Jeffrey F. Rosen District Attorney REPORT OF FINDINGS ACCIDENTAL DEATH OF PRESTON ORLANDO On July 5, 2012, three-year old Preston Orlando died from an accidental, self-inflicted gunshot wound to the head. San Jose Police Officer Brandon Orlando was Preston’s father. The gun Preston used was Officer Orlando’s back-up firearm for his duties as a peace officer. I. FACTUAL SUMMARY Brandon Orlando [hereinafter “Orlando”] has been a member of the San Jose Police Department for over nine years. His normal work hours at the time were 9:00 p.m. to 7:00 a.m. (“Midnight shift”), Tuesday through Saturday. Orlando also had secondary employment1 providing security for a home association on Thursdays and Fridays from 4:30 p.m. to 7:30 p.m. In an interview conducted by the Gilroy Police Department, Orlando explained that he had worked the midnight shift on July 4, 2012, and returned home the morning of July 5th at 8 a.m. “pretty exhausted.” When Orlando arrived home, his wife, Juliana Orlando [hereinafter “Juliana”], and children (five-year old daughter and Preston) were not at home. Juliana was teaching summer school and the children were with their maternal grandparents. Orlando was not expecting to see them prior to leaving for his second job. Orlando brought in some things from the car, including an unloaded, department-issued AR-15 rifle and a 40mm launcher (enclosed in their cases) and put both items in the office downstairs. The ammunition for these weapons was kept in a separate location. The children were not allowed to enter the office and they obeyed that rule. After placing the AR-15 and the 40mm launcher in the office, Orlando went upstairs to the master bedroom. The bed was placed in the middle of the room against a wall. The bed was flanked by two nightstands. Orlando’s nightstand had three wicker baskets set in a wooden frame as drawers. Underneath the bed was a firearm lockbox. Orlando took off his duty belt2 and placed it on the floor by the bed. He took his back-up weapon out of its holster on his vest and placed it on the bed. He took off his shoes and crawled into bed. He then realized that 1 Colloquially referred to as a “pay job.” 2 The duty belt held Orlando’s duty weapon [Glock 21], magazine, handcuffs, and all other required equipment. the back-up gun was still on top of the bed. Although there was a lockbox underneath the bed, Orlando put the gun in the top wicker drawer of the nightstand. Orlando explained to the police that he was exhausted. He knew that his family would not be in the home before Orlando had to go back to work. Orlando then fell asleep. Orlando woke up at 3:00 p.m., his usual time, and planned to leave at 3:45 p.m., which was his normal routine. However, on this occasion, when Orlando checked his phone after waking he saw a text message indicating that his secondary job had been cancelled for the day. Orlando remained in bed and sent a text message to his wife advising her that the secondary job was cancelled. Juliana returned home around 3:30 p.m. with their daughter, Preston, two nieces (ages 11 and 7) and their 9-year old nephew. While the children played downstairs, Juliana went upstairs and opened the master bedroom door to gather laundry. Orlando got up to do his own load of laundry. Orlando noticed his duty belt on the floor and picked it up, lifted up the covers on the bed and “threw it under the covers.” Orlando told the police that he did not give any thought to the fact that he had placed his back-up weapon in the wicker drawer. He then left the bedroom, closing the door behind him, and went downstairs to do laundry. Orlando put clothes in the dryer and saw the children in the play room area. Orlando saw Preston running by without a shirt on and heard his wife tell Preston to put on a shirt. Orlando told his son, “Listen to your mother,” and gave his son a kiss before returning to the laundry. Orlando did not know where Preston’s shirt was and he did not see Preston go upstairs. Within a “couple of minutes,”3 Orlando heard a “bang.” Orlando went upstairs and saw the master bedroom door open and a haze in the room. His son was lying on the floor with Orlando’s back-up gun at his feet and a hole in his forehead above his right eye. Preston was still breathing. There was a large amount of blood. Orlando “freaked out.” He picked Preston up and ran down the stairs to the landing, screaming. Orlando immediately called 911 on his cell phone. Upon arrival at St. Louise Hospital’s Emergency Room, Preston had no vital signs and was pronounced dead shortly thereafter. Many family members, friends, and co-workers arrived at the hospital. It was a highly emotional environment. It appears there was a protocol conflict between the Medical Examiner who was present at the hospital and at least one police officer. This conflict was unfortunate, but the facts for our consideration remain focused on Preston’s access to the firearm that led to a fatal, self-inflicted gunshot wound. A. Type of Firearm and Firearm Storage Orlando’s duty weapon was a Glock 21. Orlando also carried a back-up weapon, a Glock 30 semi-automatic weapon (serial #NKT850), which he purchased on May 5, 2012. Many law enforcement officers carry an additional firearm in case they cannot use their duty weapon during a life threatening situation. Glocks are commonly carried by police officers because they do not have a safety device, which allows an officer to fire the weapon quickly. Orlando carried the Glock 21 in his duty holster. To get the gun out of the holster, one has to depress down on the hood and rock it forward and the gun has to be pulled out perfectly straight, otherwise it will bind in the holster. There is also a tension screw to make it harder to get out of the holster. Gun holsters are designed this way to prevent individuals from gaining access to or control of an officer’s duty weapon. 