Lee V.

Cunningham
DAN DOW Assistant District Attorney
DISTRICT ATTORNEY
Jerret C. Gran
Chief Deputy District Attorney
1035 Palm Street
San Luis Obispo, CA 93408 Sheryl M. Wolcott
Chief Deputy District Attorney
Tel. (805) 781-5800
Fax. (805) 781-4307 William M. Hanley
www.slocounty.ca.gov/DA Chief, Bureau of Investigations
June 9, 2017

Sheriff Ian Parkinson

County of San Luis Obispo
1585 Kansas Ave.
San Luis Obispo, CA 93405

Re: Officer Involved Shooting Investigation and Findings

San Luis Obispo Sheriff’s Case No.: OIS 17-001

Deceased Person: Josue Gallardo DOB 10/12/82
Date of Incident: 01/24/17
Location: U.S. Hwy 101, North of Hwy 58 exit
Involved Deputies: Gregory Roach and Jonathan Calvert
Date Investigation commenced by the Office of the District Attorney: 03/14/17

Dear Sheriff Parkinson:

The District Attorney’s Office has completed its independent investigation and review of
the above referenced officer involved shooting. Our review does not address issues of
civil liability, tactics, or departmental policies or procedures. We address only the
question of whether the involved deputies’ use of deadly force in the shooting of Mr.
Gallardo was lawful or unlawful under the facts of this incident. For the reasons set forth
below, we conclude that the evidence in this case requires a finding that the use of deadly
force by Deputies Calvert and Roach was lawful under the law, and therefore no further
action will be taken by the District Attorney’s Office.

Written reports and other documentary items were reviewed. These consisted of:
 San Luis Obispo County Sheriff’s Office (SLOSO) Report # 17-001 and
supplemental reports 1-36;
 All items listed as “Addenda” to OIS 17-001 (1-15) – Exhibit A attached;
 The in-car video of the incident;
 Audio of voluntary statements of Deputies Roach and Calvert;
 CD with photos of the weapons involved;
 Scene photos taken by Forensic Specialist Ken Jones (Ev. Item # 46);
 Audio of witness interviews: Lauren Blasingame (Carlton Hotel Front
Desk Associate) and Deana Alexander (Carlton Hotel Manager) (Ev. Item
# 47);
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 2

 Photos of Carlton Hotel Room 316 taken by Dep. Nicholson (Ev. Item #
64);
 Autopsy photos of Josue Gallardo taken by Forensic Specialist Jeanine
West (Ev. Item # 88);
 Photos of Coroner’s evidentiary items taken by Forensic Specialist Jeanine
West (Ev. Item # 89);
 Audio of Atascadero Jewelry & Loan employee Angela Woeste interview
(Ev. Item # 94);
 Scene photos taken by Dep. Roach (Ev. Items # 95 & 96);
 “Body Cam” video footage of Paso Robles Police Department (PRPD)
Officer Chubbuck’s 01/20/17 conversation with Francis Gallardo and
Josue Gallardo’s mother (Ev. Items # 99 & 100);
 Audio of Dep. Zuchelli’s 03/01/17 conversation with Richard Lara (Ev.
Item # 106);
 Photos of Forensic Specialist Ken Jones’ examination of Cadillac, License
# 7TRF766 (Ev. Item # 172);
 California Highway Patrol (CHP) MAIT team’s Leica scan of Cadillac,
License # TRF766 (Ev. Item # 173);
 SLOSO Case # 1611-10290 documenting
on 11/26/16;
 SLOSO Case # 1606-05355 documenting
on 06/23/16;
 SLOSO Case # 1701-00203 by Deputy Roach documenting
on 01/09/17;
 SLOSO Case #s 1611-10111, 1611-10289, and 1612-10736 documenting
on 11/19/16, 11/26/16,
and 12/11/16 respectively.

JOSUE GALLARDO
Josue Gallardo, born on 10/12/82, was approximately 5’ 11” tall and weighed
approximately 148 pounds.

CRIMINAL HISTORY
Josue Gallardo’s
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 3

DECEDENT’S MENTAL STATE

As recently as four days prior to the shooting his

and also expressed concern about his drug use and his mental state.
Gallardo’s , reported that
, Gallardo had placed a knife to his neck in front of
and and threatened to kill himself. When contacted by Sheriff’s deputies
shortly after that incident on 06/23/16, Gallardo admitted doing so, and also expressed a
desire to Deputies Roach and McFarland to kill himself (SLOSO Case # 1606-05355).
On 11/26/16 Sheriff’s deputies McFarland and Knowlton responded to Shandon, due to a
report of a family disturbance reported by . When the deputies contacted
Josue Gallardo, he started walking away from them, saying he did not want to live. He
asked the deputies several times to shoot him, and he told them he was going to kill
himself. During the contact, he continued to yell that he didn’t want to live and he
wanted to kill himself. He told the deputies he had tried to hang himself several times
with a rope, including the night before. He said he had also tried overdosing on cocaine.
In his vehicle, the deputies found cocaine, and a wet rope, which Gallardo said he had
used in trying to hang himself.

