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REPORT OF THE FATAL SHOOTII{G OF

AI\THONYNUNEZ
oN JULY 4,2016

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o
1850

JEFFREY F. ROSEN
DISTRICT ATTORNEY

T
TABLE OF CONTENTS

Preamble... 4
Factual Summary 5

Statements by Police Officers


Officer Michael Santos ....9
Officer Rubens Dalaison ...11
Sergeant Thomas Boyle ,..13
Officer Adam Crawley ...13
Officer Kenneth Siegel t4
Officer Jeffrey Yates t4
Officer Scott Morasci 15

Officer Jeff Fiedler 15

Officer Anthony Yizntsi ...16


Officer Aneez Raghavan ...18
Lieutenant Paul Joseph ..19
Sergeant Lyle Jackson 20
Officer Katie Reyes ...20
Officer Jeff Stults 2t
Officer Douglas Potwora .22
Officer Mandeep Saini .22
Officer Anthony Baza 22
Offi cer Gennaro Strangis .22
Officer Donald Guess
Sergeant Eugene Ito

Crime Scene Unit Examination .24

Statements by Civilian \Mitnesses


Juan Cervantes

Jose Sanchez

Nina Doe .31

Pierre Dacunha 32

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Erika Dacunha JJ

Charles Thomas ......34


Matthew Yancy 37
Rene Cuyugan .........38
Emesto Nunez 38
JuanZapien .... ....38
Medical Examiner 39
Crime Laboratory ..40
Surveillance Video and 911 / Police Radio Traffic ......41
Timeline .....49
Relevant Legal Principles .....50
Analysis .....51
Conclusion .. ..56

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PREAMBLE

The summary of this incident is drawn from reports prepared by the San Jose Police Department
and submitted to this office by San Jose Police Department Sergeant Raul Martinez and
Detective Jorge Santiago. The submission included: reports of the responding police officers;
reports summarizing interviews of the involved officers and civilian witnesses; recordings of
interviews; surveillance video; photographs; and 911 / police radio communications. This
review of the evidence is being conducted pursuant to the Officer-Involved lncident Guidelines
adopted by the Santa Clara County Police Chie Association on December 8, 2016. This review
included the report from the Santa Clara County Medical Examiner's Office, which classified the
death as a homicide due to multiple gunshot wounds. Despite Anthony Nunez's self-inflicted
gunshot wound to the head that preceded the officer-involved shooting, the officer-involved
shooting is being classified as a fatal shooting rather than a non-fatal shooting due to the officer-
fired gunshots being fatal.

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FACTUAL SUMMARY

On July 4,2016, at approximately 5:27 p.m., l8-year-old Anthony Nunez died during a standoff
with police in front of his house at994 Feller Avenue in San Jose.

Photograph showing the residential neighborhood near the intersection of Feller


Avenue and Story Road in San Jose.

This officer-involved shooting occurred in a residential neighborhood on a Monday afternoon on


the Fourth of July. The 900 block of Feller Avenue consists mostly of single-story residences on
a street wide enough for one car in each direction. The house at994 Feller Avenue is the second
house in from the corner of Story Road. In this officer-involved shooting, Anthony Nunez was
standing outside the front door of 994 Feller Avenue when the two shots were fired by police
from positions diagonally across the street.

Nearly t hour 15 minutes earlier, at approximately 4:I5 p.m., Nunez had tried to commit suicide
inside the house by shooting himself in the head. Two bullets from the revolver entered his head
but stopped at his skull. The gunshot wound caused heavy bleeding from his forehead but did
not kill him. Two people happened to be outside the house and heard the gunshot: his l6-year-
old girlfriend Nina, and her mother. They had come to check on Nunez after hearing that he was
just fired from his job, and knowing that he was depressed for several days and had threatened to
kill himself.

Nunez came out of the house with blood on his face from the self-inflicted gunshot wound. Nina
and her mother ran down the street about one mile to the market where Nunez had worked with
his cousin and another housemate. Nunez followed thern briefly before returning to the house,
staggering, lying down on the driveway, but eventually standing back up and making it inside.

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Juan Cervantes, age 19, was working at the market when he heard what his cousin Nunez had
done. Cervantes drove from the market to the house and, at approximately 4:48 p.m., he parked
in the driveway. Cervantes saw nobody outside, but there was blood spattered on the concrete in
front of the door. Cervantes searched the house and found Nunez inside bleeding from his head.

Cervantes left the house and called 911 from his cell phone to report the suicide attempt. Nunez
followed him outside to the sidewalk in front of the house. Cervantes told him to go back inside.
Nunez went back inside. Cervantes ended the call with 911 and went back inside. At
approximately 4:51p.m., officers from the San Jose Police Department ("SJPD") were
dispatched to 994 Feller Avenue.

Inside, Cervantes found Nunez lying face down in a bedroom. Cervantes turned Nunez over and
took the gun out of his hand. Nunez told Cervantes to give him back the gun because he was
going to shoot himself. Cervantes said no. Cervantes talked to 911 again and said that he had
taken away the gun. The dispatcher instructed Cervantes to throw the gun into the backyard and
come out the front. Cervantes left the house by himself and walked toward police at the corner.
A police officer had to hold back Cervantes, who tried to intervene with the officers who were
going to approach the house.

Cervantes said that Nunez had shot himself in the head and was the only person inside the house.
Cervantes said he had thrown the gun in the backyard, and that Nunez was in the front room on a
couch. One police officer was standing behind a parked truck in the driveway of the house
across the street, where he had a view of the front door of 994 Feller Avenue. The police officer,
Officer Rubens Dalaison, was trained in crisis intervention.

A small goup of police officers walked along Feller Avenue and into the driveway of 994 Feller
Avenue to approach the front door safely, contact Nunez, and secure the scene for first aid to be
provided. They pulled back when Officer Dalaison, who had the better view, yelled out that a
man was in the doorway with a gun. As the officers retreated to positions behind cars parked in
the driveway, at least two officers saw Nunez come out of the front door with a gun in his hand
before he disappeared again.

Officer Michael Santos, who had a rifle, pulled back to a position on a front porch of a house
diagonally across the street, which had aview of 994 Feller Avenue across the street to the left.
Off,rcer Santos' training and experience with the use of a rifle included a SWAT school, the
specialist rifle training program at SJPD, perimeter training, and Rapid Containment Team
("RCT") training. RCT tactical training is used in situations where a suspect is barricaded, or
where there are hostages, or where the suspect has a gun. Officer Santos was also a member of
the SWAT team at Mountain View Police Department earlier in his career, where he worked for
six years. Officer Santos has been a police offrcer with SJPD for more than eight years.

For approximately 10 to 15 minutes, Officer Dalaison tried to talk Nunez into dropping the gun
and let the police help him. Nunez did not drop the gun that he held in his right hand. Nunez
went back into the house and came back outside, and looked around, never speaking to the
police. Officer Dalaison convinced Nunez a few times to put the gun down after he raised it up
to his head. Nunez did not follow commands to drop the gun.

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Photograph showing the angle of Officer Santos' view from the porch at999
Feller Avenue. The peach-colored house across the street is 994 Feller Avenue.

A second police officer with a rifle, Officer Anthony Yizzusi, \ryas re-positioned from Fleming
Avenue to Feller Avenue. Officer Yizzusi and another police officer found a spot behind a
parked truck in a driveway of a house diagonally across the street from994 Feller Avenue.
Officer Yizntsi has been viith SJPD for 15 years. He is trained and permitted to use a rifle on
patrol and is called in to assist patrol officers on the more dangerous calls. He received tactical
training on the use of the rifle including practical exercises such as active shooter drills.

Photograph showing the angle of Officer Vizzusi's view from behind parked
vehicle in a driveway at 985 Feller Avenue, across from the peach-colored house

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Officer Dalaison moved to the side to a safer position behind the parked car with Officer Yizzusi
and the other police officer. When Nunez opened the front door, and stepped outside for the
final time, the two police officers with rifles-who were two houses apart from each other-saw
Nunez twirling the gun in his right hand. When the officers saw Nunez level the gun to an angle
that faced across the street in the direction of the police, they fired one shot each at Nunez in
rapid succession.

Nunez dropped to the ground on the front porch just outside the front door. The call of "shots
fired" was sent out on police radio. A group of four police officers moved toward the front
porch where Nunez was not moving. The police officers recovered the handgun held by Nunez,
a loaded revolver on the concrete walkway, approximately 7 feet away from Nunez.

Photographs taken on July 4,2016, showing location of Anthony Nunez's body


(redacted) and handgun recovered by police on the concrete walkway.

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STATEMENTS BY POLICE OFFICERS

The following accounts are based on the officer's written report and/or recorded interview
describing his or her actions.

Officer Michael Santos


On July 5,20T6, at I:49 a.m., Officer Michael Santos was interviewed by Sergeant Raul
Martinez and Detective Jorge Santiago of the Homicide Unit and said the following:

On July 4,2016, Officer Santos was on duty and heard a priority call on the radio of a man with
a gun. Based on his experience, Officer Santos viewed the call as one that could become a
barricade situation. On the way to help, the information on the dispatch was confusing as to
whether the person with the gun still had the gun, whether he had shot himself, and what was
going on inside. Officer Santos thought about what kind of weapon the person had, because if
the gun was a long gun, the police would have to be farther back.

When Officer Santos arrived, he parked a block away on Story Road. There were three or four
police vehicles and officers already at the staging area as he retrieved his rifle. He met with the
other officers at the corner and there was a discussion about setting up a perimeter, where to
position officers, whether the person shot himself or not, and whether he still had the gun.

Officer Santos believed the dispatcher was still on the phone with the reporting party,who was
told to put the gun in the backyard. Officer Santos said he looked for a position where he would
have a good view of the front door, just in case the person came out with the gun. The other
officers were posted behind some police cars at the corner. The reporting party ran out of the
house and was a bit hysterical, saying something to the effect of, 'oHe's in there, go get him."

Officer Santos heard the officers on the corner to his right talking to the reporting party to find
out what was going on inside. The reporting party said his relative had shot himself. The
reporting party was not clear if the person who shot himself was dead. Police asked where the
gun was, and the reporting party said he took the gun away and threw it in the backyard.

The police discussed the next move, whether to go render aid or just hold a position, not
knowing for sure if the person was dead. Officer Santos believed that if the person was not dead,
then they would provoke an altercation by approaching, and they would be in a very bad
situation. Nevertheless, the decision was made to do a welfare check to see if the man was still
in there and to see if he was still alive. Officer Santos led a group of four to five other officers to
the house. While in the driveway behind a parked car, Officer Santos could see a white, birdcage
screen door but not beyond it. This white security door was cracked open, but Officer Santos
was on the hinge side, and he could not see into the doorway.

A police officer on the north side of the house called out, "He's at the door, he's got a gun."
Officer Santos could not see anything from where he was. Officer Santos called out to the other
officers to get back, and they all did. Officer Santos pulled back to his original spot. He now
knew that the person in the house was not dead, he had a gun, and they now had a barricade

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situation. Officer Santos re-evaluated his position, which did not have a good view of the door,
because of the security door, and did not have a good field of fire because of the angle. He
moved to the porch area of the corner house, which was better but still blocked by the security
door. The porch gave him some concealment and cover. He was by himself, and while he knew
there was an officer to the north, Officer Santos did not how many officers may have been there.

Photograph showing porch area where Officer Santos was positioned (yellow
marker shows location of recovered casing).

As he was getting settled, the person (later identified as Nunez) came out of the house very
slowly-"rombie-like" with blood on his facel. He did not know if Nunez's demeanor was
because of his injury or if that was just his demeanor. Officer Santos saw a gun in Nunez's right
hand and saw that it was a revolver. Nunez had slowly walked out and seemed to scan the area,
looking right and left, mostly in the direction of the offcers north of the house who were giving
him instructions to drop the gun or lie down, or otherwise attempt to talk to him. Nunez was told
over and over to drop the gun. There was absolutely no response from Nunez, not even a facial
reaction. He had a blank stare. He had the gun to his side, and he brought the gun up very
slowly, not aggressively, and moved it up into different positions.

Nunez moved the gun up about three times and then went back inside. He did not point it in
Officer Santos' direction, but he did point at or near the direction of the officers that were north
of the house. At one point, Nunez looked directly at him, but Offrcer Santos did not know if
Nunez saw him or just had a blank stare. In his mind, especially when Nunez was back inside
the house, Officer Santos thought about cases and situations like this where he was trained or
debriefed about, as well as other shootings in San Jose when a similar incident occurred. One

I It should be noted that, except for Officer Jeff Stults who canvassed the
street after the shooting, Officer Santos
and all other officers on the scene did not have body worn cameras, as the cameras had not yet been fully distributed
for use by the San Jose Police Department.

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that stuck in his mind was when a man came out of a house shooting, and an officer was shot.
The man could just pop off rounds at the position of the officers.

Officer Santos knew Nunez could easily come out and fire at and hit any one of the officers. He
did not have great cover himself and could be hit by random fire. Based on his training and
experience, the police officers were in range of Nunez's gun. Officer Santos believed he was the
only officer with a rifle on that side of the house, and his responsibility was to cover everyone
else. Eventually, Nunez went back inside. Officer Santos felt that if Nunez came out and
advanced to a certain point in the driveway or lifted the gun in the direction of the officers, he
would have to shoot to protect himself and the other officers at the scene.

After Nunez went back into the house, nothing happened for a couple of minutes. At one point,
Nunez started to come back out, but Officer Santos could only see Nunez's arm, nothing else.
Officer Santos did not know what Nunezwas doing, if he was pointing a gun at the other
offrcers. If so, Officer Santos had no way of defending them because he could not see Nunez.
Nunez made his way out again and one thing that stood out to Officer Santos was Nunez's
change in demeanor. Nunez seemed more confident and was not looking like he was in a daze
anymore. He looked like he had set his mind to something. Nunez had the gun in his hand and
was swinging the gun around like a cowboy on his trigger finger. Nunez was facing mainly
towards the officers north from him. Nunez stopped twirling the gun after two to three times.
He held the gun at his side, then he pointed the gun directly at the officers to the north. Officer
Santos fired a shot because he thought Nunez was going to shoot them. Nunez dropped to the
ground right at the door. Officer Santos did not hear anyone else fire a gun or rifle at the scene.

In Officer Santos' opinion, less lethal was not an option. Officer Santos had a Taser but he was
50 yards away and that was too far away to use a Taser. A baton would not have been practical.
Officer Santos did not have a 40mm less lethal device with him. Since Nunez pointed a firearm
at other officers, Officer Santos believed deadly force was necessary and authorizedto protect
them. When asked what he thought would have happened if he did not shoot Nunez, Offrcer
Santos said he believed Nunez was going to shoot the other officers that were there or shoot at
him. Officer Santos said he was not going to wait and see, and have an offrcer be shot.
Officer Rubens Dalaison
On July 4,2016, Officer Rubens Dalaison was dispatchedto 994 Feller Avenue. Officer
Dalaison is a member of SJPD's Crisis lntervention Team (CIT). On the way, Officer Dalaison
heard from dispatch that the person who called 911 (the'oreporting party," identified as Juan
Cervantes) was reporting that a family member, Anthony Nunez, was holding a gun to his head
at994 Feller Avenue, wanting to kill himself. At approximately 5:04 p.m., Officer Dalaison
arrived at the scene.

Officer Dalaison heard over his radio that Cervantes was told to take the gun and throw it out
into the backyard and then leave the house through the front door. After Cervantes walked out of
the house and met with police at the corner of Story Road and Feller Avenue, Officer Dalaison
heard over the radio that Cervantes confirmed for police that Nunez had shot himself in the head.

LT
Officer Dalaison took up a position in the driveway of 985 Feller Avenue behind a Chewolet
Suburban, which gave him some cover and a view of the front door and front windows of the
house across the street, at994 Feller Avenue. The front door and its metal security door were
both open. Officer Dalaison did not see any movement in the house through the two front
windows or the open door.