3 Although the time span was reported to be a “couple of minutes,” a definitive time span is difficult to discern. The Glock 30 came with a cable lock, which prevents accidental discharge, but Orlando did not use it and “forgot he had it.” His preferred method was to use the lockbox under his bed, which he used about “50 percent of the time.” If the gun was not in the lockbox, he would place it in the closet or other places that were high and inaccessible to the children. On his days off, Orlando’s practice was to keep the Glock 30 in the lockbox and the Glock 21 in his utility (duty) belt on the dresser, up in the closet, or otherwise out of reach of the children. This Office does not condone Orlando’s placement of weapons in the office and placement of his duty belt on the bed on the day in question. However, these actions do not rise to a level of child endangerment, as codified in Penal Code §§ 273a(a) or 273a(b) because the firearms in the office were not loaded, the ammunition was stored in a separate location, and the firearm in the duty belt was not easily usable based on the holster design, as described above. II. APPLICABLE LAW A. Penal Code § 25110(a) Penal Code §§ 251004, et seq. are the governing code sections in analyzing the events of July 5, 2012 that led to Preston’s death. Penal Code section 25110, provides in relevant part: (a) ….[A] person commits the crime of “criminal storage of a firearm of the first degree” if all of the following conditions are satisfied: (1) The person keeps any loaded firearm within any premises that are under the person’s custody or control. (2) The person knows or reasonably should know that a child is likely to gain access to the firearm without the permission of the child’s parent or legal guardian. (3) The child obtains access to the firearm and thereby causes death or great bodily injury to the child or any other person. In the current case,5 elements one and three are met. Orlando kept a loaded firearm in his home and Preston died after he accidentally shot himself with the firearm. The second element is problematic given the totality of circumstances. It is doubtful that the People could prove the second element beyond a reasonable doubt. Orlando’s general practice was to place the Glock 30 in a lockbox underneath the bed. On the day in question, Orlando returned home from work “pretty exhausted” to an empty house and put the weapon inside the nightstand drawer before going to sleep. While this was not a recommended practice, it was not negligent because at the time he placed the weapon in the drawer, Preston was not in the home. Additionally, Orlando anticipated that he would be leaving for his secondary employment before his family returned home. 4 Based on the Williamson Rule (In re Williamson (1954) 43 Cal.2d 651), Penal Code § 25110(a) controls under the circumstances of this case, as opposed to Penal Code § 273a(a), a child endangerment/child abuse statute. The Williamson Rule precludes prosecution under a general statute, when there is a more specific statute available that addresses the conduct in question. “The doctrine that a specific statute precludes any prosecution under a general statute is a rule designed to ascertain and carry out legislative intent. The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply….” (People v. Murphy (2011) 52 Cal.4th 81 at 86 [citations omitted].) 5 Juliana Orlando, who did not own, use, or store the weapon, does not meet the criteria for the statute. However, when the secondary job was cancelled and Orlando’s wife and children (and nieces and nephew) returned home, Orlando failed to transfer the gun to a more secure location. As Orlando gathered up laundry and put the duty belt out of sight under the covers, he did not give any thought to the fact that he had placed his back-up weapon in the nightstand drawer. When Orlando left the bedroom, he shut the door. It is noteworthy that both Orlando and Juliana had never observed either child going into the master bedroom with the door closed. Based on Orlando’s prior instructions to the children and the custom of not opening the closed master bedroom door, both parents expressed confidence that the children would not enter the master bedroom when the door was closed. Orlando explained that the children were not supposed to be in the master bedroom when nobody was around, although occasionally they would. The children were described as being “pretty good” about that, especially if the door was closed. Indeed, Juliana indicated that on the day in question, Preston went upstairs on one occasion to get his cowboy hat, which he promptly brought downstairs. During that trip upstairs, the unlocked door to the master bedroom was closed and Preston made no attempt to enter. Preston was aware that the nightstand drawer contained some of his father’s work items, including his badge and wallet. Orlando had previously told Preston that he was not supposed to be on that side of the bed and that he was not to touch the contents of the drawer. Orlando had never seen him rummaging through the drawer. Juliana indicated that on two or three occasions, when she had been in the room, Preston had come into the room and was looking into the drawers of the nightstand near Orlando’s side of the bed. However, that had occurred when she was in the room and the door was open. Orlando was not at home on any of these occasions and the weapon was not in the drawer. There is no evidence that Orlando knew that Preston had previously searched the nightstand. . It is noteworthy that the wicker drawer was observed to be nearly entirely shut after the shooting. This could indicate that Preston closed the drawer. While it is not uncommon for children to open drawers, the collective experience of caregivers is that it is generally unusual for