An examination of Josue Gallardo’s Facebook records revealed that on 01/03/17 he had

posted a message stating, “I’m gonna commit suicide”. On 01/20/17 he posted, “Ohh no
girl, I’m suicidal.” In addition to the suicide threats, he also posted that he was
depressed, his wife had cheated on him, and he had lost 15 pounds.
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 4

On 01/19/17 Josue purchased an arrangement of roses at Country Florist in Paso Robles.

He hand-wrote a card to accompany the flowers and had them sent to at
place of employment. called PRPD the next day (01/20/17), because of the
suicidal statements expressed in the card. PRPD Officer Robert Chubbuck recalls the
card saying that Josue Gallardo wanted to obtain some carbon monoxide and kill himself.
told Officer Chubbuck that Josue had been sending her messages every day
saying, “I’m gonna kill myself, I’m gonna do this, I’m gonna hang myself…”.
On 01/20/17 received a series of suicidal emails from Josue. One included this
photograph of Josue holding a gun to his head:

Josue Gallardo checked into the Carlton Hotel in Atascadero on 01/20/17. Hotel
Manager and Front Desk Associate had several
conversations with Gallardo between his check-in and 01/24/17. He spoke of his wife
cheating on him and how he “couldn’t get over it.” Although he was friendly, he seemed
“really paranoid.” He monitored a police scanner in his car. Alexander suspected
Gallardo was using drugs – his cheeks were “caved in,” he was fidgety, and his speech
was so rapid that he was hard to understand.
When stopped by Deputies Calvert and Roach on the night of the shooting, he told
Deputy Calvert, “I want you to shoot me,” and “I want you to kill me”.

After the shooting, deputies found the following suicide note in the trunk of Gallardo’s
car:
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 5

SUICIDE NOTE
First of I'm very sorry to my family for taking the cowards way out,
mainly my 2 boys, my great mother, my 3 sisters, and my brother. My
wife will be happy for this, for my life insurance which I change to my
mom and kids. Yes my kids are the most important thing but
everything that's going on is to overwhemly. My wife the best thing that
happen to me has been sleeping around for 7 months, multiple times &
men & kids very sad. Though my addictions ruin everything I always
seek help when she never wanted any cuz she claim she was perfect,
Once I caught her and she with who, which she got me arrested cuz
accused her and I was right yes I wasn't the best husband and father
but I never ever touch another woman. My wondering from the signs all
makes since now, from claiming to go out of town for work, working on
days that she said they never work, etc etc I can go on forever. Thogh I
blew it with my issues but never cheated as she did many times even in
my house while I was there and when I caght her”

DRUG USE
It seems likely that Josue Gallardo’s suicidal mental state was at least aggravated, if not
caused by, his abuse of cocaine. (See Diagnostic & Statistical Manual of Mental
Disorders, 5th Edition (DSM V), pages 175-180.)

In a phone conversation with PRPD Officer Chubbuck on 01/20/17, Josue Gallardo’s

and describe how Josue had been abusing cocaine “lately” and had
lost the job that he had held for 14 years. They also describe his increasing paranoia and
the feeling that the whole world was against him.

By all appearances, Josue Gallardo’s downward spiral into depression and drug use
coincides with the end of his relationship with his wife .

and other family members all expressed concern about his drug abuse.

of Country Florist, with whom Gallardo placed the order on 01/19/17 for
roses to be delivered to , said it was obvious to her that he was “on something”.

, the Carlton Hotel Manager, suspected Gallardo was “on drugs” during
his stay at the Carlton from 01/20/17 to 01/23/17.
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 6

On 11/26/16 Gallardo told Sheriff’s deputies McFarland and Knowlton that he had tried
to kill himself by overdosing on cocaine, that he was a cocaine user in need of “rehab”,
and that he had snorted several lines of cocaine just prior to their contact. At the time,
there was .62 grams of cocaine (a usable amount) in his truck.

The search of Gallardo’s room at the Carlton Hotel after the shooting yielded evidence of
cocaine use, as well as .34 grams of cocaine in the closet, and 6.4 grams of cocaine in the
closet safe.

