INTEROFFICE MEMORANDUM

DATE: April 30, 2019

FROM: Lynette Grulke,

Deputy District Attorney
Rancho Cucamonga Office

TO: Simon Umscheid

Chief Deputy District Attorney
Central Division

Julie A. Peterson,
Assistant District Attorney

SUBJECT: Officer Involved Shooting (Fatal)

Officers: Deputy Jacob Bailey

San Bernardino County Sheriff’s Department

Deputy Lance Beyerle

San Bernardino County Sheriff’s Department

Deputy Eric Dyberg

San Bernardino County Sheriff’s Department

Involved Subjects: David Gaston (Deceased)

Date of Birth 02/01/56
Crestline, CA

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Date of Incident: November 12, 2012

Incident location: ***** Redwood Way

Crestline, CA

DA STAR #: 2013-15040

Investigating Agency: San Bernardino County Sheriff’s Department

DR #: 051202264

H #: 2012-099

PREAMBLE

This was a fatal officer involved shooting by deputies from the San Bernardino County
Sheriff’s Department. The shooting was investigated by the San Bernardino County
Sheriff’s Department. This factual summary is based on a thorough review of all the
investigative reports, photographs, and audio recordings submitted by the San
Bernardino County Sheriff’s Department, DR# 051202264 and H# 2012-099.

PRINCIPAL INVOLVED PARTIES

David Andrew Gaston, DOB: 02/01/56, of Crestline, California was killed during the
incident under review.

Deputy Jacob Bailey of the San Bernardino County Sheriff’s Department was an
officer involved in the shooting of David Gaston.

Deputy Lance Beyerle of the San Bernardino County Sheriff’s Department was an
officer involved in the shooting of David Gaston.

Deputy Eric Dyberg of the San Bernardino County Sheriff’s Department was an officer
involved in the shooting of David Gaston.

SCENE

This incident occurred on November 12, 2012, at around 1016 hours. Location of
occurrence was ***** Redwood Way in the City of Crestline, California.

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 FACTUAL SUMMARY

On November 12, 2012, at around 9:58 in the morning, deputies from the Twin Peaks
Sheriff’s Station responded to a request from the fire department for assistance with a
“5150” subject at a structure fire at a residence located at ***** Redwood Way, in the
City of Crestline. Fire department personnel were concerned there were explosives and
firearms in the residence. Deputy Jacob Bailey, Deputy Lance Beyerle, and Deputy Eric
Dyberg all responded to the call. Deputy Bailey, Deputy Beyerle, and Deputy Dyberg
were all wearing San Bernardino County Sheriff’s Department uniforms on that date.

Fire department personnel were standing by waiting for the deputies to clear the house
prior to entering to put out the fire. The deputies were advised that the “5150” subject,
later identified as David Gaston, was possibly retrieving firearms from inside the house
and had threatened to shoot firefighters and deputies. The deputies were also advised
Gaston may have locked himself inside of a safe. The deputies detained one male and
two females prior to entering the residence.

Once the deputies entered the residence, they noticed the inside of the house was
smoky, but the deputies were unable to determine where the smoke was coming from.
The deputies went room by room and searched for any additional people. In a room
west of the kitchen, the deputies located a hole in the floor. There was a ladder leading
down into another room. The deputies searched the room and located a large gun safe.
The gun safe was locked. The deputies called for anyone inside the safe to come out,
but the deputies received no response. After the house was searched and no other
individuals were found, Deputy Dyberg decided to speak with two female witnesses who
had been detained. Deputy Dyberg hoped to get a clearer idea of where Gaston could
be located.

Deputy Bailey and Deputy Beyerle went to the rear door of the residence and waited for
fire department personnel. Deputy Bailey and Deputy Beyerle were facing the house
when Deputy Bailey heard a male voice behind them. When Deputy Bailey and Deputy
Beyerle turned around, they saw Gaston walking from the forested area behind the
house. Gaston was yelling at the deputies and had his right hand inside his right-side
jacket pocket. Deputy Bailey and Deputy Beyerle pointed their duty weapons at Gaston
and ordered Gaston to take his hand out of his pocket.

Gaston walked toward the deputies. Deputy Bailey yelled for assistance from Deputy
Dyberg and Sergeant Mark Pederson. Deputy Dyberg came to the back of the house
with a shotgun and ordered Gaston to take his hand out of his pocket. Gaston
continued to yell at the deputies, “Do your job. Do your job.” Gaston would not comply
with the deputies’ commands to take his hand out of his pocket. Gaston kept his right
hand in his pocket and continued to walk toward the deputies.

Deputy Bailey and Deputy Beyerle saw a bulge in Gaston’s front pocket. Deputy Bailey
believed Gaston had a weapon. The deputies ordered Gaston to take his hand out of

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his pocket and to get on the ground. Gaston did not comply with the commands and
continued to move toward the deputies. Gaston yelled, “Do your job” several times.
When Gaston was within approximately fifteen feet of Deputy Dyberg, Deputy Bailey
ordered Gaston to stop. Deputy Beyerle also ordered Gaston to stop. Gaston told the
deputies, “Shoot me. Kill me.”

Next, Gaston made an “exaggerated” movement with his right hand, upward, taking it
from his jacket pocket in a rapid motion. Deputy Beyerle believed he saw a gun and
feared Gaston was going to shoot at Deputy Beyerle and his partners. Deputy Beyerle
fired his weapon at Gaston three times. Deputy Dyberg believed he saw an object in
Gaston’s hand and believed it was a gun. Deputy Dyberg fired one round from his
shotgun and heard his partners fire their weapons at the same time. Deputy Dyberg
believed Gaston still had a gun in his hand and fired a second round from his shotgun.
When Deputy Bailey saw Gaston pull his hand from his pocket, it appeared to Deputy
Bailey that Gaston had something in his pocket and was going to point it at Deputy
Dyberg. Deputy Bailey believed Deputy Dyberg’s life was in danger, so Deputy Bailey
shot once at Gaston.

Gaston fell to the ground and landed on his stomach. Deputy Bailey and Deputy
Beyerle approached Gaston and pulled Gaston’s hands from underneath Gaston’s
body. The deputies believed there was possibly a second subject and did a quick
search of the forest area south of Gaston. No additional subjects were located.

Sergeant Pederson escorted a paramedic to where Gaston was laying on the ground.
The paramedic pronounced Gaston deceased at the scene.

WITNESSES AND CORROBORATION

On November 12, 2012, at approximately 5:28 in the evening, Witness #1 was

interviewed by Detective Craig Harris and Detective Steven Pennington.

Witness #1 is the son of David Gaston. 1 Witness #1 and his wife were living at his
parents’ residence located at ***** Redwood Way in the City of Crestline. On November
12, 2012, at around 10:00 in the morning, Witness #1 was awakened by his mother
pounding on his bedroom door. Witness #1 and his wife were in bed when he heard his
mother yelling that the house was on fire.

Witness #1 got up and grabbed a fire extinguisher while his wife got up and called 911.
Witness #1 saw three-foot flames and initially tried to put out the fire with the fire
extinguisher. Witness #1 heard his wife on the phone with 911. Witness #1’s wife told
him the dispatcher said to get everyone out of the house.

1 Witness #1 shares the same last name as David Gaston and therefore will be referred to as Witness #1
throughout the rest of the memorandum.

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A short time later, a deputy from the San Bernardino County Sheriff’s Department
arrived and placed him in the back of a patrol vehicle. After that, Witness #1 stated he
heard a “firefight” between Gaston and the deputies. Witness #1 was unable to see the
shooting from his location. Witness #1 heard multiple rounds being fired from different
weapons. Witness #1 believed Gaston was involved in the shooting because while he
was trying to put out the fire, Witness #1 saw Gaston go into the laundry room where
Gaston kept his gun safe. Witness #1 believed he saw Gaston come out of the room
with his Taurus 380 semi-automatic handgun in his hand. Witness #1, however, was
unsure what Gaston did with the gun or whether Gaston actually left the house with the
gun. Witness #1 said he thought he heard Gaston say something to the effect of he
would rather die than live like this before he left the house. Witness #1 thought some of
the rounds he heard being fired during the “firefight” were from Gaston’s 380.

Witness #1 also indicated that when he was trying to put out the fire, he saw Gaston
kick his mother in the lower or upper leg area and knock her out of the way. Witness #1
said Gaston and his mother had been arguing for the last couple of months. The last
time Witness #1 had ever seen Gaston physically assault Witness #1’s mother was
approximately two years earlier and Witness #1 intervened.

In addition, Witness #1 stated Gaston was experiencing medical problems and did not
have long to live. Witness #1 said Gaston had been taking several different psychiatric
medications. However, Witness #1 said Gaston was cut off of the medications several
months ago after excessive use. Witness #1 also stated he had to call and have
Gaston taken “5150” 2 approximately two years ago because Gaston had taken the
same 380 semi-automatic handgun out and said he was going to shoot himself.
Witness #1 said Gaston accidentally discharged the weapon which Witness #1 believed
brought Gaston to his senses.

Witness #1 said Gaston did not like police officers, but every time Gaston was around
them Gaston would cooperate with the officers. Witness #1 did not believe Gaston
would shoot a police officer. Witness #1 believed Gaston was going to shoot himself.

On November 12, 2012, at approximately 1:42 in the afternoon, Witness #2 was

interviewed by Detective Daniel Rodriguez and Detective Mike Flores.

Witness #2 is the wife of David Gaston. 3 On November 12, 2012, Witness #2 was living
with Gaston, her son, Witness #1, and Witness #1’s wife, Witness #3 , at a residence

2 Welfare and Institutions Code §5150(a) states in part, “When a person, as a result of a mental health
disorder, is a danger to others, or to himself or herself, or gravely disabled, a peace officer...may, upon
probable cause, take, or cause to be taken, the person into custody for a period of 72 hours for
assessment, evaluation, and crisis intervention.”
3 Witness #2 shares the same last name as David Gaston and therefore will be referred to as Witness #2

throughout the rest of the memorandum.

