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D.A. clears Santa Ana officer who shot man in back of head

Officer Frank Gutierrez refused to talk to investigators for months, but evidence supports his story, the district attorney says.

October 31, 2013|By Paloma Esquivel

A Santa Ana police officer who fatally shot a man in the back of the head while patrolling gang territory in 2010 has been cleared of criminal wrongdoing in an inquiry that was slowed when the officer refused to talk with investigators for nearly two years.

The Orange County district attorney's office said in a report on the shooting of Andres Ramirez, 21, that it "may seem troubling" that Officer Frank Gutierrez waited 20 months to make a statement to investigators.

The officer only agreed to be interviewed by the district attorney's office last year after Ramirez's family settled a wrongful-death lawsuit against the city for about $1 million.

The delay in speaking up "could give rise to an inference that his statement was tailored to conform to the known extrinsic evidence," Senior Deputy Dist. Atty. Howard P. Gundy wrote in a letter sent this week to Santa Ana Interim Police Chief Carlos Rojas. But, he added, "his silence does not constitute evidence against him."

Gutierrez told investigators he felt threatened by Ramirez, who was carrying a knife. DNA from the officer, the suspect and a third person was found on the knife.

Ramirez, who was born in Santa Ana but grew up in North Carolina, returned to his hometown in late 2010 to look for work to support his wife and two young children, said Dana Douglas, an attorney for the family.

On the night of Dec. 10, 2010, Officers Gutierrez and Mike Heitmann were separately patrolling the area near South Poplar Street, where they had received complaints of gang members loitering and drinking, according to investigators.

When he was interviewed in September 2012, Gutierrez told investigators he was patrolling an alley when he saw people running and the spotted Ramirez in a carport. He said it appeared he was preparing to run, too. The officer said Ramirez turned away from him.

"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," Gundy's letter says.

From his patrol car, he told Ramirez to put his hands in the air, Gutierrez said.

Ramirez slowly raised his left hand and Gutierrez said he saw Ramirez was holding a knife, but had his right hand in front of his body, near his waist. While he was giving commands, Gutierrez said he heard people whistle, saw shadows of people nearby and started to worry about gang members shooting at him. The officer said he told Ramirez to "put both hands in the air" and "drop the knife."

Ramirez was turning his head from left to right as if he were trying to see the officer behind him and he was "creeping backward" until he was about 7 to 10 feet away from the officer, Gutierrez said.

Gutierrez climbed out of his squad car.

"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's hand but later realized he'd made a mistake by not kicking the knife to the side. He said he tossed it on the ground.

Because Gutierrez is the only eyewitness, investigators said prosecutors 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," Gundy wrote.

Douglas, the family's attorney, said she was disturbed by the findings.

"The fact of the matter is that if this were a civilian making the same claim of self-defense they would be prosecuting him before he could even finish saying 'self-defense,'" she said.

Gutierrez was on paid leave after the shooting but has since returned to duty, said police spokesman Anthony Bertagna.

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