I N T E R O F F I C E M E M O R A N D U M

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1 I N T E R O F F I C E M E M O R A N D U M DATE: February 8, 2019 FROM: TO: Lynette Grulke, Deputy District Attorney Rancho Cucamonga Office Julie Peterson, Chief Deputy District Attorney Desert-Mountain Division Gary Roth, Assistant District Attorney Desert Division Jason Anderson, District Attorney SUBJECT: Officers: Officer Involved Shooting (Fatal) Officer Brian Leyva California Highway Patrol Inland Division / SANCATT Officer Jason Perniciaro Fontana Police Department / SANCATT Involved Subjects: James Gleason (Deceased) Date of Birth 09/02/92 Victorville, CA 1

2 Witness #1 (Injured) Date of Birth 03/15/86 Phelan, CA Date of Incident: May 31, 2017 Incident location: ***** Main Street Hesperia, CA DA STAR #: Investigating Agency: Case Agent: San Bernardino County Sheriff s Department Detective Charles Phillips DR #: H #: PREAMBLE This was a fatal officer involved shooting by officers from the San Bernardino County Auto Theft Task Force (SANCATT). The shooting was investigated by the San Bernardino County Sheriff s Department. This factual summary is based on a thorough review of all the investigative reports, photographs, video, and audio recordings submitted by the San Bernardino County Sheriff s Department, DR# and H# PRINCIPAL INVOLVED PARTIES James Ryan Gleason, DOB: 09/01/92, of Hesperia, California was killed during the incident under review. Witness #1, DOB: **/**/**, of Phelan, California was shot during the incident under review. Officer Brian Leyva of the California Highway Patrol Inland Division was an officer involved in the shooting of James Gleason and Witness #1. Officer Jason Perniciaro of the Fontana Police Department was an officer involved in the shooting of James Gleason and Witness #1. 2

3 SCENE This incident occurred on May 31, 2017 at around 722 hours. Location of occurrence was ***** Main Street in the City of Hesperia, California. RELATED CASE Because of this incident, criminal charges were filed against Witness #1 in Victorville Superior Court case number FVI********. The case was resolved on June 12, Witness #1 entered a plea of nolo contendere to a violation of Penal Code 459 Second Degree Burglary of a Vehicle. Witness #1 was sentenced to sixteen months county prison. FACTUAL SUMMARY On May 31, 2017, at around 7:22 in the morning, Officer Brian Leyva, from the California Highway Patrol Inland Division, and Officer Jason Perniciaro, from the Fontana Police Department, were assigned to the San Bernardino County Auto Theft Task Force (SANCATT). On that date, Officer Leyva was driving through the parking lot of the Walmart located at ***** Main Street in the City of Hesperia looking for a Chevrolet Impala that had been reported stolen from Nevada. Earlier, Officer Leyva had called his partner, Officer Perniciaro, and asked Officer Perniciaro to meet him at the parking lot as a backup unit. While in the Walmart parking lot, Officer Leyva located the stolen vehicle. Officer Leyva parked his truck where he could keep surveillance on the vehicle and called an operator with OnStar to get more details about the stolen vehicle. As Officer Leyva waited for Officer Perniciaro to arrive, he spoke to the investigator who took the stolen vehicle report. Officer Leyva told the investigator he was going to recover the vehicle and called dispatch for a tow truck. Officer Perniciaro arrived at the scene, parked behind the Impala and started to fill out paperwork. Officer Leyva moved his truck closer to the Impala and called the victim. While he spoke with the victim, Officer Leyva noticed a dark colored Honda parked next to a white Honda Civic. The subjects in the dark colored Honda were peeking into the Civic. The dark colored Honda parked in front of Officer Leyva s truck, on the other side of the concrete island. Officer Leyva noticed James Gleason, the driver, looked like he was possibly under the influence. Witness #1, the right front passenger, exited the dark colored Honda and walked towards Walmart. Officer Leyva got out of his truck and went up to Officer Perniciaro s vehicle. Officer Leyva told Officer Perniciaro to keep an eye on the dark colored Honda and then went back to his truck. 3

