Santa Ana officer who shot man in back of head is cleared by D.A.

The Orange County district attorney’s office has concluded that a police officer who fatally shot a man in the back of the head in Santa Ana in 2010 was legally justified.

Officer Frank Gutierrez told investigators that he felt threatened by Andres Ramirez, 21, who was carrying a knife. DNA from Gutierrez, Ramirez and a third person was found on the knife.

Last year, Ramirez’ family settled a lawsuit against the city of Santa Ana for about $1 million.

According to the investigation letter, which was written by Senior Deputy Dist. Atty. Howard P. Gundy, Gutierrez is the only eyewitness to the shooting and “if believed, [his] version of events provide justification for the shooting.�

In December 2010, Ramirez had recently moved to California from North Carolina and was living with an aunt in Santa Ana.

On the night of Dec. 10, officers Gutierrez and Mike Heitmann were separately patrolling the area near Ramirez’ home on South Poplar Street, according to the letter, which was sent Wednesday to Santa Ana Interim Police Chief Carlos Rojas.

For two years, Gutierrez declined to be interviewed by investigators. In September 2012, after the family’s suit was settled, he provided a statement and agreed to an interview.

According to Gundy’s letter, Gutierrez told investigators he was patrolling an alley when he spotted some gang members, who took off running. He said he spotted Ramirez in a carport and that it appeared he was preparing to run, Gutierrez told investigators.

Ramirez reportedly turned away from Gutierrez, who was seated in his patrol car.

“The action made Officer Gutierrez feel scared and ‘uneasy’ because he believed that this individual was familiar with the escape routes and everyone else was running but him,� the letter says.

From his patrol car, Gutierrez began giving commands, telling Ramirez “Let me see your hands,� and “Put your hands in the air.� the letter says.

Ramirez slowly raised his left hand and Gutierrez saw he was holding a knife, the officer told investigators. Ramirez kept his right hand in front of his body, near his waist, the letter said.

While he was giving commands, Gutierrez said he heard people whistle and saw shadows of people nearby, and he started to worry about gang members shooting at him, he told investigators.

Gutierrez said he told Ramirez to “Put both hands in the air,� and “Drop the knife.�

Ramirez’ head was going from left to right as if he were trying to see the officer behind him and, Gutierrez said, Ramirez was “creeping backward� toward him until he was about seven to 10 feet away.

At that point, Gutierrez said he began to get out of his car.

“I can see him already try to lower his stance and his leg start pivoting,� Gutierrez said.

“At that time, I felt, I was scared that he was just gonna launch at me and just ‘cause I know the distance, how fast they can close with the knife, and me being pinned in that position that I was in, seated in my vehicle. He had the advantage if he turned and just got on me. So as soon as I saw his leg pivoting to turn, that’s when I, I took that shot.�

Once Ramirez was on the ground, Gutierrez said he grabbed the knife out of Ramirez’ hand and began clearing the area. He quickly realized he made a mistake by picking up the knife instead of kicking it away and he tossed it on the ground, he said.

Because Gutierrez is the only living eyewitness to the shooting, the letter says, the prosecution would “have to be able to prove beyond a reasonable doubt that his statement concerning the shooting was untruthful. We conclude that we would be unable to meet this burden because credible evidence corroborates Officer Gutierrez’s statement.�

The letter notes that “it may seem troubling� that Gutierrez waited 20 months to make a statement to investigators.

“It could give rise to an inference that his statement was tailored to conform to the known extrinsic evidence. But otherwise his silence does not constitute evidence against him.�

According to the letter, investigators talked with several residents of the neighborhood, none of whom saw the shooting.

One resident told investigators that he heard people yelling the name of a gang at passing cars shortly before the shooting. Another said he heard someone say “stop,� then heard a gunshot. A third said he heard a pop, looked out his window and heard a police officer yelling something like “Why were you running, buddy?�

A woman told investigators she heard a vehicle that sounded like it was traveling fast, then heard a gunshot. She also said she saw a group of people running down the street yelling about the police.

Heitmann, the officer who was patrolling along with Gutierrez, said he heard a loud noise and thought Gutierrez might have been in a car crash. When he drove to the alley where Gutierrez’ patrol car was parked, he said he saw Gutierrez with his gun drawn, standing over Ramirez, who was lying on the ground.

Ramirez was breathing and had a faint pulse, the letter said. He died at a hospital.

Gutierrez was on paid leave for a short time after the shooting but has returned to duty as a Santa Ana police officer, said police spokesman Anthony Bertagna.

An attorney for Ramirez’ family did not immediately return a call requesting comment.

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