INTEROFFICE MEMORANDUM

Transcription

1 INTEROFFICE MEMORANDUM DATE: May 21, 2015 PHONE: FROM: TO: Michael P. Dowd Supervising Deputy District Attorney Victorville Division Mary Ashley Assistant District Attorney Simon Umscheid Chief Deputy District Attorney Central Division SUBJECT: OFFICER INVOLVED NON-FATAL SHOOTING Involved Parties: Officer Roberto Dimas, Colton Police Department. Suspects: Christian Palomares (DOB: ); Defendant # 2 (14 years old at the time of this incident); Manuel Casas (DOB: ); Gonzalo Alcazar (DOB: ); Jimmy Alcazar (DOB: ). Date of Incident: Location: Case Agent: Investigating Agency: March 20, 2012, 2344 Hours. San Bernardino Avenue/Sycamore Avenue, Colton, CA Detective Flores, San Bernardino County Sheriff s Department San Bernardino County Sheriff s Department DR# DA Star Number:

2 PREAMBLE The summary of this incident is drawn from material submitted by the San Bernardino County Sheriff s Department. The case agent is Detective Flores. The submission contains various narrative reports that include interviews, crime scene description and diagrams, lab reports and recordings. 2

3 TABLE OF CONTENTS FACTUAL SUMMARY. 4 INTERVIEWS 6 Interview with Officer Roberto Dimas 6 Interview with WITNESS # Interview with Christian Palomares... 7 Interview with Defendant # Interview with Manuel Casas. 9 Interview with Gonzalo Alcazar.. 10 Interview with Jimmy Alcazar. 10 Interview with WITNESS #2. 11 Interview with WITNESS #3. 11 ADDITIONAL INFORMATION. 12 STATEMENT OF APPLICABLE LAW 13 ANALYSIS. 15 CONCLUSION.. 17 FACTUAL SUMMARY On March 20, 2012, at approximately 10:00 p.m., WITNESS #1 was taking a walk in the park across the street from his apartment complex in Colton when he saw Manuel Casas and three other people. One of the people was Christian Palomares. WITNESS #1 walked over to the group and the group started walking toward Palomares apartment. On the way to the apartment, WITNESS #1 became engaged in a loud 3

4 argument with Casas. The argument then escalated into a fight. WITNESS #1 took at least one punch at Casas but missed. Palomares ran to his apartment. Once inside his apartment, Palomares continued to hear the confrontation outside his apartment. His mother, WITNESS #3, told him to stay inside the apartment and to not go outside. WITNESS #3 called 911 to report the altercation to the police. At some point in time, subjects came to the apartment of Palomares to demand that Palomares come outside but Palomares refused. Palomares went into the kitchen of the apartment and armed himself with two kitchen knives. Palomares then exited his apartment and attempted to help Casas. At this time, Defendant # 2 was inside his apartment and also heard the confrontation outside. Gonzalo Alcazar and Jimmy Alcazar were inside their apartment as well and were hearing the fighting happening outside. Their father attempted to prevent them from leaving the apartment but both Gonzalo and Jimmy exited the apartment to help Casas. Defendant # 2 also exited his apartment to help Casas. Once outside, all four ran to the aid of Casas. The subjects who were involved in the altercation with Casas then ran. Defendant # 2, Palomares and Jimmy Alcazar attempted to run after the subjects but were unable to keep up. At this time, Defendant # 2, Palomares, Jimmy Alcazar and Manuel Casas got into Gonzalo Alcazar s 1991 Honda Accord in an attempt to track down the subjects who were in the altercation with Casas. While driving around the area, they spotted one of the individuals who they believed was involved in the altercation with Casas. This person was WITNESS #1. When they first spotted WITNESS #1, he was walking on the sidewalk on San Bernardino Avenue near the intersection with Sycamore Avenue. They stopped the Honda Accord at the intersection and Defendant # 2, Palomares and Jimmy Alcazar got out of the Honda and approached WITNESS #1. Palomares was armed with the two knives that he had taken from his apartment and had them in his hand. Defendant # 2 at one point was armed with a golf club that was recovered from the front seat area of the Honda Accord. Prior to the three suspects exiting the Honda Accord, Officer Roberto Dimas of the Colton Police Department had arrived at the intersection having responded to the dispatch call that resulted from the 911 call of WITNESS #3. Officer Dimas saw all three exit the Accord. Officer Dimas saw Palomares contact WITNESS #1 and appear to make a stabbing motion at WITNESS #1 after Palomares grabbed a hold of WITNESS #1. Officer Dimas ordered Palomares to Stop Right There. Palomares responded by turning toward Officer Dimas with the knives still in his hand and coming toward Officer Dimas. In response to this action by Palomares, Officer Dimas fired his handgun 4 times. 4

