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: January 29, 2013 FROM: TO: Lynette Grulke, Deputy District Attorney Fontana Office Richard A. Young, Supervising Deputy District Attorney Fontana Office John P. Kochis, Chief Deputy District Attorney Rancho Division Gary Roth, Assistant District Attorney Criminal Operations Michael A. Ramos, District Attorney SUBJECT: Officer Involved Shooting (Non-Fatal) Rialto Police Department Officers: Officer Glen Anderson, Rialto PD Officer Mike Martinez, Rialto PD Officer Javier Pulido, Rialto PD Injured Party: Defendant Huston Leron Parker Date of Birth 03/12/89 Rialto, CA Date of Incident: February 8,

2 Incident location: 100 block of East Jackson Street, Rialto, CA DA STAR # Investigating Agency: San Bernardino County Sheriff s Department Case Agent: Detective Lucas Niles Sheriff s Report # , H# Related Criminal Case People v. Huston Leron Parker, MVA STAR FACTUAL OVERVIEW On February 8, 2012, at around 9:10 in the evening, Rialto Police Department received a 911 call. The male caller reported seeing a black male at the end of the cul-de-sac on 100 East Jackson Street holding a gun and shooting at a vehicle. When officers arrived on scene they observed a male subject who matched the description of the suspect. The male subject, later identified as the defendant Huston Leron Parker, was standing near a vehicle. Officers observed Parker holding a small revolver in his hand. Officers ordered Parker to drop the weapon and to get down on the ground several times. Parker failed to comply with those commands. At one point during the incident, Parker advanced towards the officers while pointing his gun in their direction. Three officers fired their weapons, striking Parker multiple times. Parker was transported to Arrowhead Regional Medical Center where he received medical treatment for four gunshot wounds. During the investigation, it was determined that Parker was the person who had placed the 911 call to police. Parker had armed himself with a replica gun. Officers found a handwritten note inside Parker s vehicle with a statement consistent with someone who intended to commit suicide by cop. PRINCIPAL INVOLVED PARTIES Huston Parker, DOB: , of Rialto, California was the person shot during the incident under review. Officer Glen Anderson of the Rialto Police Department was one of the officers involved in the shooting of Huston Parker. Officer Mike Martinez of the Rialto Police Department was one of the officers involved in the shooting of Huston Parker. Officer Javier Pulido of the Rialto Police Department was one of the officers involved in the shooting of Huston Parker. 2

3 SCENE This incident occurred on February 8, 2012 at around 2110 hours. Location of occurrence was a cul-de-sac at 100 East Jackson Street in the city of Rialto, California. RELATED CASE As a result of this incident, criminal charges were filed against Huston Parker in Fontana Superior Court case number MVA Parker was charged in Count One with Drawing or Exhibiting an Imitation Firearm in violation of Penal Code 417.4(a). Count Two charged Parker with Making a False Report of an Emergency in violation of Penal Code 148.3(a). On August 23, 2012, the defendant entered a plea to the court, pleading guilty to both charges. The court placed the defendant on summary probation for three years under the following terms and conditions: 1) violate no law, 2) pay a total fine of $302.00, and 3) serve 22 days in a San Bernardino County jail facility with credit for time served of 22 days. The case is set for a probation review hearing on July 31, 2013 in department F3. FACTUAL SUMMARY NOTE: This was an officer involved shooting by Rialto Police Officers and was investigated by the San Bernardino County Sheriff s Department and the Rialto Police Department. This factual summary is based on a thorough review of all the investigative reports submitted by the San Bernardino County Sheriff s Department, case number H# and investigative reports submitted by the Rialto Police Department, case number On February 8, 2012 a 911 call was placed to Rialto Police Department. The male caller reported seeing a black male at the end of the cul-de-sac, on 100 East Jackson Street in the City of Rialto, holding a gun and shooting at vehicles. When officers arrived at the scene they encountered a male subject, later identified at the defendant Huston Parker, matching the suspect description. Parker was standing near a vehicle holding a gun. During the incident, Officer Anderson saw Parker walk around the front of his vehicle and towards his direction. Parker had the gun by his right side, pointed up toward the air. Parker stopped approximately 10 yards away from the officers. Officer Anderson heard officers tell Parker to get on the ground and to put the gun down. Parker did not comply with the commands. Parker started to transition the gun from his right hand to his left hand. Officer Anderson saw Parker lower the gun towards the officers. Officer 3

