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					    Jeffrey F. Rosen
    District Attorney

To:               Jeff Rosen, District Attorney

CC:               Brian Welch, Supervising Deputy District Attorney

From:             David Tomkins, Assistant District Attorney

Re:               March 7, 2010 Officer Involved Shooting in Cupertino

Background

On December 3, 2009, Charlie Maridon, 96 year of age, was brutally beaten during a home-invasion
robbery at his residence in Saratoga. He died approximately 2 weeks later as a result of these
injuries.

The Maridon property and residence was maintained by Paulo Lopez who had worked for Mr. Maridon
for several years. Paulo discovered the victims the next morning and called 911. Paulo told
investigators that his son, Sonny Lopez, (hereinafter Lopez) had recently worked on the Maridon
property with him but had never been inside the residence. Paulo did not, however, tell them that
Lopez had recently been released from prison and was on parole.

On March 1, 2010, Lopez’s uncle was murdered in Fremont and the Fremont Police Department
considered Lopez to be the prime suspect. They also suspected Lopez in another murder that
occurred in Fremont two years prior to the murder of his uncle. Lopez’s ex-wife showed Fremont
detectives a letter written by Lopez to their son on February 28, 2010 where he expressed his belief
that he would be killed resisting attempts to send him back to prison and that he would have killed
his ex-wife but did not want to leave his son without both parents.

On March 3, 2010, Fremont Police Department detectives met with Santa Clara County Sheriff’s
detectives about the murder of Lopez’s uncle. The Sheriff’s detectives had collected the letter from
Lopez to his son from Lopez’s ex-wife the day before the meeting. They discussed the murder of
Charlie Maridon and their belief that Lopez was involved.

On March 6, 2010, Fremont Police Department detectives obtained a Ramey 1 arrest warrant for
Lopez for the murder of his uncle. The Ramey warrant was based on a witness who picked up Lopez
near his uncle’s residence. The witness said that Lopez told him that he had killed his uncle. The

1
 See People v.Ramey (1976) 16 Cal.3d 262. Ramey required police officers to obtain an arrest warrant based on probable cause
before they are authorized to enter any residence in which they reasonably believe a suspect lives and is present in order to lawfully
serve the arrest warrant.
    Jeffrey F. Rosen
    District Attorney

witness indicated that he allowed Lopez to spend the night at his residence but that Lopez left the
next day. The witness told officers that he believed that Lopez would kill him if he knew that he told
the police about picking him up and about his admissions of killing his uncle.

Also on March 6, Lopez spent the night with a former girlfriend, Latisha Adams and her mother. He
arrived at their Cupertino residence located at 10299 Miller Ave., Number 4, in Cupertino
unannounced on March 6th and told Adams and her mother that he had just killed his uncle in
Fremont and needed a place to stay. Lopez said that he wanted to hide out in the mountains but
believed his time was running out and that he would not be taken alive by police. Lopez told them
that he shot and killed his uncle because the uncle had taken a car that Lopez had given him to give
to Lopez’s girlfriend and had instead taken it apart and was selling the parts. Lopez also admitted to
Adams and her mother that he was involved in the murder of Charlie Maridon.

On March 7, 2010, Fremont PD SWAT officers shot and killed Lopez while attempting to arrest him on
the Ramey warrant in Cupertino (detailed below).

The Shooting

On March 7, 2010, shortly after midnight, Fremont detectives and officers assigned to the SWAT Unit
began conducting surveillance for Lopez in the area of Stevens Creek and Miller Ave. in Cupertino.
They later received updated information that Lopez’s cell phone was at 10299 Miller Ave in Cupertino.
Officers determined that 10299 Miller Ave. was a condominium complex but they did not know which
one that Lopez was inside. They were attempting to determine his location in order to obtain a
Steagald 2 search warrant for the new location.

///

///
Fremont SWAT officers and Santa Clara Sheriff’s Deputies made plans for a car stop or pedestrian
arrest if Lopez left the apartment before his exact location could be determined and a new arrest
warrant obtained. In making their plans to arrest Lopez, they were familiar with the following
information: that he was a suspect in the Saratoga murder of Charlie Maridon; that he recently wrote
to his son promising that he would not be taken alive by police and that he wanted to kill his ex-wife;
that he had killed his uncle with a firearm and was believed to be armed; that he was a suspect in
another previous murder in Fremont; that he had a significant criminal record involving violence and

2
 See Steagald v.United States (1981) 451 U.S. 204. Steagald introduced the requirement that police officers obtain a search warrant
which expressly authorizes a search of a residence where a suspect does not live based on probable cause to believe the suspect is
present before they can lawfully enter the residence to serve an arrest warrant.
    Jeffrey F. Rosen
    District Attorney

weapons possession and had previously been sentenced to prison; and, that he was associated with
criminal street gangs both in and out of prison and had numerous gang tattoos on his body (including
“5150” tattooed on his neck) 3 .

The Fremont officers were concerned that 10299 Miller Ave was in the middle of a residential
neighborhood and most of the residents would be at home on a Sunday morning. They noticed
increased activity and foot traffic by mid-morning.

Fremont PD SWAT supervisors reminded their teams about the Fremont PD Operations Directive
which authorized the use of deadly force in apprehending a fleeing felon. Fremont PD Operations
Directive, Index Z-1, Section III, states:

         The use of deadly force is authorized:

         1.       When the officer has probable cause to believe that use of such force is justified to
                  prevent death or great bodily injury to him/her or other persons and when all other
                  reasonable means to capture have failed.