Gallardo had 1.05 grams of cocaine in his right shoe, as well as a “potentially toxic” level
of cocaine in his blood at the time of his death.

JOSUE GALLARDO’S GUN

During the aforementioned search of Josue Gallardo’s hotel room at the Carlton Hotel,
deputies found a cloth bag containing packaging and a manual for a “Legends” semi-
automatic CO2 BB pistol, as well as packaging for 1500 rounds of BBs and CO2
cartridges. In the same bag was a Wal-Mart receipt for the gun’s purchase, indicating
that it was purchased at the Paso Robles Wal-Mart at 2:57 pm on 01/18/17. Gallardo can
be seen in Wal-Mart video footage taken at that date and approximate time.

This gun was determined to be the same gun as recovered from Gallardo’s right hand
after the shooting.

The gun is designed and intended by the manufacturer to be an exact replica of a Walther
PPK semi-automatic firearm.

As can be seen in these photos, the Legends BB pistol and the Walther PPK firearm are
very similar in appearance.

Walther PPK Legends BB Pistol

June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 7

Here is another comparison using the BB pistol possessed by Gallardo:

JANUARY 24, 2017 12:05 A.M.

On January 24, 2017, at approximately 12:05 a.m., uniformed SLOSO Deputies Gregory
Roach and Jonathan Calvert were southbound on U.S. Highway 101, just south of the
Santa Barbara Road interchange, in a marked Sheriff’s patrol car, with Deputy Calvert
driving.

Deputy Roach recognized the silver Cadillac sedan that was in front of them. Two weeks
earlier, on January 9, 2017, Deputy Roach had been dispatched to an address in Shandon,
on a complaint of trespassing. The reporting party had returned to home at
approximately 8:30 a.m., after grocery shopping, to find a “brand new, big Cadillac”
backed into driveway. As neared front door saw ex-neighbor, Josue
Gallardo, hiding in the exterior front entry area. The reporting party believed there was a
restraining order preventing Josue Gallardo from being near house, and that he and
his wife were getting a divorce. The reporting party chased Gallardo away, and
he left in the grey Cadillac. Dispatch told Deputy Roach that there was a $25,000
warrant for Gallardo’s arrest, in addition to two active restraining orders.

Almost two hours later, Deputy Roach found a new 2017 grey or silver Cadillac XTS
parked unoccupied in Shandon. A license plate check on the car’s plate (7TRF766)
revealed that the car was registered to Hertz Rent-a-Car. Gallardo was not found.
Deputy Roach was already familiar with Josue Gallardo. On 06/23/16 he had been
dispatched to the Gallardo residence in Shandon to investigate a report of domestic
violence. On the way there, Deputy Roach and Deputy Ian McFarland spotted Josue
Gallardo and contacted him. In the subsequent conversation, Gallardo admitted pushing
his wife to the ground, and holding a knife to his throat while threatening to kill
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 8

himself. Gallardo repeatedly told the deputies he hated his life, and wanted to kill
himself.

While following the Cadillac, Deputy Roach told Deputy Calvert that if the license plate
returned as a rental car, it would probably be driven by Josue Gallardo, who had a
warrant for his arrest. Roach ran the Cadillac’s plate, and it did return as a Hertz rental
car.

The deputies pulled alongside the Cadillac on the right and illuminated the interior of the
car with the patrol car’s left-facing “alley light”. In addition to his contact with Gallardo
on 06/23/16, Roach had recently seen a photo of Gallardo, and recognized him as the
driver and only occupant of the Cadillac. Deputy Roach told Calvert to conduct a traffic
stop on the car, in order to arrest Gallardo for the outstanding warrant.

At approximately 12:08 a.m., Gallardo yielded to the right shoulder of southbound U.S.
Highway 101 north of the Highway 58 exit.

Deputy Roach approached the car on the passenger side, and illuminated the interior with
his flashlight. He was somewhat elevated, as he was standing on an inclined
embankment. Roach’s weapon, a .40 caliber Glock 22 semi-automatic handgun, was
drawn and held down by his right leg.

Deputy Calvert approached on the driver’s side. Calvert’s weapon, a Glock 17, 9 mm
semi-automatic handgun, was drawn due to a sense that Gallardo might be dangerous.
Gallardo had what Calvert thought was an agitated or angry look on his face when the car
had been illuminated by the alley light. As Calvert got to the proximity of the Cadillac’s
rear bumper, he could see that Gallardo was “tense” and “agitated”. Gallardo was saying
something like, “This is fucked up man.” Calvert thought that Gallardo was about to run
or fight.

