Witness to fatal Sanger police shooting says suspect had hands up

The bystander who used his cellphone to record Sanger police shooting and killing Charles Salinas in June 2012 testified Friday that the mentally ill Marine Corps veteran was unarmed, had his hands up near his shoulders and was complying with officers’ orders to come out of a flower bed when he was shot.

And for the first time, jurors in the federal civil rights trial got to view the video of the shooting in slow motion to help them determine whether Salinas made a sudden move with his hands toward his waistband and lunged at the officers as the three police officers have testified.

The sudden moves, the three officers contend, gave them the right to shoot Salinas since they believed he was going for a weapon and could have killed them.

On the third day of the testimony in U.S. District Court in Fresno, lawyers for Salinas’ family continued to probe the shooting death of Salinas, 46, and an alleged police cover-up since the three officers who shot Salinas with assault rifles were allowed to stay together in a room at police headquarters for more than four hours and talked to a lawyer and police Chief Silver Rodriguez before meeting with Fresno County sheriff’s detectives.

But a legal twist looms on the horizon.

Outside the presence of the jury, Judge Anthony Ishii said Friday that a May 2012 incident involving Salinas and the Fresno Police Department could become evidence in the trial.

According to Ishii, one month before Salinas was killed, he wanted to commit “suicide by cop,” but was unsuccessful.

The issue is whether Salinas learned from that incident that he had to provoke police for an officer to shoot him. Ishii said he was leaning to allow the circumstantial evidence because in Salinas’ 911 call to the Sanger Police Department, he told dispatch that he wanted to die and he needed to provoke the officers.

Even if the May 2012 evidence is allowed, Ishii said the central issue remains: Did Salinas pose a threat to the officers right before he was fatally shot in the afternoon of June 15, 2012?

The trial in Ishii’s courtroom gives a rare glimpse into an officer-involved shooting because the police didn’t know they had been videotaped when they gave their account of the shooting to Fresno County sheriff’s investigators, court records say.

In the minutes before his death, Salinas called 911 and told a police dispatcher that he had a gun and two knives and wanted police to kill him.

“When they get here, tell them to shoot me,” Salinas told the dispatcher.

But Salinas also promises dispatch that he would not hurt the officers.

A cellphone video taken by a bystander shows the three officers with assault rifles standing 10 to 15 feet from Salinas before they opened fire. The officers fired 22 rounds toward Salinas, striking him 11 times as he stood unarmed in a flower bed outside a Sanger business on Academy Avenue in June 2012.

Salinas’ sister, Esperanza Booke, has sued Sanger and the three officers in U.S. District Court in Fresno for violation of Salinas’ civil rights, saying the use of deadly force against an unarmed and mentally distraught man was unjustified, excessive and a callous disregard for human life.

The video shows Officer Robert Pulkownik firing twice at Salinas with his bean-bag shotgun and Sgt. Jason Boust and officers Angela Yambupah and Preston Little firing AR-15 assault rifles. Fresno County sheriff’s Sgt. Joshua McCahill, who also responded to the call, pointed a gun at Salinas but never fired it.

Boust, Yambupah and Little are defendants in the trial that will be decided by a jury of three women and five men. McCahill and Pulkownik are not defendants.

In defending the officers, San Francisco attorney Dale Allen Jr. implored the jury to understand the “totality of the circumstances” before making a decision. He contends the officers had to make a split-second decision to use lethal force.

Though the video contradicts the officers’ version of the shooting, Allen asked the jury not to hold it against them, saying “in their minds” Salinas was running, sprinting or lunging toward them.

Salinas family attorney Robert Hamparyan, however, contends that only Pulkownik, also a military veteran, tried to defuse the situation by calmly talking to Salinas, who suffered from post-traumatic stress disorder. Hamparyan said the other officers yelled at Salinas, thereby creating a chaotic and hostile situation.

On Friday, Arthur Osuna, who took the cellphone video, testified, as did Yambupah.

Osuna said he was a passenger in a van leaving an auto parts store when he heard yelling. He said he then saw police yelling at Salinas to “get down.”

Out of habit, Osuna testified that he took out his cellphone and started recording the incident. He said Salinas was standing in a flower bed that was 2 feet high. “I saw nothing in his hands,” Osuna told the jury, estimating that he was closer than 40 yards from the shooting.

When the officer said, “Get out,” Salinas put his hands up around his shoulders with his palms showing, Osuna testified. But once Salinas started to step down from the flower bed he was shot, Osuna said. “He didn’t get to touch ground,” he told the jury.

Osuna testified that Salinas never moved “in an aggressive way” nor was he sprinting, lunging or charging toward the officers, as Boust, Little and Yambupah have testified.

After he was shot, Salinas fell forward onto the pavement, Osuna said. The officers then turned his body over and handcuffed Salinas, he said.

Osuna and the driver left without talking to police. He said he later turned over a copy of the video to a news station, which in turn told sheriff’s investigators. Asked why he didn’t turn it over to law enforcement first, Osuna said he didn’t trust police to tell the truth.

On cross-examination, Osuna admitted that his testimony was a combination of what he saw and heard on the day of the shooting and his review of his video.

Yambupah testified that she first spotted Salinas in an alleyway about 75 yards away. She said when Salinas walked aggressively toward her and put his hand under his T-shirt toward his waistband twice, she aimed her assault rifle at him, causing him to run.

Within minutes, she saw Pulkownik talking to Salinas who was squatting in the flower bed. While they were talking, she aimed her rifle at Salinas.

Yambupah testified that she recalled dispatch saying Salinas would not hurt any officer. She also recalled Salinas telling Pulkownik: “I am worthless.”

Pulkownik was able to convince Salinas to stand up. By then, Yambupah joined Little, Boust, McCahill and Pulkownik to form a skirmish line in front of Salinas.

Yambupah recalled Salinas pointing at two officers and telling them: “I don’t want you to shoot me.”

She said Salinas then pointed at McCahill and said, “I want you to shoot me.”

Like Boust and Little, Yambupah testified that she never saw Salinas with a weapon or heard him make a verbal threat. But she said she saw him make a sudden move with his left hand toward a “black, shiny object” on his left hip. She testified that it could have been a gun or a handle or barrel of a gun.

She said Salinas was shot when he lunged at the officers.

In shooting toward Salinas 12 times, Yambupah said she was not in fear of her life, but feared that Salinas would kill one of the other officers. She also testified that she fired her weapon because the bean bag shotgun had no effect on Salinas.

Yambupah said she shot Salinas while he was standing and falling to the ground. She also believes she might have shot him once while he was on the ground.

When Yambupah was shown the video, Hamparyan said it appears that all of the officers fired simultaneously, so there was no way Yambupah could know if the bean-bag had any effect on Salinas. In addition, Little already has testified that he fired his assault rifle first– before Pulkownik fired his bean-bag shotgun.

But Yambupah said it was her perception at the time was that Pulkownik had fired the bean-bag shotgun. She also said in a dangerous situation there is no requirement to wait for the bean bags to take effect before she fired her assault rifle.

“I heard the less lethal (shotgun) and I made the decision to fire when I didn’t see any effect,” she testified.

After Salinas was killed, Yambupah learned the object on his left hip was a cellphone and its holder.

Pulkownik and McCahill have yet to testify. The trial, which is scheduled to cover three weeks, will resume Wednesday.

This story was originally published February 12, 2016 at 6:33 PM with the headline "Witness to fatal Sanger police shooting says suspect had hands up."