INTEROFFICE MEMORANDUM
DATE:
September 16, 2015
FROM:
Lynette Grulke,
Deputy District Attorney
Rancho Cucamonga Office
TO:
Terry Brown,
Supervising Deputy District Attorney
Rancho Cucamonga Office
Bruce Brown,
Chief Deputy District Attorney
West Valley Division
Gary Roth,
Assistant District Attorney
Criminal Operations
Michael A. Ramos,
District Attorney
SUBJECT:
Officer Involved Shooting (Fatal)
Officer:
Officer Nick Diaz
Ontario Police Department
Involved Subjects:
Jose Raul Herrera (Deceased)
Date of Birth 01/08/55
Ontario, CA
1
Date of Incident:
May 10, 2014
Incident location:
Placer Avenue, Ontario, CA
DA STAR #:
2014-53437
Investigating Agency:
Ontario Police Department
Case Agent:
Detective David Rowe
DR #:
140500530
PREAMBLE
This was a fatal officer involved shooting by an officer from the Ontario Police
Department. The shooting was investigated by the Ontario Police Department. This
factual summary is based on a thorough review of all the investigative reports,
photographs, audio and video recordings submitted by the Ontario Police Department,
DR# 140500530.
PRINCIPAL INVOLVED PARTIES
Jose Raul Herrera, DOB: 01-08-55, of Ontario, California was killed during the incident
under review.
Officer Nick Diaz of the Ontario Police Department was the officer involved in the
shooting of Jose Herrera.
SCENE
This incident occurred on May 10, 2014, at around 2340 hours. Location of occurrence
was near the intersection of Placer Avenue and Rosewood Court in the City of Ontario,
California.
FACTUAL SUMMARY
On May 10, 2014, at around 11:40 in the evening, Witness #1 called 911. Witness #1
stated his father, later identified as Jose Herrera, had been drinking and had passed
out. Witness #1 advised that his father had gone through triple bypass heart surgery in
2
the past. Witness #1 stated his father was now conscious but that he was getting
belligerent. Witness #1 expressed concern that his father looked pale and passed out
earlier because he was yelling and now his father was yelling again.
Witness #1 advised the 911 dispatcher that Jose Herrera had no weapons but that he
had been drinking. Witness #1 said he was scared and told the 911 dispatcher he
wanted to make sure his father gets checked out.
Witness #1 also told the 911
dispatcher that Jose Herrera’s behavior was out of character for him and that it was not
normal. Jose Herrera did not want Witness #1 to call 911.
Officer Ray Reyes, Officer Patric Birdsong, and Officer Nick Diaz from the Ontario
Police Department were dispatched to 9-- North Placer Avenue to assist the fire
department on a medical assist call involving an uncooperative subject. Officer Reyes
and Officer Birdsong are the first officers to arrive at the location. A firefighter advises
Officer Reyes that Jose Herrera came outside, was belligerent, and had walked away
from the residence. The firefighter indicated Jose Herrera was walking north bound on
the sidewalk.
Officer Birdsong gets on the radio and requests Officer Diaz attempt to make contact
with Jose Herrera. Officer Diaz sees Jose Herrera and another male, later identified as
Jose Herrera’s son Witness #2, walking on the sidewalk. Jose Herrera starts yelling at
Officer Diaz when he gets out of his patrol car. Jose Herrera is agitated and upset.
Jose Herrera is cursing at Officer Diaz, telling Officer Diaz to “f--- off” and to “get the f--away” from Jose Herrera. Officer Diaz is unable to calm Jose Herrera down so he waits
for other officers to arrive.
When Officer Birdsong gets to the location, Jose Herrera is still agitated and yelling.
Jose Herrera sees Officer Birdsong and directs his yelling and obscenities towards
Officer Birdsong. Jose Herrera starts walking quickly towards Officer Birdsong. Officer
Birdsong notices Jose Herrera’s fists are clenched and he has an angry look on his
face. Officer Birdsong pulls out his taser and points it toward Jose Herrera as he
approached. Officer Birdsong repeatedly orders Jose Herrera to get back. Jose
Herrera fails to comply and continues to rush towards Officer Birdsong. Officer
Birdsong heard someone say, “He has a knife.” When Jose Herrera got within a few
feet of Officer Birdsong, he deployed his taser.
Prior to Officer Birdsong deploying his taser, Officer Diaz noticed a knife in Jose
Herrera’s right hand. Officer Diaz saw the blade was exposed. Officer Diaz ordered
Jose Herrera to drop the knife. Jose Herrera failed to comply and continued to advance
towards Officer Birdsong. When Jose Herrera came within a few feet of Officer
Birdsong, he fired seven shots at Jose Herrera. Jose Herrera was struck 4 times. Jose
Herrera fell to the ground. He was pronounced dead at the scene by paramedics. A
silver folding knife with an approximate 4 inch blade was located on the roadway south
east of Jose Herrera’s body. The knife was in the open position with the blade facing
upward.
