LAKE COUNTY, Calif. – Lake County’s district attorney has determined that a deputy was justified in the February fatal shooting of a man who had reportedly committed a home invasion robbery, had stolen a vehicle and was shooting a gun in a Northshore neighborhood.
District Attorney Don Anderson ruled Deputy Ben Moore’s killing of 35-year-old Jason Richard Sienze in Nice on Feb. 5 was justifiable homicide in the Monday report.
Anderson’s report said that Moore shot at Sienze 18 times. An autopsy two days after the shooting found that Sienze had been struck a total of seven times in the neck, chest, both arms and right thigh.
Late on the morning of Feb. 5, authorities received reports that a residence in Nice has been burglarized, and a vehicle and gun had been stolen.
During a series of 911 calls, a subject variously described as a “crazy dude” and a “crazy guy” who appeared to be under the influence of drug was in the area of Highway 20 in Nice and later in the 4300 block of Nice Road, running up and down the hill in a truck, pulling a gun on people, shooting and driving erratically, and at one point nearly hitting a man with the vehicle. Gunshots would be reported elsewhere in the area even after deputies arrived.
Just after noon, a man reported that Sienze broke into his house while the man’s wife was hiding there and took the keys to his 2006 Ford pickup. Minutes later, Moore reported seeing Sienze come out of the house and get into a white truck, which Sienze drove down a steep unpaved hill and onto Marin Road.
Sienze then began backing the truck up, going east on Marin Road. At that point Moore was behind the truck, and Moore said he could see Sienze pick up a pistol from the passenger seat and start to raise it toward him.
Moore told investigators, “In my head, he was still a threat, he was going to shoot me. He was still armed. He knew exactly where I was, and I think that he wanted to shoot me.”
Moore would ultimately shoot 18 rounds from his department-issued AR-15 rifle into the vehicle, which continued driving backwards eastbound on Marin before coming to a stop slightly off the road, the report said.
Anderson said no other law enforcement officer at the scene shot at Sienze during the incident.
When sheriff’s deputies and California Highway Patrol officers approached the vehicle, Sienze didn’t respond. They removed him from the vehicle and placed him on the ground. He was later pronounced dead at the scene.
Some of those interviewed about Sienze said he had been using methamphetamine, alcohol and bath salt, and that he had talked about “committing suicide by cop.” One man who knew him said Sienze was paranoid and asked for a gun. Another recounted Sienze getting on a roof, throwing rocks and making bizarre allegations.
Toxicology tests found that at the time of his death Sienze had a mixture of methamphetamine, amphetamine and marijuana in his system.
Anderson told Lake County News that the toxicology tests were negative for bath salts.
In his report, Anderson also offers legal analysis of Moore’s actions, finding that it met the legal tests for being justifiable homicide.
“Deputy Moore justifiably was in fear of his life as set forth by not only the facts of this incident but by the deputy’s admissions after the shooting. The deputy was aware that the suspect recently had shot a firearm in the immediate area, banished or threatened a citizen with a firearm and had just committed a home invasion robbery. Additionally, there were reports the suspect was acting strangely and possibly under the influence of a controlled substance,” Anderson wrote.
“Deputy Moore’s account of the incident is corroborated by the body camera, statements of other officer who witnesses the facts leading up to the shooting, his spontaneous statements immediately after the incident, the investigator’s reenactment and other physical evidence gathered at the scene, as set forth above. There was no evidence to dispute the accounts of the incident given by Deputy Moore,” Anderson continued.
The report concluded, “In this matter, it is the findings of the Lake County District Attorney's Office that the officer had justifiably shot Jason Richard Sienze in self-defense, defense of others and to prevent the escape of a violent and dangerous fleeing felon.”
Anderson’s full report is published below.