At approximately 5:12 p.m.,when a team of officers were approaching the house, Officer
Dalaison saw a Hispanic male (Nunez) appear in the doorway at994 Feller Avenue. Nunez had
blood on his face, wore a green shirt, and held a gun in his right hand pointed down along his
right thigh. Officer Dalaison immediately shouted out "Male with a gun in the doorway" and
verbally engaged Nunez by giving him commands to drop the gun. The team of officers stopped
approaching the house. Officer Dalaison then continued to tell Nunez to drop the weapon and
step outside. Nunez did not comply.

Officer Dalaison tried to engage Nunez in conversation, intending to build a rapport to convince
Nunez to put down the gun so officers could get medical attention to him and any other help he
might need. For approximately the next l5 minutes, Officer Dalaison tried to get Nunez to speak
to him and comply with his commands, but Nunez only minimally complied. Off,rcer Dalaison
heard or saw Nunez cryrng at times. At least four times, Nunez raised the gun to his head. Each
time, Officer Dalaison quickly pleaded with Nunez to drop the gun or at least not to point it at his
head. Nunez did listen to Officer Dalaison and pointed the gun towards the ground along his
right thigh. Officer Dalaison updated Nunez's position and location over the radio.

Officer Dalaison was alone in his position across the street from Nunez for much of the time he
was negotiating with Nunez. Officer Dalaison could not reposition himself because doing so
would have put him in the open and unprotected against Nunez if Nunez decided to shoot at him.
Officer Dalaison stayed in place and asked for an officer with a rifle to come to his position.
Officer Yizzus| who had a rifle, and Officer Raghavan, moved to an area behind a dark gray
Chewolet pick-up truck one house away from Officer Dalaison's position. Officer Dalaison
moved to their position only after Officer Yizntsi advised that he was set and would provide
cover as Officer Dalaison moved.

From his new position, which was at 985 Feller Avenue, Offrcer Dalaison continued to talk to
Nunez. Nunez did not comply with his commands to drop the weapon and allow the police to
help him. Nunez went back into the house and Officer Dalaison was not able to see him. Officer
Raghavan was to his left, halfivay down the passenger side of the pick-up truck. Officer Yizzusi
was to the right, with his rifle positioned over the hood of the pick-up truck, pointing in the
direction of Nunez. Nunez came back outside and took a few steps out of the doorway with the
handgun in his right hand.

Officer Dalaison started to reposition himself to get a better view of Nunez. While Officer
Dalaison took his eyes off Nunez,he heard a gunshot come from the area south of his position,
and almost simultaneously, he heard Officer Yizzursi fire his rifle. Officer Dalaison looked
quickly back to Nunez and saw Nunez falling forward towards the ground in front of the open

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front door. Officer Dalaison continued to watch Nunez until a team of officers got to Nunez.
Nunez did not move during that time.

Sergeant Thomas Bovle

At approximately 4:51 p.m., Sergeant Thomas Boyle heard dispatch advise over the radio that a
person was attempting to commit suicide with a gun at 994 Feller Avenue. Sergeant Boyle made
sure that a CIT officer and an officer with a less-than-lethal weapon responded, and instructed
officers over the radio to stage away from the residence. At approximately 5:08 p.m., Sergeant
Boyle arrived on scene. Several police officers had already arrived. Officer Fielder told
Sergeant Boyle that Cervantes said Nunez had shot himself in the head, and that Cervantes threw
the gun in the back yard. To make the scene safe and to provide medical assistance to Nunez,
Sergeant Boyle formed a team of police officers to enter 994 Feller Avenue. As they approached
the residence, Officer Dalaison advised thern that he could see a person (Nunez) in the doorway
and that the person had a gun in their hand. The officers retreated to the area of Feller Avenue
and Story Road. Officer Santos had a rifle and positioned himself south of the residence.
Officer Dalaison was north of the residence, with a better view. OfficerYizntsi, who carried a
rifle, went to Officer Dalaison's location at Sergeant Boyle's request. Sergeant Boyle was at the
northwest corner of Story Road and Feller Avenue. From that location, he could not see Nunez
but he heard Officer Dalaison talking to Nunez. Officer Dalaison provided updates over the
radio. Nunez was moving around the area of the front door and had a gun in his hand.
Several minutes later, Sergeant Boyle heard two gunshots. He confirmed no police officers were
injured. He learned that both Officer Santos and OfficerYizntsi had fired their rifles. Sergeant
Boyle told Officer Santos to secure his rifle. Officer Santos confirmed he had fired his rifle one
time at Nunez.

Officer Adam Crawlev


At approximately 4:51 p.m., Officer Adam Crawley responded to a call of a suicidal person
threatening to shoot himself with a gun at994 Feller Avenue. At approximately 4:59 p.m.,
Officer Crawley arrived on scene at the intersection of Story Road and Feller Avenue. Officer
Fiedler and Officer Morasci were already there. Officer Santos soon arrived. The dispatcher
updated that the person (Nunez) had shot himself in the head. Officer Crawley also heard a loud
bang sound from a nearby but unknow area; however, he was unsure whether the sound was a
gunshot or possible fireworks.

A few minutes went by as other police officers arrived and a perimeter began to be established.
The reporting party (Cervantes) was requested to come outside and meet the police. Cervantes
appeared from 994 Feller Avenue and walked toward Officer Crawley's position. Cervantes
threw his black hat to the ground in the driveway, and slammed his cell phone down in the street.
Officer Fiedler took control of Cervantes, who was visibly upset and distraught. Sergeant Boyle
came up with a plan to approach the house to find out the medical condition of Nunez for any
life-saving treatment by the San Jose Fire Department personnel, who were staging nearby.

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Officer Santos led the approach to the house. Officer Crawley was part of the group. As they
cleared the cars parked in the driveway and headed towards the front door, Officer Crawley
heard Officer Dalaison say that a person had appeared in the front door with a gun in hand. He
heard someone saying, "Peel back! Peel back!" They all moved back to cover positions a safe
distance away. Officer Crawley took cover behind a small SUV parked in front of 998 Feller
Avenue with Officer Yates. While in that position, Officer Crawley saw Nunez appear beyond
the corner of the garage wearing a green shirt with a gun in hand, raised and pointed in Officer
Crawley's direction. Nunez took a few steps and then tumed back towards the front door, and
moved out of Officer Crawley's view. Officer Dalaison updated officers that Nunez remained
armed with a gun in his hand at the front door or front porch area, bleeding from his head.

A "very short time later," Officer Crawley heard two gunshots in quick succession and saw a
puff of white smoke or dust come from the front porch area. Officer Crawley moved further
away from 994 Feller Avenue and took up a positioq behind his patrol car.

Officer Kenneth Siesel


At approximately 4:58 p.m., Officer Kenneth Siegel was dispatchedto 994 Feller Avenue.
Officer Siegel arrived and took up a position with other off,rcers at the intersection of Story Road
and Feller Avenue. Cervantes was at the comer with police. Officer Siegel heard Cervantes say
that Nunez had shot himself in the head and was still inside the house. Cervantes said that he
had taken the gun and thrown it into the backyard. Officer Siegel approached the house at994
Feller Avenue with other officers to check on Nunez. Before they reached the front door, Officer
Dalaison saw Nunez coming out the front door with a gun in his hand. Officer Siegel and the
other officers backed away from the house a safe distance and started setting up a perimeter.
While Officer Siegel was setting up the perimeter, he heard two gunshots. He heard Officer
Dalaison say Nunez was on the ground.

Jose Sanchez approached the area running east on Story Road toward Feller Avenue. Officer
Siegel stopped Sanchez from entering the scene. Sanchez said that he lived at994 Feller
Avenue. Officer Siegel transported Sanchez to the SJPD station and interviewed him. The
statement by Sanchez is described in the section for Statements by Civilian W'itnesses.

Officer Jeffrev Yates


At approximately 5:13 p.m., Officer Jeffrey Yates arrived at Story Road and Feller Avenue to
assist in the apprehension of a suicidal person. Officer Yates was in a group of four or five
uniformed police officers slowly approaching the front of the house. Over the radio he heard
that a person with a gun in his hands was coming out the front door. The officer retreated for
cover. Officer Yates took cover behind a Cadillac parked in front of 998 Feller Avenue, but
eventually backed away further and took cover behind a police car blocking the intersection.

Officer Yates saw the man with the gun only one time, when the man (Nunez) stepped from
around the garage door at 994 Feller Avenue, stopped, and looked in his direction. Nunez
looked at Officer Yates for approximately five seconds before he went back to the front door of
994 Feller Avenue and out of his sight.

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Officer Yates heard Officer Dalaison pleading with Nunez to drop the gun and let the police
officers help him. After several minutes of officers trying to get him to drop the weapon, Officer
Yates heard two gunshots in rapid succession. Officer Yates heard that Nunez was down. Once
police officers had Nunez in custody, Officer Yates assisted in clearing the house at994 Feller
Avenue to render the scene safe for medical personnel and other police officers to approach.

Offcer Scott Morasci


At approximately 4:51 p.m., Officer Scott Morasci responded to a welfare check call at994
Feller Avenue in San Jose. When Officer Morasci arrived on scene, the dispatcher advised that
the person had in fact shot himself in the head. The police officers on scene had dispatch tell the
reporting party (Cervantes) to come outside and talk to police. Cervantes came out of the house
and was very distraught and had difficulty answering questions. They learned that Cervantes'
cousin was the only one left in the house, and that he was reportedly on the couch in the front
room and was possibly deceased. Sergeant Boyle directed officers to form a team to go into the
house to check on the person. As they approached from the south side, Officer Morasci saw that
there was a heavy mesh metal screen door that was partially opened outward. From his location,
Officer Morasci could not see through that door. However, the officer posted to the north could
see and advised thern that there was a person at the door with a gun in his hand. The team
retreated to a point at the northwest corner of Story Road and Feller Avenue. They established a
perimeter and placed oospecialists" with rifles at several locations across the street. The officer
with the view of the front door gave several updates regarding the person's movements.

Off,rcer Morasci heard two gunshots in rapid succession. The updating officer said the person
was down and not moving. Officer Morasci never saw the person from his location at the corner.

Officer Jeff Fiedler


At approximately 4:51 p.m., Officer Jeff Fiedler was dispatched to 994 Feller Avenue in San
Jose for a priority call of a man with a gun who had atternpted suicide.

When Officer Fiedler arrived in his marked patrol car, he met with other responding officers at
the corner of Feller Avenue and Story Road. At that time, Cervantes was still inside the house
on the phone with the dispatcher. Cervantes walked out, upset and waving his hands. Officer
Fiedler told Cervantes to come to the corner. When Cervantes was approximately 50 feet away,
he threw a cell phone down on the street, breaking it apart. Cervantes was crying and yelling at
police to go help his cousin (Nunez). Cervantes told Officer Fiedler that Nunez was inside the
house at994 Feller and was bleeding and injured from a self-inflicted gunshot wound to his
head.

Cervantes became belligerent with Offrcer Fiedler during their conversation because other police
officers were going to try to contact Nunez outside the house. Cervantes wanted to go with the
police officers but was not allowed. Officer Fiedler told Cervantes several times to stay with
him and not to interfere, but eventually Cervantes had to be physically restrained to prevent him
from going back to the house. Cervantes began screaming. Officer Fiedler handcuffed
Cervantes and put him in a patrol vehicle for officer safety and scene security reasons. Officer

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Fiedler drove Cervantes away from the scene, on Story Road, and attempted to calm Cervantes
down. While Officer Fiedler was trying to calm Cervantes down, he heard two loud gunshots.
Cervantes began thrashing around in the back of the patrol car, kicking the windows and doors.
Eventually, Cervantes calmed down enough for Officer Fiedler to take an initial statement.
Officer Fiedler transported Cervantes to the SJPD station to be re-interviewed. The statements
by Cervantes are described in the section for Statements of Civilians.

Officer Anthonv Vizzusi


On July 5,2016, at 12:27 a.m., Officer Anthony Yizzusi was interviewed by Sergeant Mafnez
and Detective Santiago. Officer Yizzasi has been a police officer with SJPD for 15 years.

On July 4,2016, Officer Yizntsi was on duty working in full police uniform partnering with
Officer Raghavan. Officer Yizzusihad arifle, vest, and helmet, in addition to a slug shot gun,
handgun, baton, Taser, and pepper spray. He heard a radio call of a man armed with a gun who
was suicidal and inside a house. Officers were dispatched to this call as a priority. Officer
Yiznts knew they had to be careful and knew they needed to get there because there was a
request for rifle-carrying specialists, and not everyone carried a rifle, but he did. They drove
with lights and siren activated because it was an emergency.

Officer Yizzttsi arrived at the "C side" of the house, which was the street behind the house the
suspect was in, to establish a perimeter. He grabbed his gear, including his vest, helmet, and
rifle. Officer Dalaison and possibly two supervisors re-directed them to the front side of the
house. They went to the front of the house from a north-to-south direction. Officer Dalaison
was across the street with eyes on a person who had come out and had a gun. Over the radio
Officer Yizntsi had heard the person had a gun, the person had shot himself and was possibly in
the front room. He also heard Officer Dalaison say there was a person out front who had a gun
down to his side. OfficerYizzusi stopped three to four residences north of the suspect's house
and they went to the west side of the street, then south towards the suspect's residence.

He saw Officer Dalaison standing in the driveway with his gun out. At the same time, he looked
over and saw a man (Nunez) inthe door way. Officer Yizrusi now knew the primary residence
and he believed they were way too close and they were going into a real dangerous situation. As
they moved up, he directed Officer Raghavan to try to open a side gate so they could get into
backyards and uses houses as cover. But Officer Yizzus saw Officer Dalaison by himself,
trytng to talk to Nunez, while Officer Dalaison held his handgun at low-ready position and with
very little protection. It was a life-threatening situation, and he feared for Officer Dalaison's
safety. Officer Dalaison was trained in crisis intervention but all he had in between him and
Nunez was an SUV. Officer Yizzusi thought there was no way to leave Officer Dalaison in a
situation like that and he had to get closer to try to get Officer Dalaison out of there. Based on
his training and experience, Oficer Yizzusi knew how overwhelming it was to try to talk to
someone, put information out over the radio, and protect yourself like Officer Dalaison was
tryrng to do.

They came up one house short of where Officer Dalaison was, but found cover behind an older
primer-colored truck. Officer Yizz;ttsi kneeled down and put his rifle on the front of the truck.

t6
He thought if Nunez tried to shoot Officer Dalaison, then he (Officer Vizzusi) would have a
stable place to shoot from, and the engine block would hopefully stop any bullets.

Photograph showing the primer gray-colored truck (on right) that provided cover
for Officer Yizzttsi in driveway on right edge of 985 Feller Avenue.

'When
he set up his rifle, OfficerYizzusi looked over and identified definitely a revolver,
a gun,
in Nunez's hand. Again, he thought they were much too close. Nunez had blood coming from
his head. Officer Dalaison kept telling Nunez to drop the gun and that they wanted to help him,
trytng to build some rapport with the man. Officer Yizzasi did not know if Nunez was drunk, on
drugs, or affected by his injury but he was not connecting the dots. Nunez was moving around
but he did not drop the gun when Officer Dalaison told him to.

At one point, Nunez went back into the house and he was out of sight. Officer Vizzusi told
Off,rcer Dalaison to come over to him. Officer Dalaison moved from the driveway to somewhere
behind Officer Yizzusi. Then OfficerYizzasi saw Nunez re-appear in the front door and he
came out on the porch. Nunez had the gun again and was tracking on them, looking at their
direction. It appeared that Nunez knew exactly where they were and he was going to start
shooting at them. Officer Yizzusi said he knew that Nunez had been willing to hurt himself so
who could say Nunez was not going to shoot one of them. Officer Yizzusi described this as one
of the most dangerous and stressful situations of his career.