3
Part of the incident was captured on Officer Birdsong’s taser camera.
WITNESSES AND CORROBORATION
On May 11, 2014, at around 4:00 in the morning, Officer Ray Reyes was interviewed
by Detective Rowe.
On May 10, 2014, Officer Reyes, from the Ontario Police Department, was on duty in
full police uniform and driving a marked patrol car. Officer Reyes responded to a call of
a medical assist at 9-- North Placer Avenue in the City of Ontario. The call involved an
uncooperative subject who was causing a disturbance.
When Officer Reyes arrived at the location, he parked his patrol car down the street
from the house. Ontario Fire Department was already on scene and their fire truck was
parked in front of the house. Officer Reyes spoke to one of the firefighters. The
firefighter advised Officer Reyes there was a belligerent subject, later identified as Jose
Herrera, who had passed out because he was drunk. The firefighter told Officer Reyes
that Jose Herrera had left the location and was walking towards Rosewood Court.
Officer Reyes noticed Jose Herrera walking northbound towards Rosewood Court,
approximately 150 yards away. During this time, both Officer Birdsong and Officer Diaz
arrive at the location.
Officer Reyes and Officer Birdsong decided to drive their patrol cars over and make
contact with Jose Herrera. When Officer Reyes was driving towards Jose Herrera’s
location, he was flagged down by a male subject, who told Officer Reyes that his father,
Jose Herrera, was really drunk and that the police were called because Jose Herrera
had passed out earlier. The male subject advised Officer Reyes that Jose Herrera was
walking down the street to cool off and that Jose Herrera was with the subject’s brother.
Officer Reyes continued driving towards Jose Herrera’s location. Officer Reyes
observed Officer Diaz shine his spotlight on Jose Herrera. Officer Reyes parked his
patrol car behind Officer Birdsong’s patrol car. Officer Reyes saw that Jose Herrera
was with another male subject, later identified as Jose Herrera’s son Witness #2.
Officer Reyes heard Jose Herrera yelling at the officers. Jose Herrera was yelling
obscenities. Witness #2 was yelling at the officers to leave his father alone.
Officer Reyes noticed Jose Herrera was initially yelling at Officer Diaz. Jose Herrera
then directed his attention towards Officer Birdsong when Officer Birdsong pulled up
and opened his patrol car door. Jose Herrera then turned and started walking fast
towards Officer Birdsong in what Officer Reyes considered an aggressive manner. At
that time, Jose Herrera was approximately 15 to 20 feet away from Officer Birdsong.
4
Officer Reyes believed Jose Herrera did not want the officers there and may have
wanted to fight with them. Jose Herrera’s demeanor was aggressive; he was yelling at
the top of his lungs. It was clear to Officer Reyes that Jose Herrera had been drinking.
Officer Reyes heard Officer Diaz say “he has a knife.” Officer Reyes immediately
focused on Jose Herrera’s hands.
Officer Reyes saw a knife clenched in Jose Herrera’s right hand. Officer Reyes
observed a stainless steel knife with an approximately three to four inch long blade.
The knife appeared similar to a pocket knife. The blade of the knife was already open in
a fixed manner. At the time, Jose Herrera’s hand was down to his side and the blade of
the knife was directed down toward the ground. Jose Herrera was approximately 5 feet
away from Officer Birdsong.
Officer Reyes drew his firearm from his holster and began giving Jose Herrera
commands to drop the knife. Jose Herrera did not drop the knife. Officer Reyes saw
Officer Birdsong backpedaling as Jose Herrera approached. Officer Reyes and Officer
Diaz were approximately 10 to 12 feet away from Officer Birdsong and Jose Herrera.
Officer Reyes watched Officer Birdsong continue to backpedal away from Jose Herrera.
He saw Officer Birdsong pull out his taser and point it towards Jose Herrera. Officer
Reyes also observed Officer Diaz pull out his firearm and point it at Jose Herrera.
Officer Reyes’ firearm was out but pointed down because Officer Diaz was in Officer
Reyes’ line of sight.
Officer Reyes and Officer Diaz gave Jose Herrera several commands to drop the knife.
Witness #2 was yelling at the officers. Jose Herrera failed to comply with the officers’
commands. Officer Reyes heard the taser and the first round from Officer Diaz’s
firearm simultaneously go off. Officer Reyes heard several more gunshots. Jose
Herrera was approximately 3 to 4 feet away from Officer Birdsong when Officer Reyes
heard the taser and gunshots.
