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

Transcription

1 I N T E R O F F I C E M E M O R A N D U M DATE: November 22, 2017 FROM: TO: Lynette Grulke, Deputy District Attorney Rancho Cucamonga Office Ronald Webster, Supervising Deputy District Attorney Morongo Office Julie Peterson, Chief Deputy District Attorney Desert-Mountain Division Gary Roth, Assistant District Attorney Desert Division Michael A. Ramos, District Attorney SUBJECT: Officers: Officer Involved Shooting (Fatal) Deputy Christopher Bingham San Bernardino County Sheriff s Department Morongo Basin Sheriff Station Deputy Jacob Tiel San Bernardino County Sheriff s Department Morongo Basin Sheriff Station 1

2 Involved Subject: Dominic Christopher Hodges (Deceased) Date of Birth 02/27/77 Yucca Valley, CA Date of Incident: January 17, 2017 Incident location: Twentynine Palms Highway Twentynine Palms, CA DA STAR #: Investigating Agency: Case Agent: San Bernardino County Sheriff s Department Detective Gary Hart DR #: H #: PREAMBLE This was a fatal officer involved shooting by deputies from the San Bernardino County Sheriff s Department assigned to the Morongo Basin Sheriff s Station. 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 Dominic Christopher Hodges, DOB: 02/27/77, of Yucca Valley, California was killed during the incident under review. Deputy Christopher Bingham of the San Bernardino County Sheriff s Department was a deputy involved in the shooting of Dominic Hodges. Deputy Jacob Tiel of the San Bernardino County Sheriff s Department was a deputy involved in the shooting of Dominic Hodges. 2

3 SCENE This incident occurred on January 17, 2017, at around 0322 hours. Location of occurrence was on the Twentynine Palms Highway in the City of Twentynine Palms, California. FACTUAL SUMMARY On January 7, 2017, Witness #1 and Dominic Hodges believed they were being stalked by an unknown individual who intended to kill them. Afraid to remain at their residence, Witness #1 and Hodges drove to the Motel located at Twentynine Palms Highway in the City of Twentynine Palms. Witness #1 and Hodges were checked into Room 324 by the desk clerk, Witness #2. Sometime around 3:00 in the morning, Witness #1 called Witness #2 and reported there was a man with a gun outside the room trying to get them. Witness #2 told Witness #1 she would contact law enforcement on Witness #1 s behalf. Witness #2 called Deputy Christopher Bingham, from the San Bernardino County Sheriff s Department Morongo Basin station, and told him what Witness #1 reported. Deputy Bingham and Deputy Jacob Tiel, also from the San Bernardino County Sheriff s Department Morongo Basin station, advised dispatch at around 3:20 in the morning that they were responding to the motel. Deputy Bingham and Deputy Tiel were both wearing San Bernardino County Sheriff s Department uniforms and driving marked patrol vehicles. When Deputy Bingham and Deputy Tiel arrived at the location, they parked their patrol vehicles directly in front of the motel. Witness #2 updated Deputy Bingham about what happened and advised him that she tried multiple times to call Room 324 but nobody was answering the phone. Deputy Bingham and Deputy Tiel decided to go up and knock on the door to Room 324 which was on the third floor of the motel. Deputy Bingham knocked on the door and said, Sheriff s Department. Given the nature of the call, a man with a gun trying to get into a room, both Deputy Bingham and Deputy Tiel already had their weapons drawn before they got to Room 324. The deputies heard a gunshot a few seconds after Deputy Bingham knocked on the door. Deputy Bingham advised dispatch over the radio that there were shots fired. Deputy Tiel told Deputy Bingham he saw somebody approaching the front door. When the door opened, Deputy Bingham saw a person, later identified as Hodges, with a gun coming out of the room. Hodges turned the gun towards Deputy Bingham and started shooting. Both Deputy Bingham and Deputy Tiel returned fire and retreated from the scene. Hodges went back inside the motel room and the door closed. Deputy Bingham and Deputy Tiel advised over the radio that additional shots were fired and backup was requested. Additional officers arrived at the scene. Law enforcement 3