Officer Yizzusi believed the other officers were counting on him because of his haining and
because he had a rifle, which had more capability than their handguns. Nunez started to twirl the
gun in his right hand like someone in the Old West, twirling it right at thern. He thought the
twirling was a distraction and that Nunez was going to shoot them. It was a weird, aggressive
move that OfficerYizzusi described as what a cowboy might do right before or after he got into
a shooting. There were no obstacles blocking Officer Vizzusi's view of Nunez.

In Officer Vizzusi's mind, this reached the point where it could not keep going, and if Officer
Yizntsi did not shoot Nunez at that point, Nunez would shoot one of the officers on the scene or

L7
the bullet would go into a house and kill some kid that was asleep in a crib. Nunez was acting
crazy and there were people everywhere. Officer Yizzusi was thinking that he could not believe
how long the situation had been going on, and that Nunez was still not dropping his gun. Nunez
was not saying anything. Nunez stopped twirling the gun, and gripped the gun in his hand in a
level position. Officer Yizzusi believed Nunez was getting ready to shoot. When Nunez twirled
the gun, Officer Yizzusi had taken the safety off his rifle and readied himself to shoot. Officer
Yizntsi expected the bullets to come at him or the other officers. Officer Yizzusi heard a shot as
he was going to get his own shot off. It was almost simultaneous to his own shot, and Nunez
went down. Officer Yizntsi did not know if Nunez was still alive, if he was going to get back up
and shoot them, or if he was playing opossum. He stayed at his location for another two to three
minutes, maybe longer, still having the responsibility to keep his rifle on Nunez.

Officer Yizntsi was asked about less lethal options. He said a Taser would have been
impossible. Pepper spray or a baton would also have been impossible at that distance. Officer
Yizntsi said that, when he fired his weapon, he believed that if he did not shoot Nunez, Nunez
would have shot one of the officers or somebody else, spraying rounds with whatever was left in
the revolver. He said he had no doubt that if he did not shoot or the other officer did not shoot,
there was a good chanie someone would have been hurt or killed.

Officer Aneez Raghavan


On July 4,2016, at approximately 4:51p.m., Officer Raghavan was working with Officer
Yizzlttsi as a two-person unit in a marked police car and in full police uniform when they heard a
radio dispatch that there was a man at994 Feller Avenue in San Jose who was threatening to hurt
himself with a gun. Officer Raghavan drove them to the area, initially to a position on Fleming
Avenue, which runs behindgg4 Feller Avenue.

At approximately 5:18 p.m., they arrived at the "C" side, on Flerning Avenue, but over the radio
they heard Officer Dalaison request assistance at his location, which was in front of the house at
985 Feller Avenue. Officers Raghavan and,Yizztsi left their position on Fleming Avenue and
went to assist Officer Dalaison on Feller Avenue.

Officer Ytzzusi positioned himself with his rifle on the passenger side of a truck, near its front
end, parked at 985 Feller Avenue. Officer Raghavan stood behind the truck on the passenger
side next to Officer Yizzusi. Officer Dalaison was standing approximately 30 feet away, also in
front of 985 Feller Avenue. Officer Dalaison was talking to a Hispanic male (Nunez) wearing a
green shirt across the street at994 Feller Avenue with blood on the side of his head.

As Officer Raghavan approached the truck with Officer Yizzus| he saw the man (Nunez) look in
their direction. Officer Raghavan heard Officer Dalaison trying to calm Nunez down and telling
him to put the gun down, tryrng to reassure him that the police were there to help him. Nunez
walked back inside 994 Feller Avenue for a couple of minutes. Then Nunez came back out, just
outside the front door.

Officer Yizzusi yelled to Officer Dalaison to come to their location, the reason being Officer
Dalaison would have more cover in case Nunez started shooting. Nunez looked over at Officer

18
Raghavan and began starting at him. Officer Raghavan did not see a weapon in his hand at that
point but told Officer Yizzusi that the man (Nunez) was staring at him (Officer Raghavan).
Then, Officer Raghavan saw Nunez pull what looked like a small pistol from his right waist-
band area. Officer Raghavan had already had his own service weapon, a handgun, in the low-
ready position. Nunez started twirling the handgun back and forth in the trigger guard, facing in
the direction of other officers to the south. At one point, Nunez twirled the handgun back into
the palm of his hand with his finger on the trigger pointing towards the direction of officers
parked south of the house. Officer Raghavan feared that Nunez would attempt to shoot at those
police officers, or at himself and the two police officers beside him. Officer Raghavan raised his
handgun to fire it at Nunez to try to stop him from killing or injuring his fellow officers. As
Officer Raghavan raised his handgun, he heard a rifle shot from the southeast direction, and then
he heard Officer Yizntsi fire his rifle less than a second after the first shot. A total of two shots
were fired. Officer Raghavan saw Nunez flinch backwards as the shots were fired and fall to the
ground. Officer Raghavan did not see where Nunez's gun fell. He lost sight of Nunez after
Nunez fell to the ground. At Lieutenant Joseph's request, Officer Raghavan assisted officers in
clearing the house at994 Feller Avenue.

Lieutenant Paul Joseph


At approximately 5:03 p.m., Lieutenant Paul Joseph was on duty working as the patrol lieutenant
for the Central and Foothill Divisions, driving a marked patrol car, when he responded to a call
of a suicidal man armed with a gun at 994 Feller Avenue. While en route, Lieutenant Joseph
heard through dispatch that the man had shot himself in the head. Sergeant Boyle broadcast that
the reporting party had exited the house and was being interviewed by police officers. Officers
at the scene then broadcast that a person had walked out of the front door holding a handgun and
bleeding from the head. Lieutenant Joseph ensured that there was an officer on scene with a
40mm less lethal launcher. Dispatch had already advised that Fire and Paramedics were standing
by and staging.
At approximately 5:20 p.m., Lieutenant Joseph arrived on scene. He met with Sergeant Boyle
and then requested that dispatch have any officers who were part of the San Jose Police
Department Hostage Negotiation Unit respond to 994 Feller Avenue. Officer Santos was in the
front porch arca of 999 Feller Avenue with a rifle. Lieutenant Joseph requested that any
specialists respond from anywhere in the city to provide support for Officer Santos as a spotter,
and to set up an arrest team. Shortly after that, Lieutenant Joseph heard two gunshots almost
simultaneously. One of the shots sounded as though it had come from 999 Feller Avenue where
Officer Santos was positioned. Lieutenant Joseph called out to Officer Santos, who confirmed
that he had fired and that he was not injured. Lieutenant Joseph notified dispatch that an officer-
involved shooting had occurred. Prior to additional officers arriving, Lieutenant Joseph went to
the area of 985 Feller Avenue and met with Officer Dalaison, Officer Raghavan, and Officer
Yizntsi. Officer Yizzusi told Lieutenant Joseph that he had also fired a shot during the incident.
Lieutenant Joseph formed an arrest team with Officer Stults, Officer Potwora, and Officer Reyes.
They walked up to the front yard of 986 Feller Avenue. Once there, Lieutenant Joseph called out
to Nunez several times to try to get a response and to get him to crawl over to their location.

L9
Nunez did not respond at all, so they approached him. Nunezwas lying face down in the
doorway of 994 Feller Avenue with his head near the threshold and his body on the front steps.
Officer Stults handcuffed Nunez. There was a revolver on the walkway near Nunez.

Sergeant Jackson led a team of officers that cleared the inside of 994 Feller Avenue. Once he
advised that the house was clear, Lieutenant Joseph asked Fire and Paramedics to approach and
check on the condition of Nunez and provide any medical aid, if needed.

Sergeant Lvle Jackson

At approximately 5:40 p.m., Sergeant Lyle Jackson arrived at the areaof 994 Feller Avenue and
met with Lieutenant Joseph. Sergeant Jackson saw Nunez lying on the ground in front of the
house. The police officers on scene did not know if any other suspects were in the house. They
entered and cleared the house. No one was found inside. Lieutenant Ford directed Sergeant
Jackson to transport Officer Santos to the SJPD station. Sergeant Jackson spoke briefly with
Officer Santos, asking him how many rounds he fired and in what direction. Officer Santos said
he fired one round from his rifle, northeast at the suspect from approximately 35 to 50 yards
away. Sergeant Jackson did not ask Officer Santos any more questions about the incident.

Officer Katie Reves


At approximately 5:25 p.m., Officer Katie Reyes was on duty and working as a patrol officer
when she heard a request from dispatch for specialists to respond to a call involving a weapon.
She switched her radio to a designated channel and immediately heard an officer advise, ooshots
fired." Officer Reyes drove "code 3" to 994 Feller Avenue. When Officer Reyes arrived, she
met with Lieutenant Joseph and two other specialists in front of 948 Feller Avenue. Officer
Reyes and at least two other officers approached the house at994 Feller Avenue. As she neared
the front door, Officer Reyes saw Nunez lying face down on the steps of the door, with his head
facing southbound. Both of Nunez's arms were underneath his body. Officer Reyes saw a
revolver just west of Nunez's body, on the walkway that leads away from the house. She saw
fresh blood on the ground near the body and on the walkway. The officers called out to Nunez
as they were approaching, but he did not respond. Officer Stults handcuffed Nunez as she and
Officer Potwora provided cover. Other officers came to the residence and cleared it. Once the
house was clear, San Jose Fire Department personnel came to where Nunez was on the ground to
provide medical attention. At approximately 5:58 p.m., Nunez was pronounced dead at the scene
by a member of the San Jose Fire Department.

Officer Reyes leamed that there was surveillance video at 985 Feller Avenue. At approximately
6:25 p.m., Officer Reyes contacted residents at 985 Feller Avenue. Three residents did not
witness any of the incident. Two residents, Juan Zapien and Maria Zapien, witnessed part of the
incident. Their statements are described in the section for Statements by Civilian Witnesses.
The residents directed Officer Reyes to their DVR and allowed her to review and record the
surveillance video footage.

Officer Reyes started watching the video on a DVR/monitor at the residence, beginning with
events that preceded the police arriving at the scene. She noted that the time stamp on the video

20
was approximately 3 minutes behind real time. Officers from the SJPD Crime Scene Unit
arrived and she was advised to copy the footage to a thumb drive. Officer Reyes stopped
reviewing the video footage on the DVR/monitor. She copied the video footage to a thumb drive
and handed the thumb drive to the Crime Scene Unit.

Officer Reyes observed and reported that there were glitches or gaps in the recorded video where
the time skipped (presumably due to the system being operated by motion-activation with
unknown settings or controls). In other words, the cameras did not record a full four hours of
video footage for the period between 2:00 p.m. and 6:00 p.m. Nonetheless, Officer Reyes copied
all video that was available from that time block ("1400 to 1800 hours"), which was placed on
the thumb drive that she gave to the Crime Scene Unit.

The key events that are seen on the video footage from 985 Feller Avenue are described in a
separate section below.

Officer Jeff Stults


At approximately 5:25 p.m., Officer Jeff Stults responded to 994 Feller Avenue. Lieutenant
Joseph assigned Officer Stults to the arrest team. Officer Stults and a few specialists moved to
the front porch where Nunez was down on the ground. Officer Stults noticed a dark-colored
revolver on the front porch walkway and several drops of blood. Nunez was not moving.
Officer Stults handcuffed Nunez's hands. Lieutenant Joseph radioed that Nunez was in custody
at 5:45 p.m. A search of the house was conducted and the scene was secured for the fire
department to enter the scene and assess Nunez' injuries.

Later, Officer Stults participated in canvassing the area around 994 Feller Avenue to locate
witnesses. Officer Stults contacted the residents at954 Feller Avenue who did not witness the
incident. Officer Stults located two witnesses, Pierre and Erika Dacunha, who had left the
residence at954 Feller Avenue when they witnessed part of the incident, before going back
inside. Their statements are described in the section for Statements by Civilian Witnesses.
Officer Stults contacted the resident at978 Feller Avenue, who did not witness the incident.
Minerva Diaz of 986 Feller Avenue told Officer Stults that she was asleep inside her house
during the incident. She woke up to the sound of a gunshot or firework going off. She did not
see any ofthe events that occurred.

Laurie Diaz-Haugland told Offrcer Stults that she was in the backyard of 986 Feller Avenue and
did not see any of the events that occurred. She heard what sounded like two gunshots or
fireworks but had no further information.

Stephen Barr of 966 Feller Avenue told Officer Stults he was inside his home and heard three
possible gunshots, but the sounds could have also been fireworks, and he had no further
information.

2t
Officer Douslas Potwora
Officer Douglas Potwora responded to the area of 994 Feller Avenue in San Jose after a dispatch
request for specialists to respond to an incident involving a suicidal man with a gun. While
driving to the scene, Officer Potwora heard a report over his radio indicating shots had been fired
at the scene. Officer Potwora and three other police officers approached the house at994 Feller
Avenue. As he approached, Officer Potwora saw Nunez laying on the front doorstep with blood
on his face and shirt. Nunez did not appear to be moving. There was a black revolver laying
approximately 8 feet from Nunez. The revolver \ryas on the sidewalk leading to the front door.
After Officer Stults handcuffed Nunez, Officer Potwora assisted in clearing the house to confirm
there were no armed or injured persons inside. There were none.

Officer Potwora assisted in canvassing the area for witnesses. Officer Potwora tried to speak
with the residents at999 Feller Avenue, but no one answered the door. At 993 Feller Avenue,
which is directly across the street fuom994 Feller Avenue, Officer Potwara spoke to a resident
named Charles Thomas, who gave a staternent but refused to be audio-recorded. The statements
of Charles Thomas are described in the section for Statements by Civilian Witnesses.
Officer Mandeep Saini
Officer Mandeep Saini responded to 994 Feller Avenue to assist with the investigation. Sergeant
Cleaver assigned Officer Saini to canvass houses on the west side of Feller Avenue for possible
witnesses. Oficer Saini canvassed the houses at909 Feller Avenue, 921 Feller Avenue, 935
Feller Avenue, 947 Feller Avenue, 977 Feller Avenue, and3622 Story Road, without any
success. At 965 Feller Avenue, Officer Saini located Matthew Yancy and Rene Cuyugan.
Officer Saini took statements from both of those witnesses. The staternents of witnesses
Matthew Yancy and Rene Cuyugan are described in the section for Statements by Civilian
Witnesses.

Offcer Anthonv Baza


At approximately 5:24 p.m., Officer Baza responded to assist at the incident at 994 Feller
Avenue involving a person with a gun. When Officer Baza arnved, he was assigned to relieve
Officer Santos in front of 999 Feller Avenue. Officer Baza noticed a silver bullet casing on the
walkway of 999 Feller Avenue when he took over for Officer Santos.

Officer Baza joined the team which searched and securedgg4 Feller Avenue. After the house at
994 Feller Avenue was cleared, Officer Baza returned to his position at 999 Feller Avenue to
assist with scene security. While in that position, Officer Bazametthe three residents of 999
Feller Avenue, who said they were not home at the time of the event.

Officer Gennaro Strangis


Officer Gennaro Strangis canvassed several addresses around 994 Feller Avenue after the
incident was over. Officer Strangis attempted to contact residents at 3610 Story Road, 3616
Story Road, 936 Feller Avenue, and 948 Feller Avenue. No one was located at those addresses
who witnessed the incident.

22
Officer Strangis did speak with Maria Guadalupe at998 Feller Avenue, who said she did not see
or hear the event. She said she had a video surveillance system with cameras that recorded
outside her home, facing out from her front door. Officer Strangis reviewed the video footage
but discovered that the cameras did not have footage of the event, because the camera was
motion-activated and no activity had occurred in the motion detector's range in the front yard.