Officer Reyes saw Jose Herrera fall to the ground. Witness #2 continued yelling and
cursing at the officers. Witness #2 asked the officers why they killed his father. The
officers tried to keep Witness #2 back and away from the crime scene. Other officers
arrived on scene within a couple of minutes and assisted in preserving the crime scene.
On May 11, 2014, at around 5:03 in the morning, Officer Patric Birdsong was
interviewed by Detective Rowe.
On May 10, 2014, Officer Birdsong, from the Ontario Police Department, was on duty in
full police uniform and driving a marked patrol car. Officer Birdsong responded to a call
of a medical assist at 9-- North Placer Avenue in the City of Ontario. The call involved a
father, later identified as Jose Herrera, who had passed out in his living room who then
woke up and caused a disturbance with his family.
5
When Officer Birdsong arrived on scene, he saw Officer Reyes and Ontario Fire
Department were already present. Officer Reyes spoke to one of the firefighters.
Officer Reyes told Officer Birdsong that Jose Herrera had left and was walking on the
sidewalk northbound towards Rosewood Court. Officer Birdsong and Officer Reyes
decided to attempt to make contact with Jose Herrera. At that time, Officer Birdsong
heard over the radio that Officer Diaz had arrived at the location. Officer Birdsong told
Officer Diaz to drive up towards Rosewood Court and see if he could make contact with
Jose Herrera.
Officer Birdsong and Officer Reyes then drove their patrol cars northbound towards
Rosewood Court. Officer Birdsong saw a male subject flag down Officer Reyes. At that
time, Officer Birdsong saw Officer Reyes make contact with Jose Herrera. Officer
Birdsong then sped up and parked his car near where Jose Herrera was walking on the
sidewalk with his son, later identified as Witness #2.
As Officer Birdsong got out of his vehicle, Jose Herrera was yelling and sounded
extremely aggravated. It looked to Officer Birdsong as if Jose Herrera wanted to fight.
He noticed Jose Herrera’s fists were clenched and that Jose Herrera was looking
towards Officer Birdsong and then looking back. Witness #2 said “just, just stay away
from him.” At this time, Jose Herrera is approximately 15 to 20 feet away from Officer
Birdsong. Officer Birdsong does not say anything to Jose Herrera. Jose Herrera then
started walking directly towards Officer Birdsong.
Jose Herrera approached Officer Birdsong in an aggressive manner. He was walking at
a pretty decent pace. To Officer Birdsong it looked like Jose Herrera wanted to fight.
Jose Herrera’s fists were still clenched; he looked very tense and had an angry look on
his face. At that time, Officer Birdsong pulled out his taser and pointed it towards Jose
Herrera.
Officer Birdsong ordered Jose Herrera to get back as he was approaching. Officer
Birdsong was backing up trying to keep some distance between himself and Jose
Herrera. Officer Birdsong continued to order Jose Herrera to get back but Jose Herrera
failed to comply with those commands. Jose Herrera continued to advance towards
Officer Birdsong.
As Jose Herrera closed the distance between himself and Officer Birdsong, Officer
Birdsong heard someone say “he has a knife in his hand.” Officer Birdsong was scared
he was about to be stabbed by Jose Herrera and deployed his taser. Jose Herrera was
struck with the taser darts. At the time Jose Herrera was struck by the taser, he was
approximately 4 to 6 feet away from Officer Birdsong.
Jose Herrera fell to the ground. Officer Birdsong observed a knife on the ground right
next to Jose Herrera’s body. Witness #2 was yelling at the officers and trying to
approach Jose Herrera while he was on the ground. Officer Birdsong and the other
officers told Witness #2 to stay back.
6
On May 11, 2014, at around 5:45 in the morning, Officer Nick Diaz was interviewed by
Detective Rowe.
On May 10, 2014, Officer Nick Diaz, from the Ontario Police Department, was on duty in
full police uniform and driving a marked patrol car. Officer Diaz responded to a call of a
medical assist at 9-- North Placer Avenue in the City of Ontario. The call involved a
drunken father, later identified as Jose Herrera, causing a disturbance, trying to fight
people. The information in the call was that it was abnormal behavior for Jose Herrera
to be acting that way. Officer Diaz went to the call as a backing officer.
When Officer Diaz arrived on scene, he saw the street was partially blocked by fire
trucks from Ontario Police Department and Officer Birdsong’s patrol car. Officer
Birdsong asked Officer Diaz over the radio to go around to Rosewood and make contact
with Jose Herrera. Officer Diaz backed out of Placer Avenue and drove towards
Rosewood Court. Officer Diaz then turned southbound on Placer Avenue.
