A mentally ill Fresno man who was shot by a Fresno police officer after he charged at the officer with a knife was sentenced Thursday to five years behind bars but will be released from custody because of time served in the Fresno County Jail.
The sentence in Fresno County Superior Court ended a long legal battle for defense attorney Marina Pincus and her client, James Timmons, 29, who initially was convicted of the September 2013 attempted murder of officer Eric Kong, a crime that would have resulted in a prison term of seven years to life in prison.
But in a rare ruling, the attempted murder conviction was dismissed in January after Judge Gary Hoff ruled that Timmons was in a psychotic state when he confronted Kong. In general, the law requires the prosecution to prove that the defendant had a particular purpose or intent to commit the crime.
In his ruling, Hoff told prosecutor Ryan Wells he could retry Timmons on the attempted murder charge. Hoff also let stand the jury’s verdict of assault with a deadly weapon.
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Instead of retrying Timmons, the District Attorney’s Office appealed Hoff’s ruling in the 5th District Court of Appeal in Fresno but then abandoned it.
On Thursday, Wells told Hoff that the District Attorney’s Office also decided not to pursue the attempted murder charge, opening the door for Timmons to be sentenced.
Hoff sentenced Timmons to the maximum punishment of five years in prison for the assault charge.
In announcing the sentence, Hoff said the evidence at Timmons’ trial showed that he was suicidal and delusional when he attacked Kong.
“He was undergoing a psychotic episode,” the judge said. “For whatever reason, he chose to sacrifice himself when he confronted and assaulted the officer.”
He was undergoing a psychotic episode. For whatever reason, he chose to sacrifice himself when he confronted and assaulted the officer.
Fresno County Superior Court Judge Gary Hoff
Hoff said Timmons’ goal of committing suicide by cop put Kong and others at great risk.
Because of time served in jail, Timmons will be released from jail immediately, the judge said. And once released, he will be under the supervision of parole, Hoff said.
Outside court, Timmons’ relatives cried and thanked Pincus.
During a trial in November, Pincus and Wells agreed that Timmons held a knife when he confronted Kong, who fired six rounds at Timmons in a dark alley during the early hours of Sept. 4, 2013, at an apartment complex near Sierra Vista and McKinley Avenue in east-central Fresno.
According to Pincus, on the day of the incident Timmons believed his mother was being held hostage and that he had to sacrifice his life to save his family. Pincus said the family believed he was on drugs and wanted to get Timmons to a hospital, so when they made a 911 call, they believed they were calling for an ambulance. Instead, officers showed up.
Seeing police, Timmons, holding a knife, charged Kong, Wells told the jury. Kong fired his service weapon, momentarily stopping Timmons. Getting off the ground, Timmons charged again, causing Kong to trip while backing up. Kong then fired several more rounds, stopping Timmons from attacking again, Wells told the jury.
In defending Timmons, Pincus told the jury that a toxicology report showed no drugs in Timmons’ body. She also argued that Timmons is bipolar, delusional and hearing voices, and therefore was incapable of forming the intent to kill or harm Kong.
The jury learned from Dr. Harold Seymour that Timmons suffers from bipolar Type 1 disorder. Timmons also testified that he was crying when he confronted police. And according to Pincus, Kong testified that Timmons never said a word and had a blank face.
After the shooting, Timmons spent nearly a year in the hospital. He lost his right leg, can no longer use his left arm and has to use a wheelchair.
In dismissing the attempted murder charge, Hoff said the evidence showed that Timmons suffers from mental illness that was “undiagnosed and untreated” before the shooting. He noted for the record that Timmons had written an apology letter to Kong and that Timmons never slashed at the officer with the knife or cut the officer.
In addition, Timmons never said he was going to kill the officer, Hoff said.