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LAKE COUNTY DISTRICT ATTORNEY’S FINAL REPORT
REGARDING OFFICER INVOLVED SHOOTING OF
JASON RICHARD SIENZE
INTRODUCTIONOn February 5, 2018, Lake County Sheriff’s Deputy Ben Moore and other deputies, responded to several calls of a suspicious subject, home invasion and shots being fired in the Nice area of Lake County. While attempting to investigate the incident and neutralize the suspect, Deputy Moore shot the suspect, Jason Richard Sienze, several times as he was trying to flee the area. Jason Sienze was pronounced dead at the scene due to several gunshot rounds in his head, neck and torso.
It is the finding of this office that the killing of Jason Richard Sienze was justifiable homicide pursuant to California Penal Code Section 196 and 197.
PROCEDURESPursuant to the Lake County Law Enforcement Fatal Incident Protocol of 2016, the Lake County District Attorney Investigation Division conducted an independent investigation into the incident. Also, an internal investigation into the incident was conducted by the administration at the Lake County Sheriff’s Department.
The purpose of the District Attorney’s investigation is to determine the facts of the incident, if a crime has been committed and whether or not criminal charges should be filed against any individual involved.
This report and findings are conducted pursuant to California State law and the Lake County Law Enforcement Fatal Incident Protocol of 2016. Any finding by the District Attorney is for the sole purpose of criminal charging, using a beyond a reasonable doubt burden of proof.
FACTSAt the time of his death, Jason Richard Sienze was 35 years old and last known address was 9355 Chippewa Trail, Kelseyville, CA. Jason Richard Sienze's had a lengthy criminal history includes the following events:
1) June 2003, arrested for assault with a deadly weapon.
2) January 2004, arrested for battery and trespassing.
3) March 2009, arrested for trespassing.
4) June 2009, arrested for vandalism.
5) July 2009, arrested for giving false information to a peace officer and burglary, sentenced to two years in prison.
6) August 2009, arrested for trespassing.
7) November 2009, arrested for burglary, resisting arrest and assault with a deadly weapon.
8) February 2010, sentenced to two years in prison for receiving stolen property.
9) December 2010, arrested for vandalism.
10) December 2013, arrested for driving under the influence of alcohol.
11) May 2014, arrested for driving under the influence of alcohol.
12) February 2013, arrested for possession of marijuana and driving in excessive of 100 miles per hour.
13) September 2014, arrested for possession of marijuana for sale.
14) December 2016, arrested for probation violation.
At the time of the incident Jason Sienze was married to Crystal Kemp. Ms. Kemp had separated from Jason Sienze about three to four months prior to the incident due to his drug usage. She said that he frequently used methamphetamine, alcohol and bath salt. She said he would “flip out” when using bath salt. She states that at the time of the incident Jason Sienze was having a bad time because his two brothers were alleged to have been killed by police around this time of the year. She said that at the time of the incident Jason Sienze was in a romantic relationship with Patricia Weissensee.
Patrick Kelly said he had known Jason Sienze for a couple of months when he was dating Judy Thompson. He had heard that Jason Sienze was talking about committing suicide by cop.
Ken Meyers said that Jason Sienze had been acting strange, making weird comments and making allegations that Meyers was working with the cops. He described Jason Sienze as paranoid and said Sienze asked him for a gun.
Jason Strickler said he had been renting a room to Jason Sienze. A few days before the incident Jason Sienze was acting bizarre and saying things like there was a hit out on him and there was a chem trails that left nanomites that allowed Sission to talk to the government.
Elisa Patterson, Jason Sienze ex-girlfriend said the prior to the incident Jason Sienze was acting strange and getting into meaningless arguments.
Cyle Carroll described Jason Sienze as upset and acting very strange. He said Jason Sienze was using methamphetamines and bath salts. At one time Jason Sienze was on the roof throwing rocks and accusing Carroll of having sex with part of Kemp’s corpse while bears were eating other parts of the corpse.
Below is a summary of the chronological order of the events leading to the shooting on February 5, 2018 as reported to 911 dispatch and later interviews:
Gerardo Godinez reports a person on E. Highway 20 acting suspicious wanting a vehicle and some money.
Simon Jaliece reports a burglary to his residence, the suspect stole a gun and his vehicle.
