County of Santa Clara

County of Santa Clara Office of the District Attorney 70 West Hedding Street, West Wing, 5 th Floor San Jose, California 95110 (408) 299-7400 Jeffrey F. Rosen District Attorney To: CC: From: Re: Jeff Rosen, District Attorney Brian Welch, Supervising Deputy District Attorney David Tomkins, Assistant District Attorney March 7, 2010 Officer Involved Shooting in Cupertino Background On December 3, 2009, Charlie Maridon, 96 year of age, was brutally beaten during a homeinvasion robbery at his residence in Saratoga. He died approximately 2 weeks later as a result of these injuries. The Maridon property and residence was maintained by Paulo Lopez who had worked for Mr. Maridon for several years. Paulo discovered the victims the next morning and called 911. Paulo told investigators that his son, Sonny Lopez, (hereinafter Lopez) had recently worked on the Maridon property with him but had never been inside the residence. Paulo did not, however, tell them that Lopez had recently been released from prison and was on parole. On March 1, 2010, Lopez s uncle was murdered in Fremont and the Fremont Police Department considered Lopez to be the prime suspect. They also suspected Lopez in another murder that occurred in Fremont two years prior to the murder of his uncle. Lopez s ex-wife showed Fremont detectives a letter written by Lopez to their son on February 28, 2010 where he expressed his belief that he would be killed resisting attempts to send him back to prison and that he would have killed his ex-wife but did not want to leave his son without both parents. On March 3, 2010, Fremont Police Department detectives met with Santa Clara County Sheriff s detectives about the murder of Lopez s uncle. The Sheriff s detectives had collected the letter from Lopez to his son from Lopez s ex-wife the day before the meeting. They discussed the murder of Charlie Maridon and their belief that Lopez was involved. On March 6, 2010, Fremont Police Department detectives obtained a Ramey 1 arrest warrant for Lopez for the murder of his uncle. The Ramey warrant was based on a witness who picked up 1 See People v.ramey (1976) 16 Cal.3d 262. Ramey required police officers to obtain an arrest warrant based on probable cause before they are authorized to enter any residence in which they reasonably believe a suspect lives and is present in order to lawfully serve the arrest warrant. 1

Lopez near his uncle s residence. The witness said that Lopez told him that he had killed his uncle. The witness indicated that he allowed Lopez to spend the night at his residence but that Lopez left the next day. The witness told officers that he believed that Lopez would kill him if he knew that he told the police about picking him up and about his admissions of killing his uncle. Also on March 6, Lopez spent the night with a former girlfriend, Latisha Adams and her mother. He arrived at their Cupertino residence located at 10299 Miller Ave., Number 4, in Cupertino unannounced on March 6 th and told Adams and her mother that he had just killed his uncle in Fremont and needed a place to stay. Lopez said that he wanted to hide out in the mountains but believed his time was running out and that he would not be taken alive by police. Lopez told them that he shot and killed his uncle because the uncle had taken a car that Lopez had given him to give to Lopez s girlfriend and had instead taken it apart and was selling the parts. Lopez also admitted to Adams and her mother that he was involved in the murder of Charlie Maridon. On March 7, 2010, Fremont PD SWAT officers shot and killed Lopez while attempting to arrest him on the Ramey warrant in Cupertino (detailed below). The Shooting On March 7, 2010, shortly after midnight, Fremont detectives and officers assigned to the SWAT Unit began conducting surveillance for Lopez in the area of Stevens Creek and Miller Ave. in Cupertino. They later received updated information that Lopez s cell phone was at 10299 Miller Ave in Cupertino. Officers determined that 10299 Miller Ave. was a condominium complex but they did not know which one that Lopez was inside. They were attempting to determine his location in order to obtain a Steagald 2 search warrant for the new location. Fremont SWAT officers and Santa Clara Sheriff s Deputies made plans for a car stop or pedestrian arrest if Lopez left the apartment before his exact location could be determined and a new arrest warrant obtained. In making their plans to arrest Lopez, they were familiar with the following information: that he was a suspect in the Saratoga murder of Charlie Maridon; that he recently wrote to his son promising that he would not be taken alive by police and that he wanted to kill his ex-wife; that he had killed his uncle with a firearm and was believed to be armed; that he was a suspect in another previous murder in Fremont; that he had a significant criminal record involving violence and weapons possession and had previously been sentenced to prison; and, that he was associated with criminal street gangs both in and out of prison and had numerous gang tattoos on his body (including 5150 tattooed on his neck) 3. The Fremont officers were concerned that 10299 Miller Ave was in the middle of a residential neighborhood and most of the residents would be at home on a Sunday morning. They noticed increased activity and foot traffic by mid-morning. 2 See Steagald v.united States (1981) 451 U.S. 204. Steagald introduced the requirement that police officers obtain a search warrant which expressly authorizes a search of a residence where a suspect does not live based on probable cause to believe the suspect is present before they can lawfully enter the residence to serve an arrest warrant. 3 See Welfare and Institutions Code Section 5150 which pertains to involuntary treatment of mentally disordered persons. Institutionalized defendants have been known to tattoo their bodies with code sections which imply that they are dangerous or unstable as a status or defensive mechanism while in custody. In this instance, 5150, in the criminal justice setting, is shorthand for mentally imbalanced or unstable. 2