Gallardo began saying, “I want you to shoot me, I want you to kill me.” Calvert told
Gallardo, “I don’t want to kill you. I don’t know you.” At times it looked like Gallardo
was trying to get something from the area of his right pocket, at other times he put his
hands outside the window as ordered.

Calvert holstered his weapon at one point, but drew it again when Gallardo failed to
comply with orders to show his hands. Calvert asked Gallardo if he had a gun, but didn’t
get an answer. Calvert saw the driver’s door start to open, and he began to back up.
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 9

Meanwhile, Deputy Roach clearly saw Gallardo’s hand move down and toward his right
pants pocket. With the aid of his flashlight, Roach could clearly see Gallardo’s lower
torso area, and saw him reach into his pocket and pull out a gun. He saw Gallardo swing
the gun up and across his body toward the driver’s door, and it appeared that Gallardo
was about to shoot Deputy Calvert.

Calvert heard Roach yell, “Gun!” (Deputy Roach does not remember yelling “Gun!”.
Passing cars create enough background noise on the in-car video to prevent confirmation
of this fact, but logic would indicate that it is highly probable that Deputy Roach would
try to alert Deputy Calvert to the gun.)

Deputy Roach began firing into the car. Deputy Calvert saw the driver’s door opening,
heard Roach firing, and he began firing into the car. Deputy Roach continued to fire until
he saw Gallardo’s body fall forward and slump toward the right of the steering wheel. In
all, Deputy Roach fired 15 rounds into the car, and, consistent with his training, fired
until it seemed likely that the danger no longer presented itself.

Deputy Calvert fired as he backed away from the open driver’s door, to a point behind
the trunk. In all, he fired 20 rounds. He likewise fired until it seemed likely that the
danger no longer presented itself.

Both deputies believed that Deputy Calvert was about to be shot at when they began to
fire. Neither felt as though there was any other option. Once the shooting started, the
deputies were unable to see clearly into the car, due to darkness, the body of the car, and
shattered glass.

After the arrival of additional deputies and an Atascadero Police Officer, Deputy Roach
approached the driver’s door and saw Gallardo in the driver’s seat, slumped to his right,
with blood dripping from his ear and from a wound on his forehead. There was a black
semi-automatic pistol in Gallardo's lap, positioned between his legs. Roach took the gun
and placed it on top of the Cadillac. He felt for a pulse, but could not feel one. Gallardo
was pronounced deceased at the scene, at approximately 12:35 a.m.

The foregoing description of the shooting is corroborated by the in-car video, which
captured the event.
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 10

An autopsy was performed on January 25, 2017. Pathologist Gary Walter, M.D.,
determined that the cause of Josue Gallardo’s death was “exsanguination” due to multiple
penetrating/perforating gunshot wounds.

The autopsy revealed 12 gunshot wounds, representing 7 rounds. Wound #1, described
as entering on the back of the head on the right side and exiting at Wound #2 above the
left eyebrow is a fatal wound, traversing the brain.

ANALYSIS AND CONCLUSIONS

The Office of the District Attorney is charged with reviewing and analyzing all of the
evidence in a shooting involving a peace officer, in order to determine whether the
officer(s) acted lawfully.

The District Attorney’s policy regarding crime charging is as follows:

“The prosecutor should charge only if the following four basic requirements are satisfied:
1. The prosecutor, based on a complete investigation and a thorough
consideration of all pertinent facts readily available, is satisfied that the
evidence proves that the accused is guilty of the crime to be charged:
2. There is legally sufficient, admissible evidence of a corpus delicti;
3. There is legally sufficient, admissible evidence of the accused’s identity as the
perpetrator of the crime charged; and
4. The prosecutor has considered the probability of conviction by an objective
fact finder and has determined that the admissible evidence is of such
convincing force that it would warrant conviction of the crime charged by a
reasonable and objective fact finder after hearing all the evidence available to
the prosecutor at the time of the charging and after considering the most
plausible and reasonably foreseeable defenses.”

If no criminal charges are filed based on the “Officer Involved Shooting”, the District
Attorney will issue a closing report summarizing the results of the investigation and
analyzing the evidence. This report will address the question of whether or not there is
proof beyond a reasonable doubt that an officer, deputy, or any other person committed a
crime. It is not the purpose of the District Attorney’s investigation or report to determine
if any officer or deputy violated police policy or procedure, or committed any act that
would be subject to civil sanctions. The District Attorney’s Office will make every effort
to issue a closing report containing its findings and conclusion within 90 days of the
receipt of the completed investigation package. Criminal Justice Administrator’s
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 11

Association, San Luis Obispo County, Officer Involved Incident Protocol, Reviewed
January 1, 2017.

