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

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I N T E R O F F I C E M E M O R A N D U M DATE: September 10, 2013 PHONE: (909) 387-8309 FROM: Ronald D.

1 I N T E R O F F I C E M E M O R A N D U M DATE: September 10, 2013 PHONE: (909) FROM: Ronald D. Webster, Deputy District Attorney TO: Mary Ashley, Chief Deputy District Attorney SUBJECT: Officer Involved Shooting - Fatal Officers Involved: Involved Agency: Deputy Marc Beitler San Bernardino County Sheriff-Yucaipa Involved Subject: Theodore Wann (DOB: 7/13/1989) Avenue G, Yucaipa, California Incident Date: August 13, 2012 Investigating Agency: Location: Detective Steve Pennington, San Bernardino County Sheriff Avenue G Yucaipa, California DR #: Report # DA STAR #: District Attorney STAR# FACTUAL SUMMARY On August 13, 2012 at approximately 4:50 am, subject Theodore Wann (hereinafter Wann ) called the operator to report that numerous cars were following him. He reported that he was in Yucaipa on Bryant Street. When asked for more details, he hangs up on the operator. From a review of the video surveillance of the 7-11 store located on Bryant Street in Yucaipa, it appears that this call is placed while Wann was in 1

2 the parking lot of the store which is located approximately 2.3 miles from his residence. When the 911 operator calls back, Wann states that he is being following by an orange Ford Focus. He says that he is in Yucaipa at the 7. When the operator asks where he is, he says he already told her. When she says that she doesn t know where he is, he says Ah, you f--k, whoever the f--k this is, is ridiculous. The operator asks his name and he replies, F--k you, and hangs up. Wann then enters the 7-11 store and asks the clerk to call because he was being followed. When the clerk calls for him, Wann demands to speak to the operator. When handed the phone, Wann tugs on the phone and acts aggressively towards the clerk and a nearby customer, causing them both to back away several feet. Wann refuses to give the phone back to the clerk who then goes to a different phone and calls to report Wann s conduct. Wann again hangs up on the operator. Wann again calls and says that, They are going to try to hurt me, when asked who, he mentions 7-11 and hangs up. Wann calls again requesting an officer respond to his location, and questioning whether would have called back after a hang up. He refuses to give his name and says that he needs help, he then leaves without completing the call. Deputy Marc Beitler 1 responded to a call for service at the 7-11 store. Deputy Beitler was told by the store clerk that he had called upon the request of a subject (later determined from surveillance video to be Theodore Wann) who stated that unknown people were following him. The clerk told Deputy Beitler that after he made the call, the subject grabbed the phone from the clerk and threw it. Deputy Beitler was told that the subject departed the 7-11 store in a dark colored Chevrolet pickup truck. During this contact, Deputy Beitler observed that the 7-11 clerk appeared fearful when describing the incident with the subject. While at the 7-11, Deputy Beitler was asked by a customer who had been present during the incident to remain in the store because he was scared. 1 Throughout all described incidents, Marc Beitler was working as a deputy Sheriff. He was dressed in a department approved Class A uniform. He was assigned to work in the city of Yucaipa. 2

3 Deputy Gorden told Deputy Beitler that he had received a call for service involving a similar vehicle and similar set of circumstances, near the 7-11 service call. Deputy Beitler thought it was related to his callout. At approximately 6:26 am, Wann s mother called requesting help dealing with her son who was acting paranoid and believed people were following him. She reported that he was taking unknown narcotics and had not slept for some time. Wann s mother expressed concern that her son was attempting to leave in his vehicle. In response, at approximately 6:30 am, Deputies Beitler and Gordon were dispatched to her residence located on Avenue G in Yucaipa. When deputies arrived they spoke with Wann s mother in the front yard. She said that her son was acting strange. As the deputies approached the location, Wann walked away towards the back of the property. Both deputies observed a vehicle at the residence matching the description of the vehicle involved in their earlier calls for service. Deputy Beitler searched the property for several minutes, but was unable to locate Wann. He returned to speak with Wann s mother who told him that Wann had a history of using Heroin and Methamphetamine. While standing to the front of the property, a Spanish speaking male, told the deputies that the subject they may be looking for was hiding in a nearby tree. Based on this information, both deputies began an area check of nearby trees and shrubs for Wann. Deputy Beitler then drove his unit to an area where he could see the wash behind the Wann residence. As Deputy Beitler walked along the wash he observed Wann jump from a tree and run away from him over a block wall. Deputy Beitler continued walking in the direction Wann was fleeing. During this time, Deputy Beitler observed Wann jump down 10 to 15 feet from within another tree and continue running east. Deputy Beitler saw Wann enter a cargo container (referred to by some witnesses as a Conex container). Deputy Beitler jumped the back fence of the property and moved toward the cargo container. When he looked into the container, Deputy Beitler saw several bales of hay, but did not see Wann inside. He then walked around the container 3

