monterey county - Salinas Police Department

MONTEREY COUNTY
OFFICE OF THE DISTRICT ATTORNEY
OEAN D. FLIPPIO
DISTRICTAITORNEY
June 19.2015
Chief Kelly McMillin
Salinas Police Department
222Lincoln Avenue
Salinas,
CA
93901
Offi cer Involved Fatality
Date of Incident: JuIy 10,2014
Re:
Deceased: Frank Miguel Alvarado
SPD Report #14-0070469
Chief McMillin:
The District Attorney's Offrce has completed its review of the above referenced incident. The scope of
this review is narrow. It is not to advise concerning best practices for law enforcement in the field, but
rather to determine if any officer committed a crime beyond a reasonable doubt.
Our review determined the evidence does not show beyond a reasonable doubt the officers in question
committed any crime because they acted in self-defense and defense of others when thev shot Frank
Miguel Alvarado on July I0,2014.
Any person, including a police officer, is allowed to use deadly force in self-defense or in defense of
others if the person reasonably believes the immediate use of deadly force is necessary to defend
against an imminent danger of great bodily injury or death. The danger does not need to have actually
existed as long as the_person reasonably believed the danger existed. Further, a person acting in selfdefense or defense of others is not required to retreat. The person is entitled to siand his or her ground
or even, if reasonable, to pursue an assailant until the danger of death or bodily injury has passel. This
is so even ifsafety could have been achieved by retreating.
Further' police officers have a legal right to use deadly force in situations ordinary persons do not.
A
police officer may use deadly force when the killing (1) is necessary to prevent the escape of a suspect,
if where feasible some warning has been given, as long as there is probable cause to believe the
suspect has committed a felony that threatened death or great bodily injury, OR (2) is necessary
because the suspect is resisting arrest and the officer has probable cause to believe the suspect por.,
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threat, including a future threat, of death or great bodily rnj.rry to the officer or others. Unlike self1
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defense, peace officers may use deadly force in these circumstances even
suspect is not imminent.
if the danger
posed by the
Police offtcers can lawfully use deadly force even if from 20120 hindsight other feasible, and even less
dangerous, options existed. The situation must be viewed from the perspective of a reasonable officer
at the scene. Officers are forced to make split-second judgments-in circumstances that are tense,
uncertain, and rapidly evolving-about the amount of force that is necessary in a particular situation.
SUMMARY OF FACTS
On July 10,2014, at approximately 4:44 a.m., Salinas police officers were dispatched to 1055
McGowan Drive, in the city of Salinas, regarding Frank Alvarado. The juvenile caller told dispatch
that Frank Alvarado tried to burn his house down and then fled. The caller described Frank Alvarado
as wearing khaki pants, a black jacket and black hat. Dispatch received multiple calls regarding the
incident. One of the reporting parties was Delia Paredes, Frank Alvarado's mother. She reported to
dispatch that her son had just tried to bum her stepmother and uses meth. She went on to explain to
dispatch that her son was on parole and that his parole agent had a warrant out for his arrest for testing
positive for methamphetamine and for cutting off his ankle monitor. Mrs. Paredes also informed
dispatch that Frank Alvarado had been to prison for eleven years for committing a shooting, and that
he would probably be violent with offrcers, but that she knew he did not have a gun. She related that
on July 8,2014, she attempted to drive him to his parole officer to have him turn himself in. When
Frank Alvarado realized where she was taking him, he fled from the car. He later ended up getting
back in the car and together they went to a church. When they were at the church, Frank Alvarado told
her, "I'm not going to go. I'm not going back in. I'll have the police kill me before I go back in."
Sergeant Brian Johnson has been a police officer for over 9 years. He was at the police station when
he heard a dispatch regarding a subject setting fire to a couch. He understood from dispatch that the
subject was a parolee, and had said that he was not willing to go back to prison and was also willing to
take on the police. He also understood that the subject had said that the police would kill him before
he went back. Sergeant Johnson drove over toward a hotel in the area where dispatch indicated
Alvarado may be. When he arrived in the area he saw a Hispanic male, six feet tall, wearing khaki
pants and a black hat. This description matched the description provided through dispatch. This
subject was later identified as Frank Alvarado.