4 Anderson feared Parker was going to shoot him and the other officers. Anderson fired approximately three rounds from his rifle at Parker. Officer While at the scene, Officer Martinez repeatedly ordered the defendant to put his hands up and to drop the gun. Parker did not comply with those commands. During the incident, Officer Martinez saw Parker exit his vehicle still holding the gun in his hand. Parker walked around the front of his vehicle and towards the officers. Parker s left hand came across to meet his right hand. Officer Martinez said at that time Parker brought his hands down in a threatening manner towards him and his partners. Officer Martinez feared Parker would shoot him or the other officers. Officer Martinez fired his weapon at Parker. Officer Pulido responded to the scene with his trainee Officer McDonagh. Officer Pulido ordered Parker to drop the gun. Parker did not comply. At one point during the incident, Officer Pulido observed Parker walk around the front of his vehicle and towards Officer Pulido and the other officers. Parker was still holding the gun in his right hand. Officer Pulido ordered Parker to drop the gun. Parker did not comply. Parker was approximately 15 yards away when Parker started to lower his right arm slightly and he started to raise his left arm. Officer Pulido feared for his safety and the safety of his partner. Officer Pulido fired his gun twice at Parker. Parker fell to the ground after being shot. One group of officers dragged Parker to a grass area away from the weapon. Another group of officers cleared Parker s vehicle for any additional suspects. Rialto Fire Department personnel responded and treated Parker. Parker was then transported to the hospital for medical treatment. During the investigation, it was determined that Parker was the person who had placed the 911 call to police. Parker had armed himself with a replica gun. Officers found a handwritten note inside Parker s vehicle. The note stated: I m so sorry. I know the family will be fine. I love you guys. Love Huston. Sorry officer. Didn t mean to hurt anything or anyone. You were my only option. Please be okay. WITNESSES AND CORROBORATION On February 9, 2012, at around 2:04 in the morning, Witness #1 was interviewed by Detective Gerald Davenport and Detective Armando Avila. On February 8, 2012, Witness #1 was driving home with his employee Witness #2 When he approached Baseline Avenue, Witness #1 noticed a Rialto Police officer pull into a parking lot. Witness #2 told Witness #1 that the officer exited the patrol car holding a shotgun. After a couple of minutes, the officer ran back to his patrol car and then drove northbound on Riverside Avenue. Witness #1 decided to follow the officer. Witness #1 followed the Rialto Police officer and ended up at a cul-de-sac located on East Jackson Street in the City of Rialto. Witness #1 pulled up behind two police cars 4