         2.       When the officer has probable cause to believe the person whom the officer seeks to
                  arrest has committed, or is charged with, a violent felony, and when the officer
                  reasonably believes that:

                  a. The crime for which the arrest is to be made involved conduct including the use or
                     threatened use of deadly force; or

                  b. If there are circumstances which reasonably create a fear of death or serious bodily
                     harm to the officer or other person.

The Fremont SWAT officers were told by their supervisors that Lopez was not, under any
circumstances, to be allowed to escape the parameter set up around 10299 Miller Ave. The officers
believed that if Lopez had no qualms about killing others, including a family member, he would not
hesitate to kill or take hostages to escape. This was not, however, a green light to shoot Lopez on
sight. If Lopez left the apartment before they could obtain a new arrest warrant, the arrest plan was
for Lopez to be taken into custody using a minimum amount of force. However, if Lopez resisted


3
 See Welfare and Institutions Code Section 5150 which pertains to involuntary treatment of mentally disordered persons.
Institutionalized defendants have been known to tattoo their bodies with code sections which imply that they are dangerous or unstable
as a status or defensive mechanism while in custody. In this instance, 5150, in the criminal justice setting, is shorthand for mentally
imbalanced or unstable.
 Jeffrey F. Rosen
 District Attorney

arrest and was in a position to escape and come in contact with members of the public, officers
would, individually, have to make a determination of whether deadly force was warranted.

By 11:00 a.m., Fremont officers determined that Lopez was inside 10299 Miller Ave., apartment 4
and were in the process of obtaining a new arrest warrant, and the Sheriff’s Department had agreed
to take over the operation from the Fremont PD officers. Most of the Fremont Officers had been
awake for over 24 hours. After Sheriff’s deputies began arriving at the command post set up by the
Fremont officers at N. Portal and Stevens Creek Blvd, the decision was made to move the command
post to Cupertino High School which is located at 10100 Finch Ave. The Fremont officers briefed the
Sheriff’s SERT Team (SWAT) members, hostage negotiators and plain clothes deputies utilized for
surveillance about Lopez when they arrived at the command post.

The Sheriff’s Department was in the middle of relieving the Fremont officers when a male matching
Lopez’s description was seen leaving 10299 Miller Ave and walking northbound on Miller Ave on the
west sidewalk. Fremont PD SWAT Sergeant Duckworth was given permission to determine if the
male was Lopez. Duckworth drove past the man, made a left turn on Richwood Drive, made quick a
u-turn and pulled up to the curb near Miller Ave.

Duckworth got out of his car, pulled out his service handgun and placed it behind his back. As the
man walked by on Miller Ave, Duckworth made eye contact with him and determined that it was
Lopez. Duckworth ordered Lopez to stop and put his hands up. After quickly looking around, Lopez
dropped a bag he was carrying and ran across Miller Ave in a southeasterly direction toward an alley
that that runs behind the residences located on Richwood Court. Richwood Drive turns into
Richwood Court east of Miller Ave and is a dead end.

As Duckworth approached the alley, he could see BNE Commander Bouchet drive into the alley in
front of him. Duckworth could see that Lopez was about to enter the gate leading to the backyard of
the last residence off of the alley and believed that he could not catch up to Lopez in time to prevent
him from entering the backyard. Fearing that Lopez would take hostages or kill anyone in the
backyard or residence in order to escape, Duckworth fired 4 shots from his service handgun as Lopez
jumped over the gate.
When Bouchet drove into the alley his car was close enough to Lopez that he had to take his foot off
of the gas pedal to avoid hitting him. As Bouchet stopped his car half way down the alley and got
out, he could see Lopez running toward the fence and drop his coat, but did not shoot at him
because he could not see if Lopez had anything in his hands. Bouchet immediately heard several
shots fired from behind him and saw Duckworth run by him toward the gate that Lopez had jumped
over. It did not appear to him that any of the shots had hit Lopez.
 Jeffrey F. Rosen
 District Attorney

As Duckworth approached the gate, he feared that Lopez was waiting on the other side to ambush
him, but he immediately jumped over the gate due to a greater fear that Lopez was now in a position
to threaten any occupants in the backyard or residence. The backyard appeared empty when
Duckworth jumped over the fence. However, as Duckworth approached the fence that ran along the
east side of the residence, he saw Lopez about to jump the north fence that faces the end of
Richwood Court.

Duckworth was unsure of his location and fearful that Lopez was going to escape the parameter and
be in a position to threaten other residents. Therefore, Duckworth fired 4 more rounds at Lopez
while running toward the fence. It did not appear that any of these shots hit Lopez as he was able to
scale the fence. Duckworth was again fearful that Lopez was waiting on the other side of the fence
to ambush him. Duckworth, therefore, kicked in a fence plank rather than leave himself exposed by
jumping over the fence. As he stepped through the fence he heard several shots and saw Lopez fall
to the ground to his right at the end of Richwood Court.

Fremont PD Sergeant Epps was in charge of the SWAT officers on scene and had given Duckworth
permission to approach and attempt to identify Lopez while sitting in a SUV in the parking lot of a
real estate business located on the northeast corner of Richwood Court and Miller Ave. Two mini-
vans containing other Fremont SWAT officers turned right out of the driveway on Richwood Court
towards Miller Ave., which left Epps alone inside the car which was pointed toward the dead end
portion of Richwood Court. Epps heard 2-3 gunshots and after a short pause, 2 more gunshots.
Epps saw Fremont SWAT Sergeant Harnett running east on the south sidewalk of Richwood Court.