Alvarado was watching Sergeant Johnson closely as Sergeant Johnson drove past. When Sergeant
Johnson parked his car, Alvarado started to run, holding his hand to his waistband as if concealing
something. Sergeant Johnson advised fellow officers via radio that Alvarado was running with his
hand at his waistband and may be hiding a gun. Alvarado stopped running and took cover facing
Sergeant Johnson, hiding behind a Prius parked on Beverly Drive. Alvarado took up a fighting stance,
challenging Sergeant Johnson from behind the Prius. Sergeant Johnson parked his patrol vehicle
approximately 80 feet away. Sergeant Johnson adjusted his spotlight toward Alvarado. It appeared to
Sergeant Johnson that Alvarado was holding something in his hands. His arms were in an extended
triangular position with both hands together as if he was holding a firearm, but with his arms pointed
toward the ground. Sergeant Johnson took out his firearm and ordered Alvarado to come out from
behind the vehicle and show his hands. Alvarado did not comply, but continued to keep his arms in
the same triangular position.
1
Officer Chris Silva has been a police officer for approximately 6 years. He arrived on scene and also
began challenging Alvarado to come out from behind the Prius and show his hands. Alvarado ignored
those commands and began bobbing up and down with his arms in an extended triangular position
pointed down in front of him as if he was holding a firearm. Officer Silva kept giving commands in
English and Spanish for Alvarado to show his hands. Alvarado appeared angry and began yelling.
Officer Silva withdrew his weapon and pointed it at Alvarado. Officer Silva was concerned about
potentially shooting into the surrounding residential neighborhood. He attempted to back up in order
to change his angle. Officer Silva said he felt scared. He felt that something was definitely going to
go down given Alvarado's behavior, his bobbing up and down with his arms extended as if holding a
firearm, and the report that Alvarado uses methamphetamine. He believed Alvarado had a gun.
Officer Scott Sutton has been a police officer for approximately 6 years. He arrived on scene and
parked his patrol vehicle behind Sergeant Johnson's. He deployed his rifle and stood approximately
15 yards behind Sergeant Johnson. As Officer Sutton took up that position, Alvarado suddenly bolted
from behind the Prius. Sergeant Johnson moved from the cover of his open patrol door to behind his
patrol vehicle in order to obtain more cover. Alvarado yelled, "Let's do this fuckers," as he sprinted
toward Sergeant Johnson at a dead run. He was running with his hands in a o'shooting platform." A
"shooting platform" is described as extended arms holding an object directly outward aligned with the
face as if aiming a handgun. As Alvarado reached the front of Sergeant Johnson's patrol vehicle,
Sergeant Johnson felt that Alvarado was going to shoot him through the patrol car window. Sergeant
Johnson determined he had to stop the threat and fired five rounds through the rear patrol call window
toward Alvarado. Simultaneously, Officer Sutton, believing his life and the life of other offrcers were
in danger, fired 18 rounds from his rifle. According to Officer Sutton it appeared that the shots to
Alvarado were not taking effect. Alvarado eventually went down near the front driver's side wheel
well of Sergeant Johnson's vehicle, approximately 12 feet from Sergeant Johnson.
Once Alvarado was down, the officers still could not see his hands despite their commands for
Alvarado to show them. Officers approached and handcuffed him, determining for the first time that
the object in Alvarado's hands was a cell phone and not a handgun.
The shooting occurred about
I hour before
sunrise.
Patholoeist's findings: Dr. Venus Azar, a Board Certified Pathologist, determined that Frank
Alvarado died as a result of multiple gunshot wounds. A postmortem examination showed 15
gunshots wounds. Toxicology results revealed the presence of Methamphetamine and GammaHydroxybutyrate (GHB). GHB is an illicitly marketed substance. It is a central nervous system
depressant which is commonly referred to as a "club drug" or "date rape" drug.
EVIDENCE OF DANGEROUS CHARACTER OF THE ACCUSED
The following facts would potentially be admissible in any criminal prosecution of any of the involved
officers. This is because under Evidence Code section 1103, an accused who claims self-defense may
prove the dangerous character ofthe deceased to show the deceased was probably the aggressor.
Admissibility of this evidence does not depend on whether the officers actually knew about the
decedent's character for violence.
?
Alvarado's prior criminal convictions include: attempted murder and assault with a firearm, assaulting
a police officer, carrying a concealed weapon in a vehicle, receiving stolen property, battery on a
domestic partner, and possession of narcotics. He was sentenced to 12 years and 8 months in prison
for attempted murder and assault with a firearm. Alvarado was released from prison on July 6,2013.