5 that were already stopped in the middle of East Jackson. Witness #1 parked behind the officers. Witness #1 wanted to turn around and leave the scene but was blocked in by a third officer who pulled his patrol unit behind Witness #1. Witness #1 noticed a black vehicle parked facing north in the middle of the cul-de-sac. Witness #1 saw a black male, later identified as the defendant Huston Parker, get out of the vehicle and walk into the middle of the street. There was a police helicopter illuminating Parker from above. Witness #1 thought he saw a gun in Parker s hand. Parker was facing the police officers. Witness #1 was concerned for his safety. His vehicle was parked approximately 30 feet directly behind the patrol cars and in the line of fire. Witness #1 heard officers tell Parker at least 15 to 20 times to get down on the ground. Witness #1 heard the officers giving Parker clear commands both verbally and over the public announcement system. Witness #1 described Parker as frantic, uneasy, cocky, and arrogant. Parker continued to hold the gun in his right hand with the barrel of the gun pointed up towards the sky. Witness #1 saw Parker making some gestures and it appeared Parker was saying something. Witness #1 did not see Parker comply with any of the officers commands. Witness #1 said Parker walked back to his vehicle and got back inside the driver s seat. Parker took a couple of drinks from something in a can. Parker then exited the vehicle again. Witness #1 said Parker walked back around the front of his vehicle and stopped in the middle of the street where Parker had originally been standing. Parker still had the gun in his right hand with the barrel pointed up towards the sky. Witness #1 heard officers order Parker to get down on the ground. Witness #1 said officers ordered Parker to get down on the ground approximately 10 to 15 times. Witness #1 did not see Parker comply with those commands. As Parker faced the officers, Witness #1 saw Parker s right arm start to come down away from his ear. Witness #1 said Parker started to move forward towards the officers when Parker s right arm was coming down. At this time, Witness #1 heard approximately 5 to 6 shots ring out and saw Parker fall to the ground. Witness #1 was unsure how many officers shot but stated it sounded like there were three different types of shots. After the shots were fired, Witness #1 saw officers pull Parker away from the gun. Officers grabbed Parker by his arms. The officers then dragged Parker over to the sidewalk and handcuffed him. Officers then focused their attention on the crowd of bystanders that was forming. Witness #1 saw an ambulance arrive to treat Parker. On February 9, 2012, at around 1:00 in the morning, Witness #2 was interviewed by Detective Gerald Davenport and Detective Armando Avila. On February 8, 2012, Witness #2 was getting a ride home from his boss Witness #1 They noticed police activity while they were driving north on Riverside Avenue. Witness 5

6 #2 noticed a Rialto police car pull into a parking lot on the east side of Riverside Avenue just south of Baseline Road. Witness #2 observed an officer exit the patrol car holding a shotgun and watched the officer run toward a wall behind a restaurant. Within a short time, the officer ran back to his patrol car and drove northbound onto Riverside Avenue. Witness #2 and Witness #1 decided to follow the police officer. They followed the police officer and ended up near a cul-de-sac located on East Jackson Street in the City of Rialto. Witness #1 parked approximately 30 feet behind two Rialto police cars that were already on scene. A third police car pulled in behind their vehicle and blocked them in. Witness #2 could see a black two door, Honda type vehicle parked facing north in the middle of the cul-de-sac on Jackson Street. Witness #2 noticed a male subject, later identified as the defendant Huston Parker, standing in the middle of the street. There was a police helicopter illuminating Parker from above. Parker had his right hand up to his ear. Initially Witness #2 thought Parker was talking on his cell phone. When Parker moved his body around Witness #2 saw that the item in Parker s hand was in fact a gun. Witness #2 described the gun as a small revolver, silver in color. Witness #2 heard officers order Parker to get down and to drop it at least 15 to 20 times over the public announcement system. Witness #2 did not see Parker comply with any of those commands. Witness #2 said Parker walked back to his vehicle and got inside the driver s seat. Parker was drinking something while he was inside the vehicle. Parker then exited the vehicle still holding the gun in his right hand near his head. Parker walked back around the front of his vehicle and stood in the middle of the street. It appeared to Witness #2 that Parker was saying something but he could not hear the words. Witness #2 heard officers tell Parker approximately 15 to 20 times to drop it and get on the ground. Parker did not comply with those commands. Witness #2 then heard 7 to 8 shots fired. Witness #2 did not see Parker point the gun at officers. However, Witness #2 said there was no telling what Parker could have done given the manner in which Parker was moving his body around. Witness #2 stated that Parker was making fast body movements towards the officers, gesturing like he was egging something to happen. After the shots were fired, Witness #2 saw officers drag Parker over to the curb and handcuff him. On March 7, 2012, at around 11:30 in the morning, Deputy Carlos Quezada was interviewed by Detective Lucas Niles. On February 8, 2012, San Bernardino County Sheriff s Deputy Quezada was assigned to the Sheriff s Aviation Division. He was working as a Technical Flight Officer (observer) aboard the sheriff s patrol helicopter. During patrol, Deputy Quezada heard 6