5 Upon hearing the gunshots, Palomares ran around the rear of the Accord and while running around the Accord threw both knives to the ground. Officer Dimas then ordered everyone to the ground. Defendant # 2, Palomares and Jimmy Alcazar all went to the ground. The two remaining suspects in the car put up their hands when ordered to do so by Officer Dimas. The two knives thrown by Palomares were found to the rear of the Honda Accord. After the suspects were taken into custody, it was determined that Defendant # 2 had been shot in the foot. Defendant # 2 was then taken to Arrowhead Regional Medical Center where he was treated for a gunshot wound to his foot. INTERVIEWS INTERVIEW OF OFFICER ROBERTO DIMAS 5

6 On March 20, 2012, at approximately Midnight, Officer Dimas received a dispatch call while on patrol concerning a disturbance call in the area of San Bernardino Avenue and Sycamore Avenue in Colton. The original broadcast was that a fight was taking place involving five subjects. As Officer Dimas was responding to the location, this was modified to a fight where suspects were potentially armed with knives. When Officer Dimas arrived at the location, he was in the intersection of San Bernardino Avenue and Sycamore Avenue. Officer Dimas saw WITNESS #1 walking on the sidewalk on San Bernardino Avenue. He also witnessed a gold Honda enter the intersection. Officer Dimas saw one suspect exit from the front passenger door. This person was later identified as Defendant # 2. He then saw two people exit from the rear passenger door. These two people were later identified as Christian Palomares and Jimmy Alcazar. Officer Dimas then saw Palomares grab WITNESS #1 and pull a knife out from his pants. Officer Dimas then exited his unit and drew his handgun. Officer Dimas then ordered Palomares to Stop Right There. Palomares made a stabbing movement toward WITNESS #1. After the command, Palomares then made a forward motion with the knife while turning toward the officer. Officer Dimas then fired four rounds toward Palomares. Palomares immediately after the gunshots ran toward the rear of the Honda. Officer Dimas yelled for everyone to get on the ground. Defendant # 2 and Alcazar got on the ground. Palomares then got on the ground. At this point, there were two subjects who were still inside the car. They were later identified as Gonzalo Alcazar and Manuel Casas. Officer Dimas ordered them to put their hands up and both complied. Officer Dimas searched the area to the rear of the Honda and found two knives on the ground to the rear of the car which is the area that Palomares had run to after the gunshots. INTERVIEW OF WITNESS #1 On March 20, 2012, at approximately 10:00 p.m., WITNESS #1 was walking at the park which is located across the street from his apartment complex at the intersection of San Bernardino Avenue and Sycamore Avenue. 6

7 While walking at the park, WITNESS #1 saw four people. One of these people was Manuel Casas and another was Christian Palomares. WITNESS #1 walked over to them and began to engage them in conversation. The group decided to go over to Palomares apartment. On the way to Palomares apartment, an argument ensued between Casas and WITNESS #1 concerning a girlfriend of one of the people in the group. This argument escalated into a fight where WITNESS #1 took a swing at Casas but missed. After this punch was thrown, WITNESS#1 decided to walk away from the scene and headed in the direction of San Bernardino Avenue and Sycamore Avenue. As WITNESS #1 was walking along the street, he noticed a car speeding up to his location. He then saw the car stop and a person exit the car. The person was later identified as Christian Palomares. Palomares approached WITNESS #1 but then stopped and turned around. At this time, WITNESS #1 then saw a Colton Police Officer. The officer immediately fired 3 to 4 shots in the direction of Palomares. The officer then ordered him to the ground. WITNESS #1 complied with the command. WITNESS #1 never saw any weapons. INTERVIEW OF CHRISTIAN PALOMARES On March 20, 2012, at approximately 2:00 p.m., Palomares was visiting with his girlfriend at his apartment. At approximately 7:00 to 9:00 p.m., he then went to Manuel Casas apartment. Casas and Palomares then walked to a friend s home. That friend was not home and they proceeded to walk around. While walking, they met up with some people near a park across the street from their apartment complex. The group then decided to walk to Palomares apartment. While walking to the apartment, an argument ensued. Palomares then decided to walk away and go into his apartment. While inside his apartment, he continued to hear the argument taking place outside and began to hear a fight break out. Palomares looked outside and saw an assault taking place on his friend, Casas. Palomares went into the kitchen of his apartment and grabbed two kitchen knives. He then exited his apartment and began to chase the subjects who were assaulting Casas. 7