Officer Diaz noticed two people walking north bound on the sidewalk on the west side of
the street. It was dark. Officer Diaz shined his spotlight on the two males. Jose
Herrera began displaying his middle fingers, telling Officer Diaz to “f--- off” and “get the
f--- away” from him. Jose Herrera appeared upset, agitated, and was yelling at Officer
Diaz. Officer Diaz asked Jose Herrera to relax. Officer Diaz then tried to figure out
what was going on by directing his attention to the second subject, later identified as
Jose Herrera’s son Witness #2. Witness #2 told Officer Diaz that his dad was upset.
Jose Herrera continued to yell and curse at Officer Diaz. Officer Diaz kept trying to talk
to Jose Herrera and waited for other officers to respond. Although he was at a distance
from Officer Diaz, Jose Herrera appeared to be challenging Officer Diaz to a fight. Jose
Herrera kept stepping forward towards Officer Diaz’s direction. Jose Herrera was
pulling his arms back, making fists, flinching like he was going to hit Officer Diaz. At
that time Officer Diaz stopped talking to Jose Herrera while Witness #2 attempted to
calm his father down.
Officer Birdsong and Officer Reyes arrived at Officer Diaz’s location. Jose Herrera
turned around and went back south bound on Placer Avenue. Jose Herrera was
continuing to yell and curse at the officers. When Jose Herrera walked past the front of
Officer Diaz’s patrol car he turned east bound and started walking in the street. Officer
Diaz started to walk to the front of his patrol car. At that time, Officer Diaz saw a knife in
Jose Herrera’s hand.
Officer Diaz was approximately 10 to 15 feet away from Jose Herrera when he first saw
the knife. Officer Diaz started yelling at Jose Herrera to drop the knife. Officer Diaz
drew his firearm. Officer Diaz did not know why Jose Herrera had the knife out.
Witness #2 continued to try to calm Jose Herrera down. Officer Diaz continued to order
Jose Herrera to drop the knife. Jose Herrera failed to comply with those commands.
7
Officer Diaz watched Jose Herrera continue walking east bound across the street.
Officer Diaz was able to see the silver blade exposed on the knife. Jose Herrera then
started walking fast towards Officer Birdsong. Jose Herrera had the knife in his right
hand, the blade pointed downward. Jose Herrera was yelling and pointing at Officer
Birdsong with his left hand. Officer Diaz repeated his orders for Jose Herrera to drop
the knife.
Jose Herrera continued to advance towards Officer Birdsong. Jose Herrera still
appeared upset and agitated; he continued yelling at officers. Officer Diaz thought Jose
Herrera was going to try to stab Officer Birdsong. Jose Herrera got within 4 to 6 feet of
Officer Birdsong. Officer Diaz saw Jose Herrera’s hands swinging back and forth as he
was walking quickly towards Officer Birdsong. Officer Diaz was approximately 7 to 10
feet away from Jose Herrera at this time.
It appeared to Officer Diaz that Jose Herrera was rushing Officer Birdsong and that
Jose Herrera was going to stab Officer Birdsong. Officer Diaz fired his weapon at Jose
Herrera. Officer Diaz fired approximately seven times. Jose Herrera fell to the ground.
Officer Diaz saw the knife on the ground next to Jose Herrera.
Witness #2 became very upset after the shooting. Officer Diaz ordered him to back up
and get away from the knife. Initially Witness #2 did not listen and kept trying to
approach Jose Herrera’s body. Eventually Witness #2 walked away from the officers.
On May 10, 2014, Officer Hartman attempted to interview Witness #2 and Witness #1
about the incident. Both Witness #2 and Witness #1 declined to answer questions.
On May 10, 2014, Sergeant Martinez attempted to interview Witness #2 and Witness
#1 about the incident. Both Witness #2 and Witness #1 declined to answer questions.
On May 12, 2014, at around 8:54 in the morning, Detective Rowe telephoned the
Herrera residence in an attempt to obtain statements from Witness #2 and Witness #1
about the incident. Detective Rowe was advised both Witness #2 and Witness #1 were
not home.
On May 12, 2014, at around 11:15 in the morning, Detective Rowe and Detective
Russel went to 9-- North Placer to contact Witness #2 and Witness #1 and obtain their
statements about the incident. The detectives were advised both Witness #2 and
Witness #1 were not home.
Weapon
On May 11, 2014, at approximately 12:20 in the morning, Ontario Police Department
Forensic Specialist Courtney Hayes responded to the area of North Placer Avenue and
8
Rosewood Court to assist detectives with an officer involved shooting. Forensic
Specialist Hayes took photographs and collected evidence. A silver folding knife with
an approximate 4 inch blade was lying on the roadway south east of Jose Herrera’s
body. The knife was in the open position with the blade facing upward.