11:38:07, Matt Jusbczak reported a suspicious person in the area in the area of Highway 20, Nice, under the influence of drugs and wanting money. The person also says he is worried about doing life in prison.
11:38:09, a female reports a person walking around the property, talking to himself and snooping around the property. It appears he is under the influence.
11:47:13, A hysterical female reported she needs help with a “crazy dude” at 4323 Nice Road, Nice.
11:53:51, Edward Jones reported a “crazy guy” running up and down the hill in a truck. The person pulled a gun on him. Jones reports hearing a shot fired and seeing the man again with the gun. Jones later told officers the suspect was driving erratically through a yard and he presumed the driver was driving through the neighbor’s yard. He walked towards the vehicle which was north on Nice Road. He said the vehicle drove full blast him. He jumped out of the way before the vehicle hit him. The vehicle stopped and the driver opened the door and brandished a firearm at him. Jones said he retreated to his own residence to get his own gun.
11:54:09, Undersheriff Macedo arrives in the area.
11:57:54, Edward Jones reports hearing a couple of more shots down the hill.
11:59:48, a female party reports her Hispanic neighbor was in a verbal fight with the responsible in Spanish and she heard gunshots.
12:00:36, Deputies Moore and Hockett arrive in the area.
12:01:00, Deputy Hockett reports still hearing shots being fired.
12:03:00, Deputy Moore reports near the water tower and another shot is fired.
12:04:19, Jose Franco reports having his wife on the phone who is telling him she is inside the home with the door locked and shots are being fired in the area. Franco then reports the man is now in the house. Later Jose Franco and his wife told officers the suspect broke into the house while the wife hid inside. The suspect stole his car keys from inside the house and took his 2006 Ford pick-up.
12:08:02, Deputy Moore reports the suspect came out of the house and is getting into a white truck.
12:09:30, Deputy Moore reports the suspect is stuck but still trying to go down the hill.
Deputy Moore sees the vehicle drive down the steep unpaved hill and onto Marin Road. The vehicle starts to go west bound, but stops and puts the truck in reverse. The vehicle proceeds backwards going east on Marin Road.
12:11:06, Deputy Moore reports he has eyes on him, he is putting the truck in reverse and that he is behind the truck
12:11:30, Deputy Moore reports shots fired.
Deputy Moore shoots a total of 18 rounds from his department issues AR15 into the vehicle. Several rounds hit Jason Sienze. The truck continues driving backwards eastbound on Marin. The vehicle comes to a stop slightly off the road.
Lake County Deputies and Highway Patrol Officers approach the vehicle. When Sienze does not respond they approach the vehicle and remove him. Jason Sienze is placed on the ground where he is later pronounced dead.
INVESTIGATIONThe following investigation was conducted by investigators from the Lake County District Attorney’s Office:
The investigation of an officer involved shooting, the importance is not necessarily what had occurred, but what is seen, heard, perceived or believed by the officer doing the shooting. In this investigation Deputy Moore was wearing a body camera which captured most of the event that occurred as seen by Deputy Moore. The video is of good quality; however, at the time of the actual shots being fired into the vehicle the quality of the film as very clear. This is due mainly because the body camera was focusing on different objects like tree limbs rather than inside the suspect vehicle.
Deputy Moore was interviewed by District Attorney Investigators and gave the following account of the events: Deputy Moore and Hockett were on a call at the Pomo Pumps between Nice and Lucerne. They cleared from that detail and responded to a report of suspicious person walking on a side street in Nice. While responding they received a call about a guy banishing a gun and getting into an argument on Nice Road. They then received information there was a shot fired in the area.
While compiling information Deputy Moore hears a shot being fired and identified it as close and outdoors. Deputy Moore received information that a gunman had forced his way inside of a neighboring house.
While maneuvering into position Deputy Moore sees a guy matching the suspect’s description come out of the residence and assumed he was the gunman. A white pickup started up and backed out of a steep driveway. The truck drove down a steep hill onto Marin Road and turned right, west bound.