7 Rialto Police Department dispatched to a call of a man with a gun in the area of East Jackson Street west of Sycamore Avenue in the City of Rialto. Additional information was broadcast that the possible suspect in a vehicle parked in the cul-de-sac at the west end of East Jackson Street and the suspect was waiving around a gun. Deputy Quezada responded to the call. When he arrived on scene, Deputy Quezada saw the suspect vehicle parked at the end of the cul-de-sac facing north. Deputy Quezada saw a person, later identified as the defendant Huston Parker, seated in the driver seat of the vehicle. Deputy Quezada activated the helicopter s spotlight and illuminated Parker, the suspect vehicle, and the surrounding area. Deputy Quezada used his radio to direct other responding officers to positions around the scene. Deputy Quezada saw Parker exit the vehicle and begin pacing back and forth. Parker was waving his arms around. Deputy Quezada could not see anything in Parker s hands. Deputy Quezada heard another officer on the ground broadcast that Parker was holding a firearm. He noticed Parker was acting erratically, walking back and forth, waving his arms, getting in and out of his vehicle. Deputy Quezada diverted his attention to activating the recording equipment on his helicopter. When Deputy Quezada looked back to the scene, Parker was lying on the ground in front of his vehicle. Information was then broadcast that shots were fired. On February 9, 2012, at around 1:54 in the morning, Sergeant Josh Lindsay was interviewed by Detective Ryan Ford. On February 8, 2012 Sergeant Lindsay was on duty as the graveyard shift sergeant. He was working patrol in full uniform and driving a marked Rialto police vehicle. Sergeant Lindsay heard a call of a subject shooting at a vehicle in the 200 block of East Jackson Street. Sergeant Lindsay assigned himself to the call. While en route, Sergeant Lindsay heard the sheriff s helicopter unit advise they had a vehicle parked in the cul-de-sac of 100 East Jackson Street facing northbound. The helicopter unit advised the driver side door was open and there was an individual, later identified as the defendant Huston Parker, seated inside. When Sergeant Lindsay arrived on scene he pulled behind Parker s vehicle. Sergeant Lindsay used his patrol unit s takedown lights, headlights, and two spotlights to illuminate Parker and his vehicle. Sergeant Lindsay exited his patrol car and started giving Parker commands at gunpoint. Parker exited his vehicle and looked at Sergeant Lindsay. Sergeant Lindsay saw an object in Parker s right hand that looked like a handgun. Officers ordered Parker to get down on the ground and to drop what was in his hand at least 20 to 30 times. The commands were given over the public announcement system. Parker did not comply with those commands. Sergeant Lindsay requested K9 unit and a less than lethal weapon. 7