Taser Video
The video from Officer Birdsong’s taser shows Jose Herrera in close proximity to Officer
Birdsong. Jose Herrera is moving quickly towards Officer Birdsong. There are voices
yelling. Officer Birdsong is backing up while at the same time telling Jose Herrera to
back up. Officer Birdsong tells Jose Herrera three times to back up. Jose Herrera fails
to comply. Instead, Jose Herrera continues circling and moving towards Officer
Birdsong. Jose Herrera’s hands are swinging back and forth along his torso as he
moves. There is a silver object in Jose Herrera’s right hand. Jose Herrera raises his
arms and hands while advancing towards Officer Birdsong when the taser is deployed.
Gunshots are heard simultaneously to the taser being deployed. Jose Herrera falls to
the ground. Witness #2 walks towards his father but is ordered back by officers.
Death
Jose Herrera was pronounced dead at the scene by paramedics.
Postmortem Examination
Dr. Glenn Holt, a forensic pathologist for San Bernardino County, conducted the
autopsy of Jose Herrera on May 14, 2014. Jose Herrera had a total of four gunshot
wounds. There was a grazing gunshot wound of the head. The bullet track is directed
left to right and slightly front to back. There was a penetrating gunshot wound to the
right lower back. The bullet track is directed right to left, back to front, and slightly
upward. There was a penetrating gunshot wound to the right gluteal fold. The bullet
track is directed right to left, back to front, and upward. There was a penetrating
gunshot wound to the left buttock. The bullet track is directed upward, right to left, and
back to front. In addition to the gunshot wounds, Dr. Holt noted two barbed conducted
electrical weapon (CEW) darts embedded in Jose Herrera’s skin. Associated with each
CEW dart was an injury consisting of a needle puncture and a red-brown contact
abrasion/contusion. Dr. Holt determined the cause of death for Jose Herrera was
multiple gunshot wounds and death was within minutes.
9
Toxicology
Right femoral blood, heart blood, and vitreous samples were collected from Herrera
during the autopsy. Toxicology report results: 0.10% alcohol in the right femoral blood
sample and 0.13% alcohol in the vitreous sample. There was no evidence of drugs of
abuse.
APPLICABLE LEGAL STANDARDS
Crimes Upon Peace Officers
Although the defendant was not charged with attempted murder or assault with a deadly
weapon upon a peace officer, those sections are pertinent to the police officers’
reactions.
California Penal Code section 664/187 (summarized in pertinent part and emphasis
added)
Every person who attempts to commit any crime, but fails, or is prevented or
intercepted in its perpetration, shall be punished where no provision is made by law for
the punishment of those attempts, as follows:
(a) If the crime attempted is punishable by imprisonment in the state prison, the person
guilty of the attempt shall be punished by imprisonment in the state prison for one-half
the term of imprisonment prescribed upon a conviction of the offense attempted.
However, if the crime attempted is willful, deliberate, and premeditated murder, as
defined, the person guilty of that attempt shall be punished by imprisonment in the state
prison for life with the possibility of parole. If the crime attempted is any other one in
which the maximum sentence is life imprisonment or death, the person guilty of
the attempt shall be punished by imprisonment in the state prison for five, seven,
or nine years. The additional term provided in this section for attempted willful,
deliberate, and premeditated murder shall not be imposed unless the fact that the
attempted murder was willful, deliberate, and premeditated is charged in the accusatory
pleading and admitted or found to be true by the trier of fact…
(e) Notwithstanding subdivision (a), if attempted murder is committed upon a
peace officer or firefighter, as those terms are defined, a custodial officer, as that term
is defined in, a custody assistant, as that term is defined, or a nonsworn uniformed
employee of a sheriff's department whose job entails the care or control of inmates in a
detention facility, as defined, and the person who commits the offense knows or
reasonably should know that the victim is a peace officer, firefighter, custodial
officer, custody assistant, or nonsworn uniformed employee of a sheriff's department
engaged in the performance of his or her duties, the person guilty of the attempt
shall be punished by imprisonment in the state prison for life with the possibility
of parole.
10
This subdivision shall apply if it is proven that a direct but ineffectual act was committed
by one person toward killing another human being and the person committing the act
harbored express malice aforethought, namely, a specific intent to unlawfully kill another
human being. The Legislature finds and declares that this paragraph is declaratory of
existing law.
(f) Notwithstanding subdivision (a), if the elements of subdivision (e) are proven
in an attempted murder and it is also charged and admitted or found to be true by
the trier of fact that the attempted murder was willful, deliberate, and
premeditated, the person guilty of the attempt shall be punished by imprisonment
in the state prison for 15 years to life. Article 2.5 (commencing with) of Chapter 7
of Title 1 of Part 3 shall not apply to reduce this minimum term of 15 years in state
prison, and the person shall not be released prior to serving 15 years'
confinement.