Epps got out of his car, retrieved his SWAT rifle from the back seat and pointed it in a southerly
direction while standing on the north curb line of Richwood Court. Although his view was partially
obstructed by a tree, Epps was able to see a man matching Lopez’s description running from the
direction of the gunshots. Epps saw Lopez stop and crouch down with his hands in his waist area
and face back in the direction of the gunshots but did not see a gun in his hands.
Epps believed that Lopez was involved in a running gun battle while being pursued by other officers
and was setting up to ambush the pursing officers. He believed that there was no time to yell at
Lopez to distract him as he had already turned his body toward the direction of the pursuing officers.
Believing that the pursuing officers were in danger of being shot by Lopez, Epps fired 7 rounds from
his service rifle at Lopez. He saw Lopez immediately fall face down on the ground with his hands
underneath his body. Epps was also concerned that Lopez would escape into the residential area and
potentially create a hostage situation.

Fremont PD Sergeant Harnett was in a white van in the parking lot near where Sergeant Epps was
seated in an SUV. When he heard that Lopez was walking towards their position on Miller Ave, he
 Jeffrey F. Rosen
 District Attorney

drove the van out of the parking lot on Richwood Court toward Miller Ave and saw Lopez running
across Miller Ave with Duckworth running after him toward an alley that paralleled Richwood Court.

Harnett got out of the van and started running east on Richwood Court in an attempt to cut off any
escape avenues on to Richwood Court. He heard several shots and believed that a running gun
battle was taking place between Lopez and pursuing officers. He saw Lopez jump the fence and
crouch down and look back toward the fence. Lopez was facing away from him with his hands
concealed in his waistband.

Harnett was concerned that Lopez was waiting to ambush officers that were pursuing him and also
that Lopez would escape into the residential neighborhood. He dropped to one knee and fired 3-4
rounds from his service handgun at Lopez. He heard other shots being fired at about the same time.
Lopez fell to the ground face down with his hands underneath his body.

Fremont PD SWAT Officer Snow was in the parking lot sitting in a grey van near the SUV driven by
Sergeant Epps and the mini-van driven by Sergeant Harnett. After hearing that Lopez was walking
north on Miller Ave, Snow drove out of the parking lot on to Richwood Court behind Harnett. He saw
Duckworth running southeast across Miller Ave before loosing sight of him. Almost immediately, he
heard shots coming from the south and someone saying, “Shots fired” and “Slow down” over the
radio.

Snow saw Harnett running east on Richwood Court and decided to follow him because Harnett was
alone. He was thinking that Duckworth was in a shootout with Lopez. Snow saw Harnett drop to
one knee and shoot from what Snow believed to be a rifle. He then heard another gunshot from his
southeast.

Snow moved to the right of Harnett so that he would not be in Snow’s line fire. He saw Lopez fall to
the ground near the curb. He saw Lopez raise his head and shoulders but he could not see his
hands. Snow was not sure that Lopez had been hit and was concerned that he was rolling his body
to get into position to shoot or get up and run. Based on these concerns, he fired one round from
his M4 rifle at Lopez and immediately heard someone yell, “Hold. Hold. Hold.”

Fremont SWAT medics arrived on scene immediately after the shooting and administered emergency
medical aid to Lopez but he died shortly after fire department medical personnel arrived to relieve
them at 2:09 PM.

Officers searched Lopez and found a makeshift holster near his waist containing a loaded .38 caliber
revolver. It did not appear that the gun had just been fired.
 Jeffrey F. Rosen
 District Attorney

Crime scene officers recovered four .40 caliber shell casings in the alley where Sergeant Duckworth
first fired his handgun as Lopez climbed over a gate. They also noted a bullet hole in the garage
door frame near the gate, two bullet holes in the gate with two corresponding bullet holes in a fence
opposite the gate. Two bullets were found lodged in a truck parked directly behind the fence. There
was a bullet hole in a recycling bin on the east side of the fence.

Two .40 caliber shell casings were recovered from the east side of the back yard where Duckworth
was shooting at Lopez before he climbed over north fence facing Richwood Court. Two more .40
caliber shell casings were found in the same location but on the east side of the fence.

Seven shell casing were located in the driveway of the parking lot on Richwood Court where Sergeant
Epps fired his service rife.

Two .40 caliber shell casing were located in the bushes on the south side of Richwood Court where
Sergeant Harnett fired his service handgun.

Autopsy

Dr. Michelle Jordan performed the autopsy on Sonny Lopez and concluded that he died as a result of
multiple gunshot wounds. However, despite sustaining four serious gunshot wounds and multiple
fragmentation wounds, only one of these wounds was clearly the cause of death considering the
availability of immediate emergency medical care. The fatal wound entered his upper left back from
left to right and downward, involving the rib, lung, diaphragm, pancreas, small bowel, transverse
colon, adrenal gland and lodged in his right hip area. The other serious wounds involved through-
and-through wounds to the left thigh, left foot and right hand. The left foot wound involved the third
through fifth toes. The right hand injury nearly amputated his thumb. None of the gunshot wounds
were from close range.