The law of “justifiable homicide” is found in Penal Code §§ 197-199, but is set forth in
understandable detail in CalCrim Jury Instruction # 505.

The pertinent portion of CalCrim 505 reads:

“The defendant is not guilty of murder or manslaughter if he was justified in

killing someone in self-defense or defense of another. The defendant acted in lawful self-
defense or defense of another if:
1. The defendant reasonably believed that he or someone else was in imminent
danger of being killed or suffering great bodily injury;
2. The defendant reasonably believed that the immediate use of deadly force
was necessary to defend against that danger; and
3. The defendant used no more force than was reasonably necessary to defend
against that danger.

The defendant must have believed there was imminent danger of death or great bodily
injury to himself or someone else. Defendant’s belief must have been reasonable and he
must have acted only because of that belief. The defendant is only entitled to use that
amount of force that a reasonable person would believe is necessary in the same situation.

When deciding whether the defendant’s beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the defendant and consider what a
reasonable person in a similar situation with similar knowledge would have believed. If
the defendant’s beliefs were reasonable, the danger does not need to have actually
existed.

A defendant is not required to retreat. He is entitled to stand his ground and defend
himself. This is so even if safety could have been achieved by retreating.”

Another pertinent statute is Penal Code § 835:

Any peace officer who has reasonable cause to believe that the person to be
arrested has committed a public offense may use reasonable force to effect the arrest, to
prevent escape or to overcome resistance.
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 12

A peace officer who makes or attempts to make an arrest need not retreat or desist from
his efforts by reason of the resistance or threatened resistance of the person being
arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense
by the use of reasonable force to effect the arrest or to prevent escape or to overcome
resistance.

As can be seen, reasonableness is the determinative factor when assessing the lawfulness
of a shooting done in self-defense or defense of others. Case law is instructive when
evaluating the reasonableness of a peace officer’s actions:

“[A]n officer may reasonably use deadly force when he or she confronts an armed
suspect in close proximity whose actions indicate an intent to attack.”
Brown v Roseweiler (2009)
171 Cal.App.4th 516, 528

“…The reasonableness of an officer’s particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight…”
Graham v Conner (1989)
490 U.S. 386, 396

“…the calculus of reasonableness must embody allowance for the fact that public officers
are often forced to make split-second judgments – in circumstances that are tense,
uncertain, and rapidly evolving – about the amount of force that is necessary in a
particular situation…”
Graham v Conner (1989)
Supra at 396-397

Applying these legal principles to this incident, Deputy Roach clearly saw what he
reasonably believed to be a firearm in the right hand of Josue Gallardo. As Gallardo
swung the gun across his body toward the door as he was opening it, Roach reasonably
believed that Gallardo was about to shoot Deputy Calvert.

Deputy Calvert, unable to see Gallardo’s hand, and getting no verbal response to his
question, “Do you have a gun?”, saw the driver’s door begin to open, heard Roach yell
“Gun!”, and heard Roach begin firing his weapon. He reasonable believed at that point
that he was about to be fired upon. Being fired upon at close range represents an
June 9, 2017
Report to Sheriff Ian Parkinson
Re: Officer Involved Shooting Investigation and Findings
San Luis Obispo Sheriff’s Case No.: OIS 17-001
Page 13

imminent danger of death or great bodily injury. Only deadly force was sufficient to
protect against being shot.

Both deputies, in the words of the Brown decision, were confronted with an armed
suspect in close proximity whose actions indicated an intent to attack. Thus, they could
reasonably use deadly force.

Since the deputies’ beliefs were reasonable, considering all of the circumstances apparent
to them, it does not matter that the danger of death or great bodily injury may not have
existed because, unbeknownst to them, the weapon was a BB gun. In the words of the
CalCrim jury instruction quoted above, “If the defendant’s beliefs were reasonable, the
danger does not need to have actually existed.” As may be seen in the comparison
photographs in an earlier section of this report, it was reasonable to believe that the object
in Gallardo’s right hand was a firearm.

Therefore, the use of deadly force by both Deputy Roach and Deputy Calvert was
justified under the law, and this office will take no further action.

Very truly yours,

Dan Dow
District Attorney, County of San Luis Obispo
State of California

____________________________________
By: Lee V. Cunningham
Assistant District Attorney

Cc: Dan Dow, District Attorney

William M. Hanley, D.A. Chief Investigator