Sher­iff tes­ti­mony helps in ex-CHP of­fi­cer’s ac­quit­tal

Merced Sun-Star (Saturday) - - Livingston Chronicle - BY VIKAAS SHANKER [email protected]­ced­sun­star.com

Lo­cal prose­cu­tors hoped an ae­rial video show­ing a Cal­i­for­nia High­way Pa­trol of­fi­cer punch­ing a sur­ren­dered hit-an­drun sus­pect sev­eral times — and a CHP in­ves­ti­ga­tion con­demn­ing his ac­tions — would lead jurors to con­vict him of mis­de­meanor bat­tery.

How­ever, an un­usual, but con­vinc­ing, wit­ness’s tes­ti­mony moved the jury to do the op­po­site and find him not guilty, ac­cord­ing to the of­fi­cer’s at­tor­ney.

Merced County Sher­iff Vern Warnke was brought in by de­fense at­tor­neys for for­mer CHP Of­fi­cer An­gel Casas to tes­tify as an ex­pert wit­ness on law en­force­ment’s use of force.

At­tor­neys from both sides noted hav­ing a sit­ting sher­iff tes­tify in fa­vor of an of­fi­cer of a neigh­bor­ing law en­force­ment agency was un­usual and sur­pris­ing, if not un­prece­dented.

Warnke asked jurors to con­sider the of­fi­cer’s state of body and mind dur­ing the ar­rest. And un­like in­ves­ti­ga­tors, he went to the scene of the in­ci­dent. That visit pos­si­bly tipped the scales in Casas’ fa­vor, ac­cord­ing to Casas’ lead at­tor­ney, Shawn Ge­orge.

“(Warnke) was a vi­tal wit­ness in this case,” Ge­orge said. “A lot of jurors con­sid­ered the fact that he was the sher­iff. He’s in the trenches and he leads from the front, not from an ivory tower pass­ing judg­ment down . ... It re­ally res­onated with jurors.”

Ge­orge said he ini­tially asked Warnke to look at the case as a law en­force­ment ex­pert and give his feed­back. “When I saw the video, it took me back a lit­tle bit,” Warnke told the Sun-Star, not­ing that the video looked “bad” for Casas.

But while go­ing through the in­ves­ti­ga­tion re­ports, Warnke no­ticed there were ref­er­ences of Casas be­ing tired and other fac­tors he be­lieved weren’t fac­tored in the in­ves­ti­ga­tion. So he went to the scene and put him­self in Casas’ shoes.

“Some­times, I equate law en­force­ment to sausage,” Warnke said. “Peo­ple like sausage, but don’t want to know how it’s done or made . ... I thought (Casas) shouldn’t be in trou­ble for do­ing his job.”

The ver­dict sur­prised many in the Merced County District At­tor­ney’s Of­fice, said lead pros­e­cu­tor Natalia Enero.

“We thought the video was pretty con­vinc­ing and spoke for it­self,” Enero said. “What hap­pened in the video is not what of­fi­cers law­fully are trained to do.”

“I am grate­ful that the crim­i­nal jus­tice sys­tem works,” Casas said in a state­ment through his at­tor­ney. “I thank the jury for con­sid­er­ing all the ev­i­dence in this case.”

Casas re­signed from his po­si­tion with the CHP af­ter the in­ves­ti­ga­tion

con­cluded he used un­nec­es­sary force, Ge­orge said, adding Casas al­ready had a cou­ple of job of­fers from other law en­force­ment agen­cies af­ter the trial.

CHP Los Banos Cmdr. John Mart­inho de­clined to com­ment on the crim­i­nal case or per­son­nel mat­ters.

District At­tor­ney Larry Morse II didn’t re­spond to re­quests for com­ment about the case Fri­day.