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located at ***** Redwood Way in the City of Crestline. Witness #2 indicated Gaston had
been experiencing medical problems and was under the care of doctors at the Veterans
Affairs hospital. According to Witness #2, Gaston had been prescribed methadone for
over twenty years but had recently been removed from the medication by his doctor.
After Gaston stopped receiving the methadone prescription, Witness #2 said Gaston
started drinking excessively and his behavior became violent and angry. A few days
prior to the shooting, Witness #2 said Gaston told her he was unsure how much more
he could take (referring to his illness). Witness #2 interpreted Gaston’s statement as if
he wanted to kill himself.

During the evening of November 11, 2012, Witness #2, Gaston, Witness #1, and
Witness #3 were in the living room. Gaston began drinking several alcoholic beverages
and asked Witness #2 for her pain pills. Witness #2 and Gaston went into their room
where they argued. Eventually Gaston went back out into the living room and continued
drinking. Gaston came back into his and Witness #2’s bedroom and threw Witness #2’s
cat against the wall. Throughout the rest of the evening, Witness #2 said Gaston
continued to be verbally abusive towards her. Before the end of the evening, Witness
#2 said Gaston told her he was going to kill himself or have the police kill him. At the
time, Witness #2 did not take Gaston’s comment seriously.

On November 12, 2012, at approximately 7:00 in the morning, Witness #2 woke up and
went into the living room to watch television as Gaston continued sleeping in their bed.
When Gaston woke up, he began looking through a phone book. Gaston told Witness
#2 he was looking for a divorce attorney and that she should leave the house because
everyone hated her. As Gaston was walking through the house, he kicked Witness #2
in the stomach moving her out of the way. Gaston told Witness #2 he was going to light
the house on fire. A short time after, Witness #2 saw Gaston walk toward the fireplace.
Witness #2 heard fire wood being moved and a match strike. When Witness #2 walked
toward the fireplace she saw flames coming from behind it.

Witness #2 saw Gaston walk toward the basement where Gaston kept several guns.
Witness #2 believed Gaston went to the basement to kill himself based on the
comments Gaston had told her earlier. Witness #2 ran to Witness #1 and Witness #3’s
bedroom to wake them up and get them out of the house. As everyone was exiting the
residence, Witness #2 saw Gaston wearing his gun club vest and jumping a wall in the
back part of their house leading to the forest. Witness #2 said Gaston had pulled out
the home phones from the wall so Witness #3 called for help using her cell phone.

When deputies arrived at the location, they escorted Witness #2 out of the residence.
As Witness #2 stood in her driveway and deputies started their investigation, Witness
#2 heard three gunshots. After she heard the gunshots, Witness #2 believed Gaston
was dead. Deputies then escorted Witness #2 toward a neighbor’s house and had her
wait for investigators to arrive.

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On November 12, 2012, at approximately 4:49 in the afternoon, Witness #3 was
interviewed by Detective Mauricio Hurtado.

Witness #3 is married to Witness #1. Witness #3 and Witness #1 were living with
Witness #1’s parents, David Gaston and Witness #2, at ***** Redwood Way in the City
of Crestline. Witness #3 indicated Witness #2 has mental health issues and that
Gaston had been taken “5150” before. Witness #3 said there were numerous guns in
the house. Witness #3 and Witness #1 kept two guns in their room and there were
twelve guns in a safe in the basement but was unable to describe the type of guns.

On November 12, 2012, Witness #3 and Witness #1 were asleep in their bedroom when
Witness #3 heard banging on the bedroom door. Witness #3 could hear Witness #2
yelling that the house was on fire. Witness #3 went into the living room and saw a fire
on the wall. Witness #3 thought Witness #2 had started the fire. Gaston came out his
bedroom and stated, “I’m done with this. I’ll be dead by the time the cops get here.”
Witness #3 believed Gaston was fed up with Witness #2 and wanted to die.

Witness #3 tried to call the police from the house phone but the phone was dead.
Witness #3 went outside and called 911 from her cell phone. The dispatcher told
Witness #3 to get everyone out of the house. When Witness #3 went back inside the
house she saw Witness #1 trying to put out the fire. Witness #2 was in the living room
yelling and Gaston had locked himself in the laundry room.

Witness #3 knocked on the laundry room door and attempted to get Gaston to come
out. Gaston told Witness #3, “I’m done, I’m done. That’s enough. I’ve had it with her.”
Witness #3 tried to open the laundry room door but believed Gaston had wedged
something in the door to prevent it from being opened. Witness #3 was having difficulty
breathing and walked toward the door. Before she exited, Witness #3 grabbed Witness
#2 by the arm and drug her outside. The police showed up shortly after Witness #3
and Witness #2 were outside.

Witness #3 saw deputies handcuff and detain Witness #1. Witness #3 was taken to an
ambulance by paramedics and treated. Witness #3 saw two deputies go inside the
house; one deputy was holding a shotgun. Several other deputies approached Witness
#3 at the ambulance and asked where Gaston was inside the residence and whether
Gaston had any guns. Witness #3 told the deputies Gaston’s location and advised
there were guns inside the house. Witness #3 heard several gunshots but did not see
the shooting.

Witness #3 stated in her interview Gaston hated the police. In February 2012, Witness
#3 said Gaston pointed a gun at a police officer and was taken “5150.” Witness #3
believed Gaston would threaten or shoot at a police officer. Witness #3 said Gaston
was tired of life because of having to deal with Witness #2 and her mental health issues.

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On November 12, 2012, Witness #4 was interviewed by Detective Ricardo Camacho,
from the Twin Peaks Sheriff’s Station.

Witness #4 owns the residence located at 22945 Redwood Way on the east side of the
incident location. Wayne was walking outside to the carport area when he heard some
yelling coming from the west side of his residence. Witness #4 was unable to make out
what the yelling was. Witness #4 went back inside and came back out sometime later
to check on his other residence which is east of the incident location.

When Witness #4 got to the top of the steps just outside his residence he heard,
“Sheriff’s Department. Don’t move.” Witness #4 turned around and saw a deputy
standing at the rear of the incident location with his gun drawn. Witness #4 could hear
the deputy saying, “Get on the ground. Don’t move.” Witness #4 went back inside his
house, told his family what was happening, and then looked out the window. Witness
#4 could not see anything else going on.

Witness #4 and his family were getting ready to leave so Witness #4 walked back out to
the rear of the residence, so he could check on his other house prior to leaving.
Witness #4 heard the deputy yell out, “Sheriff’s department. Put your hands out where
we can see them.” Witness #4 said the deputies identified themselves again as they
repeated the commands, “Put your hands where we can see them.”

Witness #4 saw a subject, later identified as David Gaston, moving in the area above
and away from the deputies’ location to the rear of the yard of the incident location.
Witness #4 could see Gaston was wearing a green fatigue jacket and standing near the
two windmills that were located in the rear of the of incident location. Witness #4 heard
Gaston yelling, “Go ahead and do your job” or something to that effect. Witness #4
heard Gaston again say, “Go ahead and do your job.” Witness #4 estimated the
deputies told Gaston three to four times to show his hands.

Witness #4 indicated the deputies identified themselves several times as “Sheriff

Department” and told Gaston several times to show his hands. Gaston started walking
toward the deputies as the deputies told Gaston to stop and show his hands. Witness
#4 said one of the two deputies moved positions. Since the deputies had their guns
drawn, Witness #4 decided to go back inside. At that point, Witness #4 heard
approximately four gunshots. Witness #4 did not hear anything else after the gunshots.

After the shooting, Witness #4 opened the door and heard more deputies talking and
yelling like they were looking for someone else. Witness #4 said at the time the
deputies were giving commands, Gaston’s hands appeared to be inside his jacket in the
front pockets. Witness #4 did not see whether Gaston ever pulled his hands out of his
pockets.

On November 12, 2012, Witness #5 was interviewed by Detective Ricardo Camacho

from the Twin Peaks Sheriff’s Station.

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Witness #5 was asleep and awakened to sounds of someone yelling, “Stay where
you’re at. Show me your hands.” Witness #5 started looking outside and could see
deputies yelling at a subject, later identified as David Gaston. Witness #5 said Gaston
was walking from the woods toward the deputies. Witness #5 heard the deputies giving
Gaston commands approximately two to four times. Gaston did not stop and continued
to walk toward deputies.

Witness #5 heard the deputies saying, “Stay where you’re at. Keep your hands out of
your pockets.” Witness #5 heard Gaston telling the deputies, “Do your job.” Next,
Witness #5 saw the deputies shooting at Gaston. Witness #5 did not actually see
Gaston being struck by the bullets because Gaston was still walking forward, and her
view became blocked by a tree. Witness #5 heard approximately five gunshots.
Deputies then began moving toward the woods. It appeared to Witness #5 that the
deputies were looking for someone.

On November 12, 2012, Witness #6 was interviewed by Detective Ricardo Camacho

from the Twin Peaks Sheriff’s Station.

Witness #6 was at her residence when she saw smoke coming from the house at
located at ***** Redwood Way. Witness #6 saw two deputies coming out of the location
escorting a female subject, later identified as Witness #3 . One of the deputies handed
Witness #3 off to another deputy. Witness #6 saw David Gaston come out of the house
and head toward the forest. Witness #6 said one of the deputies saw Gaston walking
out of the house and was yelling out at Gaston. Witness #6 was not sure what exactly
the deputy was yelling. Witness #6 believed the deputy was telling Gaston to stop.
Gaston continued to walk away.

Gaston walked to a large log that was on the ground to the rear of the property.
Witness #6 saw Gaston climb over the log and hide. Witness #6 lost sight of Gaston
after he hid. The next thing Witness #6 saw was Gaston’s wife, Witness #2, coming out
of the house. A deputy went inside the house and announced himself and within
seconds, Gaston’s son, Witness #1, exited the house in handcuffs. Deputies went
inside the garage. Witness #6 said Gaston was still hiding at that time.

