CCDA Letter On Perez Shooting Unredacted Pedie Perez

OFFICE OF THE DISTRICT ATTORNEY
CONTRA COSTA COUNTY

Mark A. Peterson

DISTRICT ATTORNEY

January 20 th , 2015

Chief Christopher Magnus
Richmond Police Department
1701 Regatta Blvd.

Richmond, Ca, 94804

RE: Death of Richard Perez HI

Dear Chief Magnus:

On September 14 lh , 2014 the District Attorney's Office was notified that the Richmond Police
Department (RPD} was invoking the county's protocol on Law Enforcement Involved Fatal
Incidents as the result of a fatal Officer Involved Shooting which had just occurred in
Richmond.

The county-wide protocol process was developed by the county’s Police Chiefs’ Association
over 30 years ago to investigate incidents when officers or civilians are injured or killed during
law enforcement encounters. During such investigations, investigators from the District
Attorney’s Office and the venue agencies jointly investigate the circumstances surrounding
each case.

Every case of this nature is then reviewed by the District Attorney's Office to determine if
criminal charges should be filed against any of the involved parties. Over the past three
decades, hundreds of cases have been investigated using this format, and it has proven to be
a very effective process.

On September 14 th shortly after the protocol was invoked, a team of investigators from the
District Attorney’s Office responded to the scene at Uncle Sam’s Liquors at 3322 Cutting
Boufevard. Once at that site, it was noted that the scene had been secured by uniformed
police officers, and that entry into it was restricted, it was also learned that Richard Perez ill
had been shot in front of the liquor store by RPD Officer Wallace Jensen during a struggle.

A team of Crime Scene Investigators (CSI's) from the Office of the Sheriff’s Crime Lab
responded to the scene, and later colloctod all of the evidence and documented the site.
Members of the CSI team also were present on the following day during the autopsy of Mr.
Perez which was conducted at the County Morgue.

(925) 957-8604
Fax (925) 646-4683

District Attorney Administration
900 Ward Street. Fourth Floor
Martinez. California 94553

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After the shooting, Officer Jensen was sequestered at a local hotel where he met with his
attorney, Terl Leone, a representative of the Legal Defense Fund. The officer was cooperative,
and after meeting with his attorney, he was interviewed by a Senior inspector from our office,
and a RPD Detective.

Witnesses were interviewed and they provided recorded statements to members of the
investigative teams. In addition, it was discovered that there were video recordings of the
scene. One was from the store’s security system, and the second from a civilian witness.
These recordings captured portions of the encounter between Mr. Perez and Officer Jensen.

Investigators also contacted Mr. Perez’s family to notify them of his death, and to obtain
information concerning his history.

On December 10 th , 2014, a Coroner’s Inquest was held in Martinez. I attended the Inquest,
and heard the testimony of the pathologist who performed the autopsy, and 1 also heard the
testimony of the other witnesses. Officer Jensen was a key witness at the Inquest, and his
testimony was consistent with his previous interview on the day of the occurrence.

After the Coroner’s Inquest, I met with other members of the District Attorney’s Office to
discuss the circumstances surrounding the death, and to review the evidence collected by the
protocol teams, and to evaluate the testimony of the witnesses. The purpose of this review was
to determine if Officer Jensen committed a crime as identified in the California Penal Code.
Specifically, in this case it was to determine if Officer Jensen violated Penal Code §187
(Murder), or had committed any lesser included crimes.

To make this determination, we are guided by the law that states that the prosecution must
prove beyond a reasonable doubt that Officer Jensen’s actions were not in self- defense. Self-
defense is the reasonable and honest belief that deadly force is necessary to prevent an
imminent threat of great bodily injury or death. In examining whether or not the requisite proof
necessary to overcome the presumption of self-defense exists, we primarily look at three
issues.

First, we look at Officer Jensen’s claim that he acted in self-defense, and we try to determine if
he honestly believed he was in danger. This claim is examined in its context. As you are
aware, Officer Jensen’s supervisors had identified Uncle Sam’s Liquors as a problem location
on Officer Jensen’s beat, and they requested that he visit the site to help eliminate problems
caused by people loitering in front of the location.

During such a site visit, a citizen complained to Officer Jensen that Mr. Perez was causing
problems at the store. Officer Jensen contacted Mr. Perez, and an altercation ensued between
him and Officer Jensen. The evidence indicates that Mr. Perez, who was very intoxicated at
the time of the incident, instigated the attack on the officer.

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During the investigation we found no evidence of any pre-existing animus between Officer
Jensen and Mr. Perez; or even any evidence that Officer Jensen had any previous relationship
or contact with Mr. Perez. This would suggest that there was a lack of motive for the officer to
harm Mr. Perez.

The second factor we examined was if Officer Jensen’s belief in the need for self-defense was
reasonable. The reasonableness of the officer’s action is judged not by the officer’s subjective
state of mind, but objectively, i.e., under a ‘’Reasonable Person” standard viewed in the
circumstances and situation the officer faced.

Here, Officer Jensen was lawfully performing his duties as a police officer when he became
involved in a physical fight with Mr. Perez. Officer Jensen testified that during the fight Mr.
Perez grabbed the officer’s holstered firearm and attempted to remove it. Once he had
disengaged from Mr. Perez, Officer Jensen said he had his weapon at “low ready” when Mr.
Perez lunged at him and the officer fired his weapon one time. Mr. Perez then charged at him
again and the officer fired his weapon two more times, it is important to note that during this
encounter, Officer Jensen was alone; no other officers were with him, and no civilians
attempted to help the officer.

The officer said that he believed that he was in a fight for his handgun, and that he shot Mr.
Perez before Mr. Perez was able to get the gun from him and use it against the officer. No
information was developed which would refute the officer's description of the events.

Third, we examine if the need for self-defense was imminent, .i.e., was the officer responding
to an immediate threat. It is not a prospective threat, but one that must be dealt with
immediately. Here, Officer Jensen found himself alone and without help from either fellow
officers or citizens. During the physical fight, Officer Jensen described how Mr. Perez grabbed
the officer’s gun which is evidence of Mr. Perez’s intent to use the firearm against the officer,
and to escalate the encounter to a deadly force situation. The evidence indicates that Officer
Jensen believed that he was faced with the choice of using his weapon against Mr. Perez, or
having Mr. Perez use it against him.

We carefully considered all three factors in evaluating Officer Jensen's claim that he acted in •
self-defense. We conclude that not only is it not possible to prove Officer Jensen did not act in
self-defense, but the facts and circumstances indicate .that the officer acted in lawful self-
defense. Based on our review, we believe the officer’s actions constitute Justifiable Homicide
as identified in Penal Code § 197.

Sincerely,

Barry Grove
Deputy District Attorney