* 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) 755-5417 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 reason fr this conclusioh ifluder ‘* 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 officers challenged ated to to come out with his hands up, Alvarado bobbed up and down behind a vehicle ih a-furtive maner while keeping his arms and hands in a shooting platform position, consistent with possession of a firearm. * 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 @JlMmW” and sprinted ata full run toward officers with his arms outstretched as if aiming a firearm. Alvarado was able to come within approximately 12 fect of prior to stopping his charge. All of the officers believed that Alvarado possessed.a firearm. ‘The shooting occurred about 1 hour before sunrise, skin thie shi * Toxicology results show’AlabidbWas under the influence of methamphetamine, amphetamine and Gamma-Hydroxybutyrate (Date Rape Drugs) atthe 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 agairist an immediate danger of great bodily injury or death. The danger does not need to have actually éxisted as long as the persot 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 staid his or her ground or even, if reasonable, to pursue an assailant until the danger of dédty'oh BbUny silty Hd’ passed. This is so even if safety could have been achieved by retreating, °*/tent with peAbia as 0901 Tyilros The investigation revealed that the offices reacted with a reasonable belief that Frank Alvarado posed an imminent deadly threat when officers shot him in self-defense and defense of others. He charged the officers and intention simulated gn assault with a firearm while pointing his outstretched arms at offices Yelinl, 20S U8 (hi sam” in @ challenging way. 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 instead of 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. 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 ofthe shooting, Alvarado’s words and ations, made he officers" belief reasonable, In summary, it appears that Frank Alvarado, as in so many similar situations, while under the influence of methamphetamine and other ileal diugs, committed suicide at the hands of the police which impacted his family as well as the jnvo rel Ved officers. He chose to force the police to kill him instead of returning to prison. For details see the attached letter to Salinas Police Chief Kelly McMillin authored by Assistant District Attorney Jeannine Pacioni explaining our analysis ae a ne javglvMONTEREY COUNTY OFFICE OF THE DISTRICT ATTORNEY DEAN D. FLIPPO June 19, 2015 Chief Kelly MeMillin Salinas Police Department 222 Lincoln Avenue Salinas, CA 93901 Re: Officer Involved Fatality Date of Incident: July 10, 2014 Deceased: Frank Miguel Alvarado SPD Report if14-0070469 Chief MeMiillin: wid a acta ‘The District Attorney's Office Has! Sip [CHEN THE Yeview of the above referenced incident, The scope of this review is narrow. It is not to advise GOncerning 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 they shot Frank ‘Miguel Alvarado on July 10, 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 belieyes the immediate use of deadly force is necessary to defend against an imminent danger of great, bodily-injuty 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 tequired 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 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 thatthreatened death or great bodily injury, OR (2) is necessary because the suspect is resisting aire gradation has probable cause to believe the suspect poses a threat, including a future threat OF ae ¥ Great bodily injury to the officer or others. Unlike self- 1 ‘Teemene wan ioeare FeO a genre ‘Seem tees oe oes ra (ea1b defense, peace officers may usc tol iit thiése circumstances even if the danger posed by the suspect is not imminent. Pagans Police officers can lavfully use deadly force even if from 20/20 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. ‘ce SUMMARY OF FACTS On July 10, 2014, at approximately 4444.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 burn 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 offigers, but that she knew he did not have a gun, She related that ‘on July 8, 2014, she attempted. tin is ;parole officer to have him tum himself in. When Frank Alvarado realized where ae Tig 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 kil! me before I go back in.” \s 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 i 7MMMEEE drove Over toward a hotel in the area where dispatch indicated Alvarado may be. When he arrives inate aes ‘he saw a Hispanic male, six feet tall, wearing khaki pans anda bls ht, This desert fied the description provided through dispatch. This subject was later identified as Fiank Alvarado. Alvarado