4 to see if there was another exit to the container. Finding none that were open, Deputy Beitler returned to the entrance. Deputy Beitler drew his duty weapon and his department issued flashlight, entered the container and began a search for Wann. Wann was found hiding between piles of hay towards the back of the storage container. Deputy Beitler ordered Wann to come out from where he was hiding. Wann exited from his hiding place. Wann initially ignored Deputy Beitler s directive to put his hands behind his back. After being told a second time to place his hands behind his back, Wann complied. Deputy Beitler holstered his duty weapon in preparation to handcuff Wann. When Deputy Beitler grabbed Wann s right wrist, Wann straightened his arm and spun towards his right side, positioning himself face to face with Deputy Beitler and causing Deputy Beitler to lose control over Wann s wrist. Deputy Beitler was unable to regain control of Wann. Wann appeared to Deputy Beitler as though he were ready to fight. Wann pushed Deputy Beitler in the chest. Deputy Beitler responded by punching Wann in the face, which caused Wann to fall to the ground. As Wann was on the ground, Deputy Beitler again attempted to control Wann by pinning him to the ground by placing his knees on each side of Wann s body. Wann continued to actively resist Deputy Beitler by saying no to commands to put his hands behind his back and by kicking at and attempting to elbow Deputy Beitler. In response, Deputy Beitler punched Wann four times above the right ear. Due to the confined space within the container, Deputy Beitler stood up and stepped back from Wann. While stepping back, Deputy Beitler produced his department issued baton. Deputy Beitler continued to order Wann to turn around and put his hands behind his back. Wann disobeyed these commands and began to stand up. As Wann was rising, Deputy Beitler struck him three to four times with his baton causing Wann to fall toward the back of the container. Wann continued to disobey commands to put his hands behind his back, and continued to stand up. 4

5 Deputy Beitler struggled to find his microphone to call for assistance as it had dislodged and fallen during the altercation with Wann. He keyed his radio and advised dispatch of the incident, however, he was concerned that no one was receiving his call due to the positioning of his microphone. When Wann again rose, Deputy Beitler struck him several times with his baton. Wann used his hands to deflect the baton strikes while continuing to yell No. Wann then stopped and turned towards the shovel and reached for it, Deputy Beitler continued to deliver baton strikes. Wann grabbed the deputy s baton, causing it to fall to the ground. Wann and Beitler each struggled to get the baton, Deputy Beitler was able to secure his baton. Wann then turned and grabbed the shovel, pointing the handle at Deputy Beitler. Deputy Beitler dropped his baton and attempted to take the shovel away from Wann, during the struggle it fell to the ground. Wann picked up the shovel and pointed the metal blade at Deputy Beitler. Deputy Beitler stepped back, drew his duty weapon from his holster and ordered Wann to drop the shovel. Wann failed to comply with the orders and began to advance toward Deputy Beitler with the shovel head facing Deputy Beitler. Deputy Beitler noted that Wann demonstrated incredible strength during the encounter and presented as a very dangerous person. Afraid that Wann would strike and kill him with the shovel, Deputy Beitler fired three rounds from his duty weapon at Wann. Deputy Beitler did not know if his first shots had struck Wann. Wann crouched down still holding the shovel in front of him, moving towards the deputy. Deputy Beitler fired two more rounds at Wann. After the second round of shots, Wann crouched down with the front part of his body facing the ground. Deputy Beitler took the shovel from Wann. Deputy Beitler then notified dispatch of the incident and called for medical aid. Deputy Beitler checked Wann and found that he had an active pulse. Wann was pronounced dead a short time later. WITNESS STATEMENTS DONNA J., Citizen Witness 5

