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People v. Martinez10/31/2002
ez could not recall whether he announced to appellant that he was a police officer. Detective Velasquez, with his weapon drawn, approached appellant who was walking toward Detective Velasquez. Detective Velasquez repeatedly commanded appellant to get down. Appellant repeatedly refused. As Detective Velasquez came within arm's reach of appellant, Detective Velasquez, using his left hand, grabbed appellant's T-shirt near appellant's left shoulder. Detective Velasquez attempted to sweep appellant's legs to bring appellant down to the ground, but his efforts had no effect on appellant. After trying to bring appellant down, and failing, Detective Velasquez backed away from appellant, while maintaining his grip on appellant's left shoulder. As Detective Velasquez backed away from appellant, Detective Velasquez heard a patrol car come up from behind, and could see appellant's eyes look toward the street and the patrol car that was arriving. Detective Velasquez concluded they would have to wrestle appellant to the ground, put his weapon back into its holster.
Appellant pulled away from Detective Velasquez and appellant's hands went down to his waist and he said he was going to shoot himself. Detective Velasquez tackled appellant spinning him around, bringing both himself and appellant down to the ground. Appellant landed on his stomach with both of his hands underneath him. Detective Velasquez and Officer Duran, who had just arrived, attempted to keep appellant down on the ground, while trying to physically pull appellant's hands out from underneath his body. While Detective Velasquez and Officer Duran were struggling with appellant, Sergeant Seita, of the Sanger Police Department, entered the fray and attempted to pull appellant's left hand out from underneath appellant's body. While the officers were attempting to pull appellant's hands free they heard a muffled gunshot.
Sergeant Seita felt something strike his right hand, and looking down saw a "blackened area" behind his thumb and saw that he was bleeding. Sergeant Velasquez was finally able to pull appellant's right hand out from underneath appellant, and saw appellant was holding a semi- automatic handgun and was repeatedly squeezing the trigger. Sergeant Velasquez pulled appellant's finger away from the trigger of the weapon. Officer Duran was eventually able to gain control over the weapon itself, which he tossed away from appellant, himself and the other officers. When the weapon was later recovered, it was found with a partially ejected shell casing protruding from the weapon's ejection port. The failure of the weapon to completely eject the spent shell casing prevented it from being fired again until the empty shell casing was cleared from the weapon. Appellant sustained a self-inflicted gunshot wound to the abdomen. The bullet entered and exited across the front of appellant's abdomen. A fired bullet, which had been fired through appellant's gun, was later recovered from the lawn area where the struggle with appellant took place.
Appellant testifying on his own behalf, admitted that when he was interviewed by Detective Trevino he "just made up a story." Appellant said "Ed" tells him things, warns him when something is wrong or tells him how to do things better. The story he told Detective Trevino "was made up," but he does have a friend named "Ed," although "Ed" is not corporeal. "Ed" came to appellant and they started talking to each other. Since his arrest appellant had spoken with medical personnel at the jail concerning "Ed," and was being treated at the time of his trial. Appellant's version of events was markedly different than presented by the prosecution. Appellant testified that he did shoot at his stepfather's truck, but
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