Fremont PD SWAT supervisors reminded their teams about the Fremont PD Operations Directive which authorized the use of deadly force in apprehending a fleeing felon. Fremont PD Operations Directive, Index Z-1, Section III, states: The use of deadly force is authorized: 1. When the officer has probable cause to believe that use of such force is justified to prevent death or great bodily injury to him/her or other persons and when all other reasonable means to capture have failed. 2. When the officer has probable cause to believe the person whom the officer seeks to arrest has committed, or is charged with, a violent felony, and when the officer reasonably believes that: a. The crime for which the arrest is to be made involved conduct including the use or threatened use of deadly force; or b. If there are circumstances which reasonably create a fear of death or serious bodily harm to the officer or other person. The Fremont SWAT officers were told by their supervisors that Lopez was not, under any circumstances, to be allowed to escape the parameter set up around 10299 Miller Ave. The officers believed that if Lopez had no qualms about killing others, including a family member, he would not hesitate to kill or take hostages to escape. This was not, however, a green light to shoot Lopez on sight. If Lopez left the apartment before they could obtain a new arrest warrant, the arrest plan was for Lopez to be taken into custody using a minimum amount of force. However, if Lopez resisted arrest and was in a position to escape and come in contact with members of the public, officers would, individually, have to make a determination of whether deadly force was warranted. By 11:00 a.m., Fremont officers determined that Lopez was inside 10299 Miller Ave., apartment 4 and were in the process of obtaining a new arrest warrant, and the Sheriff s Department had agreed to take over the operation from the Fremont PD officers. Most of the Fremont Officers had been awake for over 24 hours. After Sheriff s deputies began arriving at the command post set up by the Fremont officers at N. Portal and Stevens Creek Blvd, the decision was made to move the command post to Cupertino High School which is located at 10100 Finch Ave. The Fremont officers briefed the Sheriff s SERT Team (SWAT) members, hostage negotiators and plain clothes deputies utilized for surveillance about Lopez when they arrived at the command post. The Sheriff s Department was in the middle of relieving the Fremont officers when a male matching Lopez s description was seen leaving 10299 Miller Ave and walking northbound on Miller Ave on the west sidewalk. Fremont PD SWAT Sergeant Duckworth was given permission to determine if the male was Lopez. Duckworth drove past the man, made a left turn on Richwood Drive, made quick a u-turn and pulled up to the curb near Miller Ave. 3