4 officers got Witness #1 to exit the motel room. There was no additional contact from Hodges after Witness #1 left the room. Ultimately, officers from the Specialized Enforcement Detail (SED) used a remote-controlled robot to enter the motel room. Once the robot entered the room, it was determined that Hodges was deceased. A Taurus 9mm pistol was located on the floor at the foot of the bed. WITNESSES AND CORROBORATION On January 17, 2017, at approximately 8:50 in the morning, Witness #2 was interviewed by Detective Derek Garvin from the San Bernardino County Sheriff s Department, Morongo Basin station. On January 17, 2017, Witness #2 was working as the night auditor at the Motel located at Twentynine Palms Highway in the City of Twentynine Palms. Witness #2 said she checked a male, later identified as Dominic Hodges, and a female later identified as Witness #1, into Room 324 at the Motel at around 1:55 in the morning. At around 3:21 in the morning, Witness #2 received an odd call from Witness #1. Witness #1 was whispering that there was someone outside her room and the person was armed. Witness #2 told Witness #1 she would call the Sheriff s Department for her and told Witness #1 to sit tight. Witness #2 called Deputy Christopher Bingham directly and relayed what Witness #1 had told her. Witness #2 knew Deputy Bingham from previous calls for service at the motel. Witness #2 then went outside to where she could see Room 324 but would not be seen herself. Witness #2 did not see anyone outside of the room. Witness #2 saw two deputies arrive and met them outside near the pool. Witness #2 relayed what Witness #1 had told her to the deputies. The deputies told Witness #2 to go back inside the motel and call the room. Nobody inside the room answered when Witness #2 called. Witness #2 went back outside and informed the deputies there was no answer. The deputies began walking up the stairs to the room which was on the third story. Witness #2 saw Deputy Bingham approach the room. The second deputy stayed farther away on the very last step of the stairs. Witness #2 said Deputy Bingham knocked on the door and announced, Sheriff s Department. Witness #2 heard one single shot and then multiple gunshots after that. Witness #2 heard one of the deputies shout, Shots fired. Witness #2 thought the deputy on the stairs had been hit because it appeared he started to fall. The deputy on the stairs told Witness #2 to go back inside. Witness #2 went back inside the motel. Witness #2 then received a phone call from Witness #1 saying that her husband had been shot by someone other than the deputy. Witness #2 was unsure who had been shot and was concerned for Deputy Bingham. Witness #2 4

5 stayed in the front office and Witness #1 called Witness #2 several times over the next thirty minutes. Witness #1 said her husband had been shot and was bleeding. During their last conversation, Witness #2 told Witness #1 to put a towel on the bleeding and try to stop it. On January 17, 2017, at approximately 7:05 in the morning, Witness #3 was interviewed by Detective Chris Bertetto from the San Bernardino County Sheriff s Department, Morongo Basin station. On January 17, 2017, Witness #3 pulled into the parking lot of the Motel to get some sleep. Witness #3 was going to take a nap in his car. Witness #3 parked his vehicle facing south in the second parking stall west of the Motel sign. Witness #3 was in his car reading on his cell phone for approximately five minutes when he saw two San Bernardino County Sheriff s Department patrol units pull into the parking lot. Witness #3 saw a deputy get out of each patrol vehicle. Witness #3 then went back to reading on his cell phone. One of the deputies tapped on Witness #3 s driver side window. Witness #3 spoke with the deputy for a few minutes after which the deputy walked away back toward the hotel. Witness #3 went back to reading on his cell phone. A few minutes passed when Witness #3 heard a pop sound come from the hotel behind him. Witness #3 recognized the pop sound as a gunshot. Witness #3 turned around in his driver seat and looked out the rear driver side passenger window. Witness #3 saw a deputy, with his gun out, standing in front of a motel room on the third floor. Witness #3 saw a male, later identified as Dominic Hodges, open the curtain on one of the windows. The light was on inside the room and Witness #3 could see Hodges standing in the window looking at the deputy. The deputy was standing to the right of Hodges door. Witness #3 continued to watch what was happening through his car window. Witness #3 saw Hodges open the door to the motel room and lean out far enough to expose his head, torso, arm, and leg. Witness #3 estimated Hodges and the deputy were approximately four to six feet apart. Witness #3 heard Hodges and the deputy exchange gunfire but did not know who fired the first shot. Witness #3 saw Hodges fall back into the room and believed Hodges had been shot. Witness #3 saw the deputy back away from Hodges room and then run from the door. After the gunfire stopped, Witness #3 crawled over the center console of his vehicle. Witness #3 exited the vehicle from the passenger side door and called his wife. As Witness #3 was crouched behind his vehicle, he saw a second deputy west of Hodges door. The deputy told Witness #3 to get out of the way and go behind the nearby Pizza Hut. Witness #3 waited a few second and then made his way to the Pizza Hut which was west of the motel. 5