Next, Witness #6 heard a deputy yell, “Sir, please stay where you are.” When Witness
#6 looked up, Gaston was already over the log and walking toward the house. Witness
#6 said the deputies were telling Gaston to stay where he was, and Gaston was yelling,
“Just do your job Just do your job.” Deputies ordered Gaston to take his hands out of
his pockets. Deputies also ordered Gaston to stop and stay where he was. Gaston
continued walking. The deputies then fired at Gaston.

Witness #6 did not see Gaston get shot because a tree was blocking her view. Witness
#6 estimated she heard approximately four gunshots. After the shooting, Witness #6
said the deputies seemed concerned that there was someone else in the forest.
Witness #6 did not see a gun in Gaston’s hands when he was walking toward the log.

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When Gaston was walking toward the deputies, Witness #6 was able to see one of
Gaston’s hands. Witness #6 did not see a gun in that hand. Nor did Witness #6 see
anything in Gaston’s jacket pocket.

On November 12, 2012, Witness #7 was interviewed by Detective Ricardo Camacho

from the Twin Peaks Sheriff’s Station.

Witness #7 was standing outside on his deck talking to another woman who lives in the
neighborhood. She was telling Witness #7 there was a domestic dispute at one of the
two houses down the street. While they were standing outside, Witness #7 heard
“Come out” or “Get out” and “Get down on the ground. Show us your hands.” Witness
#7 indicated he could clearly hear the commands being given. Witness #7 said the last
thing he heard prior to the shooting was, “Pull your hand out of your pocket. Get your
hand out of your pocket.” Witness #7 then heard a single gunshot followed by three or
four more gunshots after that.

On November 28, 2012, at approximately 10:45 in the morning, Witness #8 was

interviewed by Detective Armando Avila.

Witness #8 was a volunteer with the Crest Forest Fire District. On November 12, 2012,
at approximately 9:00 in the morning, Witness #8 was dispatched to a structure fire with
a mentally ill man at a residence located at ***** Redwood Way in the City of Crestline.
When Witness #8 arrived at the scene, he parked a block away from the residence.
Witness #9 told Witness #8 that the scene was not secured. Witness #8 stood
approximately 80 yards away from the residence and took four photographs. Witness
#8 saw two deputies approach the residence from the east. Witness #8 saw that one
deputy was armed with a shotgun and the second deputy had his service weapon
pointed down on his side as they approached the house.

At some point, Witness #8 heard deputies yelling commands to someone. Witness #8

was unsure what was specifically said but believed it was something like, “Show me
your hands” and “Put your hands up.” Witness #8 did not know who the deputies were
talking to. Witness #8 then heard three rapid gunshots. Witness #8 estimated the
shooting took place within ten to fifteen minutes from the time he arrived on scene.

Firemen brought Witness #2, the wife of David Gaston, over to Witness #8’ location and
told Witness #8 not to let Witness #2 back into the residence. Witness #2 was
distraught, emotional, and crying. Witness #8 spoke with Witness #2 for approximately
fifteen to twenty minutes. Witness #2 told Witness #8 that Gaston wanted law
enforcement to come and kill him. Witness #2 said Gaston was not well because
Gaston had had a liver and kidney transplant. Witness #2 also told Witness #8 that
Gaston had been drinking in the morning hours prior to the incident.

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On November 12, 2012, at approximately 10:45 in the morning, Witness #10 was
interviewed by Detective Gerald Davenport.

Witness #10 was assigned to the Crest Forest Fire Station #25 as a firefighter
paramedic and acting lieutenant. On November 12, 2012, Witness #10 was in fire
station when he was dispatched to a structure fire at ***** Redwood Way in the City of
Crestline. While Witness #10 changed into his fire protective clothing, he heard another
radio broadcast requesting Fire Engine 25 stage outside the fire scene due to the
resident possessing guns and explosives inside the house. After Witness #10 and the
other firemen arrived at the location, Witness #10 waited approximately one minute
before given clearance by dispatch to enter the scene.

The fire engine parked directly in front of ***** Redwood Way. Witness #10 noticed
“light gray” smoke coming from the house. There were two white females, later
identified as Witness #2 and Witness #3, on scene. Witness #3 complained of a heart
condition and received medical attention inside Fire Engine 25’s ambulance. As one of
the firemen approached the residence to put out the fire, Witness #9 ordered all fire
personnel to clear the scene and seek cover behind their fire trucks. The area had not
yet been secured. Witness #10 and Witness #2 took cover behind a white sport utility
vehicle (SUV) parked along the north side of Redwood Way, approximately 150 to 200
feet east of the residence.

As Witness #10 stood behind the white SUV, a sheriff’s patrol vehicle parked in front of
the residence. A deputy exited the patrol vehicle holding a shotgun and walked around
the west side of the house. After the deputy went around the side of the house, Witness
#10 heard an unknown person yell multiple commands to “Let me see your hands” and
“Get down on the ground.” Witness #10 estimated he heard the commands more than
five times but less than eight to ten times. Witness #10 said the commands were loud
and clear. After the verbal commands, Witness #10 heard multiple gunshots.

Witness #10 stayed by the vehicle until deputies cleared the scene. A few minutes after
the scene was cleared, Captain Witness #11 ordered Witness #10 and Firefighter
Witness #12 to enter the backyard to render medical aid to the suspect, later identified
as David Gaston. Once in the backyard, Witness #10 and Witness #12 decided only
one of them should enter the scene. Witness #12 entered the scene and checked
Gaston’s vital signs. Witness #12 could not find a pulse and pronounced Gaston
deceased.

On November 19, 2012, at approximately 11:00 in the morning, Witness #11 was
interviewed by Detective Armando Avila.

On November 12, 2012, Witness #11 was on duty and assigned to Crest Forest Fire
Station #25. On that date, Witness #11 and his fire crew were dispatched to a structure
fire involving a mentally ill person at a residence located at ***** Redwood Way.
Witness #11 was in Medic Engine #25 with Witness #10 and Witness #12. Once they

11
arrived at the staging area, Witness #11 switched their radio channel to a Sheriff’s
Department radio channel. Witness #11 heard Sheriff’s Department personnel cleared
fire personnel into the scene.

Fire Engine #25 arrived on scene with an ambulance following behind the engine.
Witness #9 arrived on scene from the opposite direction and was facing the fire ending.
A firefighter pulled a water hose off the engine and advanced toward the front door of
the residence. As fire personnel arrived near the front door by a shed, one of the
deputies was trying to kick the door of what appeared to be a patio with a cover on it.
Witness #11 knew the door the deputy was kicking had been sealed for a long time and
told the deputy about it.

Witness #11 heard someone yell, “Show me your hands. Show me your hands.”
Witness #11 did not know who was yelling the commands or at whom the commands
were directed. Witness #11 soon realized, based on the deputies’ actions, that the
scene was not secured. Witness #11 ordered one firefighter positioned near the shed
to get down on the ground and ordered the rest of the fire crew out and away from the
residence. Witness #11 returned to the fire engine for cover.

Witness #11 walked over to Witness #9’s unit and waited for a few minutes while
deputies were trying to kick doors on the west side of the lower portion of the structure.
At some point, the deputies were facing south in the direction Witness #11 had left one
of his firefighters. Witness #11 told his firefighter to cut across the yard and go to the
residence west of the location for safety.

Witness #11 saw deputies enter the residence, but they did not locate anyone. Two
deputies walked over to the vehicles parked in the driveway. Witness #12 walked over
to Witness #11 and asked who the person was coming out of the woods south of the
residence. Two deputies facing south saw the male, later identified as David Gaston,
coming out of the woods. Witness #11 heard the deputies yell, “Get down.” Witness
#11 could not see what Gaston was doing with his arms but knew Gaston had not
complied with the deputies’ commands because the deputies continued to yell.

A third deputy, armed with a shotgun, was walking toward Witness #11 and the rest of
the fire crew. Witness #11 tried to tell the deputy to turn around and look at the other
deputies dealing with Gaston. When the third deputy got close enough to hear Witness
#11, he ran up the driveway toward his partners who had their weapons pointed at
Gaston. Another deputy arrived next to the deputy armed with the shotgun near the
steps on the south side of the residence. The deputies continued to yell commands at
Gaston. Witness #11 then heard a volley of gunshots. Witness #11 heard two “pops”
and then multiple handgun gunshots. Witness #11 did not know how many handgun
gunshots he heard. Witness #11 said the commands included, “Stop,” “Show me your
hands,” and “Get on the ground.”

After the shooting, Witness #11 and Witness #12 entered the residence to extinguish
the fire. A deputy cleared the attic. Witness #12 made sure the fire had not extended to

12
the attic. Witness #11 made sure the area where the fire occurred, directly behind the
fireplace, was wet, removed smoldering debris and then exited the residence.

On November 19, 2012, at approximately 11:10 in the morning, Witness #12 was
interviewed by Detective Armando Avila.

On November 12, 2012, Witness #12 was assigned to Crest Forest Fire Station #25.
On that date, just before 10:00 in the morning, Witness #12 and his fire crew responded
to a structure fire at ***** Redwood Way. Fire dispatch advised Witness #12 to stage
out of the area due to a possible mentally ill patient still in the residence and the
possibility of explosives in the area. Shortly after Witness #12 and his fire crew arrived
near the location, fire dispatch advised them the scene was secured. When Witness
#12 and his crew arrived on Redwood Way, Witness #12 saw light smoke rolling
through the eaves of the residence. Witness #12 pulled a hose from the fire engine to
the front door of the residence.

Witness #12 saw deputies on the driveway and near the front door of the residence.
The deputies had their handguns drawn. It appeared to Witness #12 that the deputies
were actively searching for someone. Witness #12 and his crew began to question
whether the scene was secured. The fire crew members backed out of the scene.
Witness #12 met with the rest of his crew next to Witness #9’s vehicle. Witness #9
asked Witness #12 to stay with an older female who resided at the location. Witness
#12 took the female to their support services member and took her out of the scene.