California Penal Code section 245(c) (Summarized in pertinent part)
Any person who commits an assault with a deadly weapon or instrument, other
than a firearm, or by any means likely to produce great bodily injury upon the person of
a peace officer, and who knows or reasonably should know that the victim is a peace
officer engaged in the performance of his or her duties, when the peace officer is
engaged in the performance of his or her duties, shall be punished by imprisonment in
the state prison for three, four, or five years.
Other Crimes
California Penal Code section 245(a)(1)
Any person who commits an assault upon the person of another with a deadly
weapon or instrument other than a firearm shall be punished by imprisonment in the
state prison for two, three, or four years, or in a county jail for not exceeding one year,
or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and
imprisonment.
Laws of Arrest
California Penal Code section 834a
If a person has knowledge, or by the exercise of reasonable care, should have
knowledge, that he is being arrested by a peace officer, it is the duty of such a person to
refrain from using force or any weapon to resist such arrest.
11
California Penal Code section 835
An arrest is made by an actual restraint of the person, or by submission to the
custody of an officer. The person arrested may be subject to such restraint as is
reasonable for his arrest and detention.
California Penal Code section 835a
Any peace officer who has reasonable cause to believe that the person to be
arrested has committed a public offense may use reasonable force to effect the arrest,
to prevent escape or to overcome resistance.
A peace officer who makes or attempts to make an arrest need not retreat or
desist from his efforts by reason of the resistance or threatened resistance of the person
being arrested; nor shall such officer be deemed an aggressor or lose his right to selfdefense by the use of reasonable force to effect the arrest or to prevent escape or to
overcome resistance.
Laws of Self-Defense
The legal doctrine of self-defense is codified in Penal Code Sections 197 through
199. Those sections state in pertinent part: Where from the nature of an attack a
person, as a reasonable person, is justified in believing that his assailant intends to
commit a felony upon him, he has a right in defense of his person to use all force
necessary to repel the assault; he is not bound to retreat but may stand his ground; and
he has a right in defense of his person to repel the assault upon him even to taking the
life of his adversary. (People v. Collins (1961) 189 CA 2d 575, 1 Cal Reptr. 504).
Justification does not depend on the existence of actual danger but rather
depends upon appearances; it is sufficient that the circumstances be such that a
reasonable person would be placed in fear for his safety and the defendant act out of
that fear (Penal Code Sec. 19; People v. Clark (1982) 130 CA 3d 371, 277, 181 Cal.
Reptr. 682
California Penal Code section 197 (Summarized in pertinent part)
Homicide is also justifiable when committed by any person in any of the following
cases:
1. When resisting any attempt to murder any person, or to commit a felony, or to
do some great bodily injury upon any person.
CAL CRIM 3470 (REVISED AUGUST 2012)
RIGHT TO SELF-DEFENSE OR DEFENSE OF ANOTHER
Self-defense is a defense to the unlawful killing of a Human Being. A person is
not guilty of that/those crimes if he/she used force against the other person in lawful
12
self-defense or defense of another. A person acts in lawful self-defense or defense of
another if:
1. The person reasonably believed that he/she or someone else was in
imminent danger of suffering bodily injury or was in imminent danger of being
touched unlawfully;
2. The person reasonably believed that the immediate use of force was
necessary to defend against that danger; AND
3. The person used no more force than was reasonably necessary to defend
against that danger.
When deciding whether a person’s beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the person and consider what a
reasonable person in a similar situation with similar knowledge would have believed. If
the person’s beliefs were reasonable, the danger does not need to have actually
existed.
The person’s belief that he/she or someone else was threatened may be
reasonable even if he/she relied on information that was not true. However, the person
must actually and reasonably have believed that the information was true.
A person is not required to retreat. He or she is entitled to stand his or her ground
and defend himself or herself and, if reasonably necessary, to pursue an assailant until
the danger of death/bodily injury has passed. This is so even if safety could have been
achieved by retreating.
USE OF DEADLY FORCE BY A PEACE OFFICER
Authorization of the use of Deadly Force is analyzed under the Fourth
Amendment's “objective reasonableness” standard. Brosseau v. Haugen, 543 U.S.
194, This question “is governed by the principles enunciated in Tennessee v. Garner,
(1985) 471 U.S. 1 and Graham v. Connor (1989) 490 U.S. 386.
In these decisions, the US Supreme explained “it is unreasonable for an officer to
‘seize an unarmed, non-dangerous suspect by shooting him dead.…. However, where
the officer has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or others, it is not constitutionally unreasonable to
prevent escape by using deadly force.” (Tennessee V Garner supra)
Reasonableness is an objective analysis and must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight. It is also highly deferential to the police officer's need to protect himself and
13
others. The calculus of reasonableness must embody allowance for the fact that police
officers are often forced to make split-second judgments-in circumstances that are
tense, uncertain, and rapidly evolving-about the amount of force that is necessary.