Officer Donald Guess


At approximately 5:25 p.m., Officer Donald Guess was dispatchedto 994 Feller Avenue. While
at the scene, Officer Guess saw Ernesto Nunez standing in front of 977 Feller Avenue. Off,rcer
Guess called Emesto Nunez over and spoke to him. The statement of witness Emesto Nunez is
described in the section for Statements by Civilian Witnesses.

Sergeant Eugene lto


At approximately 5:33 p.m., SJPD Sergeant Eugene Ito responded to assist on the officer-
involved shooting incident. When he arrived, he contacted Officer Yizzas| Officer Raghavan,
and Officer Dalaison, who were standing by across the street from994 Feller Avenue.
Lieutenant Joseph advised that Officer Yizntsi needed to be sequestered. Sergeant Ito saw the
spent shell casing in the driveway. Sergeant Ito walked away with Officer Yizzasi. At Sergeant
Ito's patrol vehicle, Officer Yizntsi said he had fired one round in the direction of the suspect.
Sergeant lto had Officer Guess take photos of Officer Yizzusi in the field. At 6:10 p.m.,
Sergeant Ito transported OfficerYizntsi to the SJPD station.

23
CRIME SCENE UNIT EXAMINATION
On July 4,2016, Officer Patrick Kirby, Officer Michael Borges, and Officer Barbara Fujii were
assigned to the Crime Scene Unit ("CSU") at SJPD.

At 6:55 p.m., CSU obtained Officer Santos' rifle and vest that he was wearing. The rifle was a
semi-automatic Colt Law Enforcement Carbine with an EO Tech sight and magnifier. At7:10
p.m., photos were taken of Officer Santos in full police uniform including the vest.

At7:23p.m., CSU obtained Officer Vizzusi's rifle, helmet, and vest that he was wearing. The
rifle was a semi-automatic Colt Law Enforcement Carbine with an EO Tech sight and magnifier
Photos were taken of Officer Yizzusi in full police uniform including the helmet and vest.
Officer Yizztsi had dust or dirt on his left outer arm and left lower leg, which he said occurred
while he was kneeling on the ground and using the hood of a vehicle as a base for his rifle.

Photographs showing sight and magnifier on Colt Law Enforcement Carbine


rifles used by Officer Yizzusi (left) and Officer Santos (.igh.

Between 8:00 p.m. and 8:10 p.m., CSU arrived at the scene. They processed the scene at994
Feller Avenue, both inside and outside the house and made the following observations.

Feller Avenue is a two-lane road with one west-bound lane and one-east bound lane. East-bound
trafic on Feller Avenue ends at a stop sign at Story Road. This is a residential arcawith single-
story homes along the north and south curb of Feller Avenue. Several vehicles were parked
along the north and south curb of Feller Avenue in the area.

A spent .223 callber casing (from one rifle) was recovered from the front porch area of 999
Feller Avenue, where Officer Santos was positioned. The approximate distance from Officer
Santos to Nunez was measured at 139 feet 6 inches, which is 46 % yards.

A second spent .223 callber casing (from the other rifle) was recovered from the front yard of
985 Feller Avenue, just east of two parked vehicles at the western edge of the property, where
Officer Yizntsi was positioned. The approximate distance from OfficerYizzusi to Nunez was
measured at 140 feet 8 inches, which is 47 yards.

24
A cell phone batteryand back plate of a cell phone were found on Feller Avenue. A black
baseball cap was found in the driveway of 994 Feller Avenue.

994 Feller Avenue is a single-story residence along the north side of the road, with a driveway in
front and a lawn area adjacent to that. A black Honda Civic and a silver Volvo 560 were parked
in front of the residence. A green Honda Accord and a black Ford Expedition were parked in the
driveway. Several pieces of children's play furniture, bikes, and toys were scattered over the
lawn, near the front door and in the planter areaear the side gate.

The front door has a metal screen-type security door and two windows. The front door faces
Feller Avenue. Two possible bullet strikes were seen in the south wall exterior stucco of the
house, left of the front door frame, one at 62 inches above the ground and the other at 45 %
inches above the ground.

A blood trail was found on the west curb of Story Road, starting just south of the south curb of
Feller Avenue. The blood trail continued along the sidewalk, turned west down Feller Avenue,
and down the driveway at 999 Feller Avenue. The blood trail went north across the street, into
the driveway at994 Feller Avenue, across the lawn, and up to the front door of the house. The
blood trail continued into the residence and down the hallway in the northern direction. Random
bloodstain samples were collected from the blood trail leading up to the door.

Nunez was positioned face down on the front step of 994 Feller Avenue, with his head to the east
and his legs to the west. His head was slightly turned facing south. He was wearing a green
shirt, grey shorts, black pants, and black shoes. The location of his body, from the north curb
line of Feller Avenue, was between 42 feet I 1 inches and 44 feet 5 inches away.

Photograph showing right waist area of black jeans and belt worn by Nunez.

A revolver was collected from the front walkway of 994 Feller Avenue just south of Nunez's
body. The revolverwas measured tobe 37 feet 5 inches from the curb line of Feller Avenue.

25
When the coroner investigator arrived, Nunez's body was examined. A cell phone was found in
his left pants pocket.

Consent was obtained for a search of the house. Inside the house, the blood trail ran down the
hallway towards the rear bedrooms. The kitchen had a window looking out to the front yard.
The living room had a window looking out to the front yard. The family room had a sliding
glass door to the backyard. In one bedroom, the drawers from under the bed had been removed
and appeared to have been looked through. Several shoes, clothing items, boxes and bags were
scattered over the floor of the room. The master bedroom was in the corner of the rear hallway.
The blood trail from the hallway led into the master bedroom. There were bloodstains on the
bed, pillows, and a picture frame lying on the bed. A live round for a .38 caliber gun, and an
open box of ammunition for a .38 caliber gun, was found on the bed in the master bedroom. The
garage had a living area with a couch and a bed and paperwork containing Nunez's name.

On July 5,20T6, Officer Fujii examined the .38 caliber revolver. The Charter Arms brand
revolver had 5 cylinders. There was a live round of .38 caliber ammunition in one cylinder.
There were four cylinders that each had a spent casing inside. The hammer was in the down
position when she examined it.

ruffi
::1 ..Y-

I
r
Photograph showing .38 caliber revolver held by Nunez, four spent casings found
in the revolver, and one live round of .38 caliber ammunition (far left) found in
the revolver.

26
STATEMENTS BY CIVILIAN WITNESSES

The following accounts are summarized from the police reports andlor recorded interviews, if
any, of the civilians who spoke to the police.

Juan Cervantes (age 19)


This summary does not include Juan Cervantes' statements to the 911 dispatcher nor what he
first said to Officer Fiedler after walking to the corner of Story Road and Feller Avenue. Those
statements have been summarized and included in other sections of this report.

Statement to Officer Fedler (l't statement)


At approximately 6:30 p.m., which was after the officer-involved shooting, Cervantes talked to
Officer Fiedler and provided the following information. Cervantes lives at994 Feller Avenue
with Nunez. Cervantes noticed a big difference in Nunez's behavior during the last three to five
days. Nunez was depressed about his relationship with his girlfriend Nina. Nunez was saying
that he did not want to live anymore.

On July 4,2016, at approximately 8:00 a.m., Cervantes woke up and saw that the door to his
aunt's bedroom was kicked in. Cervantes told Jose Sanchez, who lives with them and was also
their co-worker, and the two of them talked to Nunez about why he kicked in the door.

At approximately 3:00 p.m., Cervantes was at work at the Mi Pueblo located at 1070 S. White
Road in San Jose when Nina arrived and told him something happened to Nunez at the house.
(This Mi Pueblo market is approximately one mile from 994 Feller Avenue.) Nina told
Cervantes that she and her mother had just come from Nunez's house. They knocked on the
garage door and heard a loud gunshot. They immediately left the house and went to Mi Pueblo
to find Cervantes and Sanchez. Upon hearing this, Cervantes drove to 994 Feller Avenue, went
inside, and found Nunez on the floor of his aunt's bedroom. Nunez was holding a gun and was
bleeding from his head. Cervantes immediately called Sanchez at work and told him. Cervantes
took the gun away from Nunez. Nunez said, "I don't want to live anymore" and asked Cervantes
to shoot him. Cervantes called 911. The 911 dispatcher told Cervantes to throw the gun in the
backyard and come out of the house to meet police. Cervantes followed the directions and met
police at the comer.

Statement to Detectives Martnez and Santiago (2'd statement)

Cervantes was brought to the SJPD station's witness center after the officer-involved shooting
and was re-interviewed at approximately 10:36 p.m.by Detectives Martinez and Santiago.
Cervantes gave a similar statement with some additional details.

Cervantes shared the house at994 Feller Avenue with several people including his cousin
Nunez, who lived with him in the garage. They were very close, like brothers. Cervantes,
Nunez, and Sanchez all worked at Mi Pueblo market.

27
On Monday, July 4,2016, Cervantes left for work at l:50 p.m. and started work at 2:00 p.m.
Cervantes said Nunez was acting odd that day. Cervantes said that Nunez recently lost his credit
card, cat, and house key, and blamed them for taking his stuff. Nunez was in deep thought and
said he wanted to die. He said he was going kill himsell and that his (Nunez's) mother-who
died when he was born-wanted him to be with her. He wanted to be with his mother, and he
missed his father. Cervantes said that it was approximately 10:00 a.m. or 10:30 a.m. on the
morning of July 4,2016, when he heard Nunez say for the first time that he wanted to kill
himself.

Nunez had been talking about wanting to die for about 5 days, since the previous Wednesday or
Thursday. Their Aunt Sandy had left on vacation the previous Wednesday and Nunez's behavior
changed after that. When asked if Nunez had taken any medication or used any drugs that may
have affected him to say these things, Cervantes admitted they had smoked one ooblunt" of
marijuana on Friday, although Nunez had already started saying those things before they smoked
marijuana. When Nunez made statements about wanting to die or about killing himself,
Cervantes did not think Nunez would hurt himself. Nunez did not say how he would do it.
Cervantes thought Nunez was joking around and Cervantes did not take it seriously.

At the same time, Cervantes did call their Aunt Sandy the night of July 3,2016, because he was
worried and he did not know what Nunezmi$tt do or what he was thinking. Aunt Sandy told
Cervantes to take care of Nunez, calm him down, and talk to him. Aunt Sandy spoke to Nunez
on the phone and asked him what was going on. Cervantes later added that Nunez had recently
been having relationship problems with his girlfriend, Nina. They argued on the phone a lot.

On July 4,2016, both Nunez and Sanchez were supposed to start work at2:30 p.m. At work,
Cervantes saw that Nunez got to work at 2:30 p.m. Approximately 40 minutes to an hour later,
Nunez's girlfriend Nina showed up at Mi Pueblo with her mother. Nina told Cervantes that she
was at Nunez's house and she heard a gunshot. Cervantes punched out and asked Sanchez for
his car keys and took Sanchez's Honda back to 994 Feller Avenue. Cervantes parked in the
driveway.

At the house, there was nobody outside. Cervantes saw blood spattered on the concrete in front
of the front door. Cervantes ran inside, calling Nunez's name. There was no answer. There was
blood on the floor after he walked in. He found Nunez llng face down on the bed in the aunt's
bedroom. He turned Nunez over and saw Nunez holding a gun near his waist band. Cervantes
took away the gun and asked Nunez what he had done. Nunez turned around and there was
blood all over his face. Cervantes pointed to the left side of the forehead as the location of the
gunshot wound.

Cervantes described the gun as a revolver. It was black and brown in color. The gun belonged
to his grandfather who had passed away. His aunt was the one who looked after the gun. When
Cervantes took away the gun, Nunez told him to give him the gun, that he was going to kill
himself. Nunez started saying, "Shoot me, shoot me." Ceryantes said, "No, how could I shoot
you. I carJ t." Cervantes said he would not shoot Nunez and that Nunez was crazy. Nunez
followed him outside, asking for the gun back, and saying "Give it to me back because I'm going

28
to shoot myself." Cervantes said no and did not give the gun back. He told Nunez to calm down
and sit down. Cervantes and Nunez never physically struggled at all. Cervantes told Nunez he
was calling police. Cervantes called 911 while holding the gun, and then called his aunt after
that. When Cervantes called police, Nunez went back inside the house. Cervantes was walking
around while on the phone with 911. Nunez got up and was following him around so Cervantes
would give him back the gun.

Cervantes said it took police about 30 minutes to arrive as if they did not care. On the phone
with police, he told them he had the gun that Nunez had. Cervantes was told by the dispatcher to
put it in the backyard patio for officer safety. Cervantes put the gun in the back patio. He
walked into the house to get to the back patio. Nunez was face down and did not turn to look at
Cervantes. Cervantes had to open a sliding glass door to get to the patio and then he closed it.

Nunez looked asleep on the floor near the living room but did not say anything as Cervantes
passed him. Cervantes told Nunez to wake up but he stayed where he was. Cervantes was still
on the phone with police and he was told that the police had arrived and he was told to walk
outside. Cervantes walked outside by himself, leaving Nunez inside. Cervantes told the police
officer that Nunez had shot himself, was injured and needed help. Cervantes said they did not
listen to him. A short time later, Cervantes heard two shots but did not see it because he was in a
patrol car on Story Road.2

Jose Sanchez (age 19)

Statement to Officer Fiedler (l't statement)


Jose Sanchez was interviewed by Officer Fiedler near the scene.

Sanchez lives at 994 Feller Avenue. Sanchez said Nunez was depressed, saying no one cared
about him and that he did not want to be here in this life anymore. Nunez's depression went on
for 3 to 4 days. It was last Wednesday night when Nunez started acting this way, due to
relationship problems with his girlfriend. On July 4,2016, Sanchez took Nunez to work at Mi
Pueblo at2:30 p.m. Nunez had missed two days of work. At work, Sanchez heard Nunez get
called to the off,rce over the loudspeaker, and after that he did not see Nunez at work, so he
figured Nunez got fired. Later, Nunez's girlfriend showed up at Mi Pueblo with her mother.
The girlfriend, Nina, said that she was at Nunez's house with her mother, and no one answered
when she knocked and called out for Nunez. She heard heavy breathing in the garage and then
heard a gunshot. Nunez came outside with a bloody face. She went to Mi Pueblo with her

2
See section entitled "surveillance Video and 91 I / Police Radio Traffic." There were multiple 9l I calls (or call-
backs from the dispatcher) and hang-ups by Cervantes. A review of the surveillance video and the 9 I I recordings
suggests that Cervantes did not have the gun during the first 9l I call, and that he made that first 9l I call as he
walked outside and in front of the house, with Nunez following him (and Nunez possibly holding the gun). Nunez is
seen going back inside. It was during a subsequent 9 I I call that Cervantes told the dispatcher that he (Cervantes)
had the gun. Cervantes is heard telling Nunez to "wake up." The dispatcher then tells Cervantes to throw the gun
into the backyard and have everybody come out of the house slowly. To the extent that Cervantes' statements to
police suggest there was one 9l I call, he is incorrect.

29
mother, who was shaking. That is how Cervantes found out about Nunez. Cervantes drove in
the car to the house. Sanchez later went there on foot but police stopped him when he got there.

Statement to Officer Siegel (2'd statement)

Sanchez was brought to the SJPD station's witness center after the officer-involved shooting and
was re-interviewed by Officer Siegel and provided some additional information.

Sanchez stated that he lived at 994 Feller Avenue for four months with his girlfriend Anissa
Sanchez (referred herein as "Anissa" to avoid confusion). Anissa is cousins with Juan Cervantes
and Anthony Nunez. Anissa's mother and father (Sandy and Jesse) own the house. About a
week ago, Anissa and her parents went to the state of Washington for a family reunion. Sanchez,
Cervantes and Nunez stayed behind because they could not get time off from their work at Mi
Pueblo, and they had to watch the house. Nunez was depressed because he really wanted to go
to the reunion. Nunez had not seen his family in a long time.