Legal Analysis

Any person, including a peace officer, is legally justified in using deadly force when the circumstances
reasonably create a fear of imminent death or serious bodily injury to the person or to another
person, and the use of deadly force reasonably appears necessary to resist the threat. (People v.
Humphrey (1996) 13 Cal.4th 1073; People v. Hardin (2000) 85 Cal.App.4th 625; People v. Harris
(1971) 20 Cal.App.3d 534; Penal Code Section 197, subds. 1-3) Officers are not required to utilize
non-lethal force options before resorting to deadly force but the decision to use deadly force must be
objectively reasonable based on the circumstances known to the officer. (Graham v. Connor (1989)
490 U.S. 386, Forrester v. City of San Diego (1994 9th Cir.) 25 f.3d 804.) Courts have recognized that
the use of deadly force is often made under stressful circumstances with little or no time to reflect on
 Jeffrey F. Rosen
 District Attorney

alternate courses of action and have generally rejected after the fact attempts at second guessing
these decisions. (Brown v. Ransweiler (2009) 171 Cal. App. 4th 516.)

The plans under consideration by Fremont officers to arrest Lopez all involved varying degrees of
risk. Officers had probable cause to believe that Lopez had recently committed one murder and had
likely committed others. He was known to be armed with a handgun and had previously expressed
his intention to fight to the death any attempts to arrest him. The safest plan under consideration
had the potential for creating a hostage situation by surrounding the condominium that Lopez was
known to be inside after a new arrest warrant was obtained. Other scenarios involved Lopez evading
a car stop or pedestrian arrest attempt and escaping into the residential neighborhood and killing or
taking a civilian hostage.

Lopez left the condominium in the middle of Sheriff’s Department take over of the operation from
Fremont PD. When Sergeant Duckworth stopped to confirm Lopez’s identity, he was forced to
confront Lopez without backup. Lopez refused to obey Duckworth’s order to surrender and quickly
ran across Miller Ave. into the alley behind Richwood Court with Duckworth trailing behind.

Commander Bouchet, who pulled into the alley behind Lopez and almost hit him with his SUV, did not
try to hit Lopez or shoot at him when he got out of his SUV because he did not see anything in his
hands that would cause him to believe he was in imminent danger of death or serious bodily injury.
However, Duckworth started shooting at Lopez from behind Bouchet as he ran down the alley. The
shots were close enough to Bouchet that he heard them pass over his shoulder.

Duckworth did not attempt to justify shooting at Lopez based on imminent death or great bodily
injury to himself or others. Instead, he expressed concern about Lopez jumping over the gate he
was running toward and possibly threatening the residents or escaping the parameter.

Peace officers are also justified in using deadly force under certain circumstances when attempting to
arrest a fleeing felon. (Penal Code Sections 835a, 196, 197) These sections historically have allowed
officers to use deadly force when necessary to make an arrest for any felony. More recent authority
has limited an officer’s right to use deadly force to violent felony arrests. (Kortum v. Alkire 69 (1977)
Cal.App.3d 325)

The Fremont Police Departments’ Operations Direction, Z-1, is in accord with the modern
interpretation of Penal Code Sections 835a, 196 and 197 which limit the use of deadly force to violent
felony arrests. The Fremont PD SWAT supervisors made it very clear to their officers that Operations
Directive Z-1 could possibly come into play based on the fact that they were arresting Lopez for
murder, a violent felony, and that he was armed and would likely violently resist attempts to arrest
him.
 Jeffrey F. Rosen
 District Attorney


The first four shots fired by Duckworth were legally justified as occurring during a violent felony
arrest. Lopez had ignored orders to submit to arrest and was fleeing into the back yard of a house
where the residents were likely to be home on a Sunday afternoon. It appears that none of these
rounds hit Lopez as he did not slow down or react to the shots and no blood was located near the
fence or in the back yard. One of the rounds was recovered from the garage door frame near the
fence and two others went through the gate and the fence on the east side of the yard and struck a
truck. In addition, Lopez would have been unable to jump over the fence with any of the wounds
that he ultimately sustained.

Once inside the backyard, Duckworth fired four more rounds at Lopez while running north on the
east side of the residence as evidenced by the four shell casings from his gun found in this area.
Duckworth’s stated reason for shooting at Lopez was that he was disoriented once he was inside the
backyard and was fearful that Lopez would jump the north gate of the residence, escape the
parameter and threaten other residents in the neighborhood. This second volley of shots by
Duckworth was also legally justified in order to make a violent felony arrest as Lopez continued to be
a threat to neighborhood residents generally and to other officers. It is likewise doubtful that any of
these shots hit Lopez as he would have been unable to scale the gate with his eventual wounds and,
additionally; there was no blood found near the gate.

When Lopez landed on the north side of the gate, Sergeant Epps, Sergeant Harnett and Officer Snow
saw him crouched down facing the gate with his hands near his waist. They had heard the sounds of
gunfire coming from the alley and reasonably believed that a rolling gun battle was taking place
between Lopez and pursuing officers. It was also reasonable for them to feel that Lopez was waiting
to ambush Duckworth based on the position of his body and hands. It appears that Lopez may very
well have been planning to confront Duckworth even though he had not previously fired any shots.
By the time Lopez had jumped the north fence on to Richwood Court, he had undoubtedly concluded
that Duckworth was trying to kill him after firing eight shots at him from two different locations. He
may have been deciding whether to shoot back at Duckworth with the handgun he was carrying or to
continue to run.