Graham, 490 U.S. at 396, . The question is whether the officer’s actions are “objectively
reasonable” in light of the facts and circumstances confronting them, without regard to
their underlying intent or motivation.” Id. at 397.
The US Supreme Court in Graham set forth factors that should be considered in
determining reasonableness: (1) the severity of the crime at issue, (2) whether the
suspect poses an immediate threat to the safety of the officers or others, and (3)
whether he is actively resisting arrest or attempting to evade arrest by flight. The
question is whether the totality of the circumstances justifies a particular sort of ...
seizure. (See also Billington v. Smith, (2002 9th Cir) 292 F.3d 1177, 1184.) The most
important of these factors is the threat posed by the suspect. Smith v. City of Hemet,
(9th Cir. 2005) 394 F.3d 689.
Thus, under Graham, the high court advised we must avoid substituting our
personal notions of proper police procedure for the instantaneous decision of the officer
at the scene. “We must never allow the theoretical, sanitized world of our imagination to
replace the dangerous and complex world that policemen face every day. What
constitutes ‘reasonable’ action may seem quite different to someone facing a possible
assailant than to someone analyzing the question at leisure.” (Smith v. Freland (6th
Cir.1992) 954 F.2d 343, 347.
Reasonableness: The Two Prongs
Section 197(3) requires that one who employs lethal force have a “reasonable ground to
apprehend” great bodily injury. Further, section 198 requires that such fear be
“sufficient to excite the fears of a reasonable man,” clearly an objective standard. In
shorthand, perfect self-defense requires both subjective honesty and objective
reasonableness.
When specific conduct is examined under the analytical standard of reasonableness the
concepts of apparent necessity and mistake are invariably, and necessarily, discussed,
for they are part of the same equation. “Reasonableness,” after all, implies potential
human fallibility. The law recognizes, as to self defense, that what is being put to the
test is human reaction to emotionally charged, highly stressful events, not mathematical
axioms, scientifically provable and capable of exact duplication.
Justification does not depend upon the existence of actual anger but rather depends on
appearances; it is sufficient that the circumstances be such that a reasonable person
would be placed in fear for his safety and that the defendant act out of that fear.
[Citation.] ‘He may act upon such appearances with safety; and if without fault or
carelessness he is misled concerning them, and defends himself correctly according to
what he supposes the facts to be, his act is justifiable, though the facts were in truth
14
otherwise, and though he was mistaken in his judgment as to such actual necessity at
such time and really had no occasion for the use of extreme measures.’ People v. Clark
(1982) 130 Cal.App.3d 371, 377,181 Cal.Rptr. 682.
While the test, as mandated by section 198, is objective, “reasonableness is determined
from the point of view of a reasonable person in the defendant’s position. “’[A]
defendant is entitled to have a jury take into consideration all the elements in the case
which might be expected to operate on his mind . . ..’” What is reasonable under the
circumstances is judged “from the point of view of a reasonable person in the position of
defendant.” “Reasonableness is judged by how the situation appeared to the
defendant, not the victim.”
Imminence of Perceived Danger
“Imminence is a critical component of both prongs of self-defense.” Response with
deadly force must be predicated on a danger that portends imminent death or great
bodily injury. Reasonableness and immediacy of threat are intertwined. Self-defense “is
based on the reasonable appearance of imminent peril of death of, or serious bodily
injury to the party assailed . . ..”
In Aris, trial court’s clarifying instruction to the jury on the subject was to the point and
later cited with approval by the California Supreme Court: “An imminent peril is one
that, from appearances, must be instantly dealt with.” [People v. In re Christian S.
(1994) 7 Cal. 4th 768,783]
The question is whether action was instantly required to avoid death or great bodily
injury. In this regard, there is no duty to wait until an injury has been inflicted to be sure
that deadly force is indeed appropriate.
Retreat and Avoidance
Under California law one who is faced with an assault that conveys death or great bodily
injury may stand his ground and employ lethal force in self-defense. There is no duty to
retreat “even though the assailed person might more easily have gained safety by flight
or by withdrawing from the scene.” Indeed, in California the retreat rule has been
expanded to encompass a reasonably perceived necessity to pursue an assailant to
secure oneself from danger. [See People v. Holt (1944) 25 Cal.2d 59, 63 and People v.
Collins (1961) 189 Cal. App.2d 575, 588]
Nature and Level of Force
“’[A]ny right of self-defense is limited to the use of such force as is reasonable under the
circumstances.’” [See People v. Gleghorn (1987) 193 Cal.App.3d 196, 200, People v.