8 Parker returned to his vehicle and sat back in the driver s seat. Parker was moving around in the vehicle but Sergeant Lindsay was unable to see what Parker was doing. Parker exited the vehicle and at this time Sergeant Lindsay was able to see Parker had a revolver in his hand. Sergeant Lindsay broadcast over the radio that Parker was armed with a gun. Parker walked back around the front of his vehicle into the middle of the street. Officers ordered Parker to drop the gun and told Parker they did not want to hurt him. Parker continued to hold the gun up near his shoulder. Parker did not comply with the officers orders. Sergeant Lindsay saw Parker move directly towards the officers that were positioned to the east of him. At that time, Sergeant Lindsay heard multiple gunshots. Parker stumbled and then fell to the ground. The gun was approximately 1 to 2 feet away from Parker. One group of officers cleared Parker s vehicle and a second group of officers dragged Parker away from the gun and to a grass median. Parker was handcuffed. Officers did render some aid to Parker while they awaited paramedics. Medical aid responded and Parker was transported to Arrowhead Regional Medical Center. On February 9, 2012, at around 2:50 in the morning, Officer Joseph Viola was interviewed by Detective Ryan Ford. On February 8, 2012, Officer Viola was assigned to uniform patrol for the graveyard shift. Officer Viola responded to a call of a subject with a gun who had fired once in the air and once toward a vehicle. The incident location was reported as 100 block of East Jackson Street in the City of Rialto. Prior to arriving on scene, Officer Viola heard broadcasts from Sergeant Lindsay. Sergeant Lindsay advised the suspect was a black male in a black Pontiac located at the cul-de-sac area of East Jackson. Officer Viola responded to the north alley and blocked the alleyway to prevent any escape by the suspect. Officer Viola armed himself with an AR15, M-4 carbine and made his way on foot towards Sergeant Lindsay s location. Officer Viola saw a black male, later identified as the defendant Huston Parker, standing in the cul-de-sac facing the officers to the east. Parker was holding a gun to the right side of his head. Officer Viola saw Parker begin to lower the gun by swinging his right arm down and bringing the barrel of the gun level towards officers in the street. Officer Viola thought Parker was going to shoot one of the officers. Officer Viola feared for the lives of the other officers and pulled the trigger to his M-4. Officer Viola simultaneously heard other shots fired. 8

9 One group of officers cleared Parker s vehicle and another group of officers approached Parker. The second group of officers dragged Parker out of the street and to a grass area. Officer Viola later discovered his rifle malfunctioned and no shot had been fired from his weapon. On February 9, 2012, at approximately 4:55 in the morning, Officer Javier Pulido was interviewed by Detective Gerald Davenport and Detective Armando Avila. On February 8, 2012, Officer Pulido was on patrol with a trainee, Officer Michael McDonagh. On that date, at around 9:00 in the evening, Officer Pulido heard dispatch report a call of a suspect in a suspicious vehicle armed with a handgun. Officer Pulido and Officer McDonagh responded to the call. When Officer Pulido arrived on scene, he observed a dark colored Pontiac parked at the end of the cul-de-sac facing northbound. He saw a male subject, later identified as the defendant Huston Parker, seated in the driver seat. Officer Pulido could see something in Parker s hand but was unable to tell what the object was from where he was parked. Parker was holding the object in his right hand in a vertical manner in a pistol grip like fashion. Officer Pulido saw Parker get out of his vehicle and start to walk around the front of his vehicle. Parker walked towards the officers and stopped. At this time, Officer Pulido saw that Parker was holding a gun in his right hand. Officer Pulido ordered Parker to drop the gun. Parker did not comply. Parker then walked back to his vehicle and got back inside the driver seat. Officer Pulido saw Parker drink something from a bottle while he was seated in his vehicle. Parker got back out of his vehicle again. Parker walked around the front of his vehicle and into the middle of the street. Officer Pulido gave Parker more commands to drop the gun. Parker did not comply. Officer Pulido told Parker that they would help him with whatever problems he was having. Parked did not drop the gun. Parker walked back to his vehicle and sat back inside the driver seat. Officer Pulido saw Parker drink again from the bottle. Parker got out of the car and walked around the front of his vehicle and towards Officer Pulido. Parker was still holding the gun in his right hand. Officer Pulido ordered Parker to drop the gun. Parker did not comply. Parker continued to walk towards Officer Pulido and the other officers. Parker was approximately 15 yards away when Parker started to lower his right arm slightly and he started to raise his left arm. Officer Pulido feared for his safety and the safety of his partner. Officer Pulido fired his gun twice at Parker. Officer Pulido heard other gunshots fired from his left side. Officer Pulido saw Parker fall to the ground. Officers approached Parker and dragged him to a grass area where he was handcuffed. Paramedics arrived and treated Parker. Parker was then transported to the hospital. 9

