I N T E R O F F I C E M E M O R A N D UM

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1 I N T E R O F F I C E M E M O R A N D UM DATE: November 9, 2012 PHONE: FROM: Julie A. Peterson Supervising DDA TO: Gary Roth, Assistant DDA Mary Ashley, Chief DDA SUBJECT: Nonfatal Officer Involved Shooting Officer Involved: Officer Andrew Buesa, Barstow Police Department Injured Party: Eddie Varela, DOB 11/25/80, ½ Cactus St, Hesperia Incident : 3/22/12 at 10:00 p.m. Location of Incident: A Residence on 1600 Block of Sunrise Rd, Barstow Investigating Officer: Det. David Johnson Investigating Agency: San Bernardino Sheriff s Office, Homicide Div. DR STAR This memorandum is based on review of the San Bernardino Sheriff s Office reports, the preliminary hearing transcript in the related criminal case against Eddie Varela, and the recordings of the interviews of witnesses Melissa A. and Patricia R. On March 22, 2012, the Barstow Police Department received a call for service at a location on Sunrise Road in the city of Barstow. Officer Andrew Buesa responded to that location. When he arrived, he contacted the reporting parties, Melissa A. and Patricia R. Melissa A. is an adult daughter of Patricia R. They both live at the residence along with two other adults and four children. They advised Officer Buesa that Eddie Varela was at the residence. He had been there most of the day to allow Patricia R s daughter, Nancy, to have visitation of the children that Varela and Nancy have together. Varela was also trying to convince Nancy to get back together with him. As the day progressed, Varela began drinking and would not leave. Varela became increasingly intoxicated, angry, and aggressive. Melissa A. and Patricia R. called the police because Varela was becoming violent. They met the police officer at the street corner and directed him to the house. They stated that Varela was still in the residence along with other adults and some children. Officer Buesa, who was in full uniform, went to the front door with Melissa A. and Patricia R. Officer Buesa knocked on the door and

2 identified himself as a police officer. Melissa A. and Patricia R. looked through the window next to the front door and saw Varela with a large knife in his hand. They warned Officer Buesa that Varela was armed with a knife. Officer Buesa then looked in the window and saw Varela following one of the adults, Kathy P. Varela was coming out of the kitchen and heading toward the hallway leading to the back of the house. Varela was armed with a knife as he followed Kathy P. Officer Buesa feared for the occupants safety so he drew his duty handgun and kicked open the front door. Once the door was kicked open, Officer Buesa saw that Varela was now facing Officer Buesa and was no longer heading toward the back hallway. At the point when the door was kicked open, Varela had advanced toward Officer Buesa who was at the front door. Varela was only five to six feet from Officer Buesa and was still holding the knife over his (Varela s) head. Officer Buesa gave Varela verbal commands three times to drop the knife, but Varela ignored the commands and moved toward Officer Buesa. Officer Buesa, fearing for his life, fired his duty handgun twice at Varela. Varela was struck in the lower abdomen and leg. Varela then fell to the floor. Medical aid was summoned for Varela. Patricia R. corroborates that Officer Buesa had knocked on the door and identified himself as a police officer. Patricia R. saw through the window, that Varela had armed himself with a knife. Patricia R. stated that she thought Varela was going to kill someone and that his eyes looked evil as he looked toward the window and saw Patricia R. Patricia R. yelled that Varela had a knife. Patricia R. states that when she saw the officer kick open the door, Varela was still armed and still coming toward the officer at the door. She states that the look on Varela face was like he didn t care what happened. She heard the officer yell three times to drop the knife. Patricia R. then saw the officer shoot Varela twice. Officer Buesa gave a statement to the investigating officer. In his statement, he said that he saw Varela through the window. Varela had a knife and was standing over a female. Varela then followed the female toward a hallway. Varela was close enough to touch the female and it appeared as if Varela was preventing the female from opening the front door. Varela stood between the female and the front door. Officer Buesa stated that he drew his weapon and ran to the front door. Fearing that Varela was about to stab the female, Officer Buesa kicked open the front door. As the door flung open, Officer Buesa was expecting that Varela s back would be facing him. To Officer Buesa s surprise, Varela was standing at the door five to six feet away from him. Officer Buesa told the detective that Varela was within the 21 foot zone he had been taught to stay out of when somebody is carrying a knife. Varela had the 1000 mile stare in his eyes and was standing with his feet apart, holding the knife up in a cutting motion. Officer Buesa became scared and immediately thought his own personal safety was in jeopardy. At gunpoint, he ordered Varela to drop the knife. Officer Buesa testified at the preliminary hearing that Varela did not comply and Varela moved toward him (Buesa). Officer Buesa fired his duty weapon twice striking Varela. Due to the imminent deadly force that he was facing, Officer Buesa determined that he had no other option except to protect himself by using deadly force.