Duckworth got out of his car, pulled out his service handgun and placed it behind his back. As the man walked by on Miller Ave, Duckworth made eye contact with him and determined that it was Lopez. Duckworth ordered Lopez to stop and put his hands up. After quickly looking around, Lopez dropped a bag he was carrying and ran across Miller Ave in a southeasterly direction toward an alley that that runs behind the residences located on Richwood Court. Richwood Drive turns into Richwood Court east of Miller Ave and is a dead end. As Duckworth approached the alley, he could see BNE Commander Bouchet drive into the alley in front of him. Duckworth could see that Lopez was about to enter the gate leading to the backyard of the last residence off of the alley and believed that he could not catch up to Lopez in time to prevent him from entering the backyard. Fearing that Lopez would take hostages or kill anyone in the backyard or residence in order to escape, Duckworth fired 4 shots from his service handgun as Lopez jumped over the gate. When Bouchet drove into the alley his car was close enough to Lopez that he had to take his foot off of the gas pedal to avoid hitting him. As Bouchet stopped his car half way down the alley and got out, he could see Lopez running toward the fence and drop his coat, but did not shoot at him because he could not see if Lopez had anything in his hands. Bouchet immediately heard several shots fired from behind him and saw Duckworth run by him toward the gate that Lopez had jumped over. It did not appear to him that any of the shots had hit Lopez. As Duckworth approached the gate, he feared that Lopez was waiting on the other side to ambush him, but he immediately jumped over the gate due to a greater fear that Lopez was now in a position to threaten any occupants in the backyard or residence. The backyard appeared empty when Duckworth jumped over the fence. However, as Duckworth approached the fence that ran along the east side of the residence, he saw Lopez about to jump the north fence that faces the end of Richwood Court. Duckworth was unsure of his location and fearful that Lopez was going to escape the parameter and be in a position to threaten other residents. Therefore, Duckworth fired 4 more rounds at Lopez while running toward the fence. It did not appear that any of these shots hit Lopez as he was able to scale the fence. Duckworth was again fearful that Lopez was waiting on the other side of the fence to ambush him. Duckworth, therefore, kicked in a fence plank rather than leave himself exposed by jumping over the fence. As he stepped through the fence he heard several shots and saw Lopez fall to the ground to his right at the end of Richwood Court. Fremont PD Sergeant Epps was in charge of the SWAT officers on scene and had given Duckworth permission to approach and attempt to identify Lopez while sitting in a SUV in the parking lot of a real estate business located on the northeast corner of Richwood Court and Miller Ave. Two minivans containing other Fremont SWAT officers turned right out of the driveway on Richwood Court towards Miller Ave., which left Epps alone inside the car which was pointed toward the dead end portion of Richwood Court. Epps heard 2-3 gunshots and after a short pause, 2 more gunshots. Epps saw Fremont SWAT Sergeant Harnett running east on the south sidewalk of Richwood Court. Epps got out of his car, retrieved his SWAT rifle from the back seat and pointed it in a southerly direction while standing on the north curb line of Richwood Court. Although his view was partially obstructed by a tree, Epps was able to see a man matching Lopez s description running from the 4

direction of the gunshots. Epps saw Lopez stop and crouch down with his hands in his waist area and face back in the direction of the gunshots but did not see a gun in his hands. Epps believed that Lopez was involved in a running gun battle while being pursued by other officers and was setting up to ambush the pursing officers. He believed that there was no time to yell at Lopez to distract him as he had already turned his body toward the direction of the pursuing officers. Believing that the pursuing officers were in danger of being shot by Lopez, Epps fired 7 rounds from his service rifle at Lopez. He saw Lopez immediately fall face down on the ground with his hands underneath his body. Epps was also concerned that Lopez would escape into the residential area and potentially create a hostage situation. Fremont PD Sergeant Harnett was in a white van in the parking lot near where Sergeant Epps was seated in an SUV. When he heard that Lopez was walking towards their position on Miller Ave, he drove the van out of the parking lot on Richwood Court toward Miller Ave and saw Lopez running across Miller Ave with Duckworth running after him toward an alley that paralleled Richwood Court. Harnett got out of the van and started running east on Richwood Court in an attempt to cut off any escape avenues on to Richwood Court. He heard several shots and believed that a running gun battle was taking place between Lopez and pursuing officers. He saw Lopez jump the fence and crouch down and look back toward the fence. Lopez was facing away from him with his hands concealed in his waistband. Harnett was concerned that Lopez was waiting to ambush officers that were pursuing him and also that Lopez would escape into the residential neighborhood. He dropped to one knee and fired 3-4 rounds from his service handgun at Lopez. He heard other shots being fired at about the same time. Lopez fell to the ground face down with his hands underneath his body. Fremont PD SWAT Officer Snow was in the parking lot sitting in a grey van near the SUV driven by Sergeant Epps and the mini-van driven by Sergeant Harnett. After hearing that Lopez was walking north on Miller Ave, Snow drove out of the parking lot on to Richwood Court behind Harnett. He saw Duckworth running southeast across Miller Ave before loosing sight of him. Almost immediately, he heard shots coming from the south and someone saying, Shots fired and Slow down over the radio. Snow saw Harnett running east on Richwood Court and decided to follow him because Harnett was alone. He was thinking that Duckworth was in a shootout with Lopez. Snow saw Harnett drop to one knee and shoot from what Snow believed to be a rifle. He then heard another gunshot from his southeast. Snow moved to the right of Harnett so that he would not be in Snow s line fire. He saw Lopez fall to the ground near the curb. He saw Lopez raise his head and shoulders but he could not see his hands. Snow was not sure that Lopez had been hit and was concerned that he was rolling his body to get into position to shoot or get up and run. Based on these concerns, he fired one round from his M4 rifle at Lopez and immediately heard someone yell, Hold. Hold. Hold. 5