8 He was unsuccessful in catching the subjects. He and four others then got into a car in an attempt to locate the subjects. While driving in the car, Palomares spotted one of the individuals who he believed to be part of the assault on Casas. This individual was walking on the sidewalk on San Bernardino Avenue. This person was later identified as WITNESS #1. They stopped the car. Palomares grabbed both knives with his left hand and exited the car. Palomares ran at WITNESS #1. Palomares wanted to intimidate WITNESS #1. As Palomares was approaching WITNESS #1, an officer arrived at the location. Palomares then turned toward the officer. When he did this, the officer fired. Palomares ran to the rear of the car and threw the knives to the ground. After running to the rear of the car and throwing the knives, Palomares went to the ground. Palomares stated that if he had been in the officer s position, he would have done the same thing as the officer. Palomares stated that the officer probably believed that it was his intention to stab WITNESS #1. INTERVIEW OF DEFENDANT # 2 On March 20, 2012 in the evening hours, Defendant # 2 heard an argument coming from outside of his apartment. He looked out his window and saw an assault. He saw his friend, Manuel Casas, being assaulted and yelled at the subjects to stop. Defendant # 2 ran out of his apartment to help Casas. As he was running to help Casas, the subjects who were assaulting Casas ran from the location. Defendant # 2 along with four others then got into a car in order to chase the subjects. Gonzalo Alcazar was driving. Defendant # 2 was in the front passenger seat. Casas was in the left rear seat. Christian Palomares was in the middle rear seat. Jimmy Alcazar was in the right rear seat. While driving, he spotted one of the people who he believed was engaged in the assault on Casas. This person was later identified as WITNESS #1. Defendant # 2 started talking out of the window at WITNESS #1. As Defendant # 2 was doing this, an officer arrived. Jimmy Alcazar and Palomares got out of the car. As soon as they exited the car, the officer fired. Defendant # 2 stayed in the car but had opened the car door and then eventually dove to the ground. Jimmy Alcazar and Palomares dove to the ground at the front of the car. After the police took everyone into custody, Defendant # 2 noticed that his foot hurt and that he had been shot in the foot. 8

9 Defendant # 2 was taken to Arrowhead Regional Medical Center where he was treated for a gunshot wound to his foot. INTERVIEW OF MANUEL CASAS On March 20, 2012 at approximately 9:00 p.m., Casas was walking with Christian Palomares. While walking, they met up with WITNESS #1 and two others at a park across the street from his apartment complex. The group decided to walk to Palomares apartment. While walking, an argument ensued between him and WITNESS #1. As the argument was taking place, Palomares ran to his apartment. A fight then ensued. Jimmy Alcazar, Gonzalo Alcazar, Defendant # 2, and Palomares then came to his aid. The subjects fighting with Casas then ran from the location. The group attempted to chase them but eventually the five of them got into Gonzalo Alcazar s car. As they were driving around, they found WITNESS #1 walking on the sidewalk of San Bernardino Avenue. Defendant # 2, Palomares and Jimmy Alcazar got out of the car. Casas was about to exit when he heard multiple gunshots. He originally thought that WITNESS #1 was shooting at them, but then realized that a police officer was doing the shooting. Casas remained in the car with Gonzalo Alcazar until ordered out by police. Casas stated that he was mad about being jumped and wanted to retaliate against the subjects who had jumped him. INTERVIEW OF GONZALO ALCAZAR On March 20, 2012 at approximately 11:30 p.m., Alcazar was in his apartment watching television. He then heard arguing outside. Alcazar looked out his window and saw Manuel Cases surrounded by 5 to 6 people. 9