IN­CI­DENT CAP­TURED ON VIDEO

Casas was one of sev­eral of­fi­cers who re­sponded to the scene of a non­in­jury hit-and-run traf­fic col­li­sion April 28, shortly be­fore noon on Pacheco Pass just west of the Romero Vis­i­tors Cen­ter, ac­cord­ing to CHP in­ves­ti­ga­tion re­ports.

The sus­pect in the col­li­sion, Agustin Jau­regui Gar­cia, fled from the scene and sparked a man­hunt that lasted more than an hour and in­volved K9 and air units, the re­ports state.

Kelly Smith, a ci­ti­zen and for­mer mil­i­tary po­lice of­fi­cer, helped in the search and found Gar­cia lay­ing in the tall grass of a steep hill­side, about a quar­ter-mile north of the col­li­sion, ac­cord­ing to re­ports.

Smith re­port­edly ap­proached Gar­cia and put one of Gar­cia’s arms in a “con­trol hold” as Casas and Cal­i­for­nia State Park Su­per­vis­ing Ranger An­theney Ale­gre walked to­ward them. Gar­cia didn’t ap­pear to be re­sist­ing, ae­rial video of the in­ci­dent shows.

The ae­rial video then shows Casas ap­proach Gar­cia from down­hill, and punch Gar­cia in the head be­fore wrestling the sus­pect to the ground in an at­tempt to re­strain him.

Casas re­port­edly de­liv­ered two more punches dur­ing the in­ci­dent: one to the up­per torso and an­other to the face. Gar­cia was not armed and was be­lieved to be com­ply­ing with the ci­ti­zen and of­fi­cers dur­ing the ar­rest, the re­ports state.

The video also shows Gar­cia rolling down­hill sev­eral times, which the in­ves­ti­ga­tion ruled was un­in­ten­tional. There were no body cam­eras of the in­ci­dent, at­tor­neys said.

Ale­gre re­port­edly told in­ves­ti­ga­tors he be­lieved the punches from Casas were un­war­ranted, in part be­cause Gar­cia was not re­sist­ing ar­rest. He also re­ported see­ing Gar­cia with in­juries af­ter the ar­rest, although med­i­cal records didn’t in­di­cate ma­jor in­juries.

In his de­fense, Casas tes­ti­fied that he threw what are called “dis­trac­tion strikes” that aren’t meant to phys­i­cally harm the sus­pect. Rather, they are meant to dis­tract the sus­pect so an of­fi­cer can re­strain.

De­spite the ex­pla­na­tion, a re­view of the in­ci­dent by the CHP Cen­tral Divi­sion In­ves­tiga­tive Ser­vices Unit con­cluded that Casas “un­nec­es­sar­ily and will­fully punched Mr. Gar­cia in the face and in do­ing so was in vi­o­la­tion of Cal­i­for­nia Pe­nal Code sec­tion 242: Bat­tery,” ac­cord­ing to the re­ports.

The CHP in­ves­ti­ga­tion used the Cal­i­for­nia Pe­nal Code’s def­i­ni­tion of “ar­rest and use of force” to make that con­clu­sion, ac­cord­ing to the re­ports. That def­i­ni­tion states an of­fi­cer may use rea­son­able force to “ef­fect the ar­rest,” “to pre­vent es­cape” and “over­come re­sis­tance.”

It also used a U.S. Supreme Court rul­ing from 1973, John­son v. Glick, as a model to de­ter­mine if law­ful use of force was com­mit­ted. That model asks four ques­tions: 1) Is there a need for force? 2) Was the amount of force rea­son­able for the need? 3) What was the ex­tent of in­jury from the force? 4) Was the force ap­plied in good faith to main­tain and re­store dis­ci­pline, or was it “ma­li­ciously and sadis­ti­cally” used to cause harm?

In­ves­ti­ga­tors also needed to de­ter­mine the “ob­jec­tive rea­son­able­ness” for the use of force. While the in­ves­ti­ga­tion’s con­clu­sion ac­knowl­edged Casas had some rea­son to feel a dis­trac­tion punch was nec­es­sary, in­ves­ti­ga­tors claimed the video showed the sus­pect was com­ply­ing and not at­tempt­ing to flee be­fore he was punched by Casas.