6 On January 17, 2017, at approximately 5:45 in the evening, Witness #1 was interviewed by Detective Jonathan Cahow and Detective Charles Phillips. 1 Witness #1 dated Dominic Hodges for approximately eighteen years. Witness #1 and Hodges lived together with Witness #1 s nineteen-year-old son and Witness #1 and Hodges fourteen-year-old son. During the evening of January 16, 2017, Witness #1 said several unknown people and Publishers Clearing House employees surrounded Witness #1 s residence and whispered amongst one another. An unknown individual sent messages to Witness #1 and Hodges telephones. Hodges became frightened and armed himself with a rifle, a revolver, and a 9mm semi-automatic pistol. Hodges and Witness #1 were scared people were stalking them and went to a Sizzler restaurant in Joshua Tree. Hodges was still armed with the 9mm semi-automatic pistol. Hodges believed an unknown person followed them with the intention of killing Hodges and Witness #1. At the Sizzler, Hodges tried to call Sheriff s dispatch to report someone following them but all his calls were routed to an unknown person who hung up and then deleted Hodges messages and contacts. Witness #1 then used the phone at Sizzler s to call Sheriff s dispatch. While speaking with the dispatcher, Witness #1 said an unknown person tapped into Witness #1 s phone and erased her text messages. Witness #1 said a deputy arrived at the restaurant and she told the deputy unknown people watched and followed herself and Hodges. The deputy followed Witness #1 and Hodges back to Witness #1 s residence, conducted an area check, and did not locate anyone. After the deputy left, Witness #1 said unknown people drove around the residence and revved their engines. The unknown person who followed Witness #1 messaged Witness #1 and asked for money. On January 17, 2017, during the early morning hours, Witness #1 and Hodges did not feel safe and ended up driving to the Motel located on Twentynine Palms Highway. 23 Witness #1 and Hodges checked into the motel. Witness #1 and Hodges took clothes, Witness #1 s medication, beer, and Hodges 9mm handgun into the motel room. An unknown person sent Hodges a picture message of Hodges standing in front of Hodges residence. Witness #1 noticed purple lines across her cell phone screen and believed someone was watching her through the phone. Witness #1 and Hodges heard someone walking outside their room. Witness #1 called the front desk and 911 and reported that an unknown person was outside her room and was trying to kill Witness #1 and Hodges. 1 Witness #1 was in custody in a jail cell at the Morongo Basin Sheriff s station. The detectives moved Witness #1 to an interview room to conduct the interview and they did not discuss the circumstances surrounding her arrest. 2 Witness #1 s statements describing the events prior to her arrival at the Motel are unsubstantiated. 3 Witness #1 told detectives during the evening of January 16, 2017, she had taken methamphetamine, Norco, Percocet, Soma, and Xanax but that she was not under the influence and could not feel the effects of the prescription medication. The prescription medication was obtained by Hodges off the street and given to Witness #1. 6

7 Witness #1 said the unknown person knocked loudly on the door and said, Dominic. Hodges told Witness #1, He found us. Hodges told Witness #1 to hide in the bathroom. Hodges grabbed the 9mm handgun. Witness #1 went into the bathroom and shut the door. Witness #1 heard the motel room door open and then heard several gunshots. After the gunfire stopped, Witness #1 heard Hodges moan and say, I m hit. I m hit. Witness #1 opened the bathroom door and saw Hodges laying on his back. Witness #1 moved Hodges right leg out of the way and then closed and locked the motel room door. Witness #1 called the motel s front desk and 911 and requested help because Hodges was shot. Witness #1 used towels to apply pressure to Hodges shoulder and thigh but Hodges continued to bleed. Witness #1 saw a shadow near the motel window and hid in the bathroom. Witness #1 called 911 to ask where the deputies were. The dispatcher asked Witness #1 to exit the motel room. Witness #1 was afraid of being shot but followed instructions and opened the door. Witness #1 heard deputies identify themselves. Witness #1 followed the deputies instructions as she came out of the motel room. Witness #1 was arrested and transported to jail. On January 17, 2017, at approximately 1:55 in the afternoon, Deputy Jacob Tiel was interviewed by Detective Jonathan Cahow and Detective Claus Hartleben. 4 On January 17, 2017, Deputy Jacob Tiel, from the San Bernardino County Sheriff s Department, was assigned to patrol at the Morongo Basin station. Deputy Tiel was wearing a San Bernardino County Sheriff s Department Class A uniform and driving a marked patrol vehicle. On January 17, 2017, Deputy Tiel was waiting in a church parking lot to meet his partner, Deputy Christopher Bingham. When Deputy Bingham pulled up he told Deputy Tiel over the radio that he received a message from the clerk at the Motel saying there was a guy with a gun. Deputy Tiel and Deputy Bingham drove to the motel. Deputy Tiel activated his belt recorder on the way to the motel. When the deputies got to the motel, they parked their patrol vehicles side by side in the driveway. Deputy Tiel could see the room on the third floor but did not see anyone near the room. The motel clerk told Deputy Bingham that there was a guy attempting to get into Room 324. The motel clerk said she had called Room 324 multiple times but did not get any response and was concerned about the guests inside the room. Deputy Tiel and Deputy Bingham decided to investigate further and went up the stairs to knock on the door. Both deputies had their guns drawn. When the deputies got to the top of the third floor, Deputy Bingham knocked on the door to Room 324 and said, Sheriff s Department. Deputy Tiel was approximately twenty feet away from the door. A few seconds passed and Deputy Tiel heard a gunshot. 4 Deputy Tiel s belt recorder was activated during the incident under review. Deputy Tiel reviewed the belt recording prior to being interviewed by detectives. 7