10 Alcazar then ran out along with Defendant # 2 and Jimmy Alcazar. As they were running out, the subjects who had been surrounding Casas ran from the location. Christian Palomares, Casas and Jimmy Alcazar attempted to give chase but were unable to catch them. Alcazar along with Palomares, Casas, Defendant # 2 and Jimmy Alcazar then got into his car and drove after the subjects. While driving, they spotted one of the subjects who was later identified as WITNESS #1. They stopped the car at the intersection of San Bernardino Avenue and Sycamore Avenue. Defendant # 2, Palomares and Jimmy Alcazar then got out of the car. Palomares was the first to exit the car. Defendant # 2 had a golf club. He then heard multiple gunshots. He then heard an officer giving verbal commands. During this time, he heard Defendant # 2 complaining of injuring his foot. Alcazar was ordered out of the car. Alcazar was ordered to sit on the curb. While sitting on the curb, he saw a knife on the ground at the rear of his car. Alcazar stated that he chased the subjects to fight and to teach them a lesson. INTERVIEW OF JIMMY ALCAZAR On March 20, 2012 at approximately 10:11 p.m., Alcazar was in his apartment trying to sleep. He heard arguing outside. Alcazar looked out his window and saw 3 people challenging Manuel Cases and Christian Palomares to a fight. Alcazar then saw Palomares run into his apartment and a fight started. Alcazar then ran out along with Defendant # 2 and Gonzalo Alcazar. As they were running out, the subjects who had been fighting Casas ran from the location. Palomares, Casas and Alcazar attempted to give chase but were unable to catch them. Alcazar along with Palomares, Casas, Defendant # 2 and Gonzalo Alcazar then got into Gonzalo Alcazar s car and drove after the subjects. While driving, they spotted one of the subjects who was later identified as WITNESS #1 on the corner of San Bernardino Avenue and Sycamore Avenue. They stopped the car at the intersection. Defendant # 2, Palomares and Alcazar then got out of the car. Palomares had three knives. Defendant # 2 had a golf club. He then heard several gunshots. He saw an officer shooting at them. During this time, Alcazar went to the ground. While on the ground, he saw knives on the ground. 10

11 INTERVIEW OF WITNESS #2 In the evening hours of March 20, 2012, WITNESS #2 s wife went out to walk their dogs. While out walking the dogs, his wife had an encounter with a group of men. She told him about it and he went outside to help. WITNESS #2 told his friend, Manuel Cases about what had happened and they confronted the group. As they were confronting the group, they got into a fight. One of the subjects had a gun. The group then ran. His friends then got into a car to chase the group. WITNESS #2 stated that the person from the group who had the gun then fired upon his friends in the car. WITNESS #2 stated that there was only one set of shots fired during all of this and that he never saw a police officer at the location. INTERVIEW OF WITNESS #3 In the evening hours of March 20, 2012, WITNESS #3 heard banging on her apartment door. She looked outside and saw a Hispanic male. He had his hand at his waist. She thought that he had a gun but never saw one. WITNESS #3 then saw this person talking to other people outside of her apartment. She saw this person take something from his waistband and hand it to someone. This same Hispanic male then came back to her apartment looking for her brother, Christian Palomares. She told him that he would not come out. This person then went away and got into a fight. The person he got into a fight with was Manuel Cases. Her brother, Christian Palomares, then ran from the apartment to help Casas. The subjects ran from the location and her brother and his friends got into a car to chase them. A short time later, she heard six gunshots. She called 911 to report the fight. ADDITIONAL INFORMATION 11

12 Palomares, Casas, Gonzalo Alcazar and Jimmy Alcazar were charged with Assault with a Firearm in violation of Penal Code section 245(a)(1) and Palomares was further charged with Assault Upon a Peace Officer in violation of Penal Code section 245(c), in San Bernardino Superior Court case number FSB Palomares was convicted of Penal Code section 245(a)(1), Assault with a Firearm pursuant to a plea agreement and was sentenced on May 4, 2012 to 3 years Formal Probation and 210 days in County Jail. Jimmy Alcazar was convicted of Penal Code section 245(a)(1), Assault by Means of Force Likely to Cause Great Bodily Injury pursuant to a plea agreement and was sentenced on May 4, 2012 to 3 years Formal Probation and 180 days in County Jail. Gonzalo Alcazar was convicted of Penal Code section 245(a)(1), Assault by Means of Force Likely to Cause Great Bodily Injury pursuant to a plea agreement and was sentenced on May 4, 2012 to 3 years Formal Probation and 120 days in County Jail. Manuel Casas was convicted of Penal Code section 245(a)(1), Assault by Means of Force Likely to Cause Great Bodily Injury pursuant to a plea agreement and was sentenced on May 4, 2012 to 3 years Formal Probation and 120 days in County Jail. Defendant # 2 was 14 years old at the time of this crime and was referred to the Juvenile Court system. STATEMENT OF APPLICABLE LAW 12