Following his release, Alvarado had numerous parole violations:
o 111612014 - Parole violation due to drug use
o 2/2812014 - Parole violation due to drug use
o 3/05/2014 - Ordered to attend drug treatment program - Failure to report
o 3ll0l20l4 - Disturbance call requiring SPD response. Confrontation between Frank Alvarado
and his father Jose Alvarado. Delia Paredes, Frank's mother shared with Alvarado's parole
agent that Alvarado was acting paranoid and may cause harm to them. Alvarado was arrested
on the violation for failure to report to the drug program.
o 6/26/2014 - Parole violation due to drug use. Alvarado was placed on Electronic In-Home
Detention for 90 days and mandated to start the STAR addiction program.
o 7lIl20I4 - Alvarado failed to report to STAR program
o 7/4/2014 - Alvarado cut off his electronic ankle monitoring device
. 71812014 - Alvarado failed to report to the parole office - no bail warrant issued for Alvarado's
arrest
OTHER RELEVANT INFORMATION
Delia Parades is Frank Alvarado's mother. Frank Alvarado originally lived with her and his father,
Jose Alvarado, upon his release on parole. He lived with them for approximately one year when he
and his father got into a dispute. The dispute occurred on March 10,2014 and involved Alvarado
threatening to kill his father. Since that time, Alvarado lived with his grandfather Miguel Paredes at
1055 McGowan.
On July 8,2014, Delia Parades picked up Alvarado from the 1055 McGowan address in order to take
him to his parole agent because he had tested positive on a narcotics test. During the drive, Alvarado
told her several times that he did not want to go back to prison and that he would do whatever it took
not to go back. Alvarado told her that the police would have to kill him because he was not going back
to prison. Alvarado then jumped out of the car and fled. Later when she located Alvarado, she told
him he needed to deal with his problems. Alvarado again told her he did not want to return to prison
and would do everything in his power to not go back. Later in the evening she learned that Alvarado
had been kicked out of the 1055 McGowan address.
On July 9,2014, Delia Parades again saw Alvarado. He said he would be tuming himself into the
parole office. He seemed to be sincere and did not appear to be under the influence of narcotics at that
time. On July 10, 2014, at approximately 4:40 a.m., she received a frantic voicemail message from
Alvarado saying, 'oCome get me, Mom. I can't stand this bitch." At 4:45 a.m., she received a call from
Rosa Paredes, who is married to Alvarado's grandfather. Rosa told Delia that "Franky" had tried to
bum her. Rosa appeared to be in shock and was crying on the phone. Delia then immediately hung up
and called 911. She told 911 that Alvarado did not want to go back to prison and that he "would do
whatever it took to stay out" of prison. She also told 911 that Alvarado said the police would have to
shoot him. Delia did not believe he had possession of a gun, but told 911 that Alvarado did recently
take a photograph of a toy gun that she believed he might use to threaten officers. Delia later told
investigators that she did not witness the shooting, but that she was confident, based on Alvarado's
statement and conduct, that Alvarado had provoked the shooting.
Vivian Luz Nunez was previously Frank Alvarado's girlfriend. She lived at 1055 McGowan with
several family members including Frank Alvarado's elderly grandfather, Miguel Paredes. Frank
Alvarado had previously lived atthat location, but had been kicked out of the home days earlier by
Miguel Paredes for using methamphetamine. Ms. Nunez observed that when using methamphetamine,
Alvarado would act differently. He would often start fires in the backyard and speak or yell at the fire
as if he were talking to someone. He would talk to himself, stay up all night seeing things that weren't
there. Nunez was concerned because she believed Alvarado may harm her. Based on Alvarado's
continued use of drugs, Vivian ended her romantic relationship with Alvarado in the days prior to the
shooting.
On July 10,2014, at approximately 4:15 a.m., Alvarado sent several text messages to Nunez about
their relationship status. Nunez drifted off to sleep, only to awake at about 5:00 a.m. She heard her
mother yell, "No Franky!" Nunez rushed out to the living room and saw her mother extinguishing a
fire on the couch and curtains. Moments later she heard sounds at the front door and saw the door
swing open when Alvarado entered. The door struck his grandfather Miguel Paredes, causing an
injury to elderly man's arm. She then saw Alvarado grab her mother by the arm and shoulder and
struggle with her. Alvarado released her mother after Nunez told him to stop and calm down.
Alvarado then ran out the door. Nuneztold investigators that she was in fear for her and her family's
safety.