Witness #12 waited at the neighbor’s house for deputies to secure the scene. As
Witness #12 stood next to a telephone pole near the street, Witness #12 looked up the
driveway and saw a subject, later identified as David Gaston, come out of the woods
south of the residence. Witness #12 saw deputies standing next to the shed at the end
of the driveway and saw another deputy standing on the driveway armed with a
shotgun. Witness #12 heard deputies next to the shed start yelling at Gaston. Witness
#12 could not hear what the deputies were yelling. The deputy in driveway was
unaware Gaston had come out of the woods and was walking toward the deputies next
to the shed. Witness #12 told the deputy in the driveway the deputies on the south side
of the residence were contacting someone.

The deputy holding the shotgun ran up toward the south side of the residence and
started to yell. Witness #12 could not hear what the deputies were yelling but it
sounded like commands. Fire Engineer Witness #11 suggested the fire crew take cover
behind the fire vehicles. Witness #12 and Witness #11 lowered their bodies. Witness
#12 saw Gaston walking toward the deputies and then Witness #12 heard gunshots.

Witness #12 heard two loud gunshots, which Witness #12 believed were fired by a
shotgun and then heard a handful of gunshots, which sounded like firecrackers.
Witness #12 said the gunshots were successive and stopped fast. Witness #11 told

13
Witness #12 to switch from fire to medical operations, which meant Witness #12 was to
render medical aid to whoever needed medical attention after the shooting.

Witness #12, Witness #10, and Witness #13, also from the Crest Forest Fire Station
#25, walked to the scene where the shooting took place. Approximately three to five
minutes after the shooting, a sergeant from the San Bernardino County Sheriff’s
Department, asked the fire crew to assess Gaston. Witness #12 walked up to Gaston’s
body and felt the carotid for a pulse for approximately sixty seconds but Witness #12 did
not feel a pulse. Gaston was lying face down, not moving, and not breathing. Witness
#12 shined a light in Gaston’s eyes, which were fixed and dilated. Witness #12
determined there were no signs of life and Gaston was deceased.

On November 19, 2012, at approximately 11:14 in the morning, Witness #9 was

interviewed by Detective Gerald Davenport.

On November 12, 2012, Witness #9, was the “On Duty” chief for the Crest Forest area.
On that date, during the morning hours, Witness #9 received a call of a structure fire at
a residence located at ***** Redwood Way in the City of Crestline. Witness #9 heard a
radio broadcast on a San Bernardino County Sheriff’s Department radio channel
requesting fire to stage because the resident, later identified as David Gaston, had
firearms and explosives in the house and threatened to shoot any deputy or fireman
who responded to the scene. Witness #9 acknowledged the request to stage and
relayed the order to fire personnel.

Fire Engine #25 and Fire Engine #26 responded to the call along with Medic Engine
#25. Fire Engine #25, Fire Engine #26, and Medic Engine #25 staged behind Fire
Station #28. Witness #9 staged on the corner of Waters Street and Maple Street. At an
unknown time, Witness #9 received clearance from Fire Dispatch to enter the scene.
Fire Engine #25 met Witness #9 at the front of the residence. Witness #9 saw an
unknown San Bernardino County Sheriff’s Department sergeant who told Witness #9
that he could not find the address to the scene. Witness #9 then became concerned the
scene had not been secured.

As Witness #9 stood in front of the house, he saw two deputies from the San
Bernardino County Sheriff’s Department arrive on scene and run along the west side of
the house. The deputies had their guns drawn and kicked in a couple of doors near the
driveway. The deputies were yelling commands, “Show me your hands and come out”
as they searched a part of the residence near the driveway. Witness #9 realized the
scene was not secured and ordered Witness #11 to pull all fire personnel away from the
scene.

Witness #9 walked across the street, two houses west of the incident location, and
notified dispatch the scene had not been secured. Dispatch asked Witness #9 to
confirm the scene was not secured. Witness #9 had a clear view across a small canyon

14
into the backyard of ***** Redwood Way. Witness #9 notified dispatch the scene was
not secure and that he could see Gaston walking out of the forest toward deputies.

There were two deputies standing south of the house, in the backyard with their guns
drawn. Witness #9 saw Witness #11 talking to a third deputy holding a shotgun in the
driveway. Witness #9 then heard “one at gunpoint” over the radio. The deputy holding
the shotgun ran along the west side of the house into the backyard. The deputy with
the shotgun stood on a path leading from the driveway to the south side of the house.
The other two deputies stood behind an oak tree on a small hill.

Witness #9 saw Gaston walking down a hill toward the deputies and the rear of the
house. Gaston was wearing black sweatpants and a dark colored sweatshirt. Gaston
was walking slowly toward the deputies but did not stop when the deputies yelled
commands at him. Witness #9 was unable to hear the exact words the deputies were
yelling at Gaston but said the deputies’ voices had a “command type tone.” Witness #9
estimated he was approximately 100 to 150 feet away from the deputies but said the
deputies’ commands were “pretty loud.”

It did not appear to Witness #9 that Gaston was going to cooperate with deputies.
Gaston was not complying with the deputies. Witness #9 saw Gaston “jiggle,” “dance,”
and twist his body while the deputies yelled commands at him. After Gaston twisted his
body, Witness #9 heard a shotgun blast. Witness #9 fell to the ground and then heard
another shotgun blast followed by multiple small arms fire. Witness #9 indicated he
heard two shotgun blasts and six to twelve small arms gunshots. After the shooting
stopped, Witness #9 broadcasted “shots fired” over the radio and additional ambulance
and fire personnel to handle calls for service.

As Witness #9 stood up, he saw the three deputies in the backyard walking south
toward the forest with their guns drawn. Witness #9 accounted for all of his fire
personnel, while Witness #11 assigned Paramedic Witness #12 to render medical aid to
Gaston. Witness #12 pronounced Gaston deceased. Witness #9 did not see all of the
shooting because he sought cover after the first shotgun blast and stayed there until the
shooting stopped.

On November 12, 2012, at approximately 2:42 in the afternoon, Deputy Gusztav

Asboth was interviewed by Detective Edward Bachman and Detective Gerald
Davenport.

On November 12, 2012, Deputy Gusztav Asboth was assigned to patrol at the Twin
Peaks Sheriff’s station. On that date, Deputy Asboth was on patrol near the Twin Peaks
Sheriff station when he heard Sheriff’s dispatch broadcast a fire call at ***** Redwood
Way in the City of Crestline. Deputy Asboth heard Deputy Eric Dyberg, Deputy Lance
Beyerle, and Sergeant Mark Pederson advise dispatch they were en route to the
residence. Deputy Asboth also responded to the call. Approximately two years prior,
Deputy Asboth had responded to the same residence for a “5150” call and knew the

15
owner, David Gaston, had firearms in the residence. Gaston had been transported to
the hospital prior to Deputy Asboth arriving at the scene.

While en route to the location on November 12th, Deputy Asboth received updates from
Sheriff’s dispatch about Gaston being “5150” and having explosives in his house.
Deputy Asboth relayed to the responding deputies that Gaston had “priors” with law
enforcement, possessed guns and weapons, and would shoot it out with deputies if they
came to Gaston’s house. Deputy Asboth indicated radio reception near the scene was
poor.

Just prior to Deputy Asboth arriving on scene, Sheriff’s dispatch broadcasted Deputy
Dyberg had detained one male subject, later identified as Witness #1. Responding
units were “clearing” the house and notified dispatch that there was smoke coming from
the house. The responding units notified dispatch that there were possibly four
residents inside and one subject was possibly locked in a safe. After a few minutes,
Deputy Asboth heard dispatch broadcast that Deputy Bailey and Deputy Dyberg asked
for a “Code 33,” a request for minimal radio traffic. Sergeant Pederson notified dispatch
to clear the “Code 33” after deputies cleared the residence.

Deputy Asboth arrived on scene just as the “Code 33” was lifted. Deputy Asboth parked
his patrol vehicle, took his department issued Ruger Mini-14 rifle and started walking
toward the residence on Redwood Way. Deputy Asboth saw Sergeant Pederson
walking up the driveway to Gaston’s residence. Deputy Asboth was on Redwood Way
walking toward Sergeant Pederson when he heard several gunshots in the backyard of
the residence and an unknown person yell, “Shots fired!”

Deputy Asboth followed Sergeant Pederson as he ran up the driveway into Gaston’s
backyard. Deputy Asboth saw Deputy Dyberg on the steps near the house. Deputy
Beyerle was south of Deputy Dyberg behind a tree. Deputy Bailey was west of Deputy
Beyerle next to a bird bath. Deputy Dyberg had a shotgun and Deputy Beyerle and
Sergeant Pederson had their handguns drawn. Deputy Asboth saw a male subject,
later identified as David Gaston, lying face down on a hill east of the deputies and south
of the house.

Deputy Bailey, Deputy Beyerle, and Deputy Dyberg were all facing south toward the
forest. The deputies told Deputy Asboth there was an additional suspect in the forest.
Deputy Asboth walked north, down the driveway, and around the east side of the
residence toward the forest. Deputy Asboth walked south until he reached the forest.
Deputy Asboth cleared the forest and could not find any outstanding suspects.

Sergeant Pederson ordered Witness #12 from the Crest Forest Fire Station #25 to enter
the scene to render medical aid to Gaston. Witness #12 noticed several gunshot
wounds to Gaston and checked for a pulse but was unable to find one. Witness #12
pronounced Gaston deceased at 10:24 in the morning.

16
Deputy Asboth spoke to Fire Engineer Witness #11 Thomas Wayne at the scene.
Wayne told Deputy Asboth his firemen thought the scene was secure and were
preparing to enter the residence to extinguish the fire. Wayne knew it was still active
“5150” call and not secure so he ordered his firemen away from the scene until the
situation was under control. Wayne saw Gaston in the backyard of the residence
walking down a hill toward the deputies. Wayne said he heard the deputies yell at
Gaston four times to, “Get on the ground” before they shot Gaston.

On November 12, 2012, at approximately 2:00 in the afternoon, Deputy Jacob Bailey
was interviewed by Detective Daniel Rodriguez and Detective Mike Flores.