8 Deputy Bingham put out over the radio that there were shots fired. After the gunshot, Deputy Tiel saw a person behind the curtain walking towards the door. Deputy Tiel told Deputy Bingham there was somebody at the door. Deputy Tiel and Deputy Bingham backed away from the door. The person, later identified as Dominic Hodges, opened the blinds and stuck his head up to the window. Next, Deputy Tiel saw the door to Room 324 open inward and a gun come out. Hodges pointed the gun straight at Deputy Bingham. Deputy Tiel heard shots being fired. Deputy Tiel believed Hodges was going to kill Deputy Bingham. Deputy Tiel fired at Hodges who was shooting at Deputy Bingham. Deputy Tiel estimated he fired approximately four to five times. Hodges moved back inside the motel room and closed the door. Deputy Tiel fled to the west and down the nearest staircase while Deputy Bingham fled to the east. On the second floor, Deputy Tiel re-loaded his gun and moved half way back up the stairs so he could see the room. Deputy Tiel decided to go back down to the second floor, go all the way down to the end of the west side of the building, and then move back up to the third floor of the motel where he could keep observation of Room 324. Deputy Bingham had moved to far east side of the building. After approximately thirty seconds, Deputy Tiel returned to his patrol unit and retrieved the long rifle. Deputy Tiel told a civilian crouched down next to his vehicle to move to safety over by the Pizza Hut and told the motel clerk to get back inside. After Deputy Tiel grabbed the rifle he positioned himself down near the rear of his patrol vehicle and waited for backup to arrive. Additional officers arrived at the scene. After approximately twenty minutes, Deputy Tiel decided he wanted to talk to the civilian he had told to move over to Pizza Hut and started to walk in that direction. Deputy Tiel wanted to make sure the civilian was not involved in the incident. While he was walking, Deputy Tiel saw someone move the curtain in Room 324 so he moved back near his patrol vehicle. Someone spoke on the phone to Witness #1 who was inside the room with Hodges. The door to Room 324 opened and Deputy Tiel saw Witness #1 walk out with her hands up. Witness #1 appeared to be listening to commands from one of the officers at the scene. After Witness #1 was detained, Deputy Tiel went back to speak with the civilian he told to move by the Pizza Hut. Deputy Tiel detained the civilian so that an officer could interview him and then returned to his patrol vehicle. A Command Center was set up and the Specialized Enforcement Detail (SED) was called to assist with taking Hodges into custody. Verbal commands were made for Hodges to come out of the motel room but there was no response from Hodges. When SED arrived, they called the officers to back off the line and SED took over the scene. 8