On July 10,2014, at approximately 4:00 a.m., Rosa Paredes heard a banging sound. She walked into
the living room and saw Alvarado standing over the couch with a welding torch setting the couch on
fire. The curtains were already on fire. She ran toward him in order to stop him, but he pushed her
away saying, 'No. No." Alvarado then ran out leaving the lit torch behind. Rosa Paredes then shut
and locked the door, and began to put out the fires. Alvarado returned to the house, kicked in the door
causing the door to strike his grandfather on the arm causing an injury. Alvarado grabbed Rosa
Paredes then released her and fled out the door. Rosa was in fear for her and her familv's safetv and
believed Alvarado was trying to kill them.
THE GOVERNING LAW
Any person including a police officer is allowed to use deadly force in self-defense or in defense of
others if the person reasonably believes the immediate use of deadly force is necessary to defend
against an imminent danger of great bodily injury or death and the force used was reasonable to defend
against the perceived danger. The danger does not need to have actually existed as long as the person
reasonably believed it did exist. Further, the person is not required to retreat. The person is entitled to
stand his or her ground to defend themselves or even, if reasonable, to pursue an assailant until the
danger of death or bodily injury has passed. This is so even if safety could have been achieved by
retreating. The prosecution must prove to the jury that the facts do not support seltdefense or defense
ofothers beyond a reasonable doubt.
s
Further, police officers have a legal right to use deadly force in situations ordinary persons do not.
Penal Code section 196 provides: 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 a felony, and who are fleeing from justice or
resisting such arrest.
Courts have limited this statutory defense to homicide for peace officers as follows: The inquiry is an
objective one and an offrcer's use of force must be objectively reasonable in light of the facts and
circumstances confronting the officer. In summary, a police officer may use deadly force when (1) the
killing is necessary to prevent the escape of a suspect, if where feasible some warning has been given,
as long as there is probable cause to believe the suspect has committed a felony that threatened death
or great bodily injury, OR (2) the killing is necessary because the suspect is resisting arrest and the
offtcer has probable cause to believe the suspect poses a threat, including a future threat, of death or
great bodily injury to the officer or others. (See CALCRIM 507 [including bench notes]; Tennessee v.
Garner (1985) 471 U.S. l; Graham v. Connor (1989) 490 U.S. 386.
Unlike self-defense or defense of others, the threat posed by the suspect need not be imminent.
Probable cause means a strong suspicion in a person of ordinary caution that facts are true, even
though there may be some room for doubt. Probable cause is less than proof to a preponderance,
which means more likely than not. Therefore, probable cause may exist even though in fact no felony
was committed by anyone, and even when no threat of death or great bodily injury actually existed.
The United States Supreme Court has instructed that these standards must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20120 vision of hindsight. The
calculus must embody allowance for the fact that police officers are often forced to make split-second
judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the amount of
force that is necessary in a particular situation. Graham v. Connor (1989) 490 U.S. 386,396-97;
Plumhoff v. Ricknrd (2014) 134 S.Ct 2012,2020.
"Thus, under Graham, we must avoid substituting our personal notions of proper police
procedure for the instantaneous decision of the officer at the scene. We must never
allow the theoretical, sanitized world of our imagination to replace the dangerous and
complex world that policemen face every day. What constitutes 'reasonable' action
may seem quite different to someone facing a possible assailant than to someone
analyzingthe question at leisure .- Smith v. Freland 16th Cir. 1992) 954 F .2d 343, 347 .
Officers are not required to use the least dangerous means of dealing with an exigent situation. Scott
Henrich (1994) 39 F.3rd 912; See Scott v. Harris (2007) 550 U.S. 372,385 [police not required to
cease their vehicular pursuit of fleeing suspect whose reckless driving posed a threat to the public].
v.
In summary, the law bestows on police officers a broader right to use deadly force in discharging their
duties than permitted for ordinary citizens. The prosecution must prove to the jury beyond a
reasonable doubt that the facts do not support a defense.
ANALYSIS
The California District Attorneys Association charge filing standard directs prosecutors to assess
whether the evidence would warrant conviction by a jury, which requires proof beyond a reasonable
doubt. The sole purpose of this review is to determine whether any officer was criminally responsible
for the death of Frank Alvarado.