That week, Nunez was talking on the phone a lot with his girlfriend, sometimes on speaker
phone. Sanchez heard them both cring during those calls and Sanchez thought they were
breaking up. Nunez started saying that nobody cared about him and that he did not want to be
here anymore" Sanchez took these comments to mean that Nunez was thinking about killing
himself. Sanchez tried to talk Nunez out of his depression.
For the last three days, Nunez stayed home from work without calling in. On the evening of July
3,2016, Sanchez noticed a bedroom door had been kicked in. Sanchez asked Nunez what
happened but Nunez would not tell him.

On July 4,2016, Sanchez and Nunez started work at Mi Pueblo al2:30 p.m. When Nina arrived
at Mi Pueblo and told them about the gunshot, Cervantes took Sanchez's car keys and drove to
994 Feller Avenue. Sanchez received a call from Cerrantes saying that he found Nunez who
was not responding to him, and that there was a lot of blood. Sanchezleft work after telling his
boss there was a family emergency, and he ran toward the house. Just before he made it to the
corner of Story Road and Feller Avenue, he was stopped by police.

Statement to Detectve McDonald (3'd statement)

On July 5,20T6, at approximately 12:20 a.m., Sanchezwas re-interviewed by Detective Brian


McDonald at SJPD and provided a consistent statement with some additional information.

Nunez's girlfend was Nina who was 16 or I7 years old. Sanchez provided Detective
McDonald with Nina's mother's cell phone number. Nina told Sanchez that she showed up to
the house and knocked but no one answered. Nina walked around to the gara,ge where Nunez
sleeps and put her ear to the garage door. She heard someone breathing heavily and heard a
gunshot. Sanchez later added that Nina and her mother saw Nunez and he was bloody and was
going towards them. Nina said to Sanchez that she did not want to have contact with Nunez, and
instead they went to Mi Pueblo to tell Cervantes and Sanchez.

Cervantes checked on Nunez, and called Sanchez. Cervantes told SanchezthatNunez was on
the floor bleeding and "doing stupid shit." Cervantes tried to get Nunez to get up, but he would

30
not get up. Sancheztold his boss he had family issues and heard police cars with sirens going
down the street. Sanchez ran to the house. The police were already there and he was not able to
enter the area.

Sanchez said the last couple of days, Nunez was not himself. Nunez was quiet and did not talk
much to Sanchez. He said, "I don't want to be here no more, no one cares about me." Sanchez
thought Nunez was depressed. When Sanchez tried to talk to Nunez, Nunez started to cry.
Sanchez did not know what was wrong. He believed Nunez kicked in the door to his aunt's
room and grabbed a weapon. Sanchez saw the damage to the door. The room looked tike it had
been searched. Sanchez said Nunez got the gun from the aunt's room.

On July 2,2016, Sanchez heard Nunez talking to Nina on the speaker phone and they were both
crying. On July 3,2016, they were talking to Aunt Sandy when Nunez told her, "Nobody cares
about me. I don't want to be here." Sanchez said that Nunez's former best friend had been
posting bad things about Nunez on Instagram.

Nina Doe (age 16)3

On July 5,2016, at approximately 3:35 a.m., Detectives Martinez and Santiago interviewed Nina
with her mother present for approximately 40 minutes. Nina had found out that Anthony Nunez
was dead. He was her boyfriend since March 24,2016.

Ever since last Wednesday when Nunez's aunt left for Washington, Nunezwas depressed and he
was not himself. One day, Nina wanted to break up with Nunez because he treated her badly and
she could not handle it anymore. She said she could not be with him like that, and he was being
rude to her. Then, he told her that he was sorry, and he cried and cried, so she would not break
up with him during his hardest times and she would stay by his side.

On July 4,2016, Nina wanted to work at the Mi Pueblo market where Nunez, Sanchez, and
Cervantes had jobs at Story Road and White Road. She asked her mother to take her there to
tum in an application. They got there at around 3:20 p.m. Nina checked Mi Pueblo but Nunez
was not there. Sanchez said Nunez was fired and walked home. Nina asked her mother if they
could go to Nunez's house. They walked to Nunez's house. She knocked on the garage, calling
out that it was her, and for him to open it. She heard nothing. Her mother was ready to leave.
Nina said she felt something was going on, because the screen door was open, and the dog kept
barking. She heard something like a heavy breathing sound. She knocked at the front door.
They started to walk away when Nunez came out. He had something wrong with his forehead-
a circle that was dripping blood. Nunez said, "Nina." They saw him at the door and just ran.
Nunez was wearing blue or black pants and a green polo shirt. Nina said she did not see the gun.

Nina later acknowledged, when asked, that she had heard a sound like a pop or little firework.
She said she did not know where it was coming from. It was only the one pop sound. She asked

3
"Nina" Doo's true last name is not included in this report to preserve her anonymity, given the fact she was 16
years old at the time of the incident. Her first name is not included; rather, the report refers to her as "Nina" because
Nunez called her by that name.

3L
her mother if that was a firework, and her mother said yeah. She later said that she heard the
sound when she was knocking on the garage door.

Nunez came outside and started following them until the corner of Story Road. He was just
walking slowly. She did not see anything in his hands. Nunez was saying,'oNina." Nina and
her mother ran down the hill to the market and asked Cervantes to come and help because she
did not know what to do. Sancheztold her to go home and that he would update her.

Nina added that, on July 4,2016, she had talked to Nunez in the morning when she called his
cousin. She sked Nunez if he was okay. Nunez would not answer. He giggled and was acting
weird. Nunez said "Yeah," and hung up.
Detective Mafnez asked Nina if Nunez said to her in the last week that he wanted to kill
himself. Nina said yes, Nunez had said that since Friday. Nunez had sent text messages to Nina.
Sergeant Martinez asked Nina, when Nunez told her "I'm done babe," if that meant he was done
with her. Nina said no, it meant done with everything. To Nina, he was talking about death and
she thought he wanted to kill himself. Nina later showed detectives text messages that Nunez
sent her in which he wrote, "I wanna diee" (misspelling in original). But Nina did not think he
would kill himself.
Nina described a phone call with Nunez on Saturday at approximately 4:00 p.m. that was weird.
Nunez started to cry and told her no one was there for him, and he just wanted to go with his
mother. Nunez said he seriously wanted to kill himself and he felt everyone was talking about
him. She gave an example: Nunez thought if someone posted a status, it was about him.
On July 4,2016, Nunez was ignoring Nina and her messages.4 Nunez did not text her at all.

Pierre Dacunha (age 45)


Statement to Officer Stuhs (I't statement)
Pierre Dacunha was interviewed by Officer Stults at954 Feller Avenue, near the scene of the
officer-involved shooting on July 4,2016.
Pierre Dacunha was visitin 9954 Feller Avenue when the incident occurred. He and his family
were walking outside of the house at954 Feller Avenue, getting ready to leave, when he noticed
an SJPD offcer standing in the driveway of a house across the street and two or three houses
closer to Story Road. It was an older SJPD officer with grey hair. He heard the police officer
speaking to someone, calling out to the person by the name "Anthony." The officer said, "Let us

a
On February 3 , 2017 , Sergeant Alan Lee conducted a forensic examination of the cell phone that was in Nunez's
left pants pocket. Nunez's cell phone contained a series of Instagram messages from Nina on July 4,2016, between
9:39 a.m. and l:22 p.m., which read as follows (put together with ellipsis between messages): "Wo',v... Baby ;( ...
Babe ... babe ... Answer ... You see what I mean ... I'm trynna be there for you ... Your pushing me away ... I'm
telling you meet us at target ... By Tropicana ... And you'll come home with me and my mom ... And your
ignoring me ... Ight ... Hang up on me ... Just don't say I'm not there for you ... Cause I am ... But you push me
away... Ugh." NinasentNunezaseriesofFacebookmessagesonJuly 4,2016,ending atl:32p.m. withthe
message, "Ima turn this off so I won't bother you anymore... ". A review shows that Nunez essentially ignored
Nina's messages, as she reported to police, except for sending two brief Facebook msssages to her, the last of which
was at l:04 p.m., "Babby Momma ;) missed a call from you."

32
'We
help you. are not here to hurt you. We are your friend." The officer said, "Throw the gun in
the yard!" The officer was very friendly to the person he was talking to, and called the person
"buddy" and,"pal," and he was very reassuring.
Another SJPD officer arrived, carrying a rifle, who told Pierre Dacunha and his wife to go back
in the house. They went back into the house, and within a minute they heard two gunshots, and
no more talking or conversation. The gunshots were so close together that Pierre Dacunha
thought it could have been one gunshot with an echo.

Statement to Detectve McDonald (2nd statement)

At approximately ll:04 p.m., Pierre Dacunha was re-interviewed at the SJPD station by
Detective McDonald and he provided some additional information.

The older officer who was speaking to the person was using a calm and reassuring manner the
entire time. The officer had his hand on his gun but said the officer never drew his firearm. The
entire time, he was saying that the officers were there to help and not hurt the person. He kept
telling him to "toss the gun into the lawn" and'ut the gun down." He never saw the person at
994 Feller Avenue and he did not hear him say anything to the officer who was speaking to him.
He estimated the officer was speaking to the person for about 20 minutes. He was not certain
that it was 20 minutes but said it was for "a while."

He heard things like, "we're not here to hurt you, we're here to help you" and "nobody is here to
hurt you." As he said these things, the officer would move from the front of the SUV to the
back. While the officer was speaking to the person, a group of officers began to approach but
then backed away, again leaving the officer speaking to the person by himself. He saw the
officer was going back and forth talking into his radio and speaking with the person. The officer
kept talking, saying "we can resolve this, put the gun down so you don't get hurt." The officer
also asked the person, a couple of times, to'othrow the gun into the lawn." While that was going
on, two offtcers, one in a standard San Jose Police uniform, and another wearing a helmet and
bulletproof vest and carrying a rifle, approached Pierre Dacunha and his wife. The officer
wearing the standard uniform asked them to go back into the house. The family went back into a
car port area.

The officer with the rifle and the officer in standard uniform then went over to a gray pick-up
truck and took up position there. While that was going on, the older officer continued talking,
saying "calm down" and'ut your gun down" and "nobody wants to get hurt, we can help you."
The older officer then went over to the two officers by the gray truck and spoke to them. The
older officer then went and got a bucket, and the officer with the rifle sat on it. For a period after
that, he could not hear anything. Then he heard two gunshots, one right after the other.

Erika Dacunha (age 39)


Erika Dacunha was interviewed by Officer Stults at954 Feller Avenue, near the scene of the
officer-involved shooting on July 4,2016.

33
She was visiting at954 Feller Avenue. She was leaving with her family when she saw an SJPD
police officer standing behind an SUV down the street. She heard the officer talking to someone.
The officer said, "we don't want to hurt you" and "let us help you." Another police officer
arrived and told them to go back inside the house. After a minute, she heard two gunshots.

Charles Thomas (age7l)

Statement to Officer Potwora (ISt statement)

On July 4, 2016, Officer Potwora interviewed Charles Thomas at his home at 993 Feller Avenue,
which is directly across the street ftom994 Feller Avenue. Thomas agreed to give a statement
but did not want the officer to record it.

At approximately 4:30 p.m., Thomas heard his dog barking in front of his house. He looked
outside and saw two women walking away from the front door of 994 Feller Avenue. The
women appeared to be in their twenties. One was thin and the other was very heavy or pregnant.
They walked south on Feller Avenue and out of his view. Then, Thomas saw a thin man come
out of the front door of 994 Feller Avenue and follow the women out of his view. The man was
staggering and almost falling over. Thomas believed the man was either drunk or on drugs.

The man walked back to the drivew ay of 994 Feller Avenue and fell to his hands and knees. He
stayed on the ground for about a minute, then stood back up and stumbled back inside. Thomas
believed he saw the man bleeding from the head.

Thomas was not looking outside for approximately the next 15 to 20 minutes.

Then, he heard his dog barking again and went to the front window. Thomas saw a group of
police officers approaching994 Feller Avenue. One officer was leading the way with his rifle
and four or five other officers were following. The officers stopped at the rear end of a green
vehicle parked in the driveway of 994 Feller Avenue with its driver door open. Thomas heard an
officer yell out something to the man he had seen earlier, who was now standing in the screen
door of the house. Thomas did not think the man was doing what the officers were yelling at
him. Thomas could not hear exactly what was said.
The officers backed away from 994 Feller Avenue out of Thomas' view. The man did not leave
the house. Thomas thought the police had left the neighborhood. He went back to doing his
laundry in another part of the house.

Thomas then heard his dog barking again, so he went to his front window and looked out. He
saw the man standing inside the doorway behind the front door gate. The man stuck his head
outside the door and looked around the street. The man sat down and appeared to be tying a
shoe. The man stood up and appeared to be staggering as he walked outside of the door.

Thomas heard two gunshots. The shots were approximately two seconds apart. After the first
shot, the man seemed to stagger back, and his upper body leaned forward. After the second shot,
the thin man dropped to the ground.

34
Thomas never paid attention to the man's hands and did not see any guns. Thomas did not know
the man but thought he may have seen him at the house on a prior occasion.

Statement to Detectve Martinez (2nd statement)

On July 4,2016, at approximately 8:50 p.m., Detective Martinez and Detective Santiago showed
up at Thomas' house at993 Feller Avenue to re-interview Thomas at his home, because he had
refused to go to the SJPD station's witness center for a follow-up interview. The interview was
audio-recorded without Thomas' knowledge and lasted approximately one hour. Thomas
provided some additional and/or different details.

Thomas had been doing laundry when his dog started barking at approximately 3:00 p.m. His
neighbor's dog was also barking. Thomas knew something must be going on so went to his
kitchen window and looked outside.

Thomas saw two females across the street coming out from 994 Feller Avenue. The first female
he saw was already out, standing by the steps, when he saw the second female. The first one
looked like a Hispanic teenager, approximately 5'4". The second one was also Hispanic and was
older, possibly in her 40's, and heavy. The first one was then standing by the green car in the
driveway. The two females left walking. Late4 Thomas was asked to clarify the height of the
second female and he said she was 5'4".

After the second female had come out, Thomas saw a man open the front door and come outside.
Thomas assumed that the second female had been talking to the man before the females had
walked away. The man was wearing a green shirt. It looked like he had an ID tag. Thomas did
not know him. The man was staggering and off balance. The man leaned down or bent down,
and something was dripping down off his head area, which Thomas assumed was blood. The
man controlled himself and then starting walking, following the two females. Thomas did not
see his hands or any weapons, and if there had been gutr, it must have happened before the man
came out. Thomas could not hear anything. Thomas could only see as far as the last house on
Feller Avenue. Approximately 5 to 10 minutes later, the man came back by himself toward994
Feller Avenue and fell on the driveway of the house and laid there for about 5 minutes. The man
had helped himself to get down and was in fulI control. The man did not collapse, he just
staggered around and laid down, not moving.

Thomas knew something was wrong with him because the man looked drunk or high. Thomas
planned to reach out to his neighbors to see if they could talk to the man.

Thomas went back to doing his business. Then, his dog started barking again. Thomas looked
out from his kitchen window and saw six police officers. One of the offrcers was in front of the
rest, carrying a rifle. They were by a green vehicle in the driveway of 994 Feller Avenue, and it
had a door open. Thomas recalled that when he had watched the man and the two women
earlier, there was no car in the driveway, only a van.

Thomas had moved his own position to his front door. He did not open the front door. He
looked through the glass in the front door. Sergeant Martinez saw that the front door has frosted
glass that distorts the view, but also has a non-frosted portion that has a clearer view.

35
Photographs showing (at left) interior of front door of Thomas' house and (at
right) partial view of 994 Feller Avenue through scalloped-shaped glass in door.