6 Donna J lived at the residence where the encounter took place (Avenue G). On August 13, 2012, at between 6:30 am and 6:45 am, she saw a deputy Sheriff was walking through her back yard. She walked outside to see if he needed assistance. As she neared the Conex cargo container, she heard yelling and fighting from inside the container. She could not make out the words yelled or who was yelling, but heard loud crash bang and yelling inside the container. She reported that she stored hay, straw, a flat nose shovel, hay hooks, a machete and horse feed in the container. As she turned towards the container, she heard four (4) gunshots. From her vantage point she could see the deputies back in the doorway of the Conex container. She took cover behind a tree and called 911. While on the phone with the 911 operator, she heard the deputy notified dispatch of the shooting. TOM D., Citizen Witness Tom D. was in the back yard of the property adjacent to Avenue G. He observed a deputy, later identified as Deputy Mark Beitler, who asked him if he had seen anyone run through the backyard he was in. Witness D., said no, and said that there was a large pit bull dog in the yard that would have bitten anyone coming into the yard. Witness D. observed Deputy Beitler walk into the Conex container. Witness D. said that within a minute of the deputy entering the container that he heard a few thumps followed by an unknown person yelling, Help, help someone help, ow, ok, ok someone help. Witness D. reported that it sounded like someone was being punched inside the container. Witness D. stated that immediately after hearing the cries from help, he heard the deputy yell, Hands behind your back, followed by more thumping and scuffling sounds. It sounded like a fight was occurring in the Conex container, but Witness D. could not see what was happening. The unknown person stopped calling for help when Witness D. heard the deputy twice yell, Put the shovel down, followed by four gunshots. After the gunshots, Witness D. heard the deputy report he had fired shots and his location over the radio. Witness D. observed Deputy Beitler emerge from the Conex container with blood covered hands, his uniform dirtied up and his nametag hanging detached from his shirt pocket. 6

7 ANTONIO D., Citizen Witness Antonio D. told investigators that he observed a Deputy Sheriff, who appeared to be looking for someone, jump a fence. He also observed a white male, approximately 21 years old, wearing no shirt, run out of the back of a residence on G Street and climb a tree, and later jump from the tree as the deputy continued walking after him. MICHAEL W., Citizen Witness Michael W., the father of Theodore Wann, was aware that his son was on probation for pushing a store clerk in the process of stealing a candy bar. Michael W. stated that his son began using Oxycodone while in college and later transitioned to heroin. He estimated that his son had been using narcotics for approximately five years. On the date of the incident, Michael W. was informed by his wife and daughter that his son was at their home acting confused and thinking that people were chasing him. Michael W. had suggested that the Sheriff s department be contacted. This was the only time that he was aware of his son acting delusional. NARCOTICS ANALYSIS When coroner technician Rodriguez was processing Wann s body, she found a plastic bindle in Wann s right sock that contained a white powdery substance. The white crystal solid (.10 gram) was found to contain Methamphetamine. According to a Biotox Laboratories, an analysis of Wann s blood detected the presence of Amphetamines, Opiates, Cannabinoids, Alcohol (.01% BAC; 0.0% urine), Methamphetamine (2.31 mg/l), Amphetamine (.233 mg/l); Morphine total (.021 mg/l), A search of the trailer Theodore Wann was living in on his parent s property uncovered suspected narcotics packaging in the trash, along with an open syringe and spoons that appeared to have been used to prepare narcotics for injection. An analysis of the suspected controlled substance was completed. The brown solid (.05 gram) scrapped from the metal spoon was found to contain heroin. DESCRIPTION OF INJURIES 7