9 On January 17, 2017, at approximately 3:50 in the afternoon, Deputy Christopher Bingham was interviewed by Detective Claus Hartleben and Detective Jonathan Cahow. 5 On January 17, 2017, Deputy Christopher Bingham, from the San Bernardino County Sheriff s Department, was assigned to patrol at the Morongo Basin station. Deputy Bingham was wearing a San Bernardino County Sheriff s Department Class A uniform with a windbreaker jacket. Deputy Bingham was driving a marked patrol vehicle. On that date, at around 2:21 in the morning, Deputy Bingham received a phone call from the clerk at the motel located on Twentynine Palms Highway. The clerk, later identified as Witness #2, told Deputy Bingham that a female in Room 324 was reporting there was a man with a gun outside the door. Deputy Bingham advised dispatch of the call. Deputy Bingham and his partner, Deputy Jacob Tiel then responded to the location. Deputy Bingham and Deputy Tiel parked their patrol vehicles directly in front of the center of the motel. Deputy Bingham got out of his patrol vehicle and started to look around. Deputy Bingham saw Witness #2 walking out from the office and went to speak with her. Witness #2 pointed out where Room 324 was located on the third floor. Deputy Bingham did not see anyone around the room. Witness #2 told Deputy Bingham she had tried calling Room 324 again but nobody was answering. Deputy Bingham spoke to a male occupant of a white vehicle that was in the parking lot with the engine running who said he had just pulled up to the motel. Deputy Bingham and Deputy Tiel decided to go up and knock on the door to Room 324. Both deputies already had their weapons drawn. When they got to the top of the stairs, Deputy Tiel stood on the west side of the window to the room. Deputy Bingham stood to the east of the room, knocked a couple of times, and said, Sheriff s Department. Within a few seconds, Deputy Bingham heard a shot fired from inside the room. Deputy Bingham advised dispatch over the radio that there were shots fired. Very shortly after that, Deputy Tiel told Deputy Bingham he saw someone moving at the window. Deputy Bingham saw the door to the room open. Deputy Bingham saw a head and a handgun coming out of the door. The person, later identified as Dominic Hodges, turned toward Deputy Bingham and started shooting. When Deputy Bingham saw the first flash from Hodges handgun, Deputy Bingham believed Hodges was trying to kill him. Deputy Bingham fired approximately six shots at Hodges, took a couple of steps back and fired approximately two more times at Hodges. Deputy Bingham estimated at the time of the initial shooting, he was standing approximately two feet away from Hodges. Deputy Bingham estimated Hodges fired his gun approximately five to six times. As Deputy Bingham backed up, he lost his balance, fell, and dropped his radio. Deputy Bingham picked up his radio and ran down to the east side of the building to get cover. 5 Deputy Bingham s belt recorder was not activated during the incident under review. Detectives stopped during their interview to allow Deputy Bingham a chance to review the belt recording of his partner, Deputy Tiel. 9

10 Deputy Bingham saw Deputy Tiel go down the stairs. Deputy Bingham put out over the radio that there were additional shots fired and requested backup. Deputy Bingham then reloaded his weapon. Deputy Bingham got on his radio and directed responding units where to go. Deputy Bingham told Deputy Tiel to go down to his patrol vehicle and get his long gun. Deputy Bingham eventually moved down to the clerk s office and tried to call Room 324. Deputy Bingham also tried to call the cellphone number that was listed on the check in application. There was no response to the phone calls. Eventually, officers were able to get the female, later identified as Witness #1, out of the room. Deputy Bingham asked Witness #1 questions about how many people were in the room, what type of firearms Hodges had, and whether Hodges was injured. Officers from the Specialized Enforcement Detail (SED) eventually arrived and took over the scene. Weapon Taurus 9mm pistol, model: PT92AF, serial number THF The weapon was located on the floor at the foot of the bed in the motel room. The hammer on the pistol was cocked and loaded with one cartridge in the chamber and 9 cartridges in the magazine. Belt Recording Deputy Bingham was equipped with a belt recorder on the date of the incident under review. The belt recorder was not activated and not recording at the time of the shooting. Deputy Tiel was equipped with a belt recorder on the date of the incident under review. The belt recorder was activated and recording at the time of the shooting. The belt recording is approximately three hours and forty-two minutes in length. The shooting occurred within the first six minutes of the belt recording. The following is a summary of what can be heard during the first six minutes of the recording. Deputy Tiel is heard talking to Deputy Bingham trying to determine where Room 324 is and pointing out a civilian walking nearby. Deputy Bingham is heard talking to dispatch over the radio. Deputy Bingham is heard telling Deputy Tiel what the clerk advised. Deputy Bingham is heard knocking on a door and announcing Sheriff s Department. After a few seconds, a gunshot can be heard. Deputy Bingham is heard advising over the radio that there were shots fired. Deputy Tiel is heard telling Deputy Bingham I got somebody at the door, somebody at the window. Several more gunshots are heard. Deputy Tiel can be heard running and advising over the radio that there were shots fired. Deputy Tiel is heard telling someone Get inside, get inside. 10