However, Lopez did not know that Epps had seen him jump the gate and was in a good position to
fire at him with his SWAT rifle. Epps fired 7 shots at Lopez from the entrance of the parking lot on
north side of Richwood Court and he went down to the ground immediately and landed face down.
Harnett fired at least 2 shots at Lopez with his handgun from the south side of Richwood Court at
almost the same time as Epps was firing his rifle. Snow fired one round from his SWAT rifle when he
saw Lopez try to get up and possibly get up and run or get into a firing position. Duckworth kicked in
a board on the fence and stepped through just after Epps, Harnett and possibly Snow fired at Lopez.
 Jeffrey F. Rosen
 District Attorney

It is unclear who fired the rounds which struck Lopez, particularly the fatal shot that entered his
back. The Crime Laboratory was only able to eliminate the handguns fired by Duckworth and Harnett
as the cause of the fragmentation wound on Lopez’s arm. As stated above, it is doubtful that any of
the shots fired on the run by Duckworth hit Lopez. Epps had a rifle and the best firing position and
he fired more shots than Harnett and Snow.

Conclusion

The plan to arrest Sonny Lopez on a Sunday afternoon in a residential neighborhood in Cupertino
was extremely dangerous to the involved officers and residents. The various contingency plans
devised by Fremont PD SWAT officers all involved varying degrees of risk. Lopez was wanted for
murder, known to be armed and had expressed his belief that he would die resisting arrest.

These plans were complicated when Lopez chose to leave the residence where he was staying while
the Sheriff’s Department was taking over for the Fremont PD officers who had been up all night.
Sergeant Duckworth attempted to identify and lawfully arrest Lopez for a violent felony and fired
several shots from his service handgun at Lopez when Lopez ran and entered the backyard of a
residence. These shots caused other nearby officers to reasonably conclude that Lopez was firing at
pursuing officers.

When Lopez jumped over a gate into the front of the residence and turned back toward Sergeant
Duckworth, these officers reasonably believed that Lopez was attempting to ambush him. Based on
this belief, three Fremont PD officers fired their service firearms at Lopez. He died from multiple
gunshot wounds despite receiving immediate emergency medical treatment.

All of the shots fired by the officers were legally justified in self-defense, defense of others or during
an arrest for a violent felony.
Jeffrey F. Rosen
District Attorney
 Jeffrey F. Rosen
 District Attorney

To:            Jeff Rosen, District Attorney

From:          David Tomkins, Assistant District Attorney

CC:            Brian Welch, Supervising Deputy District Attorney

Re:            Officer Involved Shooting N3 Ranch

Background

On July 21, 2010 at 6:00 A.M., the Santa Clara County Sheriff’s Office Marijuana Eradication Team (MET)
attended a mission briefing in the parking lot of the Livermore Police Department with members of the
Alameda County Sheriff’s Department Special Investigations Unit (SIU) about suspicious criminal activity at
the N3 Cattle Ranch.

The N3 Ranch is a large working cattle ranch located at 7000 Del Valle Road in Livermore and is situated on
several thousand acres of mountainous terrain which spans portions of Santa Clara, Alameda, San Joaquin and
Merced Counties. Caretakers of the N3 Ranch had observed the presence of an irrigation line in a remote
canyon called Arroyo Valle, near a large stream that feeds into Lake Dell Valle. Arroyo Valle is believed to be
in Santa Clara County based on the GPS coordinates (N 37 28.024/W 121 35.779). The presence of an
irrigation line in a remote area near a natural water source indicates possible illegal marijuana grow operations.

Both the MET and SIU teams had previously participated in numerous marijuana eradication raids and
considered them to be high risk operations. Marijuana grows located in remote areas usually contained
thousands of individual plants which are guarded by growers armed with firearms. MET was involved in an
eradication operation in August 2005 where a Department of Fish and Game officer was shot in the leg by a
person guarding a marijuana grow in unincorporated Los Gatos. MET deputies returned fire and killed the
guard but another guard was able to escape. In July 2008, MET deputies shot and killed an individual guarding
several marijuana gardens in the Saratoga Hills after the guard brandished a rifle at them. Based on this
knowledge, both teams prepared operational plans which included protocols for the use of deadly force.

MET and SIU had previously participated in joint marijuana eradication operations at the N3 Ranch in August
2008 and July 2009 where over 14,000 plants were seized. In the 2008 operation, deputies arrested an
individual tending a marijuana garden who was armed with a pistol. In the 2009 operation, which was
conducted in the same area as the planned operation, a suspected marijuana grow operator escaped on foot
through the brush.

The Shooting
 Jeffrey F. Rosen
 District Attorney

On July 21, 2010, at approximately 9:00 a.m., MET and SIU deputies arrived at the entrance to the N3 Ranch
located near Del Valle Regional Park. They met with N3 Ranch employees who guided them as they drove on
a dirt road for 10 miles to a location near the potential grow site. Both teams hiked down a trail to Sycamore
Creek, a dry creek bed, where they located the black irrigation line described by the N3 ranch employees. The
irrigation line contained running water and was pressurized.

Both teams followed the water line in an easterly direction along the creek bed with MET deputies taking the
lead because the suspected marijuana garden was believed to be in Santa Clara County. The SIU deputies
remained approximately 17 feet behind the MET deputies.