8 Wann s body evinced three baton strikes on the top of his head and one to the right lower back side of his head. There was bruising to the outer, upper right arm consistent with baton strikes. There were two bullet strike wounds on Wann s neck, one to the top of his left shoulder, two to the chest, one through the right hand, a graze wound to the left thumb and one wound to the top of his head. SHOTS FIRED DEPUTY BEITLER Deputy Beitler fired five (5) rounds from his department issued.45 caliber semiautomatic handgun. He believed he fired six (6) rounds (two clusters of three shots) however, only five bullet cartridges were missing from his firearm and only five cartridge casings were found at the site of the incident. APPLICABLE LAW DETENTION A temporary detention requires a reasonable suspicion the person detained may be involved in criminal activity. Reasonable cause demands some minimum level of objective justification, but considerably less than is required for probable cause to arrest. (United States v. Sokolow (1989) 490 U.S. 1, 7; Terry v. Ohio (1968) 392 U.S. 1, 22.) A police officer may stop and question persons on public streets, including those in vehicles, when the circumstances indicate to a reasonable man in a like position that such a course of action is called for in the proper discharge of the officer s duties. (People v. Flores (1974) 12 Cal.3d 85, 91.) Reasonable cause to detain must be supported by specific articulable facts, rather than inchoate suspicion or hunch. (United States v. Sokolow, supra, 490 U.S. at pp. 7-8.) 8

9 These facts can be drawn from an officer s personal observations, citizen reports, or reports of other officers. (United States v. Mendenhall (1980) 446 U.S. 544, (Powell, J., concurring); Terry v. Ohio, supra, 392 U.S. at pp ) ASSAULT WITH A DEADLY WEAPON ON A PEACE OFFICER Cal. Penal Code section 245(c) (summarized in pertinent part) Any person who commits an assault with a deadly weapon or instrument other than a firearm on the person of a peace officer and who knows or reasonably should know that the victim is a peace officer engaged in the performance of his or her duties shall be punished by imprisonment in the state prison for three, four or five years. LAWS OF SELF-DEFENSE Right to Self-defense A person is not guilty of a crime if he used force against another person in lawful selfdefense. A person acted in lawful self-defense if: 1. The person reasonably believed that he was in imminent danger of suffering bodily injury; 2. The person reasonably believed that the immediate use of force was necessary to defend against that danger; AND 3. The person used no more force than was reasonably necessary to defend against that danger. The person must have believed there was imminent danger of violence to himself. The person's belief must have been reasonable and he must have acted because of that belief. The person is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. No Need To 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 death/bodily injury has passed. This is so even if safety could have been achieved by retreating. (CalCrim 3470 in pertinent part) 9

10 ANALYSIS AND CONCLUSION Deputy Beitler was acting in the lawful performance of his duties while investigating the call of a person being under the influence of controlled substances and who was posing a danger to himself and others by attempting to drive a motor vehicle. Based on the situation at hand and the information received, Deputy Beitler was well within his legal authority to locate and detain Theodore Wann. Upon arrival at the Wann residence, Theodore Wann fled. Deputy Beitler, believing criminal activity was afoot, sought to locate him. Wann fled through neighbor s yards, hid in trees and ultimately concealed himself in a storage container. Once Deputy Beitler located Wann hiding in the container, Wann delayed compliance and refused to comply with the Deputy s directives. When the deputy was finally able to work within the confined space of the storage container to re-holster his weapon and safely handcuff Wann, Wann turned and struck the deputy. This lead to a skirmish that escalated to the use of the deputy s baton. Wann armed himself with a shovel and used it in an aggressive manner towards Deputy Beitler, presenting a deadly threat to the deputy. Aware that Wann had been behaving aggressively towards others, was under the influence of narcotics and had displayed incredible strength during his encounter with the deputy, Deputy Beitler used the level of force that was reasonable and necessary to protect himself when Wann advanced on him with a shovel. The use of deadly force was justified. Deputy Beitler has no criminal liability. Date Ronald D. Webster Deputy District Attorney 10

11 Date Mary Ashley Chief Deputy District Attorney Date Gary Roth Assistant District Attorney 11

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

I N T E R O F F I C E M E M O R A N D UM DATE: March 26, 2013 (760) 243-8600 FROM: TO: Lyvia Liu-Kaushal Deputy District Attorney Victorville Division-Annex Mary Ashley Chief Deputy District Attorney Victorville