11 Video Surveillance The only video surveillance cameras on the property are in the motel office. There were no surveillance cameras where the shooting occurred. Death The Specialized Enforcement Detail (SED) utilized a remote controlled tactical robot to enter room 324. Hodges was lying on the floor with blood coming from the leg area. Upon entering the room with the robot, the robot tapped Hodges and attempted to gain some sort of reaction. Hodges did not move and no weapons were seen in Hodges hands. The Entry Team entered the room and confirmed Hodges was deceased. Postmortem Examinations Dr. Mark Fajardo, Chief Forensic Pathologist for the Coroner Division of the Riverside County Sheriff s Department, conducted the autopsy of Dominic Hodges on January 19, Dr. Fajardo observed two gunshot wounds to Hodges body. The first gunshot wound was in the right upper anterior chest region of Hodges body. The wound path direction was front to back, minimally from left to right, and minimally downward. The second gunshot wound was in the right inguinal region of Hodges body. The wound path direction was front to back, slightly downward, and minimally from left to right. Dr. Fajardo determined the cause of death was the penetrating gunshot wound of the chest. Toxicology Heart blood, Vitreous, and Urine samples were collected from Hodges during the autopsy. Toxicology results for the Chest Blood sample were listed as follows: 2.5 mg/l meprobamate Amphetamines detected o mg/l Methamphetamine o mg/l Amphetamine Benzodiazepines detected o mg/l Alprazolam Opiates detected o mg/l Hydrocodone o mg/l Oxycodone Cannabinoids detected o mg/l Delta-9-THC o Less than mg/l 11-Carboxy-Delta-9-THC 1.4 mg/l Acetaminophen 11

12 Toxicology results for the Urine sample were listed as follows: 29.8 mg/l Meprobamate Amphetamines detected o Greater than mg/l Methamphetamine o ng/ml Amphetamine Benzodiazepines detected o mg/l Alprazolam o mg/l Alpha-Hydroxyalprazolam Opiates detected o mg/l Hydrocodone o mg/l Hydromorphone o mg/l Oxycodone Cannabinoids detected o mg/l 11-Carboxy-Delta-9-THC 27.9 mg/l Acetaminophen Toxicology results for Vitreous sample were listed as follows: Amphetamines detected o mg/l Methamphetamine o mg/l Amphetamine Benzodiazepines detected o mg/l Alprazolam Opiates detected o mg/l Hydrocodone o mg/l Oxycodone 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. 12

13 California Penal Code section 835a Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance. A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to selfdefense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance. Laws of Self-Defense The legal doctrine of self-defense is codified in Penal Code Sections 197 through 199. Those sections state in pertinent part: Where from the nature of an attack a person, as a reasonable person, is justified in believing that his assailant intends to commit a felony upon him, he has a right in defense of his person to use all force necessary to repel the assault; he is not bound to retreat but may stand his ground; and he has a right in defense of his person to repel the assault upon him even to taking the life of his adversary. (People v. Collins (1961) 189 CA 2d 575, 1 Cal Reptr. 504). Justification does not depend on the existence of actual danger but rather depends upon appearances; it is sufficient that the circumstances be such that a reasonable person would be placed in fear for his safety and the defendant act out of that fear (Penal Code Sec. 19; People v. Clark (1982) 130 CA 3d 371, 277, 181 Cal. Reptr. 682 California Penal Code section 197 (Summarized in pertinent part) Homicide is also justifiable when committed by any person in any of the following cases: 1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person. CAL CRIM 3470 (REVISED JUNE 2007) 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: 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; 13

14 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 defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of death/bodily injury has passed. This is so even if safety could have been achieved by retreating. USE OF DEADLY FORCE BY A PEACE OFFICER Authorization of the use of Deadly Force is analyzed under the Fourth Amendment's objective reasonableness standard. Brosseau v. Haugen, 543 U.S. 194, This question is governed by the principles enunciated in Tennessee v. Garner, (1985) 471 U.S. 1 and Graham v. Connor (1989) 490 U.S In these decisions, the US Supreme explained it is unreasonable for an officer to seize an unarmed, non-dangerous suspect by shooting him dead.. However, where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others, it is not constitutionally unreasonable to prevent escape by using deadly force. (Tennessee v. Garner supra) Reasonableness is an objective analysis and must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. It is also highly deferential to the police officer's need to protect himself and others. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of force that is necessary. Graham, 490 U.S. at 396,. The question is whether the officer s actions are objectively reasonable in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. at