Thomas heard instructions being given. He clarified that he was not clear what was being said
but he knew the police were giving orders and commands: come out, raise your hands, and all
the things the police use. They were pointing the guns at the front door. Thomas said he was
behind his front door, looking out, but the officers could not see him. Regarding the commands,
Thomas later said he did not know what was said.

The police began to retreat towards Story Road. Thomas thought they were gone, figured they
got what they wanted, and everything was going to be okay. He did not see anybody come out
of the house.

Thomas went back to what he was doing and his dog started to bark again. Thomas described
how his dog barked and looked out the window in the den area. Thomas saw the nan open the
screen door and stick his head out. The man looked up and down.

Thomas said the man would disappear and come back again, stick his head out the door that was
open just enough for him to squeeze through, and the man would look and look again. The man
sat down on the step before going outside and just sat there. The man leaned back and then
leaned down, and then stood up. Then, Thomas' phone rang.

Thomas heard the message and the person calling, his neighbor Adan, was supposed to be in
Mexico, so he picked up the phone and talked to Adan. (Detective Santiago later asked Thomas
to check his house phone for the time the neighbor had called. Thomas did and said it was 5:24
p.m.) Adan was in Mexico and was watching everything going on through his video cameras.
Thomas later clarified that he was still looking out the front door when he talked to Adan, and
that the man was standing around. Thomas said he did not see any police, and Adan said the

36
police were watching the man. Thomas had the view of the house the caller did not have. Adan
said there were two police officers by his truck and two officers by Story Road.

While Thomas was on the phone, the man across the street, who was sitting on the step, stood up.
At that point, Thomas knew it was the same man because the man had a green shirt. The man
looked around. The man looked high or in adaze. Thomas did not know the man.

Thomas was hiding behind the door, thinking he should duck. Thomas heard a gunshot, saw the
man struggle but he did not go down. Thomas did not see the man raise his hands in the air like
he gave up after the first shot. The man was still standing, dazed for sure, and staggering. Then,
Thomas heard a second gunshot, and the man went down. The man was not moving, but
Thomas did not know if he was wounded or dead. There were two gunshots total. Thomas said
the second one put the man down. The gunshots were one after another. When asked how much
time was in between the two gunshots, Thomas said he was asked that before. He said maybe
two seconds, five seconds at the most.
According to Thomas, he asked Adan if he heard the gunshot. Adan said he had. Thomas told
Adan, they just shot him. Thomas heard another gunshot and asked Adan if he heard that one,
and Adan said yeah. Thomas then told Adan the man went down.

As Thomas used the word "boom" and "boom" to indicate how much time was in between shots,
Detective Martinez counted approximately two seconds. Sergeant Martinez asked if that was his
opinion, and Thomas said he could be wrong, or he could be right.

Thomas said nothing happened for 15 minutes. Eventually the police approached and cleared the
residence. An ambulance came and checked on the man and then left. Since the ambulance left,
Thomas figured the man may be dead.

Toward the end of the interview, Sergeant }l4afnez asked Thomas if he saw the man's hands
when he stood up. Thomas said he would say he saw the man's hands, and he did not see a
weapon in his hands. When asked where the man's hands were, Thomas said not in his pockets.
When asked if the man's hands were raised up, Thomas said no, not like "I give up" or "You got
me" because he would have seen that.

Matthew Yancy (age24)


On July 4,2016,after the officer-involved shooting, Officer Saini talked to Matthew Yancy at
his home located at 965 Feller Avenue. Regarding what he witnessed, Yancy said he was
standing in his front yard and clearly heard a police officer yelling to the suspect to drop his gun.
Initially, he could not tell who the police were yelling at, but then he saw Nunez standing in the
doorway at994 Feller Avenue. Yancy heard the police officer yell out several times for Nunez
to drop the gun, estimating it was more than 10 times. Then, police officers wearing black
helmets walked by Yancy's house and told him and his friend, Rene Cuyugan, to go into their
house. Several minutes later, Yancy heard two pops ring out but did not see the shooting.

37
Rene Cuvugan (age 48)

On July 4,2016, after the officer-involved shooting, Officer Saini talked to Rene Cuyugan.
Cuyugan was leaving965 Feller Avenue when he noticed a police car parked in front, blocking
the street. The off,rcer told him to go back inside. Cuyugan said that as he was going back
inside, he heard someone yelling, but he could not understand what was being said. Cuyugan
and Yancy went inside the garage at965 Feller Avenue. Several minutes later, he heard a sound
that sounded like firecrackers or possibly a gunshot.

Ernesto Nunez (age 44)

On July 4,2016, Officer Donald Guess interviewed Ernesto Nunez who provided the following
information.

At approximately 5:37 p.m., his father called from Washington. His father was with Sandy, who
had reportedly received a call from Junior saying Nunez may have shot himself, or had been
shot. His father told him to go to the house to see what had happened. He anived approximately
15 to 20 minutes later, when the police officers were assernbling to approach the house. He was
not present for any sounds ofgunshots.

Juan Zapien (age 20)

On July 4,2016, Officer Reyes interviewed Juan Zapien at his house at 985 Feller Avenue.

Juan Zapien lives at 985 Feller Avenue with his family, including his mother, Maria Zapien. He
was home at the time of the incident. One hour earlier, he received a phone call from his sister,
Ana, who was in Mexico. Ana and her husband live at 985 Feller Avenue but were on vacation.
Ana said her husband had received a call from one of their neighbors telling him about the
incident.

JuanZapien and his mother looked outside their front window and saw one officer standing on
the north edge of their lawn, and a second officer standing near their Suburban. They stayed
inside and moved family members to a room further back. While in a back room, he heard what
sounded like two gunshots. The two shots were only approximately 3 seconds apart, and
sounded like they came from the same caliber weapon. Maria Zapien did not hear any gunshots.

38
MEDICAL EXAMINER

On July 5,2016, Dr. Michelle Jorden performed an autopsy on the body of Anthony Nunez. Dr
Jorden concluded the cause of death was multiple gunshot wounds. The manner of death was
classified as a homicide.

Nunez's clothing included a short-sleeved green shirt, black jeans, black belt, and black tennis
shoes. An examination of the green shirt revealed defects consistent with entry and exit wounds
in Nunez's torso. Nunez measured 6'4" and 166 pounds.

The first gunshot wound was an entrance wound on Nunez's upper right side of the forehead.
Within the wound track were two bullets. The bullets were medium-caliber copper jacketed lead
bullets. The bullets had corroded bases. Dr. Jorden determined that the two bullets in the wound
track indicated a "piggyback arrangement" ('otandem bullets") in which two bullets are propelled
out of the barrel. (This can occur when, upon firing the first time, a bullet is lodged in the barrel,
and upon firing a second time, the second bullet pushes the first bullet out and they both exit the
banel.) An examination of the skin showed evidence of contact range fire. The bullets were
recovered from the right side of the head, just under the scalp, next to the skull. There was a
small impression in the right frontal bone of the skull, but the skull was not fractured. The
bullets did not enter the cranial cavity.

A second gunshot wound was a through and through gunshot wound consisting of an entrance
wound of the mid chest, slightly right of center, and an exit wound of the mid back. This wound
revealed no evidence of close range fire. The course of the wound was rightto-Ieft, front-to-
back. The wound involved damage to skin and subcutaneous tissue, ribs, and the right lung,
contributing to bleeding in the right chest cavity.

A third gunshot wound was a through and through gunshot wound consisting of an entrance
wound in the lower left back, and an exit wound of the upper left chest. This wound revealed no
evidence of close range fire. The path of the wound traveled left-to-right, back-to-front, and
upward. The wound involved damage to skin and subcutaneous tissue, ribs, the left lung, the left
diaphragm, spleen, and the cardiovascular system, contributing to bleeding in the left chest
cavity.

A toxicology test of Nunez's blood revealed he had a blood alcohol concentration of 0.01
g/100mL. THC (active ingredient and/or inactive metabolite of marijuana) was also detected.

39
CRIME LABORATORY

The .38 caliber revolver that was recovered approximately 7 feet from Nunez's body (per the
Crime Scene Unit measurements) was taken to the Santa Clara County Crime Laboratory for
examination. Criminalist Megan Shaw examined the Charter Arms .38 Special revolver. It has
the capability of firing in both single and double action modes. The firearm was observed to be
in poor condition with areas of rust and dirt. Swabs were taken for DNA analysis. It was also
examined for fingerprints. Test-firing revealed malfunctions in that two of the twenty attempted
shots failed to fire. The barrel had a slight bulge and damage could be seen near the muzzle end
of the firearm.

Shaw examined the two bullets recovered from Nunez's autopsy. The bullets were nominal .38
caliber tracer copper jacketed bullets. The examination determined that the bullets were fired
through a gun with eight lands and groves. While the Charter Arms .38 revolver also had eight
lands and grooves, inter-comparison of the fired bullets recovered in the autopsy with the test-
fires were inconclusive.

Criminalist Ariel Lising processed the swabs taken from the revolver for DNA. Nunez is the
source of DNA material found on a swab of the trigger guard and on a swab of the cylinder.
These swabs also tested presumptive positive for blood. A limited amount of DNA information
was available on the swab of the trigger and the swab of the hammer/cylinder release/grip
emblem/ejector rod/textured area in front of sight; therefore; no conclusions were drawn as to
those two swabs.

40
SURVEILLANCE VIDEO AND 9II /POLICE RADIO TRAFFIC
As described above, Officer Reyes located and collected surveillance video from two cameras at
985 Feller Avenue. The recording is not continuous because there are gaps in time when the two
cameras were not recording. As a result, the surveillance video does not show all events and
movements by police officers and civilians. For example, between 4:00 p.m. and :00 p.m.,
approximately t hour 12 minutes of video was recorded on Camera 1, and 48 minutes was not
recorded on Camera l. Camera 3 recorded nearly the entire time between 4:00 p.m. and 6:00
p.m., missing only 2 minutes. There is no audio on the surveillance video.

The officer-involved shooting is captured on surveillance video, to the extent of the camera
angles and the limitations of what can be captured on camera when compared to the human eye.
The time-stamp on the video at the time that Officer Yizzusi fires (or, more accurately, the
smoke from his rifle blows across the hood of the truck) is between 17:24:0I and 17:24:02.
Officer Reyes observed that the time-stamp was approximately 3 minutes behind the actual time
of day. This means the actual time of the officer-involved shooting was approximately 5:27 p.m.
As it relates to the time difference, it may be more accurate to say that the time-stamp is
approximately 3:23 behind actual time, for the following reason. The police dispatch log and
recorded radio traffic show that "shots fired" was called over the radio at 5:27:29 p.m. actual
time. If it is assumed that it took 5 seconds for the officer to call "shots frred" into the radio after
the gunshots were heard, then it can be stated (with that assumption) that the shooting occurred
at 5:27:24 p.m. (17.,27:24).

As described below in this section, the smoke discharge from OfficerYizzusT's rifle shot appears
on Camera 1. Comparing the time-stamp of the rifle shot (17:24:01) to the "shots fired"-based
calculation of the actual time of the rifle shot (17:27:24), the time-stamp is approximately 3
minutes 23 seconds behind actual time. This is still consistent with Officer Reyes' observation
of an approximate 3-minute difference.
The times below refer to the time-stamp on the video, not the actual time, except as noted.

Camera I

Camera 1 is aimed from the house at 985 Feller Avenue to the house across the street at994
Feller Avenue. Camera 1 shows the Suburban and another car parked next to it in the driveway.
Camera I captures the front door area of 994 Feller Avenue at a distance and in the shadow of
the roofline. Camera 1 captures the corner intersection with Story Road. At the time of the
officer-involved shooting, Camera 1 does not show either Officer Santos or Officer Yizzusi.
Due to shadows created by the front porch roof at 994 Feller Avenue, it is difficult to see
movement and persons on the front porch. Additionally, there are minor obstructions created by
a light pole, a support post for 994Feller Avenue's roof, and aplay house in the front yard that
obstruct a full view of the front door and the porch. There is also a white security door in front
of the front door, which makes it impossible for Camera 1 to see anyone standing just inside the
security door when it is closed.

4L
Still frame from Camera 1, looking out from 985 Feller Avenue, showing Chevy
Suburban in driveway, and 994 Feller Avenue across the street (on left).

At 3:35 p.m. (15:35), Nunez appears.s He walks to 994 Feller Avenue and goes in the front door
at3:36 p.m. (15:36). At approximately 4:11 p.m. (16:10:57), Nina runs to the house, joined by
her mother about 45 seconds later (16:11:45). They walk back and forth between the garage and
the front door until the video stops at 4:13 p.m. (16:13:28).

The next video file starts just 90 seconds later (16:14:58), and both Nina and her mother are gone
(presumably because they left during the gap in the recorded video).

At 4:I7 p.m. (16:17:16), Nunez appears on the right edge of Camera 1, walking slowly by
himself from Story Road, crossing Feller Avenue back towards the house at994 Feller Avenue.
(Nunez was not shown leaving the house nor walking towards Story Road after Nina and her
mother, suggesting he also left during the gap in the recorded video.) Nunez is unsteady and
staggering around. At nearly 4:18 p.m. (16:17:55), he lays down on the driveway of 994 Feller
Avenue. While on the ground, Nunez is out of view of Camera 1, obscured by acar parked on
the street. Nunez stands back up 30 seconds later (16:18:33), and walks to the front door, and
goes inside, closing the white metal security door (16:19:00).

At 4:27 p.m" (16:27), Nunez comes out the front door and walks into the front yard briefly, and
then goes back inside (T6:27:25). At 4:29 p.m. (16:29), Nunez leaves the house agun and walks
across the street towards Story Road, disappearing around the corner, walking with a slight limp
but moving rather quickly. At4:31 p.m. (16:31), Nunez returns with a more noticeable limp, but
appears much steadier on his feet than he was 13 to 14 minutes earlier. Nunez lingers in front of

s
The camera is not sharp enough or close enough to allow for the surveillance video alone to identify the person
wearing the green shirt as Nunez, but to keep it simple, this section will refer to the person on video as Nunez. The
same approach is taken as it relates to the appearances on video of Nina, her mother, and Cervantes.

42
994 Feller Avenue, and at one point appears to try to get into a black sedan parked on the street,
before going back inside the house at approximately 4:32 p.m. (16:32).

At 4:45 p.m. (16:45), Cervantes drives up to 994 Feller Avenue and parks in the driveway. He
gets out of the car, leaving the driver's door open, and goes inside the house. At approximately
4:47 p.m. (16:46:47), Cervantes comes out of the house and walks back to his car. Cervantes
appears to have his right hand up to his ear, as if speaking on a cell phone (16:47:00). Cervantes
stands behind his car. Nunez comes out of the house and walks down the walkway towards the
driveway and Cervantes (16:47:09). Cervantes appears to stay on the phone, with his right hand
up near his head. Cervantes tums and starts to walk away from Nunez, downthe sidewalk in the
direction of Story Road, as Nunez reaches the driveway where Cervantes had been (16:47:20).
Nunez slowly follows Cervantes on the sidewalk. Cervantes backs away, keeping his distance as
Nunez continues to walk towards him. Cervantes reaches the corner of Story Road and Feller
Avenue (16:47:50), and appears to still be on the phone. Nunez has stopped following him,
approximately 15 to 20 yards behind him on the sidewalk. Then, Nunez advances to within
approximately 5 yards of Cervantes at the corner (16:48:20).

Still frame from Camera 1, showing Nunez (circled in green) on sidewalk near
corner of Story Road, where he followed Cervantes (circled in red) who appears
to have been talking on a cell phone.

Cervantes starts walking back toward 994 Feller Avenue, but in the street, not on the sidewalk.
Nunez walks back on the sidewalk. Cervantes appears to stay on his cell phone. Cervantes and
Nunez then merge and walk next to each other, reaching the bottom of the driveway at994 Feller
Avenue (16:48:45). They walk together across the front yard to the porch area at approximately
4:49 p.m. (16:48:57) and Nunez goes inside the house. The video shows Nunez walking rather
normally, occasionally stopping, while outside of the house with or around Cervantes.