4 Officer Leyva saw Witness #1 walking back to the dark colored Honda. Officer Leyva noticed Witness #1 kept looking around and watching to see if anybody was looking at him. Witness #1 got back into the right front seat of the vehicle. The dark colored Honda backed up and pulled directly to the left side of the Civic. Witness #1 then got out of the right front seat and started playing with the driver s door handle of the Civic. Officer Leyva believed they intended to steal the Civic. Officer Leyva called dispatch and let them know he needed a marked patrol vehicle. Officer Leyva drove his truck south, went around the front of the Walmart and parked directly in front of the two Hondas. Officer Leyva could see Officer Perniciaro had pulled up almost directly behind the Civic. Officer Leyva saw the takedown lights on Officer Perniciaro s vehicle were flashing. Officer Leyva placed his truck in park and opened the door. Officer Leyva heard Officer Perniciaro saying, Stop, stop, don t do it man, police, police. Officer Leyva rushed toward the rear of his truck to go assist Officer Perniciaro. As Officer Leyva neared the rear of his truck he pulled out his duty weapon. Officer Leyva heard Officer Perniciaro yelling at the occupants of the dark colored Honda, Stop, stop, show me your hands, show me your hands. Officer Leyva saw that Officer Perniciaro had his gun drawn and pointed at the dark colored Honda. Officer Leyva pointed his gun at Gleason and said, Stop, stop. Don t do it. Don t do it. Officer Perniciaro yelled at Gleason, Police, don t do it man, show me your hands, show me your hands. Gleason looked back and forth between Officer Perniciaro and Officer Leyva. Gleason put the dark colored Honda in reverse and drove backward toward Officer Perniciaro s vehicle. Gleason struck Officer Perniciaro s vehicle. Gleason made eye contact with Officer Leyva. Gleason put the dark colored Honda into drive. The tires on the dark colored Honda started to turn to the left. Officer Leyva ordered Gleason to stop. Gleason drove toward Officer Leyva. Officer Leyva fired four rounds at Gleason. Gleason s vehicle struck Officer Leyva s truck. Gleason was struck by gunfire in the face and arm. Witness #1 was struck by gunfire in the shoulder. Paramedics arrived at the scene. Witness #1 was transported to Arrowhead Regional Medical Center for treatment. A third passenger in the dark colored Honda, Witness #2, was transported to Hesperia Sheriff s Station to be interviewed. Gleason was transported to Desert Valley Medical Center where he was later pronounced deceased. WITNESSES AND CORROBORATION On May 31, 2017, at approximately 1:17 in the afternoon, Witness #3 was interviewed by Deputy Michelle Del Rio. 4

5 On May 31, 2017, at around 7:05 in the morning, Witness #3 arrived at the Wal-Mart located at ***** Main Street in the City of Hesperia. Witness #3 parked his truck facing east, approximately ten parking stalls north of the front entrance to the store. Witness #3 went inside the store to purchase a charger for his laptop. Witness #3 estimated he spent approximately twenty-five to thirty minutes inside Wal-Mart. When Witness #3 exited Wal-Mart and started walking back towards his truck, he suddenly heard a commotion come from one aisle west of where he had parked his vehicle. Witness #3 saw a white Ford F-150 parked awkwardly. The truck was facing north but not in a stall. Witness #3 saw a dark older model mid-size vehicle, possibly a Honda, facing west very close to the rear of the white truck. Witness #3 was approximately twenty-five to thirty yards away when he heard screams come from where the vehicles were located. Witness #3 saw two White or Hispanic male adults screaming, Do not move! Witness #3 believed there may have been a road rage incident and walked towards the vehicles to try and help defuse the situation. Witness #3 heard someone scream, Do not move, do not move! Witness #3 said the screams were loud and he could hear them clearly from thirty yards away. Witness #3 did not hear anyone identify themselves as a police officer. Immediately after Witness #3 heard the screams, he heard approximately six to seven gunshots. The gunshots were loud and very rapid with no pause in between the shots. Witness #3 did not see anyone fire their weapon. Witness #3 observed a tall White or Hispanic male with blondish hair wearing a lightcolored t-shirt. The male was holding a black semi-automatic handgun in both hands. Witness #3 noticed the male had a lanyard with some sort of identification around his neck. Witness #3 also saw a badge clipped on the front right side of the male s waist band. Witness #3 immediately knew the male subject was a police officer. Witness #3 saw the officer run from the driver side of the white truck, around the rear of the truck, towards the Honda. The officer had his weapon drawn and pointed towards the Honda. The officer was on the driver side of the Honda, near the front fender. Witness #3 heard the officer yell repeatedly at the driver of the Honda, Do not move! Ard then heard, Don t fucking move! Witness #3 did not see the Honda move forward or reverse. Witness #3 did not see the Honda attempt to drive away nor drive towards the officer who stood on the driver side. Witness #3 heard the officer yelling commands before and after the gunshots. Witness #3 described the driver of the Honda as a White or Hispanic male adult with a shaved head. Witness #3 stated the driver window was rolled up. Witness #3 also stated he knew the officer had a partner with him but Witness #3 was unable to see where the officer s partner was located. Witness #3 heard the officer tell his partner, Watch him, watch him! Witness #3 recalled seeing a white newer model Honda equipped with red and blue flashing lights parked about fifteen feet behind the dark colored Honda. 5