13 The legal doctrine of self-defense is codified in Penal Code sections 196 through 199. Those sections state in pertinent part: where the nature of an attack on 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 the right in defense of his person to repel the assault upon him even to take the life of his adversary. (People v. Collins (1961) 189 Cal.App.2d 575.) Justification does not depend on the existence of actual danger 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 the defendant act out of that fear. (People v. Clark (1982) 130 Cal.App.3d 371. Calcrim 3470 states that a person acts in lawful self-defense if the following are established: 1. The person reasonably believed that he or someone else was in imminent danger of suffering bodily injury 2. The person reasonably believed that the immediate use of force was necessary to defend against that danger 3. The person used no more force than was reasonably necessary to defend against that danger. Any police officer who has reasonable cause to believe that a person to be arrested has committed a public offense may use reasonable force to affect the arrest. A police officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance of the person being arrested nor shall the officer lose his right to self-defense by the use of reasonable force to effect the arrest. (Penal Code section 835a.) Where an 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 use deadly force to prevent escape. If a suspect threatens an officer with a weapon, deadly force may be used if necessary. (Tennessee v. Garner (1985) 471 U.S. 1.) The reasonableness of the particular use of force must be judged from the perspective of a reasonable officer on the scene rather than with 20/20 vision of hindsight. Police officers are often forced to make quick decisions in circumstances that are tense, uncertain and rapidly evolving. Certain factors are to be considered. Such as: severity of the crime, whether the suspect poses an immediate threat to safety, and whether he is actively resisting. (Graham v. Conner (1989) 490 U.S. 386.) An officer attempting to enforce a detention or arrest may use an amount of force that is reasonably necessary. (People v. Brown (1985) 169 Cal.App.3d 159.) Even if unjustified, every person has a duty to submit to the orders of a police officer and may 13

14 not resist unless excessive force is used. (Evans v. City of Bakersfield (1994) 22 Cal.App.4 th 321.) ANALYSIS 14

15 In the present case, Officer Dimas was responding to a location regarding a call about a fight that was taking place at the location. Officer Dimas was advised that there were subjects involved in this fight who were potentially armed with knives. The officer upon responding to the location witnessed three subjects exit a vehicle and one of these subjects approach a person walking on the street. The person walking on the street was identified as WITNESS #1. The person approaching WITNESS #1 was identified as Christian Palomares. Officer Dimas noticed that Palomares was armed with a knife as he approached WITNESS #1. Officer Dimas made commands to Palomares to stop. This was in response to Palomares making a stabbing motion toward WITNESS #1. The officer was authorized to do this during a lawful encounter in order to insure public safety. During this lawful encounter, the officer told Palomares to stop. Palomares response to this command was to turn toward the officer with the knife while moving the knife forward. Officer Dimas for his safety and for the safety of others in the area has the right to make this lawful command where the officer has probable cause to believe that an unlawful offense is taking place. The officer was lawfully justified in attempting to detain and, at that point, arrest Palomares. Palomares had the legal duty to not resist and to submit to the authority of the officer. Palomares did not do this. Instead, Palomares made a forward motion while holding the knife. Palomares then turned toward the officer. The officer was in fear of his safety and others due to the actions of Palomares. Palomares was in close proximity to the officer and was just a few feet from WITNESS #1 when these actions were taken. As a result, Officer Dimas was forced to fire at Palomares. Due to the firing of Officer Dimas handgun at Palomares, Defendant # 2 who had also exited the car was struck in the foot and wounded. The officer in question, Officer Dimas, was put in the unenviable position of having to defend his life and the lives of others in the area due to the actions of Palomares. The officer at the scene had more than enough reasonable suspicion and probable cause to believe that Palomares was in fact guilty of the crime of assaulting a person with a deadly weapon as well as having assaulted a police officer with a deadly weapon and, as such, had the legal authority to arrest and/or detain Palomares. Palomares was under the legal obligation to submit to that arrest and/or detention. That is not what happened. When the officer tried to apprehend and detain Palomares, Palomares responded by moving the knife forward while turning toward Officer Dimas. A reasonable person in the position of Officer Dimas could reasonably conclude that Palomares by making a stabbing motion toward WITNESS #1, then making a forward motion with the knife upon hearing the officer s commands and then turning toward the officer with the knife was potentially availing himself of an opportunity to attempt to strike and perhaps kill him, WITNESS #1 or others in the area. 15

16 Once Palomares did these things while refusing unlawfully to comply with the officer s command, the officer had the legal right to engage Palomares in lawful self-defense as well as defense of others. The case law clearly states that the officer had no obligation to retreat. As a matter of fact, to retreat in that situation would have put his life, the life of WITNESS #1 and the lives of others at risk. Officer Dimas was put in a position where it was his duty as a law enforcement officer to engage Palomares with his firearm in order to protect himself, WITNESS #1 and others who were in the immediate area from danger of serious harm or death. CONCLUSION 16

17 Under the facts, circumstances and law applicable to this case, the use of deadly force by Officer Roberto Dimas in response to an apparent and immediate threat of death and/or serious bodily injury to him, a victim and to any civilians in the immediate area posed by the actions of Christian Palomares was legally justified. Mary Ashley Assistant District Attorney Date Simon Umscheid Chief Deputy District Attorney Date Michael P. Dowd Supervising Deputy District Attorney Date 17