Adding to the case against Casas was the fact Ale­gre be­lieved the punch was not nec­es­sary, ac­cord­ing to the re­ports.

The CHP’s use of force poli­cies and guide­lines aren’t spe­cific on when a dis­trac­tion strike is or isn’t nec­es­sary.

OF­FI­CER’S AC­TIONS WEREN’T UN­NEC­ES­SARY FORCE, SHER­IFF SAYS

When Warnke tes­ti­fied as an ex­pert wit­ness dur­ing Casas’ Nov. 8 trial hear­ing, the sher­iff asked the jury to con­sider other un­ex­plored fac­tors in the case.

Warnke has served as an FBI-cer­ti­fied sniper with the SWAT team, worked on agri­cul­tural crime, and su­per­vised the sher­iff’s STAR team, K9 unit, mo­tor­cy­cle unit and school re­source of­fi­cer pro­gram in his 30-year law en­force­ment ca­reer be­fore he was first elected sher­iff in 2014.

Warnke also tes­ti­fied on re­ceiv­ing train­ing once ev­ery two years on “use of force,” which he said was a “per­ish­able skill.” Warnke said he has dis­ci­plined deputies in his own depart­ment for un­nec­es­sary use of force dur­ing his time as sher­iff, in­clud­ing the ter­mi­na­tion of three deputies.

Warnke’s ex­pe­ri­ence made him an ex­pert wit­ness in the eyes of the Merced County Judge Steven Slocum.

Warnke told jurors he re­viewed the video and the re­ports, and sug­gested in­ves­ti­ga­tors didn’t go to the scene of the in­ci­dent or con­sider the “to­tal­ity of the cir­cum­stance” of the ar­rest.

That to­tal­ity in­cluded Casas be­ing tired from search­ing up and down the steep ter­rain and the fact that Gar­cia was on the run. Plus, Gar­cia’s feet were level and pre­sented a threat to the of­fi­cer. Ad­di­tion­ally, the in­ten­tions of Smith, a pri­vate ci­ti­zen who was present, weren’t com­pletely known.

All those fac­tors and un­knowns re­quired Casas to quickly ap­pre­hend the sus­pect, Warnke said, adding that while Casas could have used other meth­ods to ap­pre­hend Gar­cia, the punches weren’t strikes of un­nec­es­sary force.

Af­ter the ver­dict, some jurors told Enero there was just enough rea­son­able doubt for them to ac­quit Casas, de­ter­min­ing he wasn’t guilty of un­law­fully per­form­ing his du­ties, Enero said.

Enero said she “greatly re­spected” Warnke and his qual­i­fi­ca­tions as an ex­pert wit­ness. But she said it was un­clear how much his tes­ti­mony af­fected the jury’s de­ci­sion.

“I think the ev­i­dence over­whelm­ingly doesn’t weigh that way,” she said.

VIKAAS SHANKER [email protected]­ced­sun­star.com

An­gel Casas, a 40-year-old for­mer Cal­i­for­nia High­way Pa­trol Los Banos of­fi­cer, at­tends a vet­er­ans cel­e­bra­tion at Our Lady Fa­tima School Nov. 9, 2018. This is a day af­ter a Merced County jury found he was not guilty of mis­de­meanor bat­tery us­ing ex­ces­sive force while ar­rest­ing a non-in­jury hit-and-run col­li­sion sus­pect dur­ing a foot pur­suit April 28, 2018.

AN­DREW KUHN [email protected]­ced­sun-star.com

Merced County Sher­iff Vern Warnke an­nounces an in­ves­ti­ga­tion of a 194-acre mar­i­juana grow on the west side of Merced County at the Merced County Sher­iff’s Of­fice in Merced, Calif., on Mon­day, Nov. 5, 2018.

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