children to then close a drawer. Orlando told police that the basket-drawer was closed when he discovered his injured son. Regardless, ultimately the weight of the evidence is that the weapon in question was not in plain view. For the reasons noted above, there is insufficient evidence that would allow the People to prove the second element of a violation of Penal Code section 25110(a) beyond a reasonable doubt. B. Penal Code § 25115 In addition to the elements of the crime, the Legislature mandates that the People consider the impact of the death of the child on the responsible party. Specifically, Penal Code section 25115 provides: If a person who allegedly violated Section 25100 is the parent or guardian of a child who is injured or who dies as the result of an accidental shooting, the district attorney shall consider, among other factors, the impact of the injury or death on the person alleged to have violated Section 25100 when deciding whether to prosecute the alleged violation. It is the Legislature’s intent that a parent or guardian of a child who is injured or who dies as the result of an accidental shooting shall be prosecuted only in those instances in which the parent or guardian behaved in a grossly negligent manner or where similarly egregious circumstances exist… [Emphasis added.] There is no question that Orlando has been devastated by this tragedy. He must live with the knowledge that he failed his son when he did not move the gun to the lockbox following the cancellation of his secondary job and the arrival of his children into the home. In the immediate aftermath of the accident, Juliana yelled at Orlando, “This is all your fucking fault.” He looked at his wife and responded, “I know.” We have been provided information that Orlando continues to have flashbacks about the incident, and has trouble being in the master bedroom where he found Preston, and even walking down the stairway of the home, where he carried Preston. Orlando has suffered from a lack of appetite and sleep problems and has lost weight. His wife, daughter, and extended family are also suffering and he bears witness to and responsibility for their pain. The family is undergoing individual and group counseling. These factors, provided to us by the Legislature, weigh against filing a violation of Penal Code section 25110(a). Some people may view this type of tragedy as a “strict liability” situation. Meaning, the fact that Preston located a loaded, unsecured firearm and died as a result of a self-inflicted gunshot wound, mandates that the parent in question should be automatically prosecuted for a violation of this Penal Code section. However, the Legislature has not designated this type of incident as a “strict liability” offense. Indeed, Penal Code section 25115(a) also requires that a person be prosecuted only in those instances where the parent behaved in a “grossly negligent manner” or “where similarly egregious circumstances exist.” “Gross negligence” as defined by the California Supreme Court is “...aggravated, culpable, gross, or reckless, that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or, in other words, a disregard of human life or an indifference to consequences.” (People v. Penny (1955) 44 Cal.2d 861.) As noted above, Orlando’s initial act of placing the Glock 30 in the nightstand was not grossly negligent because no one else was in the home and he anticipated that, at most, he would see his family as he was leaving for work. His error was in failing to relocate the gun to the lockbox once circumstances changed after he woke up. Orlando made a horrible, irreversible mistake and closed the bedroom door without realizing the Glock 30 was still in the nightstand drawer. That failure, under these circumstances, does not rise to the level of “gross negligence.” While Orlando’s actions allowed a tragedy to occur, it does not mean he “disregarded human life,” or was “indifferent to the consequences” of his actions. We do not believe there is a reasonable probability that a jury in Santa Clara County would unanimously agree beyond a reasonable doubt that Orlando is guilty of a violation of Penal Code section 25110(a). C. Penal Code § 25125 The Legislature also requires the District Attorney to consider whether the parent has attended any firearms safety courses. Specifically, section 25125(a) provides: The fact that a person who allegedly violated Section 25100 attended a firearm safety training course prior to the purchase of the firearm that was obtained by a child in violation of Section 25100 shall be considered a mitigating factor by a district attorney when deciding whether to prosecute the alleged violation. [Emphasis added.] The fact that firearm safety training courses are considered a mitigating factor initially appears counter- intuitive. However, it is believed that the Legislature does not want to discourage anyone from taking a firearm storage/safety course. Orlando has had numerous firearm training courses through his work as a peace officer. This is a mitigating factor in determining whether to prosecute in this tragic situation. III. CONCLUSION The facts and circumstances surrounding the July 5, 2012, accidental shooting death of three-year old Preston Orlando do not support a criminal filing. A thorough review of all the evidence does not support a finding that Brandon Orlando acted in a grossly negligent manner. The consequences of Orlando’s mistaken judgment resulted in the death of his son. A family has been forever changed. There is no court ordered punishment that could rival the degree of loss he and his family have suffered. The circumstances surrounding Preston Orlando’s death serve as a cautionary tale for all of those people in our community who own firearms or who are contemplating owning a firearm.
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