6 On May 31, 2017, at approximately 1:14 in the afternoon, Witness #4 was interviewed by Detective Jonathan Woods. On May 31, 2017, at approximately 7:45 in the morning, Witness #4 arrived to work at the Wal-Mart located at ***** Main Street in the City of Hesperia. Witness #4 worked at the Subway sandwich shop inside of the Wal-Mart. Witness #4 parked her vehicle in the southeast area of the Wal-Mart parking lot. Witness #4 parked approximately four parking stalls west of the front entrance to the Wal-Mart, facing northwest. After she parked, Witness #4 remained inside her vehicle, in the driver s seat, and read her bible. Approximately nine minutes later, Witness #4 heard someone screaming. Witness #4 looked to her left and saw a man, running from a white truck, yelling, Stop! Witness #4 described the man as a Hispanic male wearing blue jeans and a blue shirt with a white undershirt. Witness #4 believed the man s order to stop was directed at the person driving a black or green vehicle, which was parked approximately four to five stalls southwest of her. Witness #4 said seconds later, the unknown male removed a gun from his front pants pocket and began shooting at someone in the black or green vehicle. Witness #4 heard approximately four gunshots. Witness #4 was scared and exited her vehicle when the shooting started. Witness #4 ran to the passenger side of her vehicle, ducked down, and called 911. Witness #4 believed the driver of the black or green vehicle was driving the vehicle in reverse when she heard the gunshots. After the gunshots, the driver went forward and crashed into the white truck. Witness #4 said she did not know where the person who was shooting was in relation to the truck because her view was partially obstructed. After the shooting stopped, Witness #4 saw the person who had shot was wearing a badge around his neck. Witness #4 also saw a second person wearing a badge around his neck. On May 31, 2017, at approximately 1:26 in the afternoon, Witness #5 was interviewed by Detective Nicholas Clark. Witness #5 was employed as a clerk at the Wal-Mart on Palmdale Road. On May 31, 2017, Witness #5 was assigned to work at the Wal-Mart located at ***** Main Street in the City of Hesperia. Witness #5 parked her vehicle on the east side of the parking lot. At around 8:00 in the morning, Witness #5 exited her vehicle and walked south, towards the east entrance of the Wal-Mart. As Witness #5 was walking, she heard a male voice yell, west of her location. Witness #5 was unable to make out what exactly was being said. Immediately following the yelling, Witness #5 heard approximately five to six gunshots fired in rapid succession. Witness #5 looked in the direction of the gunshots and saw male wearing an orange shirt, later identified as Officer Brian Leyva, holding a handgun. Witness #5 s view was 6

7 partially obstructed by vehicles. Witness #5 believed Officer Leyva was a police officer because of how he was standing and how he was holding the handgun. Witness #5 saw a second male wearing a green shirt, later identified as Officer Jason Perniciaro. Officer Perniciaro appeared to be holding a handgun. Officer Perniciaro wore an object around his neck. Witness #5 was unable to determine what the object was but believed it was potentially a badge. Witness #5 heard one of the officers yell three to four times, Don t move. Witness #5 continued into the Wal-Mart and told her co-workers about the incident. On May 31, 2017, at approximately 8:32 in the morning, Witness #6 was interviewed by Officer Chris Crosswhite of the Hesperia Police Department. On May 31, 2017, at around 7:45 in the morning, Witness #6 arrived for work at the Wal-Mart located at ***** Main Street in the City of Hesperia. Witness #6 parked her car and was gathering her belongings, preparing to go inside the store. Witness #6 suddenly heard yelling coming from nearby in the parking lot. Witness #6 looked up and saw two males she described as undercover officers because they were in street clothes. Witness #6 saw the officers had their guns drawn and were yelling at someone. Witness #6 stated she believed she heard one of the subjects identify himself as an officer before the shooting took place. Witness #6 saw two vehicles with flashing lights on them which also caused her to believe the men were police officers. Witness #6 saw a badge on one of the officers after the shooting took place. The officers were yelling at a subject, Get out of the car! Witness #6 said the subjects in the car tried to take off and slammed into the undercover truck. Witness #6 believed the vehicle may have also struck the other undercover car when it backed up. Witness #6 said the officers fired their weapons after the suspect s car hit the undercover vehicle. Witness #6 was unsure how many shots were fired. Witness #6 estimated she was parked approximately twenty to twenty-five feet away from where the shooting took place. Witness #6 got scared and moved her vehicle to the side of the Wal-Mart building. On May 31, 2017, at approximately 9:27 in the morning, Witness #7 was interviewed by Officer Itai Estrada Sandoval from the Hesperia Police Department. On May 31, 2017, at approximately 8:00 in the morning, Witness #7 was leaving the Wal-Mart store located at ***** Main Street in the City of Hesperia. Witness #7 was walking down the parking lot when she saw a white truck make a U-turn. The truck appeared to be in a hurry. There was an unmarked police vehicle following a darker colored vehicle. Witness #7 knew it was an unmarked police vehicle because she heard a Wal-Mart employee s statement after the incident. The truck parked in front of 7