43
Cervantes walks back off the porch by himself and walks to the far side of the garage behind a
dark SUV parked in the driveway (16:49:14). Cervantes appears to be possibly on a cell phone
again. The video ends with Cervantes still behind the dark SUV, not visible on screen
(16:49.,35).

The police radio dispatch log and 911 recordings provide some additional detail as to what was
happening with Cervantes and Nunez in the first 5 minutes after he arrived. The dispatch log
shows the actual time that Cervantes made the first 911 call was 4:51 p.m. (16:51 :22). If the
time-stamp is 3:23 behind actual time, then the time-stamp on Camera I when the first 91 I call
begins would be 16:47:59. At that time, Camera I shows Cervantes standing on the sidewalk
near the corner of Feller Avenue and Story Road, apparently on a cell phone, with Nunez
standing on the sidewalk approximately 15 to 20 yards closer to his house.

The first 91 I call begins with Cervantes saying, o'Man... go inside, go inside." While on the
phone with the dispatcher, Cervantes is heard saying, o'My cousin tried to fucking kill himself."
'When
the 9l I call is played simultaneously with the video from Camera 1, Cervantes says "Go
away, fool" as Nunez walks near him on the way back to the house, and Cervantes tells the
dispatcher ooHurry up, bitch" as she tries to get the correct address from him (16:48:29 to
16:48:39). Cervantes says (presumably to Nunez) "Go inside, fool, please, for real, don't
fucking do this." (16:48:48 to 16:48:50). Nunez goes into the house, and there is a sound on the
91 1 call from possibly the front door opening or closing (16:48:59). The 91 1 call ends
(16:49:13).

Approximately 5 minutes goes by until the recorded video on Camera 1 resumes (16:54:28).
Cervantes is no longer seen on the surveillance video, because he is now inside the house,
speaking again with the 911 dispatcher. The surveillance video stops recording approximately 5
minutes later (16:59:33), and Cervantes is still inside the house with Nunez. As for the 911
recordings, there are at least three more 911 recordings with Cervantes after the first 911 call
described above. One happens when the 911 dispatcher calls Cervantes back after he hangs up.
Another happens when Cervantes calls back. Cervantes provides Nunez's name and his own
narne, but the dispatcher struggles with getting Cervantes to answer her questions.

In the last 911 conversation, Cervantes says he now has the gun. The dispatcher, through a
Spanish-speaking translator, tells Cervantes to throw the gun in the backyard. (A review of the
police radio traffic shows that Sergeant Boyle advised the dispatcher to tell the reportinEparty,
Cervantes, to throw the gun in the backyard.) There is a sound, possibly a door sliding open, and
Cervantes tells the translator that he threw the gun into the backyard. The dispatcher tries to tell
him to have the whole family come out of the house slowly. Cervantes does not answer. The
dialogue ends as Cervantes presumably leaves the house by himself.

At 5:04 p.m. (17:04:29), Canera 1 starts recording again. The 911 recordings, dispatch log, and
police radio traffic show that Cervantes had already left the house. At that time, there is a police
vehicle visible at the intersection of Feller Avenue and Story Road. There is a person wearing a
possible red shirt at the corner with police, likely Cervantes, who had already walked to the
corner. Officer Dalaison appears for the first time on Camera I (17:04:32), walking into frame

44
near the front passenger side of an SUV parked in front of 985 Feller Avenue. Since the officer-
involved shooting occurred at 17:24:01, this means that Officer Dalaison was in the front of 985
Feller Avenue for approximately 20 minutes altogether. Officer Dalaison changes position
several times, by moving along the passenger side of the SUV, increasing or decreasing his
distance to the front door of 994 Feller Avenue across the street.

At 5:06 p.m. (17:06:30), the white security door shuts completely, possibly on its own, or
possibly by Nunez, who cannot be seen in the recorded video at that time.

At 5:08 p.m. (17:08:33), agroup of six police officers approach 994 Feller Avenue from the
corner of Story Road and Feller Avenue. They arrive at the driveway at approximately 5:09 p.m.
(17:09). They take up positions around the two cars parked in the driveway. Approximately 25
seconds later (17:09:22), four officers start to back away and gather near the sidewalk. The fifth
police officer joins them, while the sixth police offrcer remains at the back of an SUV in the
driveway. At 5:10 p.m. (17:10), all of them back away from994 Feller Avenue, all the way to
the southwest comer of Story Road and Feller Avenue. Nunez is not clearly visible on the
surveillance video at any point between when the officers first approach the house and when they
pull back to Story Road, although the security door and shadows obstruct the view recorded on
Camera 1. (The approach and retreat shown on Camera 1 is consistent with the description of
the approach to the house to render aid that was aborted when Officer Dalaison saw Nunez in the
doorway with a gun.)

As it relates to Officer Dalaison shouting to his fellow officers about a man in the doorway with
a gun, his voice is not captured on the surveillance video-which did not record audio. Officer
Dalaison's observation does appear in the police dispatch log (subject at front door, green shirt,
weapon in hand), after he provided an update over the radio to the dispatcher about what he saw.
This entry occurred at the actuql time of 5:13:47 p.m., which would be approximately 17:10:24
in the time-stamp on Camera l-consistent with the timing of the officers' retreat from the front
of 994 Feller Avenue as shown on video.
One minute later (17:Il:40) the security door opens. Officer Dalaison moves further away,
towards the front end of the Suburban and updates the radio.6 At 5:!2 p.m. (I7:1,2), Officer
Dalaison can be seen talking out loud in the direction of someone across the street, i.e., not into
his shoulder radio. The security door begins to close again, and Officer Dalaison then moves
closer, to his position at the back corner of the Suburban (171245).7

The police dispatch log shows an update by Officer Dalaison ar a actual time of 5:1507 p.m. tha| the man has a
gun in his right hand. This equates to a video time-stamp of l7: 1 l:44, which is consistent with Officer Dalaison
being able to see Nunez as the security doors opens and then moving further away (for his protection) to the front of
the Suburban and providing a radio update.
7
Officer Dalaison's voice was not captured by Camera 1 or Camera 3, but his voice was captured on a short cell
phone video ken by witness Matthew Yancy and provided to police. Officer Dalaison can be heard trying to
convince Nunez (whom he calls o'Anthony" and "buddy") to tlrow the gun out the front and please let them (the
police) help him.

45
Five minutes later (17:17:36), the security door opens wide and rernains open until this segment
of video ends (17:17:49). It is difficult to see whether anyone is in the doorway, although it
appears the door is being held open.

The next video clip begins 30 seconds later (17:18:20). The security door is still open.' The
security door opens wider (17:19:51) and Nunez moves into the doorway but it is hard to see on
the video. The door stays open and Nunez stays in the doorway for approximately 30 seconds
(17:20:10), when Nunez moves out of the doorway and the door partially closes. The door opens
again(17:20:26) and Nunez is in the doorway, going out of view soon thereafter (17:20:40), but
the door stays open, and Nunez moves back into the doorway (17:20:55).

Nunez moves out onto the porch (17'21:05). Approximately one minute later, at 5:22 p.m.
(17:22), Nunez steps off the porch and takes one or two steps onto the walkway leading from the
porch. Seconds later (17:22:08), Nunez walks back onto the porch and appears to walk back
inside the house, as the security door stays open.

Still frame from Camera 1, showing Nunez (in green shirt) in front porch or
walkway areaof 994 Feller Avenue, and Officer Dalaison (far left) standing
behind Chevy Suburban across the street with handgun at low-ready position.

Just over a minute later (17:23:20), Officer Dalaison moves from the SUV and out of Camera 1's
point of view, to the left, towards the position of OfficerYizzusi and Officer Raghavan.

Approximately 30 seconds later, Nunez reappears in the front door, and steps down on to the
porch (17:23:.55). Nunez's shirt comes into clearer view as he takes a couple of steps further out
and pushes the security door further open(17:23:57). The camera is not sharp enough or close
enough to make out what Nunez is doing in the shadow of the front porch, other than his lighter-
colored green shirt is visible on video as he stands in front of the doorway. A few seconds later,

46
Nunez's body moves abruptly down (I7:24:01) and is completely down to the ground within one
or two seconds at the most (17:24:03). The view is partially obstructed by the light pole, front
porch post, play structure, and shadows of the front porch roof.

The security door closes (17:24:49). The video stops three minutes later (17:27:57). The next
video starts approximately 23 minutes later (17:51:03), when a fire truck is seen approaching994
Feller Avenue, an officer is standing near the front porch, and two officers are standing on Feller
Avenue near Story Road. The firetruck stops on the street in front of 994 Feller Avenue and
blocks the view of the house from Camera 1. Two firefighters exit the truck at 5:51 p.m. and
walk towards the house.

Still frame from Camera3 at the time of the officer-involved shooting, showing
primer gray-colored pickup truck (on left).

Camera 3

Camera 3 at 985 Feller Avenue is pointed to the side edge of its front yard, showing a primer
gray-colored pickup truck parked facing into the yard. OfficerYizzusi and Officer Raghavan
were positioned on its passenger side, and Officer Dalaison joined them. Camera 3 is not
pointed in the direction of 994 Feller Avenue and only captures the officer-involved shooting as
it relates to the position of Officer Yizzusi and the other offrcers behind the pickup truck.

There are five video clips from Camera 3, but the relevant events recorded by Camera 3 are all
on a single long video of which starts at approximately 5:01 p.m. and ends at approximately 6:00
p.m. At approximat ely 5:22 p.m. (I7 :22: 1 5), a police officer enters from the left side of the
screen on the passenger side of the truck and crouches down behind it, with the truck between
the officer and 994 Feller Avenue (which is not visible and off screen to the right, across the
street). The officer is mostly not visible on the video because of the position taken for cover.

47
One minute later (17:23:20), Officer Dalaison is seen moving quickly across the front yard of
985 Feller Avenue to a position presumably behind the truck. Forty seconds later (17:24:01 to
17:24:02), a puff of smoke from a gunshot is seen blowing quickly and briefly over the hood of
the truck, establishing the approximate time that Officer Yiznsi fired his rifle. OfficerYizzttsi
and his rifle are not visible because they are off screen to the left, out of view of Camera 3.

At approximately 5:32 p.m. (17:32),a police officer is seen standing up and behind the truck. At
5:39 p.m. (17:39), four officers walk toward 994 Feller Avenue from the north, on the east side
of Feller Avenue, passing near or on the sidewalk on the opposite side of the street. This appears
to be the group of officers who approached Nunez after he had been shot by the officers

Comment

By all police officer accounts, Officer Santos fired the first shot, and Officer Yiznsi fired the
second shot. The gunshot from Officer Santos would have traveled across the street in less than
1/1Oth of a second (given the approximate speed of a bullet fired from a Colt Law Enforcement
Carbine rifle, and the approximate distance to Nunez). Camera I establishes that Nunez's body
physically reacted to being struck by gunfire at 17:24:01. This means that Officer Santos fired
his rifle at 17:24:01(or a very small fraction of a second before that). Meanwhile, Camera 3
establishes by the puff of smoke seen over the hood of the truck that Officer Yizntsi fired his
rifle at 17:24:01. [t must be noted that a small fraction of time would have passed between the
trigger being pulled by Officer Yizntsi on his rifle (offscreen) and the fast puff of smoke seen
blowing over the hood on Camera 3 between l7:24:01 and 17:24:02. The bottom line is that the
surveillance video establishes that the second shot (by Officer Yiznrsl) was fired within one
second of, if not simultaneously with, the first shot (by Officer Santos).

48
TIMELINE

This timeline is estimated from a review of police reports, 911 and radio traffic recordings, the
police dispatch log, and surveillance video. The estimated times below are the actual times, not
the time-stamps on any surveillance video, which was estimated to be 3:23 behind actual time.

4:15 PM _ NINA AND HER MOTHER HEAR GUNSHOT AT HOUSE

4:48 PM _ CERVANTES ARRIVES AT HOUSE

4:51 PM - FIRST 911 CALL BY CERVANTES

4:58 PM _ FIRST POLICE OFFICER ARRIVES NEAR HOUSE

5:03 PM - CERVANTES TELLS 911 THAT HE HAS THE GI.IN

5:05 PM - 911 DISPATCHER TELLS CERVANTES TO THROW GLIN IN BACKYARD

5:07 PM - CERVANTES LEAVES HOUSE AND GOES TO CORNER

5:07 PM - OFFICER DALAISON GETS TO LOCATION ACROSS STREET

5:11 PM - POLICE OFFICERS START TO APPROACH HOUSE

5:13 PM _ POLICE RETREAT AFTER NI-INEZ APPEARS TN DOORV/AY WITH GUN

5: 1 3 PM TO 5:26 PM - OFFICER DALAISON TRIES TO GET NUNEZ TO DROP GUN

5:19 PM - NUNEZ ON FRONT PORCH WITH GLIN

5:25 PM - NUNEZ GOES BACK INSIDE HOUSE WITH GLJN

5:25 PM _ OFFICERVIZZUSI AND OFFICER RAGHAVAN GET BEHIND TRUCK

5:26 PM - OFFICER DALAISON MOVES TO POSITION BEHIND TRUCK

5:27 PM - NUNEZ COMES OUT FRONT DOOR WITH GUN IN HAND

5:27 PM _ NLTNEZ TWIRLS GUN, THEN LEVELS IT IN DIRECTION OF POLICE

5:27 PM - TWO SHOTS FIRED BY POLICE

49
RELEVANT LEGAL PRINCIPLES

This review was conducted pursuant to the joint protocol between this office and all Santa Clara
County law enforcement agencies, which calls upon the District Attomey to conduct an
independent assessment of the circumstances surrounding the use of deadly force. This review
does not examine issues such as: compliance with the policies and procedures of any law
enforcement agency; ways to improve training or tactics; or possible civil liability. Accordingly,
such a review should not be interpreted as expressing an opinion on those matters.

Possible criminal charges against an officer involved in afatal shooting include murder (Penal
Code section 187) and manslaughter (Penal Code section 192). To convict an offrcer of a
homicide charge, however, it would be necessary to prove beyond a reasonable doubt that no
legal justification existed for the officer's actions. (People v. Banks (I976) 67 Cal.App.3d 379,
383-384.) Several justifications may apply in any given case, and they are set forth in Penal
Code sections 196 and 197. The justification pertinent to this case is use of force in seldefense
and defense of others, which is found in Penal Code section I97.

California law permits all persons to use deadly force to protect themselves from the threat of
death or great bodily injury. Penal Code section 197 provides that the use of deadly force by any
person is justifiable when used in self-defense or in defense of others. The relevant criminal jury
instruction, as written by the Judicial Council of California, is set forth in CALCRIM 505
("Justifiable Homicide: Self-Defense or Defense of Another"). The instruction states that a
person acts in lawful self-defense or defense of another if (1) he reasonably believed that he or
someone else was in imminent danger of being killed or suffering great bodily injury, and (2) he
reasonably believed that the immediate use of deadly force was necessary to defend against that
danger. CALCRIM 505. In lawful self-defense or defense of another, a person may use no more
force than is reasonably necessary to defend against the danger. CALCRIM 505.

A person may resort to the use of deadly force in seldefense (or in defense of another) where
there is a reasonable need to protect oneself (or someone else) from an apparent, imminent threat
of death or great bodily injury. Perfect self-defense requires both subjective honesty and
objective reasonableness. (People v. Aris (1989) 2t5 Cal.App.3d I 178, | 186.) "Imminence is a
critical component of both prongs of self-defense." (People v. Humphrey (1996) 13 Cal.4th
1073, 1094.) In Ars, the trial court's clarifying instruction to the jury on the subject was to the
point and later cited with approval by the California Supreme Court: "An imminent peril is one
that, from appearances, must be instantly dealt with." (In re Christian.S. (1994) 7 Cal. th 768,
783.)