Deputy Jacob Bailey was assigned to the West Valley Detention Center. On November
12, 2012, Deputy Bailey was assigned to patrol training at the Twin Peaks Sheriff’s
Station. Deputy Bailey was wearing a long sleeve Class “A” San Bernardino County
Sheriff’s Department uniform. On that date, Deputy Bailey was working patrol in a two-
man unit. His training officer/partner that day was Deputy Eric Dyberg from the Twin
Peaks Sheriff’s Station.

Deputy Bailey and Deputy Dyberg were dispatched to a burglary call when they read
from the computer in their patrol vehicle that there was a call for service of a house fire.
Deputy Bailey and Deputy Dyberg read that there was a “5150” male at the house with
explosives and the male was locked in a safe. Deputy Bailey and Deputy Dyberg
responded to the call and parked on the street just west of the residence which was
located at ***** Redwood Way. While driving to the location, Deputy Bailey’s fear for his
safety and the safety of Deputy Dyberg increased with the knowledge the house was on
fire, the male subject may be trying to kill himself, and there were explosives and
weapons at the location.

Deputy Bailey and Deputy Dyberg got out of their patrol vehicle and approached the
house. Deputy Bailey saw a female, later identified as Witness #3 , walking from the
house toward him and Deputy Dyberg. Deputy Bailey saw a male subject, later
identified as Witness #1, inside the house. Deputy Bailey walked Witness #3 to the
patrol vehicle. Witness #3 said her father-in-law was inside the house, was “crazy” and
had weapons.

An additional female, later identified as Witness #2, came out of the house and walked
toward Deputy Bailey. Witness #2 told Deputy Bailey that her husband was in the
house trying to kill himself and set the house on fire. Witness #1 came out of the house
and was detained. Deputy Dyberg handcuffed Witness #1 and placed him in the rear
seat of the patrol vehicle.

Deputy Bailey retrieved the shotgun from his patrol unit. Deputy Bailey and Deputy
Dyberg entered the house through the rear door into the kitchen. The house was very
smoky. Deputy Bailey was unable to determine where the smoke was coming from.
Deputy Bailey stayed in the kitchen while Deputy Dyberg went room to room looking for

17
additional people. Deputy Lance Beyerle, from the Twin Peaks Sheriff’s Station, arrived
to assist Deputy Bailey and Deputy Dyberg.

In a room west of the kitchen was a hole in the floor with a ladder leading down into
another room. When it was determined there was no one inside, Deputy Bailey climbed
down the ladder. There was a large gun safe inside the room that was closed and
locked. Deputy Bailey gave several commands for anyone inside the safe to come out,
but there was no response. Sergeant Mark Pederson from the Twin Peaks Sheriff’s
Station arrived to help search for the additional male subject.

The fire department personnel were standing by waiting for the house to be cleared
prior to entering to put out the fire. After the house was cleared, Deputy Bailey and
Deputy Beyerle went to the rear entry door and waited for fire department personnel.
Deputy Bailey and Deputy Beyerle were facing the house when Deputy Bailey heard a
male voice behind him. Deputy Bailey turned around and saw a white male, later
identified as David Gaston, walking from the forested area behind the house.

Gaston was yelling and had his right hand inside his jacket pocket on his right side.
Deputy Bailey could not understand what Gaston was saying. Deputy Bailey and
Deputy Beyerle pulled their handguns and pointed them at Gaston. The deputies gave
Gaston commands to take his hand out of his pocket. Deputy Bailey was standing to
the left of Deputy Beyerle as Gaston walked toward them. Deputy Bailey believed
Gaston had a weapon in his pocket and that Gaston could easily take his hand out and
shoot toward him and Deputy Beyerle.

Deputy Bailey moved around to the right of Deputy Beyerle to try and get cover and
concealment behind some trees for protection. Deputy Bailey yelled for assistance from
Deputy Dyberg and Sergeant Pederson. Deputy Dyberg came to the back of the house
with a shotgun and stood on the concreted walkway giving commands to Gaston to take
his hand out of his pocket. Gaston continued yelling and told the deputies, “Just do it
already, just do it.” Gaston was not complying with the deputy’s commands and kept
his right hand in his jacket pocket as he walked toward Deputy Dyberg.

Deputy Bailey said he saw a bulge in Gaston’s jacket pocket as if Gaston were holding
something in his hand. Deputy Bailey, Deputy Dyberg, and Deputy Beyerle continued
giving Gaston commands to take his hand out of his pocket but Gaston would not
comply. When Gaston was within approximately fifteen feet of Deputy Dyberg he
yelled, “Just do it already, just do it!” Gaston pulled his hand quickly from his pocket. It
appeared to Deputy Bailey that Gaston had something in his hand and that Gaston was
going to point the object at Deputy Dyberg.

Deputy Bailey was afraid Deputy Dyberg’s life was in danger, so Deputy Bailey fired
once at Gaston. Deputy Bailey was unsure whether he struck Gaston. Deputy Beyerle
and Deputy Dyberg also shot at Gaston. Gaston spun and fell to the ground facing
away from the deputies. Gaston landed on his stomach with his hands underneath his
body. Deputy Bailey yelled commands for Gaston to show his hands, but Gaston did

18
not move. Deputy Bailey and Deputy Beyerle approached Gaston. Deputy Bailey
pulled Gaston’s right hand from underneath Gaston’s body while Deputy Beyerle pulled
Gaston’s left hand from underneath Gaston’s body. Sergeant Pederson and a
paramedic came to where Gaston was laying on the ground. The paramedic
pronounced Gaston deceased.

Deputy Bailey said he was told there was possibly another male subject in the forested
area behind the house. Deputy Bailey, Deputy Beyerle, and Deputy Dyberg walked into
the forested area and looked for the male but did not locate anyone. After
approximately fifteen minutes, the deputies returned to the house and Deputy Bailey
began putting up crime scene tape around the perimeter of the house. A short time
later, Deputy Bailey, Deputy Beyerle, and Deputy Dyberg were transported back to the
Twin Peaks Sheriff’s Station.

On November 12, 2012, at approximately 3:05 in the afternoon, Deputy Eric Dyberg
was interviewed by Detective Craig Harris and Detective Steven Pennington.

On November 12, 2012, Deputy Eric Dyberg was assigned to patrol at the Twin Peaks
Sheriff’s Station. Deputy Dyberg was wearing a short sleeve Class “A” San Bernardino
County Sheriff’s Department uniform. Deputy Dyberg’s partner on that date was Deputy
Jacob Bailey. Deputy Dyberg was in the area of Lake Drive when a call came out to
assist the fire department with a possible “5150” subject at a residence.

Deputy Dyberg had been to the residence located at ***** Redwood Way on prior
occasions for “5150” calls. Prior to responding to a call in June 2012, Deputy Dyberg
received a phone call from another deputy who advised Deputy Dyberg to be careful.
The deputy warned Deputy Dyberg that the subject who lived at the residence had
numerous firearms in the residence. Deputy Dyberg did not remember what the
outcome was of the June 2012 call.

When Deputy Dyberg arrived at the residence on November 12, 2012, Deputy Dyberg
saw smoke coming from an upstairs window. Deputy Dyberg was unable to get out on
his radios so he used his cell phone to notify dispatch that he was on scene. Deputy
Dyberg saw two females standing on a cement walkway toward the back of the
residence. Deputy Dyberg and Deputy Bailey approached the females and asked if
there was anyone inside the residence. The younger female said someone may have
locked himself in a safe inside the residence. Deputy Dyberg and Deputy Bailey
escorted the two females out of the front of the residence and then returned to the rear
of the residence. Deputy Dyberg and Deputy Bailey entered the residence through the
kitchen door.

Deputy Dyberg saw a male subject, later identified as Witness #1, dressed in pajamas
and called for him to come out. Deputy Dyberg did not know if Witness #1 was the
“5150” subject the fire department needed assistance with. Deputy Dyberg handcuffed
Witness #1 and escorted him out to a patrol unit. Deputy Dyberg placed Witness #1 in

19
the back seat of the vehicle and returned with Deputy Bailey to the rear door of the
house.

Deputy Dyberg and Deputy Bailey went back inside the residence. Deputy Dyberg and
Deputy Bailey cleared each room looking for any other subjects inside the residence.
Deputy Dyberg located what appeared to be a trap door leading down into another
room. Deputy Lance Beyerle arrived to assist Deputy Dyberg and Deputy Bailey.
Deputy Dyberg made his way into the room from the outside of the residence. Inside
the room was a large safe and re-loading equipment for guns. There was no way to
open the safe. Deputy Dyberg did not believe there was anyone actually hiding in the
safe. The deputies exited the residence.

Sergeant Mark Pederson arrived at the scene and walked with Deputy Dyberg over to
where the firemen were located. Deputy Dyberg and Sergeant Pederson were going to
let the firemen know it was safe to enter the residence, when one of the firemen started
pointing toward the back of the residence. Deputy Dyberg looked to where the fireman
was pointing and saw Deputy Bailey and Deputy Beyerle with their guns drawn. Deputy
Dyberg heard Deputy Bailey and Deputy Beyerle yelling. Deputy Dyberg ran to their
location and saw a person, later identified as David Gaston, coming toward the deputies
with his hands in his pockets.

Deputy Dyberg heard the deputies telling Gaston to take his hands out of his pockets
and to stop. Gaston continued to approach the deputies. Deputy Dyberg went to the
left side of Deputy Bailey and Deputy Beyerle toward the back porch of the residence.
Deputy Dyberg yelled at Gaston to get on the ground and to get his hands out of his
pockets. Deputy Dyberg estimated he was approximately fifteen feet away from Gaston
when he was giving commands. Deputy Dyberg heard Gaston say, “Just do it.” Gaston
was yelling, “Kill me, do it, kill me.”