8 the dark colored vehicle while the unmarked police vehicle parked behind it as if they were boxing in the dark colored vehicle. Witness #7 estimated she was approximately five to ten feet away from the scene. Witness #7 said one officer exited the truck and yelled at the driver of the dark colored vehicle, Get out of the fucking vehicle. An officer from the unmarked vehicle approached the darker colored vehicle and said, Get out, get out of the fucking car. Witness #7 said the driver of the dark colored vehicle began to back the vehicle into the unmarked police unit. The officer from the white truck continued to give multiple commands for the driver to get out of his vehicle. Witness #7 did not hear the driver of the dark colored vehicle say anything. Witness #7 stated the officer from the white truck shot through the driver s window of the dark colored vehicle. Witness #7 said the officer from the unmarked unit shot through the front passenger window. Witness #7 estimated there were approximately ten rounds fired during the incident. After the officers opened the driver s door she could see the driver was bleeding and he had his head leaning on the steering wheel. Witness #7 was unsure what to do and continued walking. On May 31, 2017, at approximately 3:03 in the afternoon, Detective Jonathan Woods and Detective Nicholas Clark attempted to interview Witness #2. On May 31, 2017, Detective Clark advised Witness #2 of his Miranda rights prior to the interview. Witness #2 said he understood his rights and then indicated he did not want to speak with investigators. Detective Clark explained he wanted to get Witness #2 perspective of what happened during the incident under review. Witness #2 then agreed to give a statement. Witness #2 said he met with James Gleason and Witness #1 sometime the prior evening. When the detectives asked Witness #2 where he met Gleason and Witness #1, Witness #2 said he no longer wished to speak about the incident. Detective Woods ended the interview. On May 31, 2017, at approximately 12:35 in the afternoon, Witness #1 was interviewed at Arrowhead Regional Medical Center by Detective Justin Long. Prior to the interview, Detective Long advised Witness #1 of his Miranda rights. Witness #1 indicated he understood his rights and said he was willing to speak with Detective Long. On May 30, 2017, at approximately 11:30 in the evening, James Gleason picked Witness #1 up at his residence in the City of Phelan. Gleason was driving a dark green Honda Accord. Witness #1 had never seen Gleason in that car prior to May 31, 2017 and asked Gleason if the car was hot. Gleason said no but Witness #1 said Gleason had a look in his eyes that Witness #1 described as iffy. Gleason told Witness #1 he had a few things to do and if Witness #1 accompanied him he would pay Witness #1 $ Witness #1 and Gleason smoked methamphetamine and heroin while at 8

9 Witness #1 s residence. At approximately 11:45 in the evening, Witness #1 and Gleason left Witness #1 s residence in the Accord. Gleason and Witness #1 drove to Witness #2 s residence. Witness #2 was a friend of both Gleason and Witness #1. Gleason and Witness #1 arrived at Witness #2 s residence at approximately 11:50 in the evening. Gleason, Witness #1, and Witness #2 left Witness #2 s residence at approximately 12:20 in the morning and drove to Tim s residence where they planned to work. While they were working at Tim s residence, Gleason asked if anyone could get drugs. Witness #1 told Gleason he could get drugs. Gleason, Witness #1, and Witness #2 left Tim s residence to purchase drugs from Tabitha. Gleason, Witness #1, and Witness #2 arrived at Tabitha s residence at approximately 3:00 in the morning. At the location, Witness #1 contacted Christopher. Witness #1, Gleason, and Witness #2 went inside of Christopher s garage and stayed for several hours. At approximately 6:00 in the morning, Gleason, Witness #1, and Witness #2 left Christopher s residence. Gleason drove the Accord with Witness #1 seated in the front passenger seat and Witness #2 seated in the rear behind Gleason. As Gleason drove past the Wal-Mart, he pulled into the parking lot. Witness #1 asked Gleason why they were pulling into the parking lot. Gleason told Witness #1 the Accord was stolen and he needed to get gas. Gleason parked in a parking stall. Witness #1 exited the vehicle and went inside Wal-Mart to use the restroom. When Witness #1 returned to the car, Gleason pulled out and circled the parking lot several times. Eventually Gleason pulled into a parking stall immediately next to a white Honda Civic. The Civic was positioned to the right of the passenger side of the Accord. Gleason parked next to the Civic so that Witness #1 could enter the Civic and steal money or fuel for the Accord. Gleason handed Witness #1 two key rings, each containing multiple shaved keys, so Witness #1 could gain access to the Civic. Witness #1 got out of the Accord and checked the door on the Civic. The door was unlocked so Witness #1 sat inside the driver s seat of the Civic and looked for currency. Witness #1 noticed a white truck approaching fast from his left. Witness #1 believed the occupants of the truck saw him and were going to confront him about being in the truck. Witness #1 exited the Civic and returned to the front passenger seat of the Accord. Witness #1 said he attempted to conceal himself from the occupants of the white truck by leaning forward and ducking down. Witness #1 had his head down near his thighs when he heard Gleason yell, I m gonna go, I m gonna go, I m gonna go. Immediately after Gleason made the statement, Witness #1 heard a male voice yell, I ll shoot you mother f***er. Witness #1 sat up slightly and looked out the front passenger window. Witness #1 saw a white male wearing a dark colored t-shirt standing outside of the Accord, near the front passenger door. The white male was pointing a black gun at Witness #1. Witness 9