MET Deputies Gregg Dibert, Devin Fontana and John Spagnola split off from the other deputies in the creek
bed and followed the irrigation line up the south bank of the canyon. While looking at the north bank of the
canyon through his rifle scope, Dibert saw a man, later identified as Jose Penaloza-Soto (“Soto”), pointing a
rifle in the direction of the other deputies in the creek bed. Fearing that he was preparing to shoot at the
deputies, Dibert fired one round from his service rifle at him. Dibert immediately lost sight of Soto in the tree
canopy covering Dibert on the south bank.

Dibert attempted to relocate Soto by moving closer to where Fontana was standing nearby. Both Dibert and
Fontana were able to see Soto standing on the north bank holding the rifle. Soto was apparently not hit by the
round fired by Dibert. Dibert and Fontana could hear other deputies yelling verbal commands in English and
Spanish for Soto to drop the rifle and put his hands up. While some of the deputies had limited Spanish
speaking skills, none were fluent Spanish speakers. Some of the deputies also heard what they believed to be
other unknown individuals running from the area.

Soto initially responded to the deputies’ commands by lowering the barrel of the rifle, which was hanging from
his shoulder on a sling and also raising his hands. However, Soto refused to drop an unknown object that he
was holding in his hand despite numerous commands that he do so. Soto then lowered his hands and again
pointed the barrel of the rifle in the direction of the deputies in the creek bed. Fearing that Soto was again
threatening to shoot at deputies in the creek bed, Dibert and Fontana fired their service rifles at Soto from
approximately 140 feet. Dibert fired 2 rounds and Fontana fired 8 rounds. They saw Soto drop to the ground
behind some brush but could still see the nearby grass moving.

MET Deputies Mike Damigo and Doug Amaro climbed up the north side of the canyon to locate Soto. They
circled around and approached him from above and slightly east of where they observed him lying face up with
his head pointing downhill. Soto appeared to be reaching for the rifle which was within his arm’s reach.
Damigo identified himself as a police officer in English and Spanish and ordered him to stop reaching for the
rifle. When Soto continued to reach for the rifle, Damigo, fearful that he was going to gain control of the rifle
and shoot him or Amaro, fired four rounds from his service rifle from approximately 30 feet.

Damigo and Amaro moved down the steep hillside toward Soto who was no longer moving. Amaro, a medic,
administered emergency first aid but Soto died at 10:25 A.M. Soto’s rifle was recovered and determined to be a
 Jeffrey F. Rosen
 District Attorney

pellet rifle. A folding knife with the blade locked in the open position was also located within three feet of
Soto’s body.

Investigators determined that Soto was 28 years old and had moved to the United States from Mexico when he
was 17. His family knew little about his whereabouts other than they believed he was working on a ranch in
Livermore.

Deputies later discovered 6 large marijuana gardens with a total of 18,342 individual marijuana plants east of
where the shooting occurred. The approximate street value of this marijuana is $55,026,000. A campsite was
located near the grow operation which contained two additional pellet rifles, a .22 caliber rifle and ammunition
for various caliber firearms. The pellet rifle found on Soto, along with the two pellet rifles found at the
campsite were physically indistinguishable, without close examination, to the .22 caliber rifle found at the
campsite. No additional suspects associated with the marijuana grow were located.

Autopsy

The autopsy was performed on July 23, 2010 by Dr. Glenn V. Nazareno. Soto suffered two gunshot wounds to
his back right thigh and additional gunshot wounds to the left upper arm, left chest under the armpit and left
abdomen. While there was no determination of which bullet inflicted the fatal injury, the most serious wound
appears to have been caused by the bullet which entered his right rear thigh, exited and reentered near his groin
and fragmented while traveling to and lodging in his chest cavity. Dr. Nazareno listed the cause of death as
multiple gunshot wounds.


Legal Analysis

Officers are legally justified in using deadly force if they reasonably believe that it is necessary to respond to an
immediate threat of death or great bodily injury to themselves or other officers. (Penal Code Section 197,
subds. 1-3.) Appellate courts have recognized that officers must make split second decisions concerning the use
of deadly force in the course of their duties. (Brown v. Ransweiler (209) 171 Cal.App.4th 516.) However, the
ultimate question is whether the use of deadly force was objectively reasonable under the circumstances.
(Graham v. Connor (1989) 490 U.S. 386, Forrester v. City of San Diego (1994, 9th Cir.) 25 F.3d 804.)

Soto could hear the deputies’ approaching from his vantage point near the top of the north bank of the canyon,
but it is unclear whether he saw any of them. MET deputies Dibert, Fontana and Spagnola were shielded by a
thick tree canopy while positioned on the south bank across from Soto. The remaining deputies may not have
moved into Soto’s field of vision when Dibert fired and apparently missed with his first shot. In addition, the
north side of the creek bed below Soto’s position was a straight wall approximately 6-8 feet high that possibly
shielded Soto’s view of portions of the creek bed. However, this first shot by Dibert was legally justified based
on his prior knowledge of violent confrontations with armed individuals guarding marijuana grow operations
 Jeffrey F. Rosen
 District Attorney

and his reasonable belief that Soto was pointing a firearm in the general direction of the officers who were in a
vulnerable position in the creek bed.

After the near miss by Dibert’s first shot, Soto appeared to acknowledge the commands by the deputies to drop
his rifle and put his hands up. At first, Soto lowered the barrel of the rifle and raised his hands. However, he
did not drop the rifle to the ground and he refused repeated commands by the deputies to drop what looked like
a folding knife.

