A man who testified that he fired a “warning shot” at what he thought were intruders trying to break into his family’s San Gabriel home was acquitted Friday of first-degree murder for the shooting death of a Pomona SWAT officer who was helping to serve a search warrant, but jurors deadlocked on a lesser charge of second-degree murder.
Los Angeles Superior Court Judge Charlaine F. Olmedo declared a mistrial after jurors announced after nearly five days of deliberations that they were split 3-9 in favor of acquitting David Martinez of second-degree murder and had not voted on another lesser charge of manslaughter or a separate felony count of assault with a firearm on a police officer involving the Oct. 28, 2014, shooting of Officer Shaun Diamond.
The officer — who had 16 years of law enforcement experience with the Los Angeles, Montebello and Pomona police departments — died a day after the early-morning shooting.
The jury forewoman had indicated in a note sent late Thursday that the panel was “split with a few jurors standing firm,” but was open to continuing to deliberate if it received guidance on how to move forward. The judge — who read the note during a court session Friday morning — asked jurors to let her know in writing if there was something more the court could do.
As the afternoon court session began, the judge indicated that she had gotten a note that indicated that jurors had “tirelessly continued with our deliberations,” but had only come to a conclusion on the first-degree murder charge. Upon questioning, jurors said they were deadlocked on the remaining charges.
The judge ordered the 41-year-old defendant to return July 11 to the downtown Los Angeles courthouse for a pretrial hearing on the remaining charges.
Martinez’s attorney, Brady Sullivan, told the judge that he plans to ask then for the second-degree murder charge to be dismissed.
Outside court, the defense attorney said he was disappointed that the jury had not acquitted Martinez of second-degree murder.
The six-man, six-woman jury was handed the case against Martinez last Friday after about six weeks of testimony, including the defendant’s account that he fired a “warning shot” from his shotgun because he feared members of a motorcycle club to which he belonged were trying to break into the home he shared with his parents, common-law wife, two young children and his adult sister, who has Down syndrome.
Martinez told jurors that he reached for a shotgun by his bed because he heard loud banging sounds and thought someone was trying to break into the house. He said he never heard anybody identify themselves as police.
“I fired a warning shot … what I perceived to be a warning shot,” he said, telling jurors that he saw what he perceived to be the barrel of a gun pointed toward his father.
He said that he was startled to hear screaming after firing the gunshot, turned around, dropped the shotgun, laid down and said he was sorry.
“I kept saying I was sorry. I didn’t know it was the police,” Martinez testified. “I thought it was the Mongols. I would never fire at police or law enforcement ever. I have family that’s (in) law enforcement.”
Under cross-examination by Deputy District Attorney Michael Blake, the defendant said, “I took aim and I pulled the trigger.”
“You shot to kill that day?” the prosecutor asked.
“I shot to protect my family,” Martinez responded.
“You shot to kill the target that day?” the prosecutor said.
“There was no target, sir,” the defendant said, maintaining that he was trying to defend his family when he fired the shot, and never saw any police officers until they were coming into the house after the shot was fired.
Martinez said he had pondered dropping out of the Mongols after having a change of heart about his involvement in the motorcycle club, but had heard stories about other members who tried to quit and was concerned for the safety of himself and his family.
In his closing argument, Deputy District Attorney Jack Garden said Martinez “shot Officer Diamond while Officer Diamond’s back was to the defendant, while Officer Diamond’s gun was in its holster, while Officer Diamond was walking away from the defendant. And they’re going to call that self-defense. Officer Diamond posed no threat to the defendant, zero threat. This is not a case of self-defense.”
The prosecutor repeatedly called Martinez a “Mongol” — referring to the motorcycle club to which he belongs, “a murderer” and “a manipulator,” saying that Diamond and his fellow SWAT officers “couldn’t plan for the defendant shooting Officer Diamond in the back of the neck” as the 6-foot-2-inch officer walked away from the home’s front door.
Diamond and his fellow officers were wearing green uniforms with large yellow letters indicating they were police, and both of Martinez’s parents heard the announcements that police were outside to serve a search warrant, Garden said, disputing the defendant’s contention that he thought members of the Mongols were trying to break into the family’s home and that he saw only a shadow.
“… He doesn’t see him? Are we going to give the defendant a pass? Is this his free murder?” Garden said.
Police “showed a tremendous amount of restraint” by not firing at Martinez, whose own father had also been struck by the gunfire, the deputy district attorney said.
The prosecutor questioned whether Martinez feared his fellow Mongols, noting that members of the same group that Martinez believed was coming to harm his family have subsequently put money into his jailhouse account.
Martinez’s lawyer countered that the prosecution can’t accept that “tactical mistakes” were made by police and that Martinez acted reasonably in self-defense by firing once before quickly surrendering to police outside the home. He noted that his client apologized when officers entered the home and said that he didn’t realize that it was police officers who had been outside.
“Most defendants don’t testify … He wanted to take the stand. He wanted to tell the truth,” Sullivan said. “He took responsibility for his actions. His parents disagree with me. They’re convinced the police officers shot their own.”
Sullivan urged jurors to acquit his client of first-degree murder, second-degree murder and manslaughter, along with the assault charge, calling it a “lawful self-defense and defense of his father and mother.”
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