10 #1 said the male subject did not identify himself as a police officer nor did Witness #1 recognize the subject as a police officer. Witness #1 turned slightly to his left and tucked his head back down. Witness #1 heard three gunshots fired in rapid succession. Witness #1 felt blood running down his back. Witness #1 realized he had been shot in the shoulder. Immediately after the gunshots, Witness #1 said he was removed from the vehicle and thrown to the ground. While on the ground, Witness #1 heard subjects talking in police lingo and at that time realized the subjects were police officers. Witness #1 was handcuffed and later transported to Arrowhead Regional Medical Center for treatment. On May 31, 2017, at approximately 4:34 in the afternoon, Officer Brian Leyva was interviewed by Detective Justin Giles and Deputy Michelle Del Rio. 1 On May 31, 2017, Officer Brian Leyva, from the California Highway Patrol Inland Division, was assigned to the San Bernardino County Auto Theft Task Force (SANCATT). Officer Leyva was wearing plain clothes, a long-sleeved T-shirt underneath a short-sleeved T-shirt, blue jeans, and boots. Officer Leyva wore a silver chain around his neck, holding a black leather badge holder, with a California Highway Patrol badge affixed to the badge holder. Officer Leyva was driving an unmarked white F-150 truck. On that date, Officer Leyva was driving through the parking lot of the Walmart located at ***** Main Street in the City of Hesperia looking for a vehicle that had been reported stolen from Nevada. Officer Leyva noticed a Chevrolet Impala with Nevada plates. Officer Leyva parked his truck where he could keep surveillance on the vehicle and called an operator with OnStar to get more details about the stolen vehicle. Officer Leyva asked the OnStar operator to activate the stolen vehicle s alarm or lights, so he could verify whether the Chevrolet Impala he was watching was the vehicle that had been reported stolen. Within a couple of seconds, the OnStar operator activated the alarm on the Chevrolet Impala. Earlier, Officer Leyva called Officer Jason Perniciaro, his partner, and asked Officer Perniciaro to meet him at the parking lot as a backup unit. As Officer Leyva waited for Officer Perniciaro to arrive, he spoke to the investigator who took the stolen vehicle report. The investigator advised the victim s daughter had taken the vehicle and the investigator suspected the daughter intended to go to her sister s house in Hesperia. Officer Leyva told the investigator he was going to recover the vehicle and called dispatch for a tow truck. Officer Perniciaro arrived at the scene, parked behind the Impala and started to fill out paperwork. Officer Leyva moved his truck approximately three stalls closer to the Impala. Officer Leyva called the victim and was speaking with her when he noticed a 1 Officer Leyva reviewed video recording taken from the Walmart parking lot prior to being interviewed by Detective Giles and Deputy Del Rio. 10

11 black Honda 2 parked next to a white Honda. The subjects in the black Honda were peeking into the white Honda. The black Honda parked in front of Officer Leyva s truck, on the other side of the concrete island. Officer Leyva noticed the driver, later identified as James Gleason, looked like he was possibly under the influence. The right front passenger, later identified as Witness #1, exited the black Honda and walked towards Walmart. Officer Leyva got out of his truck and went up to Officer Perniciaro s vehicle. Officer Leyva told Officer Perniciaro to keep an eye on the black Honda and then went back to his truck. Officer Leyva saw Witness #1 walking back to the black Honda. Officer Leyva noticed Witness #1 kept looking around almost like he was casing the joint or watching to see if anybody was looking at him. Witness #1 got back in the right front seat. The black Honda backed up and pulled directly to the left of the white Honda. Witness #1 then got out of the right front seat and started playing with the driver s door handle of the white Honda. Officer Leyva believed they were going to steal the white Honda. Officer Leyva called dispatch and let them know he needed a marked patrol vehicle. Officer Leyva went south in his truck and drove around the front of the Walmart and parked directly in front of the two Hondas. Officer Leyva could see Officer Perniciaro had pulled up almost directly behind the white Honda. Officer Leyva could see the takedown lights on Officer Perniciaro s vehicle flashing. Officer Leyva placed his truck in park and opened the door. Officer Leyva heard Officer Perniciaro saying, Stop, stop, don t do it man, police, police. Officer Leyva heard Officer Perniciaro screaming and believed he was involved in a fight with the passenger of the black Honda who was out of his vehicle. Officer Leyva rushed toward the rear of his truck to go assist Officer Perniciaro. As Officer Leyva neared the rear of his truck he pulled out his duty weapon. Officer Leyva could see Officer Perniciaro was not involved in a fight but was yelling at the occupants, Stop, stop, show me your hands, show me your hands. Officer Leyva saw that Officer Perniciaro had his gun drawn and pointed at the black Honda. Officer Leyva pointed his gun at Gleason and said, Stop, stop. Don t do it. Don t do it. Officer Leyva estimated he was less than a half a car length away from Gleason s vehicle. Officer Leyva could hear Officer Perniciaro yelling, Police, don t do it man, show me your hands, show me your hands. Officer Leyva saw Gleason looking back and forth between Officer Perniciaro and Officer Leyva. Officer Leyva saw Gleason put the black Honda in reverse. Officer Leyva said he made eye contact with Gleason who gave him an angry look. Gleason paused for a second, looked at Officer Leyva and then grimaced. Officer Leyva saw the tires start turning to the left. If the vehicle drove forward, Officer Leyva knew he was in the direct path of Gleason s vehicle. 2 Officer Leyva described the suspect vehicle as a black Honda Accord during his interview. The vehicle was dark green in color. 11