Fremont SWAT medics arrived on scene immediately after the shooting and administered emergency medical aid to Lopez but he died shortly after fire department medical personnel arrived to relieve them at 2:09 PM. Officers searched Lopez and found a makeshift holster near his waist containing a loaded.38 caliber revolver. It did not appear that the gun had just been fired. Crime scene officers recovered four.40 caliber shell casings in the alley where Sergeant Duckworth first fired his handgun as Lopez climbed over a gate. They also noted a bullet hole in the garage door frame near the gate, two bullet holes in the gate with two corresponding bullet holes in a fence opposite the gate. Two bullets were found lodged in a truck parked directly behind the fence. There was a bullet hole in a recycling bin on the east side of the fence. Two.40 caliber shell casings were recovered from the east side of the back yard where Duckworth was shooting at Lopez before he climbed over north fence facing Richwood Court. Two more.40 caliber shell casings were found in the same location but on the east side of the fence. Seven shell casing were located in the driveway of the parking lot on Richwood Court where Sergeant Epps fired his service rife. Two.40 caliber shell casing were located in the bushes on the south side of Richwood Court where Sergeant Harnett fired his service handgun. Autopsy Dr. Michelle Jordan performed the autopsy on Sonny Lopez and concluded that he died as a result of multiple gunshot wounds. However, despite sustaining four serious gunshot wounds and multiple fragmentation wounds, only one of these wounds was clearly the cause of death considering the availability of immediate emergency medical care. The fatal wound entered his upper left back from left to right and downward, involving the rib, lung, diaphragm, pancreas, small bowel, transverse colon, adrenal gland and lodged in his right hip area. The other serious wounds involved through-and-through wounds to the left thigh, left foot and right hand. The left foot wound involved the third through fifth toes. The right hand injury nearly amputated his thumb. None of the gunshot wounds were from close range. Legal Analysis Any person, including a peace officer, is legally justified in using deadly force when the circumstances reasonably create a fear of imminent death or serious bodily injury to the person or to another person, and the use of deadly force reasonably appears necessary to resist the threat. (People v. Humphrey (1996) 13 Cal.4 th 1073; People v. Hardin (2000) 85 Cal.App.4 th 625; People v. Harris (1971) 20 Cal.App.3d 534; Penal Code Section 197, subds. 1-3) Officers are not required to utilize non-lethal force options before resorting to deadly force but the decision to use deadly force must be objectively reasonable based on the circumstances known to the officer. (Graham v. Connor (1989) 490 U.S. 386, Forrester v. City of San Diego (1994 9 th Cir.) 25 f.3d 804.) Courts have recognized that the use of deadly force is often made under stressful circumstances with little 6

or no time to reflect on alternate courses of action and have generally rejected after the fact attempts at second guessing these decisions. (Brown v. Ransweiler (2009) 171 Cal. App. 4 th 516.) The plans under consideration by Fremont officers to arrest Lopez all involved varying degrees of risk. Officers had probable cause to believe that Lopez had recently committed one murder and had likely committed others. He was known to be armed with a handgun and had previously expressed his intention to fight to the death any attempts to arrest him. The safest plan under consideration had the potential for creating a hostage situation by surrounding the condominium that Lopez was known to be inside after a new arrest warrant was obtained. Other scenarios involved Lopez evading a car stop or pedestrian arrest attempt and escaping into the residential neighborhood and killing or taking a civilian hostage. Lopez left the condominium in the middle of Sheriff s Department take over of the operation from Fremont PD. When Sergeant Duckworth stopped to confirm Lopez s identity, he was forced to confront Lopez without backup. Lopez refused to obey Duckworth s order to surrender and quickly ran across Miller Ave. into the alley behind Richwood Court with Duckworth trailing behind. Commander Bouchet, who pulled into the alley behind Lopez and almost hit him with his SUV, did not try to hit Lopez or shoot at him when he got out of his SUV because he did not see anything in his hands that would cause him to believe he was in imminent danger of death or serious bodily injury. However, Duckworth started shooting at Lopez from behind Bouchet as he ran down the alley. The shots were close enough to Bouchet that he heard them pass over his shoulder. Duckworth did not attempt to justify shooting at Lopez based on imminent death or great bodily injury to himself or others. Instead, he expressed concern about Lopez jumping over the gate he was running toward and possibly threatening the residents or escaping the parameter. Peace officers are also justified in using deadly force under certain circumstances when attempting to arrest a fleeing felon. (Penal Code Sections 835a, 196, 197) These sections historically have allowed officers to use deadly force when necessary to make an arrest for any felony. More recent authority has limited an officer s right to use deadly force to violent felony arrests. (Kortum v. Alkire 69 (1977) Cal.App.3d 325) The Fremont Police Departments Operations Direction, Z-1, is in accord with the modern interpretation of Penal Code Sections 835a, 196 and 197 which limit the use of deadly force to violent felony arrests. The Fremont PD SWAT supervisors made it very clear to their officers that Operations Directive Z-1 could possibly come into play based on the fact that they were arresting Lopez for murder, a violent felony, and that he was armed and would likely violently resist attempts to arrest him. The first four shots fired by Duckworth were legally justified as occurring during a violent felony arrest. Lopez had ignored orders to submit to arrest and was fleeing into the back yard of a house where the residents were likely to be home on a Sunday afternoon. It appears that none of these rounds hit Lopez as he did not slow down or react to the shots and no blood was located near the fence or in the back yard. One of the rounds was recovered from the garage door frame near the fence and two others went through the gate and the fence on the east side of the yard and struck 7