The truck then went into reverse and started driving backwards toward Deputy Moore. Deputy Moore went to an area what had small trees to wait for the truck to pass by. The truck stopped to the right of him, then started backing up again. Deputy Moore was positioned above the truck on the embankment and had vision in the cab and was able to view the cab area.
Deputy Moore said he could see the pistol on the passenger seat. Deputy Moore said the suspect picked up the gun and starts to raise it. Deputy Moore at this time thinks “I’m going to get shot”. Deputy Moore starts to shoot his AR15 rifle into the cab of the truck. He continued to shoot a total of 18 times until he thinks the suspect was not a threat. The truck continued east down Marin until it went off the road into a berm.
Deputy Moore explained “He reached down, he picked up the weapon. He started picking it up towards me.” He said the suspect was turning and facing him while in the vehicle. Deputy Moore also said “In my head, he was still a threat, he was going to shoot me. He was still armed. He knew exactly where I was, and I think that he wanted to shoot me.”
Deputy Moore’s blood was drawn and tested by the California Department of Justice. The results were 0.000 percent alcohol.
The District Attorney’s Office first tried to enhance the body camera video with its own video enhancement equipment; however, was not successful. The video was then sent to the F.B.I. who was unable to make the video clearer. The video was then sent to Stutchman Forensic Laboratory in Napa with slightly better results.
Investigators from the District Attorney’s Office used the Faro 3D Laser scanner of the immediate area of the shooting. It was determined that from the point of the vehicle at the time of the shooting Deputy Moore was a distance of 14.1120 feet away. He was at a point 7.7757 feet vertical and 11.7767 horizontal from the vehicle. After the shooting the suspect vehicle travelled a distance of 82.5003 feet before stopping.
Investigators of the District Attorney’s Office conducted a reenactment of the shooting using a similar pickup truck. From the reenactment it is clear that Deputy Moore from his position could clearly see inside the vehicle and would have been able to see the suspect’s firearm as the deputy described.
The suspect vehicle was processed by the California Department of Justice Laboratory. There was a total of 18 shots fired by Deputy Moore. Six shots entered through the passenger side window. Twelve shots entered through the front windshield. DOJ criminalist selected six bullet strikes that showed sufficient alignment to document trajectory. Two of the selected six appeared to have originated through the broken front passenger window and through the infant car seat behind the driver’s seat. The remaining four selected bullet strikes traveled through the front windshield and the top of the dashboard.
Located inside the vehicle was a Czech Model X54 7.62 pistol #D05679. The pistol’s hammer was locked back in the cocked position and the safety mechanism was off. There was one unexpected cartridge in the chamber and one in the magazine. The pistol has the capacity to hold seven rounds. Therefore, if fully loaded and the suspect did not reload he could have fired 5 to 6 rounds.
Deputy Moore’s account of the incident is corroborated by body camera footage that clearly has Deputy Moore telling other officers approaching the vehicle immediately after the shooting “Hey, shot fired. He has a gun, he has a pistol.” Moments later Deputy Moore stated “He’s got a pistol in his right hand.”
On February 7, 2018 an autopsy was performed on Jason Richard Sienze, by Bennet I. Omalu. Dr. Omalu noted the following injuries:
1) Gunshot wound of the head and neck
2) Gunshot wound to the neck
3) Gunshot wound to the trunk left chest
4) Gunshot wound to the trunk left chest.
5) Gunshot wound to the extremities right arm
6) Gunshot wound to the extremities left forearm
7) Gunshot wound to the extremities right thigh
Dr. Omalu determined the cause of death to be “Gunshot Wounds of Head, Neck and Trunk.”
Central Valley Toxicology analyzed the blood sample of Jason Richard Sienze and found the following:
1) d-Methamphetamine = 0.56 mg/L
2) d-Amphetamine = 0.14 mg/L
3) delta-9-THC =5.9 ng/mL
4) delta-9-THC-COOH = 32 ng/mL
5) delta-9-THC-OH = 1.8 ng/mL
LEGAL ISSUESIn this particular case, four separate legal issues have to be analyzed:
1) Was the deputy justified in his initial shooting through the side window of six shots on an issue of self-defense?