12 Officer Leyva yelled at Gleason, Don t do it man, don t do it, police, don t do it, don t do it man, stop, stop, stop! Officer Leyva believed Gleason was going to run him over. When Gleason started to drive forward toward Officer Leyva, Officer Leyva feared for his life and fired his weapon at Gleason. Officer Leyva stated the vehicle was moving slowly at first and then there was a sudden jump. Officer Leyva said it was almost like the vehicle lunged at him. Officer Leyva heard Officer Perniciaro fire his gun as well. As he was shooting, Officer Leyva tried to move toward the side out of the way of the vehicle s path. Officer Leyva saw Gleason s vehicle hit his truck. Officer Leyva stopped firing once he saw Gleason slumped over the wheel. Officer Leyva could not estimate how many rounds he fired. At the time of the shooting, Officer Leyva estimated he was approximately three quarters of a vehicle length away from Gleason. After the shooting, Officer Leyva estimated the distance between himself and Gleason s vehicle was approximately one to two feet. Officer Perniciaro was able to pull Witness #1 and a rear passenger, later identified as Witness #2, out of the vehicle and get them on the ground. Once that was done, Officer Leyva got on his radio and advised Dispatch there were shots fired and suspects were detained. Officer Leyva went back to check on Officer Perniciaro. Officer Leyva saw Gleason s condition and knew Gleason would need medical attention. Officer Leyva returned to his truck and requested Dispatch stage medical. Officer Leyva provided cover for Officer Perniciaro and watched Gleason and Witness #2 at the same time. Officer Perniciaro handcuffed Witness #1 and Witness #2. Officer Perniciaro then grabbed his medical bag and started providing first aid to Gleason. Additional police units started arriving at the scene to assist. On May 31, 2017, at approximately 4:26 in the afternoon, Officer Jason Perniciaro was interviewed by Detective Nicholas Clark and Detective Jonathan Woods. 3 On May 31, 2017, Officer Jason Perniciaro, from the Fontana Police Department, was assigned to SANCATT. Officer Perniciaro was wearing plain clothes, blue jeans, a gray and white colored t-shirt, and a black lanyard with the words Fontana Police Department holding a clear plastic identification case which displayed a Fontana Police Department identification card, and Vans shoes. Officer Perniciaro was driving an unmarked white 4-door Honda Civic. On May 31, 2017, at approximately 7:09 in the morning, Officer Perniciaro was driving when he received a text message from Officer Brian Leyva asking him where he was. Officer Leyva asked Officer Perniciaro to respond to the Walmart on Main Street in the City of Hesperia to assist with an investigation. When Officer Perniciaro arrived at the 3 Officer Perniciaro reviewed portions of the video recording taken from the Walmart parking lot prior to being interviewed by Detective Clark and Detective Woods. 12

13 scene he learned there was a Chevrolet Impala reported stolen out of Henderson, Nevada that On-Star had tracked to the Walmart. While Officer Perniciaro was inside his vehicle writing up the stolen vehicle report, Officer Leyva advised him that there was a suspicious dark colored Honda one stall over from them. Officer Leyva told Officer Perniciaro that he saw one of the passengers walking into the store and come back a short time later. The dark colored Honda then parked parallel with the driver s side of a white Honda. Officer Leyva told Officer Perniciaro he observed the front passenger of the black Honda 4 get into the white Honda with the door open. It appeared to Officer Leyva that the passenger was trying to start the white Honda, so he told Officer Perniciaro to go. Officer Perniciaro started his vehicle and drove over to where he believed the two Hondas were parked. Officer Perniciaro positioned his vehicle at a 45-degree angle in between the white Honda and the black Honda towards the rear of the vehicles. Officer Perniciaro activated the alternating red and blue light on the flip down as he exited his vehicle. Officer Perniciaro saw the suspect, later identified as Witness #1, jump from the driver s seat of the white Honda back into the front passenger seat of the black Honda. Officer Leyva had positioned his truck in front of the vehicles to box the suspects in and prevent them from escaping. Officer Perniciaro drew his weapon and ordered Witness #1 to show his hands. Officer Perniciaro started to approach the black Honda so he could get a better look inside. When Officer Perniciaro got up towards the right passenger window he could see a driver, later identified as James Gleason, and Witness #1. Officer Perniciaro identified himself by saying Police Department and yelled Let me see your hands, let me see your hands. Officer Perniciaro saw Officer Leyva coming around the rear of his vehicle. Officer Perniciaro heard Officer Leyva yelling but was unsure what Officer Leyva was saying. Officer Perniciaro ordered Gleason to turn the car off and put his hands up. Officer Perniciaro heard someone inside the black Honda yelling, Go, go, go. At one point, Gleason put the vehicle into gear and rapidly accelerated backwards towards Officer Perniciaro s vehicle. Officer Perniciaro estimated Gleason s vehicle was traveling at approximately fifteen miles per hour and estimated the distance between the two vehicles was three to six feet. Officer Perniciaro thought he saw his vehicle lurch backwards and believed Gleason had struck his vehicle. Officer Perniciaro continued to give commands, Stop the car, don t do it. Officer Perniciaro could no longer see where Officer Leyva was located. The last time Officer Perniciaro saw Officer Leyva was when Officer Leyva was standing near the fender area on the rear passenger side of his truck. Officer Leyva s truck was stopped to the front of Gleason s vehicle. 4 Officer Perniciaro described the suspect vehicle as a black Honda Accord during his interview. The vehicle was dark green in color. 13

