says:

That your affiant is an attorney licensed to practice

law before all of the Courts of the State of California.

That on or about November 22, 1971, the office of

the City Attorney for the City of Los Angeles, Califor-

nia, by and through Deputy City Attorney George D.

Bane, caused to be filed a criminal complaint against

Lockheed Shipbuilding and Construction Company and

Otha G. Ree, Jr., being case number 402085 in the

Municipal Court of the Los Angeles Judicial District,

County of Los Angeles, State of California, charging

Lockheed Shipbuilding and Construction Company and

Otha G. Ree, Jr., with seven Counts of violating the

provisions of the Labor Code of the State of California,

and one Count charging a violation of Penal Code

Section 135 (concealing evidence).

That prior to February 10, 1972, that matter pro-

ceeded to trial and trial was completed resulting in

Lockheed Shipbuilding and Construction Company

being convicted of violating Section 135 of the Califor-_

nia State Penal Code, the rest of the Counts against

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said defendant being either dismissed or the defendant

being found not guilty thereof, and all Counts against

Otha G. Ree Jr., being either dismissed or defendant

being found not guilty thereof.

That in the first case filed against the defendants

herein, number 402085, your affiant made a discovery

motion in Division 59 of the Municipal Court of the

Los Angeles Judicial District seeking, among other

things, all photographs, signed or unsigned statements

of witnesses, notes of investigating officers, recordings,

engineer’s reports, and official investigation reports of

the explosion in the Sylmar tunnel which occurred on

June 23, 1971. This discovery motion was granted.

On December 22, 1971, your affiant, pursuant to

said discovery order, went to the office of the City

Attorney where he met with Deputy City Attorney

George D. Bane. In Mr. Bane’s office on December 22,

1971, your affiant talked with Mr. Bane regarding the

discovery motion and the facts relating to the explosion

at the Sylmar tunnel and events that occurred sub-

sequent thereto.

Mr. Bane related to your affiant, among other things,

that Mr. Bane had been assigned to the “Lockheed

case” for three months prior to December 22, 1971.

That during this three months period he had made

visits to the Sylmar tunnel, conferred at length and in

great detail with witnesses pertaining to the cause of

the tunnel explosion, the condition of the tunnel prior

to the explosion and at the time of the explosion, and

had complied a complete and thorough file on this

tunnel explosion case.

Mr. Bane directed my attention to a stack of docu-

raents on his desk s‘ating that those were all of the re-

siciliies

ports of the investigation and statements of witnesses

and I could have copied any of the documents I de-

sired.

I spent approximately four and one half hours in

Mr. Bane’s office that afternoon together with a man

who made photocopies of the documents.

Among the documents photocopied were statements

given by Henry McIntyre, Ralph Brissette, Arvid Ras-

mussen, Wallace Zavattero and George Denton.

There were also present in the file orders and letters

made by the State Division of Industrial Safety pertain-

ing to the Sylmar tunnel bo'h before and after the ex-

plosion on June 24, 1971.

Deputy City Attorney George D. Bane told your af-

fiant that he had been assigned to this case to gather

information for the prosecution of Lockheed Shipbuild-

ing and Construction Company, and others, pertaining

to the deaths that were caused by the explosion. That

he had accumulated so much evidence against Lock-

heed Shipbuilding Company and Otha G. Ree, Jr.,

that there was no way they could “win” the case, re-

ferring to Lockheed and Ree.

Contained among the hundreds of documents on Mr.

Bane’s desk were statements by Wallace Zavattero per-

taining to his inspections of the Sylmar tunnel, includ-

ing June 23, 1971, and copies of the orders he issued

both before and after the tunnel explosion. Included

in the hundreds of exhibits were photographs of the

deceased parties together with their identification.

There was also a statement from Henry McIntyre

which said in substance that on June 22, 1971 he was

employed by Lockheed and that Savage and Ree were

his supervisors. That Van Guilder was his immediate

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supervisor. That he worked in the Sylmar tunnel on

that date and operated the mining machine during the

shift. That five hours before his shift ended he began to

smell a strong odor of crude oil and gasoline. That the

odor got stronger. That the gas burned his eyes, nose

and throat. That during the last hour the odor and gas

made him sick. That he informed Van Guilder of the

conditions and that other workers complained. That

during the last hour of the shift he had to leave the

machine to go and get fresh air. That he knew about

the oil because he had worked in the oil fields and

could recognize the smell.

Included in the numerous documents was the state-

ment of Arvid Rasmussen to the effect that on June

23, 1971, he was employed by Lockheed and that his

supervisors were Savage and Ree. That he was required

to work in the tunnel and during the swing shift of

June 23, 1971, he was operating an explosion meter

testing for gasses. He tells of his tests made during

that shift and the readings and of his informing Mr.

Savage of the high readings. That there was a strong

smell of crude oil in the tunnel and it was burning

the eyes and throats of the workers. He tells, in this

statement, of a minor explosion occurring earlier and

that the entire tunnel, expecially along the heading,

smelled of a strong gasoline and crude oil odor.

Included among the many documents is the state-

ment of Ralph Brissette that he was employed by Lock-

heed as a brakeman in the tunnel. That on the evening

of June 21, 1971, and the morning of June 23, 1971,

Savage was present in the tunnel. He details in his state-

ment the explosive meter readings registered from | to

19% and of the ignition sources that were present and

the smell of gas.

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Each of the statements that I saw in Mr. Bane’s of-

fice was in substance the same as those attached to the

complaint in the instant case, Case Number 413019.

In addition to the statements of these witnesses

there were statements of investigators, photographs,

copies of orders from the Division of Industrial Safety,

daily logs of workmen and the like.

Your affiant is informed and believes, and upon such

information and belief avers that George Denton and ;

Wallace Zavattero, the signators of the complaint, case f

number 413019, are the same persons who signed the

prior complaint in Case Number 402085. That Arvid

Rasmussen, listed as a witness in Case No. 402085, to

which a statement is attached is the same Arvid Ras-

mussen who is listed as a witness in the present case,

Case Number 413019, to which a summary of his

testimony is attached.

Spe

Your affiant is informed and believes, and upon

such information and belief avers, that George D.

Bane, Deputy City Attorney, had in his file at least thirty

days prior to November 22, 1971, the statements of

each of the above named witnesses and sufficient in-

formation upon which to base and file a complaint

identical to the one here filed in Case Number 413019

at the time he caused to be filed a misdemeanor com-

plaint in Case Number 402085.

I certify and declare under penalty of perjury the

foregoing is true and correct.

2 SUS LL IPE TEED LEE POLIO ISBN EH Be

Executed at Pasadena, California, this 14th day of

April, 1972.

DON H. TERRY

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