There is no doubt that the officers acted with a reasonable belief that Frank Alvarado posed an
imminent deadly threat when officers shot him in self-defense and defense of others. The officers
knew that he vowed he would not return to custody and had articulated his intent to commit "suicide
by cop." Even before California became a state in 1850, the law of self-defense and defense of others
has never required an actual threat. The fact that Frank Alvarado had a cell phone rather than a firearm
makes no difference, as long as a person asserting self-defense had an actual and reasonable belief the
object was a deadly weapon. All of the officers thought the cell phone was a gun and the investigation
disclosed no evidence to the contrary. In summary, it appears that Frank Alvarado decided to commit
suicide that day and chose to use police as the instrument of his death. Unfortunately, his plan
succeeded.
CONCLUSION
Based upon a review of all of the evidence no criminal action against any of the involved officers is
contemplated or warranted. If you have any questions, please don't hesitate to contact me.
Sincerely,
DEAN D. FLIPPO
District Attorney
JEANNINE PACIONI
Assistant District Attornev
* NEWS RELEASE *
NO CHARGES FILED IN SHOOTING DEATH OF PAROLEE UNDER
INFLUENCE OF METH WHO COMMITTED *SUICIDE BY COP"
FOR IMMEDIATE RELEASE
June 19,2015
CONTACT: ASSISTANT DISTRICT ATTORNEY JEANNINE PACIONI
(831) 7ss-s4r7
Monterey County District Attorney Dean D. Flippo announced today that no charges will be filed
against any police officer involved in the shooting death of Frank Alvarado on July 10,2014.
Relevant reasons for this conclusion include:
According to Alvarado's mother, Alvarado said he was not going back to prison, and that
the officers would have to kill him before he would go back in.
Alvarado ignited his family's couch and curtains on fire with a torch and physically
assaulted a family member just prior to the shooting. Salinas Police Department responded.
Alvarado ran from police holding his hand to his waist. An officer reported to dispatch that
he might have a gun.
When offrcers challenged Alvarado to come out with his hands up, Alvarado bobbed up and
down behind a vehicle in a furtive manner while keeping his arms and hands in a shooting
platform position, consistent with possession of a firearm.
o
o
Alvarado refused to comply with numerous commands by officers.
When officers continued to order Alvarado to surrender with his hands up, Alvarado
charged the officers yelling, "Let's do this fuckers" and sprinted at a full run toward officers
with his arms outstretched as if aiming a firearm. Alvarado was able to come within
approximately 12 feet of Sergeant Johnson prior to stopping his charge. All of the officers
believed that Alvarado possessed a firearm. The shooting occurred about I hour before
sunrise.
Toxicology results show Alvarado was under the influence of methamphetamine,
amphetamine and Gamma-Hydroxybutyrate (Date Rape Drugs) at the time of the offense.
Pursuant to State and Federal law, any person, including a peace officer, is allowed to use deadly
force in self-defense or in defense of others if the person reasonably believes the immediate use of
deadly force is necessary to defend against an immediate danger of great bodily injury or death.
The danger does not need to have actually existed as long as the person reasonably believed the
danger existed. Further, a person acting in self-defense or defense of others is not required to
retreat. The person is entitled to stand his or her ground or even, if reasonable, to pursue an
assailant until the danger of death or bodily injury has passed. This is so even if safety could have
been achieved by retreating.
The investigation revealed that the officers reacted with a reasonable belief that Frank Alvarado
posed an imminent deadly threat when offrcers shot him in self-defense and defense of others. He
charged the officers and intentionally simulated an assault with a firearm while pointing his
outstretched arms at officers yelling, "Let's do this fuckers," in a challenging way. Even before
Califomia became a state in 1850, the law of self-defense and defense of others has never required
an actual threat. The fact that Frank Alvarado had a cell phone instead of a firearm makes no
difference, as long as a person asserting self-defense had an actual and reasonable beliefthe object
was a deadly weapon. The officers unanimously believed the cell phone was a gun. The
subsequent investigation disclosed no evidence rendering their belief unreasonable before or at the
instant of the shooting. Alvarado's words and actions, made the officers' belief reasonable. In
summary, it appears that Frank Alvarado, as in so many similar situations, while under the influence
of methamphetamine and other illegal drugs, committed suicide at the hands of the police which
impacted his family as well as the involved offrcers. He chose to force the police to kill him instead
of retuming to prison.
For details see the attached letter to Salinas Police Chief Kellv McMillin authored bv Assistant
District Attorney Jeannine Pacioni explaining our analysis.