10 On February 9, 2012, at approximately 4:10 in the morning, Officer Glen Anderson was interviewed by Detective Armando Avila and Detective Gerald Davenport. On February 8, 2012, at approximately 9:00 in the evening, Officer Anderson was at the Rialto Airport for K-9 training. Officer Anderson heard dispatch broadcast a call of shots being fired in the area of 100 East Jackson Street in the City of Rialto. Sergeant Josh Lindsay requested K-9 officers respond to the call. Officer Anderson responded to the scene. When he arrived on scene, Officer Anderson saw a dark compact vehicle being illuminated by Rialto Police Department patrol cars and the sheriff s helicopter. Officer Anderson saw the suspect, later identified as the defendant Huston Parker, getting out of his vehicle. Parker walked around the front of his vehicle and towards the officers. Officer Anderson saw Parker had a gun in his hand. Parker had the gun by his right side, pointed up toward the air. Parker stopped approximately 10 yards away from the officers. Officer Anderson heard officers tell Parker to get on the ground and to put the gun down. Parker did not comply with the commands Parker started to transition the gun from his right hand to his left hand. Officer Anderson saw Parker lower the gun towards the officers. Officer Anderson feared Parker was going to shoot him and the other officers. Officer Anderson fired approximately three rounds from his rifle at Parker. Parker fell to the ground. Officer Anderson saw Parker pat down on the asphalt near him. Officer Anderson told Parker not to move his hands and not to reach for the gun. Officers dragged Parker to a grass area away from the gun. Paramedics arrived within a few minutes. Parker was then transported to the hospital for medical treatment. On February 9, 2012, at approximately 5:30 in the morning, Officer Mike Martinez was interviewed by Detective Armando Avila and Detective Gerald Davenport. On February 8, 2012, at approximately 9:10 in the evening, Officer Martinez was dispatched to a call at 100 East Jackson Street in the City of Rialto. The call was in reference to a subject seen in the area shooing a gun. When Officer Martinez arrived on scene he saw black 4-door vehicle facing north parked at the end of the street at the cul-de-sac. Officer Martinez saw a black male subject, later identified as the defendant Huston Parker, standing at the driver side of the vehicle. Sergeant Lindsay was already on scene when Officer Martinez arrived. Officer Pulido and his trainee Officer McDonagh arrived shortly after Officer Martinez. Officer Martinez and Officer McDonagh parked their patrol cars approximately 25 yards away from Parker s vehicle. 10

11 Officer Martinez could hear Sergeant Lindsay giving Parker commands. Parker was not responding. Officer Martinez got on the public announcement system and ordered Parker to step away from the vehicle. Parker did not comply. Instead, Parker got back inside of his vehicle and took a couple drinks from a beverage wrapped in a bag. Officer Martinez ordered Parker to step out of the vehicle and put his hands up where they could see them. Parker stepped out of his vehicle and started to raise his hands in the air. Officer Martinez saw a black object in Parker s hand. Parker was holding the object with a pistol grip. Officer Martinez saw that the object was a gun. Officer Martinez ordered Parker to drop the gun and to come out to where the officers could see him. Parker did not comply. Officer Martinez told Parker he was considered armed and dangerous and could be shot if he did not follow instructions. Parker started to walk around the front of his vehicle and towards the direction of Officer Martinez. Parker kept his hands in the air and the gun pointed up towards the sky. Parker stopped approximately 15 yards away from the officers. Parker held the gun in both hands for a minute and then walked back to his car. Parker sat back in his vehicle and took a couple more drinks from the beverage. Officer Martinez ordered Parker to exit his vehicle. He told Parker to put his hands up and to drop the weapon. Parker exited his vehicle still holding the gun in his hand. Parker walked around the front of his vehicle and towards the officers. Parker s left hand came across to meet his right hand. Officer Martinez said at that time Parker brought his hands down in a threatening manner towards him and his partners. Officer Martinez feared Parker would shoot him or the other officers. Officer Martinez fired his weapon at Parker. Officer Martinez said it seemed like everyone fired simultaneously. Parker fell to the ground. One group of officers cleared Parker s vehicle. Another group of officers took Parker into custody. Medical aid arrived on scene. Parker was then transported to the hospital. On February 9, 2012, at approximately 3:19 in the morning, Officer Michael McDonagh was interviewed by Detective Ryan Ford. On February 8, 2012 was on patrol with Officer Pulido. Officer McDonagh heard dispatch broadcast a call of a man firing a gun in the area of East Jackson Street in the City of Rialto. Officer McDonagh and Officer Pulido responded to the call. When Officer McDonagh arrived on scene he saw Sergeant Lindsay already had the suspect vehicle illuminated in the cul-de-sac. Officer McDonagh saw a black male, later identified as the defendant Huston Parker, standing outside of the vehicle. Officer McDonagh heard Sergeant Lindsay advise Parker was armed with a handgun. Officer McDonagh saw Parker holding the revolver in front of him. Parker held the gun so the side profile of the revolver was towards the officers. Parker walked back to his vehicle and sat in the driver seat. Officer McDonagh saw Parker grab a bottle and drink from it while he was seated in the vehicle. 11