14 It appeared to Officer Perniciaro that Gleason was getting ready to accelerate forward. Officer Perniciaro told Gleason, Don t do it. I m gonna shoot you, don t do it. Gleason accelerated rapidly forwards towards where Officer Perniciaro last saw Officer Leyva. Officer Perniciaro feared for Officer Leyva s safety and fired approximately four rounds at Gleason. Officer Perniciaro heard Officer Leyva fire his weapon at the same time. Out of his peripheral vision, Officer Perniciaro saw Officer Leyva running backwards close to Gleason s vehicle. Gleason struck the right rear passenger side of Officer Leyva s vehicle and came to rest. Officer Perniciaro estimated Officer Levya s truck moved approximately three to four feet after it was struck. After the shooting, Officer Perniciaro gave Gleason commands to put the car in gear and turn the car off. Officer Perniciaro had Witness #1 exit the vehicle and lay prone on the ground. Officer Perniciaro saw the back door of the vehicle open and realized there was another person inside the vehicle. Officer Perniciaro ordered the rear passenger, later identified as Witness #2, to get on the ground. Officer Perniciaro had both Witness #1 and Witness #2 proned out on the ground next to the Honda. Gleason appeared injured so Officer Perniciaro reached into the vehicle and pulled the keys from the vehicle. Officer Leyva got on his radio and requested additional units. Officer Perniciaro handcuffed Witness #1 and Witness #2. Officer Perniciaro then retrieved his trauma kit and started rendering first aid to Gleason. Surveillance Video Surveillance video of the parking lot was obtained from Walmart. Exterior Front Camera 01 The video recording from Exterior Front Camera 01 is approximately 1:00:09 in length. It shows a section of the parking lot in front of the store. Part of the incident under review is captured on the recording and is seen at the top of the screen. However, the view is obstructed by the top of a small tree and several parked vehicles. At 23:00, a dark colored vehicle can be seen pulling into a parking stall next to a white vehicle. At 23:22, a person exits the passenger side of the dark colored vehicle and moves over by the white vehicle. At 23:36, the person opens the driver door of the white vehicle, gets inside and closes the door. At 24:19, Officer Perniciaro s vehicle pulls in behind the white and dark colored vehicles. At 24:26, Officer Leyva s truck pulls in front of the white and dark colored vehicles. At 24:27, Officer Leyva exits his truck. At 24:30, Officer Leyva runs to the rear of his truck towards the dark colored vehicle. At 24:35, the dark colored vehicle appears to drive forward and strike Officer Leyva s truck. At 29:10, patrol vehicles from the sheriff s department start to arrive on scene. 14

15 Exterior Front Camera 02 The video recording from Exterior Front Camera 02 is approximately 1:00:06 in length. It shows a section of the parking lot in front of the store. Part of the incident under review is captured on the recording and is seen at the top left portion of the screen. However, some of the view is obstructed by parked vehicles. At 23:00, a dark colored vehicle is seen pulling into a parking stall next to a white vehicle. At 23:20, a person is seen moving from the passenger side of the dark colored vehicle to the driver side of the white vehicle. At 23:24, the person is seen getting into the driver s seat of the white vehicle. At 24:17, Officer Perniciaro s vehicle can be seen pulling in behind the dark colored and white vehicles. Officer Perniciaro gets out of his vehicle and moves forward towards the rear of the dark colored and white vehicles. At 24:22, Officer Leyva s truck pulls in front of the dark colored and white vehicles. At 24:24, a person in the driver s seat of the white vehicle gets out and moves towards the passenger side of the dark colored vehicle. At 24:25, Officer Leyva is out of his vehicle and moving around the rear of his truck towards the front of the dark colored vehicle. At 24:28, the dark colored vehicle drives in reverse and then drives forward and strikes Officer Leyva s truck. At 29:09, patrol vehicles from the sheriff s department start to arrive on scene. Parking Lot Light Pole 06 The video recording from Parking Lot Pole 06 is approximately 1:00:04 in length. The view is of cars parked in the lot. Part of the incident under review was captured on the recording and is seen on the left side of the screen. Due to the camera angle, part of the incident under review happened out of view of the camera and is not captured on the recording. At 22:58, a dark colored vehicle pulls into a parking stall next to a white vehicle. At 23:31, the driver s door to the white vehicle appears to open. At 24:18, Officer Leyva s truck is seen pulling in front of the dark colored and white vehicles and stopping. At 24:23, Officer Leyva is seen exiting his vehicle and moving around the rear of his truck. Officer Leyva has his right arm bent and his right hand appears to be near his waistband. The driver s door to the white vehicle appears to open. At 24:25, the dark colored vehicle appears to move in reverse. At 24:27, Officer Leyva appears to be moving towards the front of the dark colored vehicle. Officer Leyva has his arm raised and pointed in the direction of the dark colored vehicle. At 24:28, Officer Leyva stops, and the dark colored vehicle starts driving forward. Officer Leyva starts backing up as the dark colored vehicle was driving forward. At 24:29, Officer Perniciaro can be seen moving up near the rear passenger side of the dark colored vehicle as it is driving forward. At 24:30, the dark colored vehicle strikes the passenger side of Officer Leyva s truck. At 24:42, Officer Perniciaro appears to be getting the front driver side passenger and the rear passenger out of the dark colored vehicle and onto the ground. At 29:01, patrol vehicles from the sheriff s department start to arrive on scene. 15