2) Was the deputy justified in his shooting 12 shots through the windshield on the issue of self-defense?
3) Was the deputy justified in the shooting of 12 shots through the front windshield under the theory of fleeing felon?
4) Was the deputy justified in shooting a total of 18 rounds?
LEGAL ANALYSISThe relevant California statutory and case law regarding this matter is set forth below.
1) Was the deputy justified in his initial shooting through the side window of six shots on an issue of self-defense?
California Penal Code Section 197 states in part:
“Homicide is also justifiable when committed by any person in any of the following cases:
1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,…
2. When necessarily committed in defense of habitation, property, or person against one who manifestly intends or endeavors, by violence or surprise, to commit a felony in a violent, riotous, or tumultuous manner…
3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,…”
The test for determining justifiable homicide is apparent necessity, i.e., an honest and reasonable belief in the apparent peril and the need for self-defense is enough. The means used, whether deadly or nondeadly force, must be reasonable under the circumstances. In People v. Sonier (1952) 113 Cal.App.2d 277, 278 the court held “The justification of self-defense requires a double showing: that defendant was actually in fear of his life or serious bodily injury and that the conduct of the other party was such as to produce that state of mind in a reasonable person.”
California Penal Code Section 196 (Justifiable homicide by public officers) states:
“Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either—
1. In obedience to any judgment of a competent court; or,
2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,
3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.”
In Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1102, the court said officers “may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.” “Unlike private citizens, police officers act under color of law to protect the public interest. They are charged with acting affirmatively and using force as part of their duties, because “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to affect it.” Munoz, supra at p. 1109. “‘[Police officers] are, in short, not similarly situated to the ordinary battery defendant and need not be treated the [17] same. In these cases, then, “… the defendant police officer is in the exercise of the privilege of protecting the public peace and order [and] he is entitled to the even greater use of force than might be in the same circumstances required for self-defense.
In California, "a police officer who kills someone has committed a justifiable homicide if the homicide was 'necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty.'" The test for whether homicide was justifiable is "whether the circumstances 'reasonably create[d] a fear of death or serious bodily harm to the officer or to another.'" Kortum v. Alkire (1977) 69 Cal.App.3d 325, 333.
The court held “The test for determining whether a homicide was justifiable under Penal Code section 196 is whether the circumstances ‘reasonably create[d] a fear of death or serious bodily harm to the officer or to another.” Munoz v. City of Union City supra at p. 340 and Brown v. Ransweiler, 171 Cal. App. 4th 516, 533.
In Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 165 the court held that "Courts must apply the reasonableness standard objectively, viewing the facts from the perspective of the officer at the time of the incident and not with the benefit of hindsight. Graham v. Connor (1989) 490 U.S. 386, 394 and Martinez v. County of Los Angeles supra at p.343.
In this matter, Deputy Moore was on duty and acting in his official peace officer capacities when he was dispatched to investigate a suspicious person, an argument between two people and shots fired. Prior to the shooting the officer learned that the suspect entered into an occupied residence, assuming while he was still armed.
Deputy Moore took a position to observe the vehicle drive by. As the vehicle drove by he observed Jason Richard Sienze pick up a pistol and level it at the deputy. The distance between the suspect and Deputy Moore was approximately 14 feet; therefore, the suspect was relatively close to the officer.
Deputy Moore justifiably was in fear of his life as set forth by not only the facts of this incident but by the deputy’s admissions after the shooting. The deputy was aware that the suspect recently had shot a firearm in the immediate area, banished or threatened a citizen with a firearm and had just committed a home invasion robbery. Additionally, there were reports the suspect was acting strangely and possibly under the influence of a controlled substance.
Deputy Moore’s account of the incident is corroborated by the body camera, statements of other officer who witnesses the facts leading up to the shooting, his spontaneous statements immediately after the incident, the investigator’s reenactment and other physical evidence gathered at the scene, as set forth above. There was no evidence to dispute the accounts of the incident given by Deputy Moore.