15 The US Supreme Court in Graham set forth factors that should be considered in determining reasonableness: (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether he is actively resisting arrest or attempting to evade arrest by flight. The question is whether the totality of the circumstances justifies a particular sort of... seizure. (See also Billington v. Smith, ( th Cir) 292 F.3d 1177, 1184.) The most important of these factors is the threat posed by the suspect. Smith v. City of Hemet, (9 th Cir. 2005) 394 F.3d 689. Thus, under Graham, the high court advised we must avoid substituting our personal notions of proper police procedure for the instantaneous decision of the officer at the scene. We must never allow the theoretical, sanitized world of our imagination to replace the dangerous and complex world that policemen face every day. What constitutes reasonable action may seem quite different to someone facing a possible assailant than to someone analyzing the question at leisure. (Smith v. Freland (6th Cir.1992) 954 F.2d 343, 347. Reasonableness: The Two Prongs Section 197(3) requires that one who employs lethal force have a reasonable ground to apprehend great bodily injury. Further, section 198 requires that such fear be sufficient to excite the fears of a reasonable man, clearly an objective standard. In shorthand, perfect self-defense requires both subjective honesty and objective reasonableness. When specific conduct is examined under the analytical standard of reasonableness the concepts of apparent necessity and mistake are invariably, and necessarily, discussed, for they are part of the same equation. Reasonableness, after all, implies potential human fallibility. The law recognizes, as to self defense, that what is being put to the test is human reaction to emotionally charged, highly stressful events, not mathematical axioms, scientifically provable and capable of exact duplication. Justification does not depend upon the existence of actual anger but rather depends on appearances; it is sufficient that the circumstances be such that a reasonable person would be placed in fear for his safety and that the defendant act out of that fear. [Citation.] He may act upon such appearances with safety; and if without fault or carelessness he is misled concerning them, and defends himself correctly according to what he supposes the facts to be, his act is justifiable, though the facts were in truth otherwise, and though he was mistaken in his judgment as to such actual necessity at such time and really had no occasion for the use of extreme measures. People v. Clark (1982) 130 Cal.App.3d 371, 377,181 Cal.Rptr While the test, as mandated by section 198, is objective, reasonableness is determined from the point of view of a reasonable person in the defendant s position. [A] defendant is entitled to have a jury take into consideration all the elements in the case which might be expected to operate on his mind.... What is reasonable under the 15

16 circumstances is judged from the point of view of a reasonable person in the position of defendant. Reasonableness is judged by how the situation appeared to the defendant, not the victim. Imminence of Perceived Danger Imminence is a critical component of both prongs of self-defense. Response with deadly force must be predicated on a danger that portends imminent death or great bodily injury. Reasonableness and immediacy of threat are intertwined. Self-defense is based on the reasonable appearance of imminent peril of death of, or serious bodily injury to the party assailed.... In Aris, trial court s clarifying instruction to the jury on the subject was to the point and later cited with approval by the California Supreme Court: An imminent peril is one that, from appearances, must be instantly dealt with. [People v. In re Christian S. (1994) 7 Cal. 4 th 768,783] The question is whether action was instantly required to avoid death or great bodily injury. In this regard, there is no duty to wait until an injury has been inflicted to be sure that deadly force is indeed appropriate. Retreat and Avoidance Under California law one who is faced with an assault that conveys death or great bodily injury may stand his ground and employ lethal force in self-defense. There is no duty to retreat even though the assailed person might more easily have gained safety by flight or by withdrawing from the scene. Indeed, in California the retreat rule has been expanded to encompass a reasonably perceived necessity to pursue an assailant to secure oneself from danger. [See People v. Holt (1944) 25 Cal.2d 59, 63 and People v. Collins (1961) 189 Cal. App.2d 575, 588] Nature and Level of Force [A]ny right of self-defense is limited to the use of such force as is reasonable under the circumstances. [See People v. Gleghorn (1987) 193 Cal.App.3d 196, 200, People v. Minifie (1996)13 Cal.4 th 1055,1065, People v. Moody (1943) 62 Cal.App.2d 476, 482 and People v. Moody(1943) 62 Cal.App.2d 18,22] Case law does not impose a duty to use less lethal options. Where the peril is swift and imminent and the necessity for action immediate, the law does not weigh into nice scales the conduct of the assailed and say he shall not be justified in killing because he might have resorted to other means to secure his safety. [People v. Collins (1961) 189 Cal. App.2d 575, 589] 16