16 Death Gleason was pronounced deceased by Witness #8 at 0838 hours at Desert Valley Hospital. Postmortem Examinations Dr. Mark Fajardo, Chief Forensic Pathologist for the Coroner Division of the Riverside County Sheriff s Department, conducted the autopsy of James Gleason on June 1, Dr. Fajardo noted multiple penetrating and perforating gunshot wounds of the upper extremities, head, and torso with concomitant contusion of the lingulate of the left lung and perforating defect to the middle lobe of the right lung; bilateral hemothoraces. Entrance for gunshot wound number one was to the distal right forearm on the radial aspects, located 2 ¾ proximal to the right wrist. Entrance for gunshot wounds numbers two and three were to the posterior aspects of the right shoulder region. Entrance for gunshot wound number four was to the right anterior superior pectoral region. Entrance for gunshot wound number five was to the left angle of the jaw. Entrance for gunshot wound number six was to the midline chest region. Entrance for gunshot wound number seven was adjacent to the left axilla. Entrance for gunshot wound number eight was to the most posterior aspects of the left shoulder area. Dr. Fajardo determined the cause of death was multiple gunshot wounds. Toxicology Blood, Urine, and Vitreous samples were collected from Gleason during the autopsy. Toxicology results for the Urine sample were listed as follows: Alcohol, ethyl urine o 0.000% (W/V) Amphetamines detected o greater than mg/l Methamphetamine o mg/l Amphetamine o Pseudoephedrine/Ephedrine detected Opiates detected o mg/l Morphine o mg/l Codeine o mg/l Monoacetylmorphine Cannabinoids detected o mg/l 11-Carboxy-Delta-9-THC Toxicology results for the Vitreous sample were listed as follows: 16

17 Alcohol, ethyl vitreous o 0.00% (W/V) Amphetamines detected o mg/l Methamphetamine o mg/l Amphetamine Opiates detected o mg/l Morphine Toxicology results for Blood sample were listed as follows: Alcohol, ethyl blood o 0.000% (W/V) Amphetamines detected o mg/l Methamphetamine o mg/l Amphetamine o Pseudoephedrine/Ephedrine detected Opiates detected o Less than mg/l Morphine Cannabinoids detected o mg/l Delta-9-THC o mg/l 11-Carboxy-Delta-9-THC o 11-Hydroxy-Delta-9-THC none detected APPLICABLE LEGAL STANDARDS 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. 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. 17

18 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: Homicide is 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...(4) When necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed, or in lawfully keeping and preserving the peace. Lawful resistance to the commission of a public offense may be made by the party about to be injured. (Pen. Code 692.) The resistance may be sufficient to prevent injury to the party about to be injured, or the prevent injury to someone else. (Pen. Code 693.) 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 Cal.App. 2d 575, 588.) 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 person act out of that fear. (People v. Clark (1982) 130 Cal.App.3d 371, 377.) 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 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. Collins, supra, 189 Cal.App.2d at p. 588.) CAL CRIM 3470 (REVISED 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 self-defense or defense of another. A person acts in lawful self-defense or defense of another if: 18

19 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 (2004) 543 U.S.194, 197.) 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 In these decisions, the US Supreme Court 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, 471 U.S. at p. 11.) 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. (Graham v. Conner, supra, 490 U.S. at p. 396.) It is also highly deferential to the police officer's need to protect himself and others. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make splitsecond judgments in circumstances that are tense, uncertain, and rapidly evolving 19

20 about the amount of force that is necessary. (Id. at p ) The question is whether the officer s actions are objectively reasonable considering the facts and circumstances confronting them, without regard to their underlying intent or motivation. (Id. at p. 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. (Graham v. Connor, supra, 490 U.S. at p. 396.) The question is whether the totality of the circumstances justifies a particular sort of... seizure. (Tennessee v. Garner (1985) 471 U.S. at p The most important of these factors is the threat posed by the suspect. (Smith v. City of Hemet (2005) 394 F.3d 689,702.) 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 (1992) 954 F.2d 343, 347.) Reasonableness: The Two Prongs Penal Code section 197, subdivision (3) requires that one who employs lethal force have a reasonable ground to apprehend a design to commit a felony or to do some great bodily injury. Further, Penal Code section 198 requires that such fear be sufficient to excite the fears of a reasonable person. This is clearly an objective standard. In shorthand, perfect self-defense requires both subjective honesty and objective reasonableness. (People v. Humphrey (1996) 13 Cal.4th 1073, 1093.) 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. While the test, as mandated by section 198, is objective, reasonableness is determined from the point of view of a reasonable person in the position of one acting in selfdefense. (People v. Minifie (1996) 13 Cal.4th 1055, 1065.) We must take into consideration all the facts and circumstances that might be expected to operate in the persons mind. (Ibid.) Reasonableness is judged by how the situation appeared to the person claiming self-defense, not the person who was injured or killed as a result. 20