Gaston then yanked his hand out of his pocket in a very rapid motion. Deputy Dyberg
believed he saw an object in Gaston’s hand and thought it was a gun. Deputy Dyberg
was afraid Gaston was going to shoot Deputy Dyberg or his partners. Deputy Dyberg
fired one round from his shotgun. Deputy Dyberg heard his partners discharging their
weapons at the same time. Deputy Dyberg believed Gaston still had the gun in his
hand and Deputy Dyberg fired a second round from his shotgun. Deputy Dyberg saw
Gaston fall to the ground.

Deputy Dyberg heard one of his partners say there was another subject. Deputy
Dyberg, Deputy Bailey, and Deputy Beyerle began searching the area behind the house
for an additional person but did not locate anyone. Deputy Dyberg indicated
approximately five seconds after the shots were fired, he heard Sergeant Pederson call
out over the radio, “Shots fired.” Within a minute after searching the scene, fire
personnel had approached Gaston and pronounced him deceased.

20
On November 12, 2012, at approximately 4:45 in the afternoon, Deputy Lance
Beyerle, was interviewed by Detective Steven Pennington and Detective Craig Harris.

On November 12, 2012, Deputy Lance Beyerle was assigned to patrol at the Twin
Peaks Sheriff’s Station. At around 9:58 in the morning, Deputy Beyerle heard Dispatch
broadcast a request from the fire department regarding a residential fire with possible
explosives. Dispatch also advised that a subject at the house was “5150.” Deputy
Beyerle responded to the call. While he was driving, there was information broadcasted
that there was a residence on fire and a male subject was going inside to get weapons.
Dispatch provided additional information about prior calls at that location that stated the
subject was going to shoot at deputies and fire department personnel. Deputy Beyerle
heard Deputy Eric Dyberg and Deputy Jacob Bailey broadcast that they had arrived at
the location.

When Deputy Beyerle arrived at the location, he parked his patrol unit on Redwood
Way, east of the residence, and walked up the driveway to the south entrance door.
Deputy Beyerle heard Deputy Dyberg and Deputy Bailey announcing themselves inside
the residence. Deputy Dyberg told Deputy Beyerle that the interior of the upper floor of
the residence was secure but that they still needed to clear a room in the lower portion
of the house. Deputy Dyberg told Deputy Beyerle that two female subjects advised him
that a male subject locked himself in a “safe” located in the lower room.

Deputy Beyerle followed Deputy Dyberg outside to the northwest corner of the
residence. Deputy Dyberg wanted to enter the room in the lower portion of the house
from the outside. Deputy Beyerle provided cover for Deputy Dyberg while Deputy
Dyberg removed the plywood panel off of the residence. When Deputy Beyerle and
Deputy Dyberg entered the room, Deputy Beyerle saw a large gun safe. Deputy
Beyerle and Deputy Dyberg determined there was no one in the room.

Deputy Beyerle, Deputy Dyberg, Deputy Bailey, and Sergeant Mark Pederson met
outside the south entrance door and determined there was still a male subject missing.
Deputy Dyberg and Sergeant Pederson walked down to the driveway to let the fire
department personnel know they could enter the house now that it was secure. Deputy
Beyerle and Deputy Bailey were standing near the south patio area waiting for the fire
department personnel to come up to the house. Deputy Beyerle saw a white male, later
identified as David Gaston, approaching the deputies from the south forest area,
approximately twenty-five yards away.

Deputy Beyerle noticed Gaston had his right hand in his right jacket pocket. It appeared
to Deputy Beyerle that there was a bulge in Gaston’s pocket. Deputy Beyerle drew his
weapon and pointed it at Gaston. Deputy Beyerle ordered Gaston to take his hand out
of his pocket. Deputy Beyerle also heard Deputy Bailey ordering Gaston to take his
hand out of his pocket. Gaston continued to walk toward Deputy Beyerle. Gaston told
Deputy Bailey, “Do your job” several times. Deputy Beyerle and Deputy Bailey
continued to order Gaston to take his hand out of his pocket and to get on the ground.

21
When Gaston was within approximately ten to fifteen yards of the deputies, Deputy
Beyerle ordered Gaston to stop. Deputy Beyerle heard Gaston say, “Kill me” or “Shoot
me.” Deputy Beyerle saw Gaston make an “exaggerated” movement with his right
hand, upward, removing it from his jacket pocket in a rapid motion. Deputy Beyerle saw
what he believed to be a black object in Gaston’s right hand. Deputy Beyerle believed
the object was a gun. Believing Gaston was going to shoot him and/or his partners,
Deputy Beyerle fired his duty weapon three times at Gaston in rapid succession.
Deputy Beyerle heard additional shots fired at the same time. Deputy Beyerle saw
Gaston fall to the ground, face down.

Deputy Beyerle ran to where Gaston had fallen to the ground and pulled Gaston’s arms
out from under Gaston’s body. Gaston was not moving. Deputy Beyerle heard
someone say there was possibly a second subject in the forest area south of him.
Deputy Beyerle, Deputy Dyberg, Deputy Bailey, and Sergeant Pederson searched for a
second subject. After several minutes, the deputies determined there was not a second
subject and everyone from the residence had been accounted for.

Belt Recording Summaries 4

Deputy Eric Dyberg

Deputy Dyberg was equipped with a belt recorder. The belt recorder was activated and
recording during part of the incident under review. The recording is approximately 23
minutes and 14 seconds in length.

The recording starts with Deputy Dyberg discussing entering a room. There was
concern expressed about being shot in the leg if they entered the room from the top.
Deputy Dyberg mentions taking the panel off. Deputy Dyberg can be heard
announcing, “Sheriff’s Department. Is there anybody in there? Show us your hands.”
Another deputy can be heard saying, “Show us your hands.” The deputies can be
heard searching the room and a safe for any subjects. The safe was locked.

Deputy Dyberg and another deputy discuss where the subject may be located. Deputy
Dyberg indicates there may still be a fire in the house. Deputy Dyberg and the other
deputies continue to search the house for additional subjects. Deputy Dyberg can be
heard announcing, “Sheriff’s Department” and asking, “Is there anybody in there?”
Deputy Dyberg indicates the house is clear and nobody is in the house.

4 The belt recordings were reviewed in their entirety. The summaries of the belt recordings will only cover
the events from the beginning of the recordings through the point immediately after the incident under
review.

22
Deputy Dyberg indicates he is going to go get a better story. A voice is heard saying,
“Your guys are drawing down on him out there.” A voice can be heard saying, “Get on
the ground.” Deputy Dyberg yells, “Get on the ground. Get on the ground right now.
Let me see your hand. Take your hand out of your pocket. Take your hand out of your
pocket.” Another voice is heard saying, “Take your hand out of your pocket. Take your
hand out of your pocket now.” Multiple gunshots can be heard.

A voice can be heard saying, “Shots fired.” Deputy Dyberg says, “Got him. Cuff.”
Deputy Dyberg tells someone “We’re in the back. We’re in the back. He’s down. We’re
Code 4.” Someone says, “They said there’s another man.” Deputy Dyberg says,
“Bailey, I got. Just holster your gun.” Another voice says, “Grab cover.” Deputy Dyberg
can be heard saying, “Supposedly there’s another one out there.” The deputies discuss
whether there’s another subject.

Deputy Lance Beyerle

Deputy Beyerle was equipped with a belt recorder. The belt recorder was activated and
recording during part of the incident under review. The recording is approximately 23
minutes and 19 seconds in length.

A deputy is heard saying if they go in from the top they are going to be shot in the leg.
A deputy is heard saying, “Sheriff’s Department. Is there anybody in here? Show us
your hands.” Another deputy says, “Show us your hands.” A deputy says, “Jake, I’m
going to be coming in here. Just keep that top clear.” A deputy can be heard saying,
“Sheriff’s Department. Is there anybody in here? Is there anybody in here?” One of the
deputies tells the other deputy he can come down. A deputy can be heard saying, “Is
there anybody inside this safe?”

The deputies determine it is safe and there is nobody in the room. There’s a discussion
about what they were told about a subject that may be locked in a safe. One of the
deputies indicates there may be a fire in the house. The deputies continue to announce
“Sheriff’s Department. Is there anybody in here?” The deputies continue to look for the
subject in the house. The deputies determine the rest of the house is clear. One of the
deputies says he is going to try and get a clearer story from the witnesses.

A deputy is heard yelling, “Hey, let me see your hands, man, let me see your hands.” A
deputy yells, “Show us your hands.” Multiple deputies are yelling, “Let me see your
hands. Show us your hands.” A male voice responds several times, “Do your job. Do
your job. Do your job. Do your job. Do your job goddamnit.” A deputy yells to get a
beanbag. The deputies repeat their commands to “Sir, show us your hands, “You need
to show us your hands sir,” and “Let me see your hands, sir.” A deputy yells, “Stay right
there.” A male voice can be heard saying, “Shoot me. Shoot me.” Deputies yell, “Get
on the ground.” A deputy is yelling, “Let me see your hands. Take your hand out of
your pocket.” Deputies are yelling, “ Take your hand out of your pocket. Take your

23
hand out of your pocket now.” The male voice can be heard saying, “Shoot me. Shoot
me. Kill me.” Multiple gunshots can be heard.

A deputy yells, “In the back, in the back.” A deputy says, they said there was another
man. A deputy can be heard saying, “Shots fired. Suspect down.” A deputy says,
“Hey, we need med.” Deputy yells, “Cover, cover, cover.” A deputy says, “He opened
his hands. We told him to give us his hands. He pulled something out of his pocket and
threw it.” The deputies discuss whether there is another subject.

Death

Gaston was pronounced deceased by Crest Forest Fire Department Firefighter Witness
#12 at 10:24 in the morning at the scene.

Postmortem Examinations

Witness #14, Chief Forensic Pathologist for the Office of the Riverside County Sheriff-
Coroner, conducted the autopsy of David Gaston on November 14, 2012. Witness #14
noted multiple gunshot wounds to Mr. Gaston’s body. Witness #14 determined the
cause of death was multiple gunshot wounds.

Gunshot wound Number One 5

A large irregular entrance gunshot wound was present in the majority of the left anterior
chest region of Gaston’s body. A slightly irregular and stellate exit gunshot wound was
present in the right shoulder blade region of Gaston’s body. The projectile traveled
primarily from left to right, front to back, and slightly upward. The shotgun wound
resulted in extensive injury to the heart and lungs.