17 The rationale for vesting the police officer with such discretion was explained: Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment. [Scott v. Henrich (1994) 39 F.3d 912, 915] In summary, an honest and objectively reasonable belief that lethal force is necessary to avoid what appears to be an imminent threat of death or great bodily injury will justify the use of deadly force. This is true even if the person acting in self-defense could have safely withdrawn or had available to him a less lethal means of defense. ANALYSIS In this case, Deputy Bingham and Deputy Tiel were responding to a call for service at the a motel located on Twentynine Palms Highway. The call for service was in regards to a man with a gun trying to get into Room 324. One of the occupants of Room 324, later identified as Witness #1, called the desk clerk and reported that the man with the gun was trying to get into the room to kill her and her boyfriend. Deputy Bingham and Deputy Tiel were both wearing uniforms and driving marked patrol cars when they responded to the motel. When Deputy Bingham and Deputy Tiel arrived at the location, they parked their patrol vehicles directly in front of the motel. The desk clerk updated Deputy Bingham about what happened and advised him that she tried multiple times to call Room 324 but nobody was answering the phone. Deputy Bingham and Deputy Tiel decided to go up and knock on the door to Room 324 which was on the third floor of the motel. Deputy Bingham knocked on the door and said, Sheriff s Department. Given the nature of the call, a man with a gun trying to get into a room, both Deputy Bingham and Deputy Tiel already had their weapons drawn before they got to Room 324. The deputies heard a single gunshot a few seconds after Deputy Bingham knocked on the door. Deputy Bingham advised dispatch over the radio that there were shots fired. 17

18 Next, Deputy Tiel told Deputy Bingham that he saw somebody approaching the front door. When the door opened, Deputy Bingham saw a person with a gun coming out of the room. The person, later identified as Dominic Hodges, turned the gun towards Deputy Bingham and started shooting. Deputy Bingham believed Hodges was going to kill him and fired approximately eight shots at Hodges. Deputy Tiel believed Hodges was about to kill Deputy Bingham and fired approximately four to five shots at Hodges. Both Deputy Bingham and Deputy Tiel had an honest and objectively reasonable belief that the use of lethal force was necessary to prevent Hodges from seriously injuring or killing Deputy Bingham. The initial call for service was for a man with a gun trying to enter a motel room. The desk clerk had explained to Deputy Bingham that she had tried several times to call Witness #1 after the initial call about the man with the gun but was not getting any response. After the deputies knocked on the door to Room 324 they heard a single gunshot inside the room. The deputies were now faced with the reality that a person may have been shot or killed inside of that room. It was clear that Hodges posed an imminent threat to both Deputy Bingham and Deputy Tiel. Hodges was armed with a deadly weapon. The reality of the threat Hodges posed was made clear to the deputies when they heard the first gunshot. The deputies now knew there was a person inside of that room willing to use a gun. When Hodges opened the door, he turned the gun towards Deputy Bingham and immediately started shooting at Deputy Bingham. Deputy Bingham and Deputy Tiel were given seconds to decide how to respond. Afraid for his life and certain that Hodges intended to kill him, Deputy Bingham fired his weapon at Hodges. Afraid that Hodges was about to kill Deputy Bingham, Deputy Tiel fired his weapon to protect his partner. Under these circumstances, Deputy Bingham and Deputy Tiel honestly and reasonably believed their only option to stop Hodges from killing Deputy Bingham was to fire their weapons at Hodges. The deputies knew any hesitation on their part to return fire could have resulted in one or both deputies being killed. Given those circumstances, the decision by both Deputy Bingham and Deputy Tiel to use deadly force was justified. CONCLUSION Based on the facts presented in the reports and the applicable law, Deputy Bingham s use of deadly force was a proper exercise of Deputy Bingham s right of self-defense and therefore his actions were legally justified. Based on the facts presented in the reports and the applicable law, Deputy Tiel s use of deadly force was a proper exercise of Deputy Tiel s right of defense of others and therefore his actions were legally justified. Lynette Grulke Deputy District Attorney Rancho Cucamonga Office Date 18

19 Ronald Webster Supervising Deputy District Attorney Morongo Office Date Julie Peterson Chief Deputy District Attorney Desert-Mountain Division Date Gary Roth Assistant Deputy District Attorney Desert Division Date 19