A person's right of self-defense is the same whether the danger is real or merely apparent.
(People v. Jackson (1965) 233 Cal.App.zd639.) If the person's beliefs were reasonable, the
danger does not need to have actually existed. CALCRIM 505. What constitutes "reasonable"
seldefense or defense of others is controlled by the circumstances. The question is whether
action was instantly required to avoid death or great bodily injury. In this regard,, there is no duty
to wait until an injury has been inflicted to be sure that deadly force is indeed appropriate. In one
case, a robber pointed a gun at his victim and a deputy sheriff was called to the scene of the
robbery. Before the robber could get off a shot, the deputy fired his weapon, wounding the

50
robber. The appellate court remarked that "[s]uch aggressive actions required immediate
reaction unless an officer is to be held to the unreasonable requirement that an armed robber be
given the courtesy of the first shot." (People v. Reed (1969) 270 Cal.App.2d37,45.)

There is no requirement that aperson (including a police officer) retreat even if safety could have
been achieved by retreating. CALCRIM 505. In addition, police officers are not constitutionally
required to use all feasible alternatives to avoid a situation where the use of deadly force is
reasonable and justified. (Martnez v. County of Los Angeles (1996) 47 Cal.App.4rh 334,348.)

When deciding whether a person's beliefs were reasonable, a jury considers all the circumstances
as they were known to and appeared to the person, and considers what a reasonable person in a
similar situation with similar knowledge would have believed. CALCRIM 505.

In the related context ofcases alleging excessive force bypolice, the test ofreasonableness ofan
officer's use of deadly force is an objective one, viewed from the vantage of a reasonable officer
on the scene, rather than with the 20120 vision of hindsight. (Graham v. Conner (1989) 490 U.S
386, 396.) It is also highly deferential to the police officer's need to protect himself and others.
The calculus of reasonableness must embody the 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." (Id. at
3e6-3e7.)

ANALYSIS

This report evaluates Officer Santos' and Officer Vizzusi's use of deadly force in shooting
Anthony Nunez on July 4,2016. 'We have carefully examined their recorded statements, the
reports of law enforcement officers who witnessed or investigated the officer-involved shooting,
the statements of civilian witnesses, and the surveillance video footage, as well as the other
materials described herein.

Determining whether Officer Santos and Officer Yizzusi were legally justihed in their use of a
firearm under the principles of seldefense and defense of others involves a two-part analysis for
each officer:

(1) did he subjectively and honestly believe he needed to protect himself or


others from an apparent, imminent threat of death or great bodily injury; and

(2) was his belief in the need to protect himself or others from an apparent,
imminent threat of death or great bodily injury objectively reasonable.

The following facts and circumstances support the conclusion that, as to each officer, his fear of
imminent danger of death or great bodily injury was genuine and objectively reasonable.

Officer Santos responded to a radio call of a man with a gun. At the scene, he led a group of
officers to the front yard of 994 Feller Avenue to do a welfare check on the person who had tried
to commit suicide by shooting himself. They had to retreat when another officer saw a man in

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the doorway with a gun. Officer Santos knew that the suicidal man, Nunez,was not actually
dead, and that he had retrieved the gun. Nunez refused to drop his gun and surrender to
uniformed police officers, one of whom was a trained crisis negotiator and was urging Nunez to
let the police help him. Officer Santos knew it had tumed into a dangerous, barricade situation,
for which he had received training. Officer Santos found some concealment and cover behind
some potted plants on a front porch, but he was still vulnerable to being shot by Nunez, who was
less than 50 yards away. Despite his injury, Nunez was moving around and scanning the area,
looking at the police but not speaking to them. Officer Santos knew from training and
experience that Nunez could easily start firing his gun and hit any of the officers, who were
within range. Officer Santos believed that he was the only officer with a rifle in front of the
house and was responsible for protecting the other officers out there. At one point, his view of
Nunez was blocked by the security door, which was partially closed, and Officer Santos could
only see Nunez's arrn. Officer Santos realized the police were at a disadvantage, and there was
no way of defending the officers to his left in that position. When Nunez came out the last time,
he seemed more confident like he had set his mind to do something. Officer Santos had a scope
and magnifier on his rifle. He saw Nunez twirl the revolver on his trigger finger and then point
the revolver at the officers to the north. Officer Santos fired a shot when the gun was pointed at
police, because he feared Nunez was going to shoot them or shoot him.

Officer Yizzusi heard over dispatch the call of a man armed with a gun who was suicidal and
inside a house at994 Feller Avenue. The house was in a residential neighborhood and Officer
Yizzvsi was originally in a position on the street behind the house. During the incident, he was
redirected with his partner, Officer Raghavan, to the front side. At the time of the officer-
involved shooting, the officers did not know, and could not have known, exactly how many
people were inside the houses across the street from994 Feller Avenue.s Even though police
had blocked off the street, Officer Yizzusi recognized the danger that a stray bullet could do to
someone inside a house. Officer Yizzusi saw a person come out of the house with a gun, and he
knew that the person had shot himself. Officer Yizntsi saw Officer Dalaison standing across the
street from the house, with his handgun at low-ready, trying to negotiate a surrender by himself,
with only a handgun and a vehicle for cover. Officer Yizzusi found cover behind a pickup truck
and hoped that the engine block would stop any bullets. He set up his rifle, with its scope and
magnifier, over the hood and kept watch on Nunez, who was bleeding. Officer Dalaison told
him to drop the gun and that they wanted to help him. Nunez did not follow directions. When
Officer Dalaison moved to the truck, Officer Yiznxi had two officers at his side to protect with
the rifle. Officer Yizntsi feared for his fellow officers' and his own safety, with Nunez being
less than 50 yards and nothing in between them except the vehicle they were t yttrg to hide

8
As it turns out, two out of those tlrree houses across the street on Feller Avenue (985 and 993, but not 999) had
someone inside at the time of the officer-involved shooting. At 985 Feller Avenue, several family members had
moved to a back room of the house. At 993 Feller Avenue, Mr. Thomas was crouched down behind the front door,
not visible but directly across the street from Nunez. There was no one home at 999 Feller Avenue, where Officer
Santos was positioned on the front porch.

Although it was a Monday, it was also a holiday (the Fourth of July), and it would be reasonable to conclude that,
even at 5:00 p.m. on a weekday afternoon, there were residents home at the time. There were several cars parked on
the street and in driveways. Officer Vizzusi and Officer Raghavan did encounter at least two people on the street as
they moved towards 985 Feller Avenue, having told Pierre and Erika Dacunha to get back inside.

52
behind. Nunez came outside again, looking in their direction, twirling the gun, an aggressive
move that Officer Yizntsi reasonably associated with what a cowboy might do before a gunfight.
It had reached the point where, in Off,rcer Vizzusi's mind, Nunez was acting crazy and he was
going to fire the gun. When Nunez gnpped the gun so it was level, Officer Yizzusi believed
Nunez was getting ready to shoot. Officer Yizzusi took the safety off his rifle and prepared to
fire. He heard a gunshot almost simultaneously with his own shot, and Nunez went down.
Officer Yizzttsi fired because he believed that if he did not shoot Nunez, then Nunez would have
shot one of the officers, including himself or somebody else.

A review of the surveillance video, police radio traffic, and dispatch log show that Officer
Vizzusi's shot was fired within one second of if not simultaneously with, the first shot (by
Officer Santos). The estimate by two civilian witnesses (Charles Thomas and Juan Zapien) of a
two-second or three-second gap between the two gunshots is simply unsupported by the physical
evidence, which does not depend on memory. The review described above supports police
officer accounts of the second shot being fired nearly simultaneously with the first shot, and the
account of one civilian witness (Pierre Dacunha, who was outside) who heard the shots being
fired one right after another. Even if one full second separated the two gunshots-which does
not appear to be the case-the second shot would have been reasonable and justified, since the
suspect was still on his feet. In this case, there is simply no question-from the surveillance
video, and the height of the bullet strikes in the wall of the house-that Nunez was standing up
when the second shot was fired. There is also no question that the second shot was a reaction to
Nunez's leveling of the gun, and not a gratuitous use of force against a disabled person. The
firing of two shots in rapid succession to guarantee that Nunez could not get off a shot in the
direction of police was reasonable and necessary under the circumstances.

On the issue of whether Nunezhad a gun, the investigation shows conclusively that he had a
loaded, .38 caliber revolver. Cervantes saw Nunez with the gun in his hand. At least seven
police officers saw Nunez with the gun in his hand: Officer Santos; Officer Dalaison; Officer
Crawley; Officer Siegel; Officer Yates; Officer Yizntsi; and Officer Raghavan. After the
officer-involved shooting, four police officers reported seeing the revolver lying on the front
walkway near Nunez: Lieutenant Joseph; Officer Reyes; Officer Potwara; and Officer Stults.
The location of the revolver on the ground is consistent with Nunez (who was 6 feet 4 inches
tall) standing at the front door with the gun in his hand, dropping it after he was shot, and the gun
hitting the concrete pavement and coming to rest 7 feet away from his body.

Four officers saw Nunez point a gun in the direction of police. Officer Crawley, who was in or
near the driveway of 994 Feller Avenue, saw Nunez point the gun in his direction after the police
retreated from the front yard. Second, Officer Santos, who was across the street and whose rifle
had a scope and magnifier, saw Nunez point the gun at officers to Officer Santos' left. Officer
Raghavan, who was also less than 50 yards away from Nunez atthe time of the shooting, saw
Nunez's finger on the trigger and the gun pointed at police. Officer Raghavan had raised his
handgun to shoot Nunez for the very same reasons that Officer Yizzusi and Officer Santos fired
their rifles-to defend himself and his fellow officers. Finally, Officer Yizzvsi, who also had a
scope and magnifier on his rifle, saw Nunez level the gun to where a bullet would come across
the street.

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There was one civilian witness to the actual shooting, Charles Thomas, who told police he never
saw a gun. This statement cannot be relied upon for the premise that Nunez was not holding a
gun in his hand at the time he was shot. First, Thomas admitted he was not paying attention to
Nunez's hands. Second, Thomas was inside his house, looking out through a small panel of
glass. The front porch area where Nunez stood was in shadows. The visible part of the revolver
held by Nunez was black in color, and it would have been difficult for the 71-year-old Thomas to
see the revolver against Nunez's clothing (black pants and black belt). Thomas was not using
anything to magnify his view, such as binoculars (or a rifle scope and magnifier). At the time of
the shooting, Thomas was on the phone,,having a conversation with his neighbor, crouching
down behind his front door to avoid getting shot. In other words, his view across the street was
limited and he did not have his undivided attention on Nunez. Moreover, Thomas provided other
information to police that was not consistent with the evidenco, e.g., the amount of time Nunez
had laid on the ground (5 minutes, compared to the actual time of 30 seconds), or the time
between the gunshots (2 to 5 seconds, compared to the actual time of less than one second).
Thomas recalled correctly that Nunez was wearing a green shirt. But, other information
provided by Thomas, who also refused to go to the police station, was not reliable. For example,
Thomas had diffrculty describing what he heard the police officer say to Nunez. Thomas
mentioned "raise your hands" and other "things" that the police say. The idea that a crisis
intervention officer would tell a man with a gun in his hand to "raise your hands" is simply not
believable. It calls into question whether Thomas was "filling in the blanks" when he spoke with
the detectives. In any event, Thomas' statement that he never saw a gun does not impact the
conclusion that Nunez had a gun and pointed it at police right before he was shot.

The cameras that recorded surveillance video were not close enough to show what Nunezwas
doing on the front porch before he was shot. Video evidence has limitations and cannot depict
all events that are seen and heard by the police officers on the scene. This is a situation where
the surveillance video provides some additional evidence as to what happened but does not
provide a complete picture. The fact that the surveillance video does not show Nunezwith a gun
in his hand does not mean that Nunez was unarmed, for the simple reason that the camera is too
far away to show his hands, their position, what he was holding, and where he was looking.

The investigation clearly shows that Nunez was suicidal. Several witnesses described Nunez's
statements about wanting to die. At approximately 4:15 p.m., Nunez shot himself in the head
with a loaded revolver. The medical evidence shows that Nunez had to pull the trigger twice,
due to the first bullet likely being lodged in the barrel. This is not an investigation into Nunez's
suicide attempt, but the suicide attempt relates in some manner to the state of mind of the officers
involved and whether they acted reasonably, which is the subject of this report. First, by the time
of the officer-involved shooting, the police had confirmed the report that Nunez had shot himself
in the head. In other words, Oficer Santos and Officer Yizntsi knew that Nunez was suicidal
and that his suicide attempt was just over an hour earlier. Second, Officer Santos and Officer
Yizntsi knew that Nunez was still in possession of the handgun that he used to shoot himself. It
should go without saying that, if a man has a handgun that he can use to commit suicide, then he
has a handgun that he can use against the police. Third, Officer Santos and OfficerYizzasi knew
they were dealing with someone who had already fired a gun and refused to follow commands to
drop the gun. It is not unreasonable to believe that a suicidal person, who is acting irrationally
and not speaking to police (whether due to a head injury or a combination of factors), would fire

54
the gun in the direction of police and the houses across the street. It is not unreasonable to
believe that a person who holds on to a gun is doing so because he intends to use the gun again.
This is not to suggest that lawful seldefense or defense of others requires proof that the person
who presented a threat intended to fire another shot. Such proof of intent is not required for
deadly force to be justified. The issue is not the state of mind of Nunez. The issue is whether
the police acted reasonably under the circumstances. Here, the police knew they were dealing
with an irrational, unpredictable person who had apparently decided he had nothing to live for.

California law permits any person to use deadly force where there is a reasonable need to protect
oneself or another person from an apparent, imminent threat of death or great bodily injury.
Here, Officer Santos and Officer Yizzusi each actually and reasonably believed that they needed
to use deadly force to protect themselves and others, when Nunez leveled the gun in the direction
of police. There is no duty to wait until an injury has been inflicted, or for the person to fire the
first shot, for deadly force to be deemed appropriate. The law allows Officer Santos and Officer
Yizzusi to fire their weapons in defense of themselves and others until Nunez no longer posed a
threat.

In short, Officer Santos and OfficerYizntsi genuinely believed that Nunez presented an
imminent threat of death or great bodily irUury to themselves and others. They were confronted
with a situation where Nunez, who had shot himself in the head, was holding a handgun in range
of the police officers who had blocked off the street. The initial advance on the house was
aborted when Nunez showed up at the door with a gun. The police knew that the gun was real,
the gun worked, and it was being held by Nunez who wanted to die and had already fired it once.
Nunez was not following directions from a trained and reassuring police officer who told him,
over and over, for more than 10 minutes, to put the gun down and that the police were not there
to hurt him. There was no opportunity to use less lethal weapons such as a Taser or baton, which
would not have worked anyway from the positions where the police had to take cover. Even if
the handgun were no longer loaded (although it was in this case), a person holding a handgun
presents an imminent threat, especially when the handgun is pointed at police. Under the
circumstances, it is obvious that a person holding a gun has the present ability to fire another
shot, this time in the direction of police, which present an immediate threat to the police officers
in that line of fire, and to anyone inside the houses across the street. When Nunez leveled the
gun, he presented an immediate threat of death or great bodily injury that had to be instantly
dealt with.

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CONCLUSION

When a person points a loaded handgun at the police, the police do not have to wait for the
person to fire the first shot. The person with the gun is an imminent threat to kill or disable
thern. Under the facts and circumstances and applicable law, Officer Santos and Officer Yizzlttsi
were legally justified in using deadly force. Therefore, no crime was committed.

Dated: August 15,2017

Respectfully submitted by
BUD PORTER
Deputy District Attomey

4lL
Approved by
JEFFREY F. ROSEN
District Attorney

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