By Mark Gutglueck
(August 28) The San Bernardino County District Attorney’s Office will not file criminal charges against San Bernardino County Sheriff’s Deputy Ismael Diaz and his partner, Joseph Perea, following a more than year-long review of the fatal shooting of Merlin Factor, 26, in Yucaipa on June 29, 2013.
Factor’s death was the third in which Diaz had a hand in a 26-month period beginning in May 2011.
Factor was shot nine times while he was inside a car driven to the scene of the shooting by a woman identified only as Erin H.
According to deputy district attorney Simon Umschied, Factor and Erin H. had been in a short-lived dating relationship that had soured after Factor’s amphetamine use had led to radical mood swings in which she alleged he had physically abused her, had stolen from her and perpetrated vandalism to the mobile home coach in which she resided.
On June 29, 2013 according to Umschied, Erin H. purposefully had driven to meet Factor as part of an effort to have Factor arrested. On June 29, according to Umschied, Factor confronted Erin H. at the mobile home coach she lived in at a trailer park on Second Street and claimed that she owed him money, and then threw a rock through her coach’s window as he was leaving.
A short time later, Factor called Erin H., denied throwing the rock through her window and asked her for a ride to Calimesa. She agreed to do so, but before heading off to meet him at a location on Third Street, she instructed her on-again off-again live-in boyfriend, identified only as Ben D., to phone the police and notify them of where she would be with Factor in an effort to have Factor, whom she knew to have outstanding warrants against him, arrested.
“Erin H. had come up with the plan in hopes of getting Factor into custody so he would stop harassing her,” according to Umschied.
Erin H. picked Factor up at Fourth Street and Wildwood Canyon Road. Meanwhile, Ben D. contacted the sheriff’s office and, after reporting the rock throwing incident, told Diaz, the responding officer about Erin H.’s ongoing effort to attract the attention of law enforcement with Factor in her company as a way to have Factor arrested. Both Diaz and Perea, driving different patrol cars, were now on the lookout for Factor and Erin H., driving in a green Chevrolet Malibu. The green Malibu was spotted at Der Wienerschnitzel by Diaz, but before he could maneuver his car to effectuate a confrontation there, Erin H. pulled out onto Yucaipa Blvd going in the opposite direction. Diaz radioed Perea and turned around to follow the Malibu, which Erin H. pulled into a church parking lot. Both Diaz and Perea followed the Malibu into the parking lot, stopping on either side of the car.
When Diaz made contact with Factor, according to Umschied, Factor identified himself as John Harper. Believing Diaz to be the suspect described to him by Ben D., Diaz attempted to arrest and handcuff him. Factor pulled away and fell back into the car, according to Umschied, and when Diaz approached the car, Factor grabbed Diaz’s shirt.
The district attorney’s office report maintains that Factor tore Diaz’ shirt and Diaz, ordering Factor to stop resisting, pushed Factor back into the car.
In his statement to investigators, Diaz claimed Factor grabbed him around the waist and put his hand on Diaz’s holster. Simultaneously, according to the district attorney’s office report, Perea yelled “gun, gun, gun” and attempted to deployed his taser. It is not clear whether Perea was referring to his belief that Factor had possession of Diaz’s gun, or whether he was signaling to Diaz to stand clear to avoid being jolted by the electric shock to be inflicted on Factor. The taser, however, did not seem to be effective. When Factor appeared to be reaching deep into his pants, Perea deployed the taser again, to no apparent effect. Diaz ordered Factor to show his hands several times.
“Diaz believed that Factor was attempting to reach something, perhaps a gun, that was deep inside his pants,” according to Umschied .“Diaz kept ordering Factor to show him his hands or he was going to have to shoot him.”
According to Umschied, “Diaz was concerned that he would have no route of escape if Factor produced a gun and started firing. Because of the position of the confrontation in the car and the placing of the police unit he feared he would not be able to get out of harm’s way.”
Factor continued to disregard Diaz’s order to stop reaching in his waistband and show his hands. As Factor continued to disregard Diaz’s commands, Deputy Perea opened fire on factor with his weapon, according to Umschied.
Diaz told investigators Factor continued to reach into his waistband as the shots were being fired. According to Umschied, “Diaz stated that he thought he heard 4-5 shots. Diaz did not unholster or fire his weapon at Factor. After Factor stopped moving, Diaz pulled him from the car and called for an ambulance. Perea started CPR on Factor. Diaz indicated that he also located a knife in Factor’s left front pocket.”
Factor was declared dead at Redlands Community Hospital and the autopsy report revealed he had been shot a total of nine times down the right side of his torso. The autopsy also reported that Factor had alcohol, methamphetamine and cannabinoids in his system at the time of his death.
According to Umschied, who submitted his report on behalf of district attorney Mike Ramos, “Based on the reasonable fear created by Factor grabbing the deputy around the waist, and continuing to grab in his own waistband, ignoring commands to stop, deputy Perea was legally justified, under the laws of self-defense and defense of others, in using lethal force to defend himself and deputy Diaz. As a result, no criminal liability exists on the part of deputy Perea or deputy Diaz.”
Diaz was involved in the officer-involved death of Allen Kephart which took place on May 10, 2011 in the San Bernardino Mountains when Diaz, deputy Michael Gardea and sergeant Bryan Lane unleashed their tasers on him a total of 16 times.
On October 26, 2011 Diaz and Perea were involved, along with sergeant Michael O’Brien in the fatal shooting of Kenneth Munoz Jr. after sheriff’s deputies had been summoned to the 35200 block of Avenue B in Yucaipa by Kenneth Paul Munoz Sr., who reported that his son was refusing to return to him his truck, which they used in common as a work vehicle in their family run business. After the younger Munoz fled, the officers gave chase, utilizing a taser, and a bean-bag shotgun on him. After Munoz was lying face down on the ground and Perea was kneeling upon Munoz’s back in an effort to handcuff him, Munoz reacted and Perea’s gun, a 45-caliber Glock 21 pistol, fell out of its holster. A scuffle between Perea and Munoz ensued and when Perea separated from Munoz, O’Brien opened fire, striking Munoz twice. Diaz then shot Munoz ten times as he lay on the ground. Munoz died at the scene.
By Mark Gutglueck