LAKE COUNTY, Calif. – The District Attorney's Office has released a final report on an officer-involved shooting earlier this year, ruling the officers were defending themselves and their actions were “reasonable and justified.”
District Attorney Don Anderson issued his findings on Wednesday regarding the May 30 incident in Anderson Springs that involved California Highway Patrol Officer Arthur “Josh” Dye and Lake County Sheriff's Deputy Scott Lewis.
Dye and Lewis were responding to a disturbance involving 35-year-old Yolpaqui Hernandez of Middletown, according to Anderson's report.
None of the men were injured when, during a struggle, Dye's rifle went off, Anderson said.
Anderson said the Lake County District Attorney Investigation Division conducted the investigation into the incident – along with the California Highway Patrol Critical Incident Investigation Team and investigators from the Lake County Sheriff’s Office – pursuant to the Lake County Law Enforcement Fatal Incident Protocol of 2013.
The District Attorney's Office typically leads such investigations in the county when a law enforcement officer has been involved in a shooting or any other resulting in a fatality, as Lake County News has reported.
On May 30 Lewis was first on scene after a disturbance was reported at 11190 Rose Anderson Road. Anderson said the woman who lived at the residence had allowed Hernandez to stay there for six months, but earlier that day had asked him to leave, which led him to becoming “confrontational and agitated.”
The woman called law enforcement out of fear of Hernandez, and Lewis, who responded, agreed to speak to Hernandez in an effort to resolve the issues, Anderson said.
When Lewis went into the home to speak with Hernandez, he was on the phone. Anderson said Hernandez became hostile to Lewis and wouldn't end his phone call.
At the same time, Lewis saw a machete and tried to remove it from Hernandez's reach, with Hernandez then grabbing the machete and Lewis' arm, Anderson said. A struggle ensued and Lewis got control of the machete.
Dye arrived a short time later, with Hernandez becoming increasingly hostile and aggressive. Both Dye and Lewis used their Tasers on Hernandez, but it had little or no effect, Anderson said.
Anderson said that after the Tasers were used on Hernandez, he jumped on Lewis and placed him in a choke hold while grabbing the barrel of Dye's rifle at the same time.
It was during this struggle that Dye's rifle discharged once, with the bullet lodging in the ceiling, Anderson said.
Dye and Lewis were able to overpower Hernandez and take him into custody without further incident, according to Anderson.
Hernandez was arrested on felony charges of resisting arrest, obstructing an officer, battery with serious bodily injury and assault with a deadly weapon – not a firearm – on a peace officer, according to jail records.
In his legal review of the case, Anderson referenced the 2004 state appellate court case Munoz v. City of Union City, in which the court held that an officer “may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.”
“The officers’ actions in defending themselves from attack by this individual were reasonable and justified. The accidental discharge of the firearm was the result of Hernandez struggling with the peace officer’s firearm. Therefore, there is no criminal conduct on the part of either peace officer,” Anderson concluded.
Lewis, 53, also is the focus of another District Attorney's Office investigation arising from a fatal October vehicle crash.
On the morning of Oct. 3 Lewis was responding from Kelseyville to the Lower Lake area on the report of a home invasion robbery when his patrol vehicle – a Chevy Tahoe SUV – crossed into the northbound lane and collided head-on with a vehicle driven by 26-year-old Gabriela Rivas Garcia, of Clearlake.
Garcia, who was reportedly on her way to work that morning, was killed in the crash. Lewis was flown to an out-of-county trauma center with serious injuries.
A third driver, 66-year-old Charles W. Eagleton, 66, of Lakeport, a county correctional officer, was behind Garcia and was hit by the rear of Lewis' SUV. Eagleton suffered minor injuries, according to incident reports.
Anderson's office is conducting a joint investigation with the California Highway Patrol Northern Division's Multidisciplinary Accident Investigation Team, or MAIT, into the crash.
He said on Wednesday that he has not received any new details from the CHP's investigators, and he doesn't expect to receive MAIT's final report until sometime in March 2014.
Anderson's full report on the May 30 incident is below.