a truck. In addition, Lopez would have been unable to jump over the fence with any of the wounds that he ultimately sustained. Once inside the backyard, Duckworth fired four more rounds at Lopez while running north on the east side of the residence as evidenced by the four shell casings from his gun found in this area. Duckworth s stated reason for shooting at Lopez was that he was disoriented once he was inside the backyard and was fearful that Lopez would jump the north gate of the residence, escape the parameter and threaten other residents in the neighborhood. This second volley of shots by Duckworth was also legally justified in order to make a violent felony arrest as Lopez continued to be a threat to neighborhood residents generally and to other officers. It is likewise doubtful that any of these shots hit Lopez as he would have been unable to scale the gate with his eventual wounds and, additionally; there was no blood found near the gate. When Lopez landed on the north side of the gate, Sergeant Epps, Sergeant Harnett and Officer Snow saw him crouched down facing the gate with his hands near his waist. They had heard the sounds of gunfire coming from the alley and reasonably believed that a rolling gun battle was taking place between Lopez and pursuing officers. It was also reasonable for them to feel that Lopez was waiting to ambush Duckworth based on the position of his body and hands. It appears that Lopez may very well have been planning to confront Duckworth even though he had not previously fired any shots. By the time Lopez had jumped the north fence on to Richwood Court, he had undoubtedly concluded that Duckworth was trying to kill him after firing eight shots at him from two different locations. He may have been deciding whether to shoot back at Duckworth with the handgun he was carrying or to continue to run. However, Lopez did not know that Epps had seen him jump the gate and was in a good position to fire at him with his SWAT rifle. Epps fired 7 shots at Lopez from the entrance of the parking lot on north side of Richwood Court and he went down to the ground immediately and landed face down. Harnett fired at least 2 shots at Lopez with his handgun from the south side of Richwood Court at almost the same time as Epps was firing his rifle. Snow fired one round from his SWAT rifle when he saw Lopez try to get up and possibly get up and run or get into a firing position. Duckworth kicked in a board on the fence and stepped through just after Epps, Harnett and possibly Snow fired at Lopez. It is unclear who fired the rounds which struck Lopez, particularly the fatal shot that entered his back. The Crime Laboratory was only able to eliminate the handguns fired by Duckworth and Harnett as the cause of the fragmentation wound on Lopez s arm. As stated above, it is doubtful that any of the shots fired on the run by Duckworth hit Lopez. Epps had a rifle and the best firing position and he fired more shots than Harnett and Snow. Conclusion The plan to arrest Sonny Lopez on a Sunday afternoon in a residential neighborhood in Cupertino was extremely dangerous to the involved officers and residents. The various contingency plans devised by Fremont PD SWAT officers all involved varying degrees of risk. Lopez was wanted for murder, known to be armed and had expressed his belief that he would die resisting arrest. 8

These plans were complicated when Lopez chose to leave the residence where he was staying while the Sheriff s Department was taking over for the Fremont PD officers who had been up all night. Sergeant Duckworth attempted to identify and lawfully arrest Lopez for a violent felony and fired several shots from his service handgun at Lopez when Lopez ran and entered the backyard of a residence. These shots caused other nearby officers to reasonably conclude that Lopez was firing at pursuing officers. When Lopez jumped over a gate into the front of the residence and turned back toward Sergeant Duckworth, these officers reasonably believed that Lopez was attempting to ambush him. Based on this belief, three Fremont PD officers fired their service firearms at Lopez. He died from multiple gunshot wounds despite receiving immediate emergency medical treatment. All of the shots fired by the officers were legally justified in self-defense, defense of others or during an arrest for a violent felony. 9