From the facts of this case, it is my determination that officer was acting in self-defense.
2) Was the deputy justified in his shooting 12 shots through the windshield on the issue of self-defense?
From the evidence it could be argued that once the vehicle passed by the deputy’s line of fire far enough so that the suspect could not have shot through the open window, the deputy’s own life was no longer in immediate jeopardy. The suspect would have to shoot from inside the cab, through the windshield to hit the deputy on the embankment.
However, from the facts as related above, we must look at the state of mind of the deputy and was that state of mind reasonable? The total time from the first shot to the last shot was about 8 seconds, only about five seconds was shooting into the windshield. There was not sufficient time for the officer to reflect or think about the precise danger he may have been in. During this entire time the deputy was genuinely was in fear of his life, and from the evidence that fear appeared to be reasonable.
Additionally, the deputy knew there were other officer’s approaching on foot with little or no cover. As well as the suspect’s activities stated above, the suspect had just pointed a gun at him. Therefore, the deputy was justified in his shooting for the defense of his fellow officers.
In addition to the wording of Penal Code Section 196 and 197 above case law, an officer may shoot at a suspect to prevent imminent harm to private citizens or other officers, which is a situation this deputy faced.
From the facts above, the deputy was legally justified in shooting through the windshield in his own defense and the defense of the other officers.
3) Was the deputy justified in the shooting of 12 shots through the front windshield under the theory of fleeing felon?
The use of deadly force must be justified by the circumstances known to the officer involved at that exact moment in time. Under the current rule deadly force used against a fleeing suspect may only be used if the suspect possess an immediate deadly threat to others or if he is not caught there is a strong likelihood would kill another person.
Until 1985 the common law rule in most states was that police could shoot to prevent the escape of a fleeing felon. Then in 1985 the United States Supreme Court held in Tennessee v. Gardner (1985) 471 U.S. 1, that limited shooting to prevent a fleeing felon, to a situation where the escape would present an immediate grave danger to the public.
In this matter, the deputy was aware of the violent conduct of the suspect. The suspect had banished a firearm at another person, committed a home invasion robbery while a female was locked inside in another room, had moments before shot a firearm several times in the immediate area and had pointed a gun at the deputy seconds before the shooting.
Therefore, it is my finding that Jason Richard Sienze was a violent and dangerous person, and that he posed an immediate threat to public safety. Deputy Moore was justified in shooting Jason Richard Sienze through the windshield to prevent the escape of a dangerous fleeing felon.
4) Was the deputy justified in shooting a total of 18 rounds?
The leading Federal case on this issue Plumhoff v. Richard (2014) 134 S, CT, 2012, 2022, which has very similar facts as this case. In that case, the driver of a vehicle was involved in a high speed chase with police officer. The driving pattern of the driver was reckless and a danger to the public safety. The officers eventually fired three shots through the side window. As the vehicle continued to flee the scene the officer shot an additional 12 rounds into the vehicle. The driver and passenger were both killed.
The United States Supreme Court stated “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. As petitioners noted below, “if lethal force is justified, officers are taught to keep shooting until the threat is over... Here, during the 10-second span when all the shots were fired, Rickard never abandoned his attempt to flee. Indeed, even after all the shots had been fired, he managed to drive away and to continue driving until he crashed.”
The Supreme Court in essence ruled the firing into the vehicle was reasonable and that under the circumstances the firing of a total of 15 rounds was not excessive.
Therefore, Deputy Moore shooting a total of 18 rounds was justified in that the threat to the public and officers continued to exist during the duration of the shooting.
FINDINGSIn this matter, it is the findings of the Lake County District Attorney's Office that the officer had justifiably shot Jason Richard Sienze in self-defense, defense of others and to prevent the escape of a violent and dangerous fleeing felon. It is therefore my finding that the taking of Jason Richard Sienze’s life was justifiable homicide pursuant Penal Code Sections 196 and 197.
________________________________Don A. AndersonLake County District Attorney
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