15
Minifie (1996)13 Cal.4th1055,1065, People v. Moody (1943) 62 Cal.App.2d 476, 482 and
People v. Moody(1943) 62 Cal.App.2d 18,22]
Case law does not impose a duty to use less lethal options. “Where the peril is swift
and imminent and the necessity for action immediate, the law does not weigh into nice
scales the conduct of the assailed and say he shall not be justified in killing because he
might have resorted to other means to secure his safety.” [People v. Collins (1961) 189
Cal. App.2d 575, 589]
The rationale for vesting the police officer with such discretion was explained:
Requiring officers to find and choose the least intrusive
alternative would require them to exercise superhuman
judgment. In the heat of battle with lives potentially in the
balance, an officer would not be able to rely on training and
common sense to decide what would best accomplish his
mission. Instead, he would need to ascertain the least
intrusive alternative (an inherently subjective determination)
and choose that option and that option only. Imposing such a
requirement would inevitably induce tentativeness by
officers, and thus deter police from protecting the public and
themselves. It would also entangle the courts in endless
second-guessing of police decisions made under stress and
subject to the exigencies of the moment.” [Scott v. Henrich
(1994) 39 F.3d 912, 915]
In summary, an honest and objectively reasonable belief that lethal force is necessary
to avoid what appears to be an imminent threat of death or great bodily injury will justify
the use of deadly force. This is true even if the person acting in self-defense could have
safely withdrawn or had available to him a less lethal means of defense.
ANALYSIS
In this case, Officer Diaz, from the Ontario Police Department, was responding to a call
of a medical assist at 9-- North Placer Avenue in the City of Ontario. The call involved a
drunken father, later identified as Jose Herrera, causing a disturbance, trying to fight
people. The information in the call was that it was abnormal behavior for Jose Herrera
to be acting that way. Officer Diaz went to the call as a backing officer.
Officer Diaz attempted to contact Jose Herrera while he was walking with his son
Witness #2. Jose Herrera was upset and clearly agitated. Jose Herrera was yelling
and cursing at Officer Diaz. Officer Diaz attempted to calm Jose Herrera down but was
16
unable to do so. Officer Birdsong and Officer Reyes then arrived at Officer Diaz’s
location.
The presence of additional officers appeared to upset Jose Herrera. When Jose
Herrera saw Officer Birdsong, he started to yell and curse at Officer Birdsong. Jose
Herrera’s demeanor was aggressive; his fists were clenched and he had an angry look
on his face. Jose Herrera then left the sidewalk and started walking quickly towards
Officer Birdsong. At that time, Officer Diaz noticed Jose Herrera is rushing towards
Officer Birdsong with a knife clenched in his right hand. Officer Diaz noticed the blade
to the knife was exposed. Officer Diaz ordered Jose Herrera to drop the knife several
times but Jose Herrera made no attempt to comply with those commands.
Jose Herrera was swinging his hands back and forth while at the same time yelling at
Officer Birdsong. Officer Diaz feared that Jose Herrera was about to stab Officer
Birdsong with the knife. Officer Diaz fired several rounds at Jose Herrera when Jose
Herrera was about 4 to 7 feet away from Officer Birdsong. Jose Herrera was struck and
fell to the ground. The knife was located on the ground next to Jose Herrera.
Officer Diaz was in full police uniform driving a marked patrol car. Officer Diaz gave
Jose Herrera repeated commands to drop the knife. Jose Herrera refused to comply
with those commands. Officer Birdsong was also in full police uniform. Officer Birdsong
gave Jose Herrera repeated commands to stay back. Again, Jose Herrera refused to
comply with those commands. Instead, Jose Herrera continued to aggressively
advance towards Officer Birdsong with a knife in his right hand. Jose Herrera posed an
imminent threat to Officer Birdsong’s safety. Officer Diaz reasonably believed Jose
Herrera intended to stab or kill Officer Birdsong. Officer Diaz reasonably believed that
in order to save Officer Birdsong’s life his only option was to shoot Jose Herrera. The
actions taken by Officer Diaz were appropriate and reasonable under these
circumstances.
CONCLUSION
Based on the facts presented in the reports and the applicable law, Officer Diaz’s use of
deadly force was a proper exercise of Officer Diaz’s right to defense of another and
therefore his actions were legally justified.
_____________________________
Lynette Grulke
Deputy District Attorney
Rancho Cucamonga Office
_____________________________
Terry Brown
Supervising Deputy District Attorney
Rancho Cucamonga Office
_____________________
Date
_____________________
Date
17
_____________________________
Bruce Brown
Chief Deputy District Attorney
West Valley Division
_____________________
Date
_____________________________
Gary Roth
Assistant Deputy District Attorney
Criminal Operations
_____________________
Date
18