Dibert and Fontana were watching Soto through their rifle scopes from the south bank and had reason to be
concerned about Soto’s lack of complete cooperation and the fact that he still had possession of the rifle. They
reasonably believed that Soto was still in a position to threaten them and the deputies in the creek bed. When
Soto dropped his hands and raised the barrel of his rifle, they were legally justified in shooting at him in defense
of themselves and the deputies in the creek bed.

Some of the shots fired by Dibert and Fontana appear to have hit Soto as he immediately fell to the ground.
Also, some of the deputies in the creek bed reported hearing moaning sounds coming from Soto’s location.
However, Soto continued to be a threat as Dibert and Fontana could see movement in the area where he fell and
he still had access to the rifle.

Damigo and Amaro were tasked with taking Soto into custody and treating any gunshot wounds that he may
have sustained. They took a circuitous route up the north bank that allowed them to look down at Soto.
Damigo could see that Soto was obviously wounded and lying with his head downhill at a steep angle.

Despite his wounds, Soto appeared to be trying to gain control of the rifle that was within his arms reach despite
repeated warnings from Damigo and Amaro in English and Spanish to stop reaching for the rifle. Due to the
steepness of the hillside, Damigo and Amaro were not in a position to immediately rush down and physically
prevent Soto from grabbing the rifle. Damigo’s decision to fire 4 shots at Soto from his service rifle was legally
justified after Soto failed to heed their warnings and continued attempting to gain control of the rifle. There was
no further movement from Soto and he died shortly.

Deputies were able to recover Soto’s rifle and determined that it was a pellet gun. The pellet rifle was very
similar to a real firearm. In fact, Soto’s pellet rifle and the two additional pellet rifles recovered in the campsite
were physically indistinguishable, without close examination, from the .22 caliber rifle also found at the
campsite.

Conclusion

On July 21, 2010, MET and SIU deputies conducted reconnaissance of a marijuana grow operation at the N3
Ranch after receiving information about an irrigation line in a remote area of the ranch. Based on previous
marijuana eradication operations, including recent operations at the N3 Ranch in 2008 and 2009, the deputies
were aware that large marijuana grows in remote locations are usually tended by armed guards. Recent
 Jeffrey F. Rosen
 District Attorney

eradication operations resulted in violent confrontations where individuals guarding marijuana gardens had been
killed. In one instance, an armed guard shot and wounded a law enforcement officer.

Jose Penaloza-Soto, and probably others, were guarding six large marijuana grows when MET and SIU deputies
approached the grows. Deputy Dibert was legally justified in shooting at Soto when he saw him standing on a
hillside armed with a rifle pointed at deputies in the creek bed and reasonably believed Soto was going to shoot
at the deputies. Deputy Dibert fired one shot from this service rifle at Soto, which apparently missed.

Deputy Dibert and Deputy Fontana were legally justified in shooting Soto when he refused to obey repeated
commands to drop a knife he was carrying and pointed his rifle at deputies in the creek bed for the second time
after initially lowering the rifle barrel and raising his hands.

Soto also ignored commands from Deputy Damigo and Deputy Amaro to stop reaching for his rifle as lay
wounded on the hillside. Damigo and Amaro were not in a position to physically prevent Soto from reaching
for his rifle due to the steep terrain. Damigo was legally justified in shooting Soto to prevent him from
regaining control of the rifle.

It remains unclear why Soto would repeatedly brandish a pellet rifle at armed deputies and attempt to grab the
pellet rifle while seriously wounded. However, Soto’s pellet rifle looked exactly like a firearm and the involved
deputies had no reason to suspect otherwise. They were legally justified in shooting Soto in self-defense and in
defense of other deputies.
 Jeffrey F. Rosen
 District Attorney

To:          Jeff Rosen, District Attorney

CC:          Brian Welch, Supervising Deputy District Attorney

From:        David Tomkins, Assistant District Attorney

Re:          Officer Involved Fatal Shooting of Brian Casey on August 29, 2010

Background

Heidi and Brian Casey separated in June of 2010 after 19 years of marriage due to Brian’s alcoholism.
Brian moved out of their residence and rented an apartment at 5363 Wong Court #19 in San Jose.
Brian continued to work as a butcher and they shared custody of their two small children.

Brian voluntarily submitted to a 72 hour psychiatric evaluation in July of 2010 at the request of his
stepfather after he became depressed and locked himself inside his apartment. The stepfather had
taken Brian’s shotgun and knife during the psychiatric evaluation, but had returned them after Brian
had attended substance abuse classes and out-patient counseling.

On August 28, 2010, Brian told Heidi that he was depressed and complained of severe stomach pain.
Brian had previously told Heidi that he had been diagnosed with stomach cancer but refused
treatment. Heidi persuaded Brian’s best friend, Nicholas Lefteroff, to get Brian to seek medical
treatment. Nicholas removed Brian’s shotgun from the apartment and Heidi took Brian to the
hospital for treatment of his cancer. Brian fled the hospital on foot before seeing a doctor, but later
returned after Heidi called SJPD to look for him. The doctor told Brian that he did not have stomach
cancer and Brian admitted to Heidi that he had lied about the diagnosis.


Shooting

On August 29, 2010, at 9:16 A.M., San Jose PD Communications received a call from Heidi Casey
stating that her estranged husband, Brian Casey, had just called and told her that he had just shot
himself in the head and chest with a nail gun in a suicide attempt. Brian told Heidi that he just
wanted to die and complained about botching his suicide attempt.