12 Parker exited and walked around the front of his vehicle. Officer McDonagh heard officers over the public announcement system tell Parker to drop the gun and that they were there to help Parker. Parker did not comply with the orders. Parker continued to walk towards the officers. Parker repositioned the gun. Parker lowered the gun and pointed it towards Officer Martinez, Officer Pulido, Officer Anderson, and another officer. Officer McDonagh felt threatened and feared for his life. Officer McDonagh believed Parker was going to shoot one or more of the officers. Officer McDonagh moved his finger to the trigger of his handgun but did not fire when he saw Officer Anderson move in front of him. Officer McDonagh heard 2 gunshots to his right side around the same time as he removed his finger from the trigger. Parker fell to the ground. One group of officers cleared Parker s vehicle. Another group of officers dragged Parker to a grass area away from the weapon. The fire department arrived and treated Parker. Parker was then transported to the hospital. Injuries Huston Parker suffered four gunshot wounds as a result of the shooting. There was a gunshot wound to Parker s upper right arm which caused a broken right humerus. There was a gunshot wound to Parker s right front chest area which perforated his right lung. There was a through and through gunshot wound to Parker s front left neck area. There was also a through and through gunshot wound to Parker s upper left arm underneath his armpit area. APPLICABLE LEGAL STANDARDS Crimes Upon Peace Officers Although the defendant was not charged with attempted murder nor assault with a deadly weapon, those sections are pertinent to the police officers reactions. California Penal Code section 664/187 (summarized in pertinent part and emphasis added) Every person who attempts to commit any crime, but fails, or is prevented or intercepted in its perpetration, shall be punished where no provision is made by law for the punishment of those attempts, as follows: (a) If the crime attempted is punishable by imprisonment in the state prison, the person guilty of the attempt shall be punished by imprisonment in the state prison for one-half the term of imprisonment prescribed upon a conviction of the offense attempted. However, if the crime attempted is willful, deliberate, and premeditated murder, as defined, the person guilty of that attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. If the crime attempted is any other one in which the maximum sentence is life imprisonment or death, the person guilty of the attempt shall be punished by imprisonment in the state prison for five, seven, or nine years. The additional term provided in this section for attempted willful, 12

