The Orange County District Attorney's office released on Wednesday their findings into the fatal Santa Ana shooting by on-duty Officer Frank Gutierrez of 21-year-old Andres Ramirez. And the ruling was—surprise, surprise!—justified. The nine-page report comes nearly three years after the incident and more than a year after a $1 million pre-trial wrongful death lawsuit settlement. The shooting itself occurred one day after the OCDA announced a new disclosure policy regarding investigating into such incidents.
In the encounter, Ramirez—a father of two visiting Santa Ana from North Carolina—had sustained a shot to the back of his head, with Officer Gutierrez claiming that he brandished a knife and was pivoting to potentially attack him. The Santa Ana policeman was the sole witness to the shooting.
"Based upon a review of all of the evidence provided to and obtained by the OCDA...it is our legal opinion that the evidence does not support a finding of criminal culpability on the part of Officer Gutierrez," reads the letter signed by Senior Deputy District Attorney Howard P. Gundy. The agency went on to note that there is "credible evidence" that the policeman acted in self-defense.
The incident happened around 9:30 p.m. on the night of December 10, 2010, when Gutierrez and Officer Mike Heitmann conducted a patrol check of apartment complexes on South Pacific Ave. and South Popular Street after Gutierrez had earlier responded to reported calls of gang members drinking in the alley.
According to Gutierrez, he flashed his spotlight on individuals who fled on foot, but then later saw Ramirez in a carport and commanded him to put his hands in the air. The officer spotted a knife that he says was later concealed from view. Ramirez was looking to his left and right while "creeping" backward. Then came the critical moment. "As I start stepping out of the vehicle...I can see him already trying to lower his stance," Gutierrez is quoted as saying. "So as soon as I saw his leg pivoting to turn, that's when I, I took that shot."
In his account, the policeman grabbed the knife out of Ramirez's hand next, realized he should have kicked it instead, and subsequently tossed it to the ground.
"First of all, just as far as the letter itself goes, the content and the timing of this is completely unprecedented," says Dana Douglas, an attorney who represented the Ramirez family in the wrongful death civil suit. "This just injures the family again. It makes the experience worse for them having to relive this."
Though Officer Heitmann was deposed in the civil suit, Gutierrez was not. "We set his deposition multiple times," the attorney says. "He failed to show up and refused to testify. In fact, the last time, which was just before the mediation where we settled the case, even his attorney was there, then he called and said he had a cold and wasn't going to come."
It wasn't until June 18, 2012 that Gutierrez submitted a DNA swab test. Months later, on September 25, 2012, he finally provided a voluntary statement to OCDA investigators. Testing found the DNA of both Ramirez and Gutierrez on the knife. The DA found that to be consistent with the version of events provided by the officer as well as the bullet wound trajectory provided in the autopsy report. Douglass, unsurprisingly, doesn't agree.
"The bullet wound entry is not consistent with someone in the midst of turning," she claims. "He was shot almost directly in the back of the head, less than an inch from midline. The trajectory of the bullet traveled almost straight through the brain. It went a little bit right-to-left but not like someone who was turning."
As to the significant lapse of time between the fatal shooting and the voluntary statement by the shooter? The investigative letter addresses that question.
"That Officer Gutierrez waited 20 months to make a statement to the OCDA may seem troubling, and it could give rise to an inference that his statement was tailored to conform to the known extrinsic evidence," says the report. "But otherwise his silence does not constitute evidence against him."
As the Ramirez family is unavailable for comment, Douglas is more than beside herself. "I've never seen a DA's letter like this one," she says. "I don't see how they can put it up there with a straight face."
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Through a previous attorney, Officer Gutierrez repeatedly declined requests to speak about the incident.
The OCDA investigative letter can be read in its entirety online.
Follow Gabriel San Román on Twitter @dpalabraz