was watchin QM closely a drove past. Wher parked his car, Alvarado started to ran, holding his hand to his waistband as if concealing something, APTI advised fellow officers via radio that Alvarado was running with his, hhand at his waistband and may be hiding @ gun. Alvarado stopped running and took cover facing quai, icing behind a Prius ptked on Beverly Drive. Alvarado took up a fighting stance, challngin from behind the Prius I parked his patrol vehicle adjusted his spotlight toward Alvarado. It appeared to = ‘éfitething in his hands. His arms were in an extended ‘triangular position with botl (eas if he was holding a firearm, but with his arms pointed toward the ground. a: out his firearm and ordered Alvarado to come out from behind the vehicle and show Alvarado did not comply, but continued to keep his arms in the same triangular position,eaylt Ng as 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 2 firearm. QMS kept giving commands in Eis and Spanish for Alvarado to showhis hands, Alvarado appeared angry and began yelling. jthdrew his weapon!and pointed:it at Alvarado. (MEENA was concerned about potentially shooting into the surrounding residential neighborhood. He attempted to back up in order to change his angle. QUEM 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. as been a police officer for approximately 6 years. He arrived on scene and patked his patrol vehicle behin He deployed his rifle and stood approximately 15 yards behind. As‘ ‘ook up that position, Alvarado suddenly bolted from behind the Prius. (AAA//aae 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" as he sprinted {oT a deadsrity Nesvab rutning with his hands in a “shooting platform.” A. “shooting platform’ is described as extended arms holding an object directly outward aligned with the face as if air ahandgun. As Alvarado reached the front fMRI 's patrol vehicle, felt that Alvarado was going to shoot him through the patrol car window —: he had to stop the threat and fired five rounds through the rear patrol call window toward Alvarado, Simultaneously believing his life and the life of other officers were in danger, fired 18 rounds fom his rifle, According {o AAINNINNNNNNINM it appeared that the shots to Alvarado were not taking effect. Alyafado eventually went down near the front driver's side whee! Wel of QMS vehicle, Apploximately 12 feet fro X Once Alvarado was down, the ona at fi nb Se his hands despite their commands for Alvarado to show them. Officers’ ie riched "ha handcuffed him, determining for the first time that, the object in Alvarado’s hands was a ca phone and not a handgun, ‘The shooting occurred about 1 hour before sunrise: Pathologist’s findings: Dr, Venus Azar, a Board Certified Pathologist, determined that Frank ‘Alvarado died as a result of multiple guighot wounds, A postmortem exainination showed 15 gunshots wounds. Toxicology results revealed the presence of Methamphetamine and Gamma- Hydroxybutyrate (GHB). GHB is at illigtly marketed substance. It is a central nervous system depressant which is commonly fee Hel iss elu 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 of the deceased ta show the deceased was probably the aggressor. Admissibility ofthis evidence does nt depend on whether the officers actually knew about the decedent's character for violence.‘Alvarado’s prior criminal convictiotis jpclude: 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 ofiiaipfics..He was sentenced to 12 years and 8 months in prison for attempted murder and assault with asfifeam). Alvarado was released from prison on July 6, 2013 Following his release, Alvarado had numerous parole violations: * 1/162014— Parole violation due to drug use © 2/28/2014 - Parole violation due to drug use © 3/05/2014 ~ Ordered to attend drug treatment program ~ Failure to report © 3/10/2014 — 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 failutdo wepertito the crug program. © 6/26/2014 — Parole violation duet drug use, Alvarado was placed on Electronic In-Home Detention for 90 days and mihdatei to start the STAR addiction program. + 7/1/2014 ~ Alvarado failed to report to STAR program # 7/4/2014 ~ Alvarado cut off his electronic ankle monitoring device # 7/8/2014 ~ Alvarado failed to report to the parole office ~ no bail warrant issued for Alvarado’s arrest OTHER)RELEVANT INFORMATION <6 Mytipons ne. ven Delia Parades is Frank Alvarado’sthitherriditqhk Alvarado originally lived with her and his father, Jose Alvarado, upon his release onspdtaléinEle 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 thatthe police would have to kill him because le was not going back to prison, Alvarado then jumpes.pptal the carandfled, Later when she located Alvarado, she told him he needed to deal with his prpkléis:, Alvarado again told her he did not want to return