Gunshot wound Number Two

A roughly circular entrance gunshot wound was present involving the tip of the superior
and posterior right shoulder. There was no exit wound associated with the entrance
wound on Gaston’s body. The projectile traveled from right to left, and downward. The
gunshot wound of the right shoulder resulted in a perforating defect to the right lung.

Gunshot wound Number Three

An elliptically shaped entrance gunshot wound was present in the anterior aspects of
the right lower hip region of Gaston’s body. An irregular and somewhat stellate shaped

5The numbering of the gunshot wounds is not intended to indicate the order in which they occurred and
are merely for reference.

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exit gunshot wound was present in the left upper buttock region of Gaston’s body. The
projectile traveled from right to left, minimally downward, and from front to back.

Toxicology

Chest blood, vitreous, gastric, liver, bile and urine samples were collected from Gaston
during the autopsy.

Toxicology results for the Chest Blood sample were listed as follows:
• Alcohol, Ethyl Blood 0.03%
• Acetaminophen 1.1 mg/L
• Trazadone 0.194 mg/L
• Phentermine 0.112 mg/L
• Methadone 0.098 mg/L
• EDDP less than 0.005 mg/L
• Oxycodone 0.017 mg/L
• Desvenlafaxine 0.008 mg/L
• Alprazolam 0.030 mg/L
• 7-Aminoclonaepam 0.045 mg/L

Toxicology results for the Urine sample were listed as follows:

• Alcohol, Ethyl Urine 0.07%
• Acetaminophen 13.4 mg/L
• Trazodone 0.145 mg/L
• Phentermine .409 mg/L
• Methadone 0.147 mg/L
• EDDP 0.041 mg/L
• Oxycodone 0.156 mg/L
• Oxymorphone 0.007 mg/L
• Desvenlafaxine 0.073 mg/L
• Alprazolam 0.309 mg/L
• Alpha-Hydroxyalprazolam

Toxicology results for the Vitreous sample were listed as follows:

• Alcohol, Ethyl Vitreous 0.04%
• Alprazolam 0.005 mg/L
• 7-Aminoclonazepam 0.014 mg/L

Toxicology results for the Brain sample were listed as follows:

• Benzodiazepines detected

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 • Alprazolam 0.070 mg/Kg
• Clonazepam 0.009 mg/Kg
• 7-Aminoclonazepam 0.032 mg/Kg

Toxicology results for the Liver sample were listed as follows:

• Benzodiazepines detected
• Alprazolam 0.191 mg/Kg
• 7-Aminoclonazepam 0.036 mg/Kg

Toxicology results for the Gastric sample were listed as follows:

• Benzodiazepines detected
• Alprazolam detected
• 7-Aminoclonazepam detected

APPLICABLE LEGAL STANDARDS

Laws of Arrest

California Penal Code section 834a

If a person has knowledge, or by the exercise of reasonable care, should have
knowledge, that he is being arrested by a peace officer, it is the duty of such a person to
refrain from using force or any weapon to resist such arrest.

California Penal Code section 835

An arrest is made by an actual restraint of the person, or by submission to the
custody of an officer. The person arrested may be subject to such restraint as is
reasonable for his arrest and detention.

California Penal Code section 835a

Any peace officer who has reasonable cause to believe that the person to be
arrested has committed a public offense may use reasonable force to effect the arrest,
to prevent escape or to overcome resistance.
A peace officer who makes or attempts to make an arrest need not retreat or
desist from his efforts by reason of the resistance or threatened resistance of the person
being arrested; nor shall such officer be deemed an aggressor or lose his right to self-
defense by the use of reasonable force to effect the arrest or to prevent escape or to
overcome resistance.

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 Laws of Self-Defense

The legal doctrine of self-defense is codified in Penal Code Sections 197 through
199. Those sections state in pertinent part: “Homicide is justifiable when committed by
any person in any of the following cases: (1) When resisting any attempt to murder any
person, or to commit a felony, or to do some great bodily injury upon any person...(4)
When necessarily committed in attempting, by lawful ways and means, to apprehend
any person for any felony committed,…or in lawfully keeping and preserving the peace.”
Lawful resistance to the commission of a public offense may be made by the party
about to be injured. (Pen. Code §692.) The resistance may be sufficient to prevent
injury to the party about to be injured, or the prevent injury to someone else. (Pen. Code
§693.)

Where from the nature of an attack a person, as a reasonable person, is justified in

believing that his assailant intends to commit a felony upon him, he has a right in
defense of his person to use all force necessary to repel the assault; he is not bound to
retreat but may stand his ground; and he has a right in defense of his person to repel
the assault upon him even to taking the life of his adversary. (People v. Collins (1961)
189 Cal.App. 2d 575, 588.)

Justification does not depend on the existence of actual danger but rather
depends upon appearances; it is sufficient that the circumstances be such that a
reasonable person would be placed in fear for his safety and the person act out of that
fear. (People v. Clark (1982) 130 Cal.App.3d 371, 377.) “He may act upon such
appearances with safety; and if without fault or carelessness he is misled concerning
them, and defends himself correctly according to what he supposes the facts to be, his
act is justifiable, though the facts were in truth otherwise, and though he was mistaken
in his judgment as to such actual necessity at such time and really had no occasion for
the use of extreme measures.” (People v. Collins, supra, 189 Cal.App.2d at p. 588.)

CAL CRIM 3470 (REVISED 2012)

RIGHT TO SELF-DEFENSE OR DEFENSE OF ANOTHER

Self-defense is a defense to the unlawful killing of a human being. A person is

not guilty of that/those crimes if he/she used force against the other person in lawful
self-defense or defense of another. A person acts in lawful self-defense or defense of
another if:

1. The person reasonably believed that he/she or someone else was in

imminent danger of suffering bodily injury or was in imminent danger of being
touched unlawfully;

2. The person reasonably believed that the immediate use of force was
necessary to defend against that danger; AND

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 3. The person used no more force than was reasonably necessary to defend
against that danger.

When deciding whether a person’s beliefs were reasonable, consider all the
circumstances as they were known to and appeared to the person and consider what a
reasonable person in a similar situation with similar knowledge would have believed. If
the person’s beliefs were reasonable, the danger does not need to have actually
existed.

The person’s belief that he/she or someone else was threatened may be
reasonable even if he/she relied on information that was not true. However, the person
must actually and reasonably have believed that the information was true.

A person is not required to retreat. He or she is entitled to stand his or her ground
and defend himself or herself and, if reasonably necessary, to pursue an assailant until
the danger of death/bodily injury has passed. This is so even if safety could have been
achieved by retreating.

USE OF DEADLY FORCE BY A PEACE OFFICER

Authorization of the use of deadly force is analyzed under the Fourth

Amendment's “objective reasonableness” standard. (Brosseau v. Haugen (2004) 543
U.S.194, 197.) This question is governed by the principles enunciated in Tennessee v.
Garner (1985) 471 U.S. 1 and Graham v. Connor (1989) 490 U.S. 386.

In these decisions, the US Supreme Court explained “it is unreasonable for an

officer to ‘seize an unarmed, non-dangerous suspect by shooting him dead.….
However, where the officer has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or others, it is not constitutionally
unreasonable to prevent escape by using deadly force.” (Tennessee v. Garner, supra,
471 U.S. at p. 11.)

Reasonableness is an objective analysis and must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight. (Graham v. Conner, supra, 490 U.S. at p. 396.) It is also highly deferential to
the police officer's need to protect himself and others. The calculus of reasonableness
must embody allowance for the fact that police officers are often forced to make split-
second judgments in circumstances that are tense, uncertain, and rapidly evolving
about the amount of force that is necessary. (Id. at p. 396-397.) The question is whether
the officer’s actions are “objectively reasonable” considering the facts and
circumstances confronting them, without regard to their underlying intent or motivation.
(Id. at p. 397.)

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 The US Supreme Court in Graham set forth factors that should be considered in
determining reasonableness: (1) the severity of the crime at issue, (2) whether the
suspect poses an immediate threat to the safety of the officers or others, and (3)
whether he is actively resisting arrest or attempting to evade arrest by flight. (Graham v.
Connor, supra, 490 U.S. at p. 396.) The question is whether the totality of the
circumstances justifies a particular sort of ... seizure. (Tennessee v. Garner (1985) 471
U.S. at p. 8-9. The most important of these factors is the threat posed by the suspect.
(Smith v. City of Hemet (2005) 394 F.3d 689,702.)

Thus, under Graham, the high court advised we must avoid substituting our
personal notions of proper police procedure for the instantaneous decision of the officer
at the scene. “We must never allow the theoretical, sanitized world of our imagination to
replace the dangerous and complex world that policemen face every day. What
constitutes ‘reasonable’ action may seem quite different to someone facing a possible
assailant than to someone analyzing the question at leisure.” (Smith v. Freland (1992)
954 F.2d 343, 347.)

Reasonableness: The Two Prongs

Penal Code section 197, subdivision (3) requires that one who employs lethal force
have a “reasonable ground to apprehend” a design to commit a felony or to do some
great bodily injury. Further, Penal Code section 198 requires that such fear be
“sufficient to excite the fears of a reasonable person.” This is clearly an objective
standard. In shorthand, perfect self-defense requires both subjective honesty and
objective reasonableness. (People v. Humphrey (1996) 13 Cal.4th 1073, 1093.)

When specific conduct is examined under the analytical standard of reasonableness the
concepts of apparent necessity and mistake are invariably, and necessarily, discussed,
for they are part of the same equation. “Reasonableness,” after all, implies potential
human fallibility. The law recognizes, as to self-defense, that what is being put to the
test is human reaction to emotionally charged, highly stressful events, not mathematical
axioms, scientifically provable and capable of exact duplication.

