DA won't charge Fontana officer in fatal shooting

http://www.pe.com/localnews/sanbernardino/stories/PE_News_Local_bturn25.f069.html

06/25/04

The San Bernardino County district attorney will not file criminal charges against a Fontana police officer who shot and killed a 22- year-old Fontana man in February, officials said Thursday.

An attorney for the dead man's family called the decision "wretched."

"There is insufficient evidence to prove beyond a reasonable doubt that Officer No. 1's fatal shooting of Randy Perchez constituted a criminal homicide," wrote Supervising Deputy District Attorney Ben Gonzales in a report released Thursday.

Fontana police officials requested that, for safety reasons, the officer's name not be used in the report, said Fontana Police Chief Frank Scialdone. He said the officer is a seven-year veteran of the force.

The report said that officer fired out of fear for his life during a struggle with Perchez over a flashlight.

Perchez's family and Pasadena-based civil rights attorney John Barton said they find the recorded accounts of that night hard to believe.

They wonder how the 5-foot 3-inch tall, 120-pound Perchez could pose a threat to the officer, they said.

"I'm in law enforcement," said Perchez's mom, Cathy Olivas. "I always taught him not to run from officers. For the life of me, I cannot see him fighting a cop."

About 5:30 p.m. Feb. 21, Fontana gang and patrol officers approached several men they believed to be gang members who were standing outside a home in the 14100 block of Chaparral Avenue, the report said.

One of the men ran into the front yard of a nearby home, dropping a 9 mm handgun as he fled, the report said.

The officer who would later be involved in the shooting drove one block south of the Chaparral Avenue address in case the man police were looking for fled out the back of the home he had entered.

The officer left his patrol car and was searching for the man who had dropped the gun when he heard someone jumping over a fence and saw two people running from the area, the report said.

The officer ordered them to the ground and, as he walked between two cars in a driveway, he saw Randy Perchez and another man lying on their stomachs with their hands out, the report said.

The officer told investigators he kicked Perchez, who was trying to get up, the report said.

Perchez got up and ran, the report said. The officer caught Perchez, wrapped his arm around Perchez's neck and pulled him back, the report said. The officer was holding a flashlight with his left hand, the report said.

The officer told investigators that Perchez grabbed the flashlight and would not obey repeated commands to let it go, the report said.

"Believing he was about to be disarmed and possibly injured or killed, Officer No. 1 decided he needed to end this struggle immediately," the report said.

The officer fired, hitting Perchez in the abdomen. Perchez tried to grab the flashlight and the officer fired a second time, hitting Perchez in the chest, the report said. Perchez died at the scene.

For Barton, the report contains more questions than answers.

"Where is the call for backup?" he asked. "Why did the officer stop Randy in the first place? What crime was he committing?"

Gonzales said the two primary witnesses to the shooting, the officer and the man with Perchez, gave slightly different interpretations of what happened.

The other witness told investigators that Perchez was out of breath and was only trying to get the flashlight and the officer's arm away from his neck.

"It's reasonable for him to think that," Gonzales said by phone.

The officer, however, also was reasonable in thinking that his life was in danger if Perchez gained control of his flashlight, he said.

"The issue revolves around what's going through people's minds," Gonzales said.

Gonzales explained in the report that because people's perceptions of events varied, investigators relied mostly on circumstantial evidence and inferences and deductions made from the evidence.

"In that situation, the law mandates that if there are two reasonable interpretations that can be arrived at, one pointing to innocence and one pointing to guilt, the one pointing to innocence must be adopted."

Scialdone said the report is the last item needed to complete an administrative review of the shooting. Such reviews are standard procedure for the department.

"We have an internal review to see if there was any policy violated," he said