3 Varela was interviewed later and claimed that he had the knife in his hand because he was preparing to cut a head of lettuce which he had not yet taken out of the refrigerator. He heard a pounding on the door and thought it was Kathy P s new boyfriend, whom he had a confrontation with earlier in the day. Varela stated he walked toward the door and opened it with the knife still in his hand and then someone shot him. Other Relevant Information The suspect, Eddie Varela, has prior convictions dating back to He has convictions for petty theft, petty theft with prior, petty theft with prior, driving under the influence, and felony possession for sales of methamphetamine. On the drugs sales charge, he was originally given probation but then in 2006 he was violated and sent to state prison for two years. Following that, the defendant suffered numerous parole violations up through Legal Standards Self-Defense Against Assault It is lawful to use force against another if a person reasonably believes that there was imminent danger of bodily injury to himself or someone else. The person must reasonably believe that the immediate use of force was necessary to defend against that danger. That person is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. In deciding whether the person s beliefs were reasonable, all the circumstances as they were known to and appeared to that person should be considered as well as what a reasonable person in a similar situation with similar knowledge would have believed. If the person s beliefs were reasonable, the danger does not need to have actually existed. Self-Defense Assailed Person Need Not Retreat A person is not required to retreat. He is entitled to stand his ground and defend himself and, if reasonably necessary, to pursue an assailant until the danger of bodily injury has passed. This is so even if safety could have been achieved by retreating.

4 Self-Defense Actual Danger Not Necessary The person s belief that he or someone else was threatened may be reasonable even if he relied on information that was not true. However, the person must actually and reasonably have believed that the information was true. Analysis Officer Buesa identified himself when he knocked on the door. He did not kick in the door until he observed Varela was armed with a knife and following a female down the hallway. Once Officer Buesa kicked in the door, he observed Varela facing him and advancing toward the officer with the knife held up in a cutting motion. Officer Buesa gave Varela verbal commands to drop the knife, but Varela ignored the verbal commands and continued towards Officer Buesa. Varela was able to get within five to six feet of Officer Buesa when the officer, fearing for his life, fired twice at Varela. It was reasonable to believe the immediate use of force was necessary in this situation when looking at all of the circumstances. Varela was armed. Varela did not comply with commands to drop the knife. Varela kept advancing toward Officer Buesa and in fact got within five to six feet of the officer. It was reasonable to believe that Officer Buesa was in imminent danger. Officer Buesa s statement indicates that his state of mind at the time of the use of lethal force was that he was in fear for his life. His statement describing Varela s conduct, Varela s failure to comply, and Varela s close proximity to Officer Buesa supports that fear as being reasonable given these circumstances. Conclusion The shooting of Varela by Officer Buesa was justifiable in self-defense. No criminal liability attaches to the conduct of the involved officer. Julie A. Peterson Supervising Deputy District Attorney

5 Mary Ashley Chief Deputy District Attorney Gary Roth Assistant Deputy District Attorney