While the test, as mandated by section 198, is objective, reasonableness is determined

from the point of view of a reasonable person in the position of one acting in self-
defense. (People v. Minifie (1996) 13 Cal.4th 1055, 1065.) We must take into
consideration all the facts and circumstances that might be expected to operate in the
persons mind. (Ibid.) Reasonableness is judged by how the situation appeared to the
person claiming self-defense, not the person who was injured or killed as a result.

Imminence of Perceived Danger

“Imminence is a critical component of both prongs of self-defense.” (People v.

Humphrey, supra, 13 Cal.4th at p. 1094.) Response with deadly force must be

29
predicated on a danger that portends imminent death or great bodily injury.
Reasonableness and immediacy of threat are intertwined. Self-defense is based on the
reasonable appearance of imminent peril of death, or serious bodily injury to the party
assailed.

In People v. Aris the trial court clarified that imminent peril means that the peril must
have existed, or appeared to the person to have existed, at the very time the shot was
fired. (People v. Aris (1989) 215 Cal.App.3d 1178, 1188 disapproved on another ground
in People v. Humphrey (1996) 13 Cal.4th 1073.) This was later cited with approval by
the California Supreme Court: “An imminent peril is one that, from appearances, must
be instantly dealt with.” (In re Christian S. (1994) 7 Cal. 4th 768,783 quoting People v.
Aris, supra, 215 Cal.App.3d at p. 1187.)

The question is whether action was instantly required to avoid death or great bodily
injury. In this regard, there is no duty to wait until an injury has been inflicted to be sure
that deadly force is indeed appropriate.

Retreat and Avoidance

Under California law one who is faced with an assault that conveys death or great bodily
injury may stand his ground and employ lethal force in self-defense. There is no duty to
retreat even if safety could have been achieved by retreating. (CALCRIM No. 3470.)
Indeed, in California the retreat rule has been expanded to encompass a reasonably
perceived necessity to pursue an assailant to secure oneself from danger. (See People
v. Holt (1944) 25 Cal.2d 59, 63; People v. Collins (1961) 189 Cal. App.2d 575, 588.)

Nature and Level of Force

The right of self-defense is limited to the use of such force as is reasonable under the
circumstances. (See People v. Gleghorn (1987) 193 Cal.App.3d 196, 200; People v.
Minifie, supra, 13 Cal.4th at p. 1065; People v. Moody (1943) 62 Cal.App.2d 18,22.)

Case law does not impose a duty to use less lethal options. “Where the peril is swift
and imminent and the necessity for action immediate, the law does not weigh into nice
scales the conduct of the assailed and say he shall not be justified in killing because he
might have resorted to other means to secure his safety.” (People v. Collins, supra, 189
Cal.App.2d at p. 578.)

The rationale for vesting the police officer with such discretion was explained:

Requiring officers to find and choose the least intrusive

alternative would require them to exercise superhuman
judgment. In the heat of battle with lives potentially in the

30
 balance, an officer would not be able to rely on training and
common sense to decide what would best accomplish his
mission. Instead, he would need to ascertain the least
intrusive alternative (an inherently subjective determination)
and choose that option and that option only. Imposing such a
requirement would inevitably induce tentativeness by
officers, and thus deter police from protecting the public and
themselves. It would also entangle the courts in endless
second-guessing of police decisions made under stress and
subject to the exigencies of the moment.

Scott v. Henrich (1994) 39 F.3d 912, 915.

In summary, an honest and objectively reasonable belief that lethal force is necessary
to avoid what appears to be an imminent threat of death or great bodily injury will justify
the use of deadly force. This is true even if the person acting in self-defense could have
safely withdrawn or had available to him a less lethal means of defense.

ANALYSIS

On November 12, 2012, at around 9:58 in the morning, deputies from the Twin Peaks
Sheriff’s Station responded to a request from the fire department for assistance with a
“5150” subject at a structure fire at a residence located at ***** Redwood Way, in the
City of Crestline. Fire department personnel were concerned there were explosives and
firearms in the residence. Deputy Jacob Bailey, Deputy Lance Beyerle, and Deputy Eric
Dyberg all responded to the call. Deputy Bailey, Deputy Beyerle, and Deputy Dyberg
were all wearing San Bernardino County Sheriff’s Department uniforms on that date.
Fire department personnel were standing by waiting for the deputies to clear the house
prior to entering to put out the fire. The deputies were advised that the “5150” subject,
later identified as David Gaston, was possibly retrieving firearms from inside the house
and had threatened to shoot firefighters and deputies. The deputies were also advised
Gaston may have locked himself inside of a safe. The deputies detained one male and
two females prior to entering the residence.

Once the deputies entered the residence, they noticed the inside of the house was
smoky, but the deputies were unable to determine where the smoke was coming from.
The deputies went room by room and searched for any additional people. In a room
west of the kitchen, the deputies located a hole in the floor. There was a ladder leading
down into another room. The deputies searched the room and located a large gun safe.
The gun safe was locked. The deputies called for anyone inside the safe to come out,
but the deputies received no response. After the house was searched and no other
individuals were found, Deputy Dyberg decided to speak with two female witnesses who
had been detained. Deputy Dyberg hoped to get a clearer idea of where Gaston could
be located.

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Deputy Bailey and Deputy Beyerle went to the rear door of the residence and waited for
fire department personnel. Deputy Bailey and Deputy Beyerle were facing the house
when Deputy Bailey heard a male voice behind them. When Deputy Bailey and Deputy
Beyerle turned around, they saw Gaston walking from the forested area behind the
house. Gaston was yelling at the deputies and had his right hand inside his right-side
jacket pocket. Deputy Bailey and Deputy Beyerle pointed their duty weapons at Gaston
and ordered Gaston to take his hand out of his pocket.

Gaston walked toward the deputies. Deputy Bailey yelled for assistance from Deputy
Dyberg and Sergeant Mark Pederson. Deputy Dyberg came to the back of the house
with a shotgun and ordered Gaston to take his hand out of his pocket. Gaston
continued to yell at the deputies, “Do your job. Do your job.” Gaston would not comply
with the deputies’ commands to take his hand out of his pocket. Gaston kept his right
hand in his pocket and continued to walk toward the deputies.

Deputy Bailey and Deputy Beyerle saw a bulge in Gaston’s front pocket. Deputy Bailey
believed Gaston had a weapon. The deputies ordered Gaston to take his hand out of
his pocket and to get on the ground. Gaston did not comply with the commands and
continued to move toward the deputies. Gaston yelled, “Do your job” several times.
When Gaston was within approximately fifteen feet of Deputy Dyberg, Deputy Bailey
ordered Gaston to stop. Deputy Beyerle also ordered Gaston to stop. Gaston told the
deputies, “Shoot me. Kill me.”

Next, Gaston made an “exaggerated” movement with his right hand, upward, taking it
from his jacket pocket in a rapid motion. Deputy Beyerle believed he saw a gun and
feared Gaston was going to shoot at Deputy Beyerle and his partners. Deputy Beyerle
fired his weapon at Gaston three times. Deputy Dyberg believed he saw an object in
Gaston’s hand and believed it was a gun. Deputy Dyberg fired one round from his
shotgun and heard his partners fire their weapons at the same time. Deputy Dyberg
believed Gaston still had a gun in his hand and Deputy Dyberg fired a second round
from his shotgun. When Deputy Bailey saw Gaston pull his hand from his pocket, it
appeared to Deputy Bailey that Gaston had something in his pocket and was going to
point it at Deputy Dyberg. Deputy Bailey believed Deputy Dyberg’s life was in danger,
so Deputy Bailey shot once at Gaston.

In this case, Deputy Bailey, Deputy Beyerle, and Deputy Dyberg each had an honest
and objectively reasonable belief that Gaston posed a threat of serious bodily injury or
death to themselves and their partners. It was objectively reasonable for the deputies to
believe Gaston intended to seriously injure or kill the deputies at the scene. When the
deputies arrived at the scene, they knew a “5150” subject, Gaston, was retrieving
weapons from inside the residence. The deputies had also been told Gaston had made
threats to shoot at the firefighters and deputies. When Gaston walked out of the
forested area towards the deputies, he had his right hand in his front jacket pocket. The
deputies repeatedly ordered Gaston to take his hand out of his pocket.

32
Gaston was uncooperative and refused to follow the deputies’ orders. Instead, Gaston
continued to walk closer toward the deputies. Gaston was yelling at the deputies, “Do
your job. Do your job.” At the same time that Gaston was yelling, Gaston was closing
the distance between himself and the deputies. The risk Gaston posed to the deputies’
physical safety significantly increased with each step Gaston took. Deputies continued
to order Gaston to stop and show his hand. Gaston, however, refused to comply with
the deputies’ commands to take his hand out of his pocket. As Gaston neared Deputy
Dyberg, Gaston told the deputies, “Shoot me. Kill me.” Gaston then quickly pulled his
hand out of his pocket in an upward motion. Believing Gaston had pulled out a gun,
and afraid they were about to be shot, the deputies fired their weapons. Given those
circumstances, it was not unreasonable for the deputies to believe Gaston now posed
an immediate threat of serious bodily injury or death. Thus, the decision by Deputy
Bailey, Deputy Beyerle, and Deputy Dyberg to use deadly force was justified.

CONCLUSION

Based on the facts presented in the reports and the applicable law, Deputy Bailey’s use
of deadly force was a proper exercise of Deputy Bailey’s right of self-defense and
defense of others and therefore his actions were legally justified.

Based on the facts presented in the reports and the applicable law, Deputy Beyerle’s
use of deadly force was a proper exercise of Deputy Beyerle’s right of self-defense and
defense of others and therefore his actions were legally justified.

Based on the facts presented in the reports and the applicable law, Deputy Dyberg’s
use of deadly force was a proper exercise of Deputy Dyberg’s right of self-defense and
defense of others and therefore his actions were legally justified.

____________________________ _____________________
Lynette Grulke Date
Deputy District Attorney
Rancho Cucamonga Office

____________________________ _____________________
Simon Umscheid Date
Chief Deputy District Attorney
Central Division

_____________________________ _____________________
Julie A. Peterson Date
Assistant District Attorney

33