to prison and would do everything in his power, 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 turning himself into the parole office. He seemed to be sincére' 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, “Come 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 Alvirlo's grandfither. Rosa told Delia that “Franky” had tried to burn her. Rosa appeared to be in shdcl and wa ei on, the phone. Delia then immediately hung up Reehbr aan 4 and called 911. She told 911 that ‘lis ARAL Waieto go back to prison and that he “would do‘arity heh HA A» il whatever it took to stay out” of prightis:Shejals6,told)1 | that Alvarado said the police would have to shoot him. Delia did not believe Ke‘tiad 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 at that 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 :Hewouldiaftenstart fires in the backyard and speak or yell at the fire as if he were talking to someone!/}{¢ would talk'to himself, stay up all night seeing things that weren’t there. Nunez was concemed because ste 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. Momiti8 later she heard sounds at the front door and saw the door ‘swing open when Alvarado entered“The Hodr'struck his, grandfather Miguel Paredes, causing an injury to elderly man's arm. She ie AWG pat her mother by the arm and shoulder and struggle with her. Alvarado reléased fier'mother after Nunez told him to stop and calm down. Alvarado then ran out the door. Nunez told 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 seiting the couch on fire. The curtains were already on fite. She ran toward him in order to stop him, but he pushed her away saying, “No. No.” Alvarado then rat! out leaving the littorch behind. Rosa Paredes then shut and locked the door, anid began toptt out the fires. Alvarado returned to the house, kicked in the door causing the door to strike hit alte FSi LNG a causing an injury. Alvarado grabbed Rosa Paredes then released her and fed eit fie Uosr.” Rosa was in fear for her and her family's safety 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 dene oes not iced to have actually existed as long as the person reasonably believed it did exist. bs upto ‘isthot required to retreat. The person is entitled to Stand his or her ground to defend iHfhs¥ive® vieVen, if reasonable, to pursue an assailant until the danger of death or bodily injury has pase, 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 self-defense or defense of others beyond a reasonable doubt.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 igomettcoutios, 2. When necessarily committed in oVetéonting 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, Cours have limited this statutory atti to homicide for peace officers'as follows: The inguiry is an objective one and an officer’s use of forge hiust be objectively reasonable in light of the facts and circumstances confronting the offider!! i sumithary, '@ police officer may use deadly force when (1) the killing is necessary to prevent the Cape "éf'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 officer 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. 1; Graham v. Connor (1989) 490 U.S. 386. Unlike self-defense or defense of other, the threat posed by the suspect need not be imminent. Probable cause means a strong aa \aifieison 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. ‘Theréfore, 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 20/20 vision of hindsight. The alculus must embody allowance for the fact that police officers are often forced to make split-second judgmens—in crcumstanes tat a ene, uncertin and rapidly evolving-about he amount of force that is necessary in a particular; he Plumhoffv. Rickard (2014) 134 S. & on mop “Thus, under Graham, we matantia 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 analyzing the question at leisure,” Smith v. Freland (6" Cir. 1992) 954 F.2d 343, 347. y 6 Liaw hie esc 1 ‘agpoany JeOfficers are not required to use the least dahgerous means of dealing with an exigent situation, Seow v 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]. sedbisibwaae a phen In summary, the law bestows on polige offigersia 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 Attomeys Assoeiation charge filing standard directs prosecutors to assess whether the evidence would warranyeqnviction by a jury, which requires proof beyond a reasonable doubt, The sole purpose of this revisit determine whether any officer was criminally responsible forthe death of Frank Alvarado. 26)5 There is no doubt that the officers actéd! 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 contéary. ‘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. ‘ "pia ailige's “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 Attomey JEANNINE PACIONI Assistant District Attorney