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December 25, 2013
LAKE COUNTY DISTRICT ATTORNEY’S FINAL REPORT
REGARDING OFFICER INVOLVED SHOOTING INVOLVING
YOLPAQUI HERNANDEZ ON MAY 30, 2013
INTRODUCTION
On May 30, 2013, Lake County Sheriff’s Deputy Scott Lewis responded to a reported disturbance at 11190 Rose Anderson Road, Middletown, CA. Deputy Lewis was assisted by California Highway Patrol Officer Arthur Dye. During the investigation the officers became involved in a physical confrontation with the suspect, Yolpaqui Hernandez.
In the ensuing fight Hernandez attempted to gain control of the officer’s rifle. As a result of Hernandez grabbing the barrel of an assault rifle and attempting to gain control the rifle, the rifle discharged. No one was injured as a result of the discharge of the rifle. Hernandez was taken into custody without injuries.
It is the finding of this office that the discharge was accidental while the officers were acting in self defense, and further caused by Hernandez wrestling with the rifle in an attempt to gain control of it from the officers.
There is no criminal conduct on the part of the officers. Hernandez continues to be prosecuted in this matter.
PROCEDURES
Pursuant to the Lake County Law Enforcement Fatal Incident Protocol of 2013, the Lake County District Attorney Investigation Division conducted the investigation into the incident along with the California Highway Patrol Critical Incident Investigation Team and investigators from the Lake County Sheriff’s Department.
This report and findings are conducted pursuant to California State law and the Lake County Law Enforcement Fatal Incident Protocol of 2013. The purpose of this report is to determine whether or not the officer acted appropriately within the limits of the law and whether or not the officers have violated any criminal statute. This report is not to determine Yolpaqui Hernandez liability; whether he should or should not be prosecuted; or have any effect on the criminal prosecution of Yolpaqui Hernandez currently in progress.
FACTS
On May 30, 2013 at 10:27 a.m. Deputy Scott Lewis was dispatched to 11190 Rose Anderson Road in Anderson Springs for a reported disturbance. The reporting party had reported that Yolpaqui Hernandez was having mental health issues and was screaming and yelling.
The reporting party told Deputy Lewis that Yolpaqui Hernandez had been staying at her residence for the past six months. Earlier that day she had asked Hernandez to leave her residence. This made Hernandez confrontational and agitated. The reporting party was concerned and frightened of Hernandez. Deputy Lewis agreed to speak with Hernandez and try to resolve the issue between them.
Deputy Lewis contacted Hernandez inside the residence while Hernandez was engaged on the phone. Hernandez became increasingly hostile to the officer and refused to discontinue his phone conversation. Deputy Lewis tried to remove a machete from the reach of Hernandez; however, Hernandez grabbed the machete and Deputy Lewis’ arm. There was a brief struggle and Deputy Lewis was able to gain control of the machete. Deputy Lewis also noticed that Hernandez had several other knives attached to his belt.
Shortly thereafter CHP officer Dye arrived that the scene. Hernandez became increasingly hostile and aggressive to the officers. Hernandez was tasered by both officers; however, it had little or no affect on Hernandez.
Hernandez jumped on top of Deputy Lewis and placed him in a choke hold. At the same time Hernandez grabbed the barrel of Officer Dye’s rifle. A struggle for the rifle ensued with Hernandez controlling the barrel and Office Dye controlling the center of the rifle. A single discharge of the rifle occurred with the bullet lodging in the ceiling.
The officers were able to over power Hernandez and take him into custody without further incident.
LEGAL ANALYSIS
The relevant California statutory and case law regarding this matter is set forth below.
In Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1102, the court held that an officer “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 effect it.” Munoz, supra, 120 Cal.App.4th 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.
FINDINGS
In this matter, the officers were on duty and acting in their official capacity as Peace Officers. The officers’ actions in defending themselves from attack by this individual were reasonable and justified. The accidental discharge of the firearm was the result of Hernandez struggling with the peace officer’s firearm. Therefore, there is no criminal conduct on the part of either peace officer.
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Don A. Anderson
Lake County District Attorney