At 9:18 A.M., San Jose Police Officers Raul Corral and Matthew Blackerby were dispatched to Brian’s
apartment for a welfare check. The officers knocked on the front door, but Brian did not answer.
They later determined that all of the doors and windows to the apartment were locked.
 Jeffrey F. Rosen
 District Attorney

Other officers arrived at the apartment, including Lt. James Werkema, a Crisis Intervention Trained
supervisor, and Sgt. Mark Clough. Lt. Werkema tried to call Brian’s cell phone, but did not get an
answer. Sgt. Clough tried speaking to Brian through the front door and expressed concern about his
welfare. Officers felt that Brian was inside the apartment because his truck was parked in a nearby
carport.

Lt. Werkema and Sgt. Clough determined that Brian was inside the apartment and was incapacitated
due to self-inflicted injuries. They decided that an immediate forced entry into the apartment was
required to check on his welfare.

Officer Coral kicked in the front door and entered along with Officers Blackerby, James Mason, and
Mark Palfalvi. There were no lights on inside the apartment, but the officers saw a large hunting
knife on the floor and drew their service handguns.

The officers began moving from the living room down the hallway and cleared a laundry room to the
left and a bedroom on the right. As Officer Mason came out of the laundry room, Brian came out of
the bathroom, which was the next room down the hall. He was shirtless, bleeding, and holding a
knife with the blade pointing downward.

The officers pointed their guns at Brian and ordered him to drop the knife, but he refused to do so.
Officer Mason heard Brian make growling sounds. Officer Blackerby heard him say, “You better kill
me.” The other officers did not hear him say anything. Brian was standing between 3-5 feet from
the nearest officer at this point and took two steps toward the officers and raised the knife above his
head.

Fearing for their safety due to their close proximity to Brian and their belief that he intended to stab
them, Officer Mason fired three rounds, Officer Blackerby fired three rounds and Officer Palfalvi fired
one round as they retreated backwards out of the hallway. Officer Corral retreated and attempted to
draw his Taser. Brian was struck by five rounds in the torso and one round in the head and was
pronounced dead shortly thereafter. Officers found a blood stained pillow and bedspread in the
bathtub where Brian was lying down when the officers entered the apartment.

Autopsy

Dr. Jorden performed the autopsy on Brian and discovered two nails in his brain and one nail in his
chest that perforated his aorta. She also located a laceration on his left wrist and two puncture
wounds to his chest and one to his abdomen. She found six gunshot wounds belonging to six
bullets. She concluded that Brian’s death was a homicide and that he died from multiple gunshot
 Jeffrey F. Rosen
 District Attorney

wounds. She did, however, observe that the nail gun wounds could have been fatal in the absence
of immediate medical intervention.

Legal Analysis

The officers were legally justified in shooting Brian if they reasonably believed that his actions posed
an immediate threat of death or great bodily injury to themselves or their fellow officers. (Penal Code
Section 197, subds. 1-3.) The law recognizes that officers are often called upon to make split-second
decisions in life and death situations in the course of their duties. (Brown v. Ransweiler (2009) 171
Cal.App.4th 516.) Officers, as individuals, often react differently when confronted with stressful
situations and have little or no time to consider all of the available options. Therefore, the question is
not whether there were other non-lethal options available to the shooting officers, but whether their
actions were objectively reasonable under the circumstances. (Graham v. Connor (1989) 490 U.S.
386; Forrester v. City of San Diego ( 1994, 9th Cir.) 25 F.3d 804.)

Before entering the apartment, the officers knew that Brian had attempted suicide with a nail gun,
had a history of mental instability, and there were weapons in the house. Once they were inside, the
officers saw a large knife on the floor that heightened their fear that Brian was armed, causing them
to draw their guns. The officers were also at a tactical disadvantage as soon as they started down
the hallway as their ability to maneuver was significantly restricted.

When Brian suddenly stepped out of the bathroom with knife in his hand, he was already close
enough to stab any of the officers in the hallway. Brian’s intent in walking toward the officers with
the knife raised above his head was unclear in light of his previous attempts at suicide. The
statement heard by Officer Blackerby, “You better kill me,” suggests that he was trying to get the
officers to kill him after believing that he had been unsuccessful in his previous suicide attempt. One
of the officers felt that the best course of action was to withdraw and use a Taser, a non-lethal force
option.

Nevertheless, the officers exercised restraint and did not immediately use deadly force because he
was holding the knife down at his side. Instead, they used verbal commands in order to attempt to
get him to drop the knife. It was only after he disregarded these commands and walked towards the
officers with the knife raised above his head in a stabbing position did three of the officers shoot him.
It was reasonable under these circumstances for the shooting officers to respond with deadly force
rather than risk being stabbed by Brian in order to determine whether he actually intended to assault
them or was merely trying to provoke them into finishing the suicide that he had started earlier.

Conclusion
 Jeffrey F. Rosen
 District Attorney

It was a tragic irony that officers who entered Brian Casey’s apartment in an attempt to prevent his
death were ultimately forced to kill him. Sadly, Brian was intent on causing his own death even if he
had to threaten the officers with a knife to accomplish this end. Had the officers not forced entry
into his apartment he would have died from the nail gun wounds. Under these circumstances, the
decision by Officers Mason, Blackerby, and Palvalvi to shoot and kill Brian Casey while on duty was
legally justified.

				
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