13 deliberate, and premeditated murder shall not be imposed unless the fact that the attempted murder was willful, deliberate, and premeditated is charged in the accusatory pleading and admitted or found to be true by the trier of fact (e) Notwithstanding subdivision (a), if attempted murder is committed upon a peace officer or firefighter, as those terms are defined, a custodial officer, as that term is defined in, a custody assistant, as that term is defined, or a nonsworn uniformed employee of a sheriff's department whose job entails the care or control of inmates in a detention facility, as defined, and the person who commits the offense knows or reasonably should know that the victim is a peace officer, firefighter, custodial officer, custody assistant, or nonsworn uniformed employee of a sheriff's department engaged in the performance of his or her duties, the person guilty of the attempt shall be punished by imprisonment in the state prison for life with the possibility of parole. This subdivision shall apply if it is proven that a direct but ineffectual act was committed by one person toward killing another human being and the person committing the act harbored express malice aforethought, namely, a specific intent to unlawfully kill another human being. The Legislature finds and declares that this paragraph is declaratory of existing law. (f) Notwithstanding subdivision (a), if the elements of subdivision (e) are proven in an attempted murder and it is also charged and admitted or found to be true by the trier of fact that the attempted murder was willful, deliberate, and premeditated, the person guilty of the attempt shall be punished by imprisonment in the state prison for 15 years to life. Article 2.5 (commencing with) of Chapter 7 of Title 1 of Part 3 shall not apply to reduce this minimum term of 15 years in state prison, and the person shall not be released prior to serving 15 years' confinement. California Penal Code section 245(c) (Summarized in pertinent part) Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer, and who knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties, when the peace officer is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years. Other Crimes California Penal Code section Every person who, except in self-defense, draws or exhibits an imitation firearm, as defined in subdivision (a) of Section 16700, in a threatening manner against another in such a way as to cause a reasonable person apprehension of fear of bodily harm is 13

14 guilty of a misdemeanor punishable by imprisonment in a county jail for a term of not less than 30 days. California Penal Code section 148.3(a) Any individual who reports, or causes any report to be made, to any city, county, city and county, or state department, district, agency, division, commission, or board, that an emergency exists, knowing that the report is false, is guilty of a misdemeanor and upon conviction thereof shall be punishable by imprisonment in [1] a county jail for a period not exceeding one year, or by a fine not exceeding one thousand dollars ($1,000), or by both that imprisonment and fine. 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. 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). 14

15 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 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; 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

16 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 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. 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 16

17 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 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 17

18 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] 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, Officer Anderson, Officer Martinez, and Officer Pulido from Rialto Police Department responded to a call of a man firing a gun in a residential neighborhood. When the officers responded to the scene, they saw the defendant near his vehicle which was parked in a cul-de-sac. Each of the officers saw the defendant was armed with what they believed to be a gun. 18

19 The officers made repeated attempts to get the defendant to drop the weapon and get down on the ground. The defendant failed to comply with their commands. At one point during the incident, the defendant ignored orders to get down and continued to advance towards the officers while holding the gun in his right hand about shoulder level. When the defendant was approximately 15 yards away from the officers he started to lower the gun in the officers direction. Officer Anderson, Officer Martinez, and Officer Pulido feared for their own lives. They also feared for the lives of the other officers at the scene. The defendant continued to advance towards their direction armed with a gun. The officers reasonably believed the defendant intended to shoot one or more of the officers. Each of the officers then fired their weapons at the defendant. Officer Anderson fired approximately three rounds at the defendant. Officer Martinez fired two shots at the defendant. Officer Pulido fired approximately two rounds at the defendant. CONCLUSION The shooting of Huston Parker by Officer Glen Anderson was, under the facts and circumstances presented here, a proper exercise of Officer Anderson s right of selfdefense and in defense of others and therefore his actions were legally justified. The shooting of Huston Parker by Officer Mike Martinez was, under the facts and circumstances presented here, a proper exercise of Officer Martinez s right of selfdefense and in defense of others and therefore his actions were legally justified. The shooting of Huston Parker by Officer Javier Pulido was, under the facts and circumstances presented here, a proper exercise of Officer Pulido s right of self-defense and in defense of others and therefore his actions were legally justified. Lynette Grulke Deputy District Attorney Fontana Office Date Richard A. Young Supervising Deputy District Attorney Fontana Office Date 19

20 John P. Kochis Chief Deputy District Attorney West Division Date Gary Roth Assistant Deputy District Attorney Criminal Operations Date 20