TUSTIN – The Orange County District Attorney’s Office on Monday cleared a Tustin police officer in the shooting death of an unarmed man the officer believed was reaching for a concealed weapon.
Officer Osvaldo Villareal was justified in shooting and killing Benny Herrera, 21, on Dec. 17, 2011, while responding to reports of domestic violence at Herrera’s girlfriend’s residence, a letter released Monday outlining the results of the district attorney’s investigation said.
Herrera’s girlfriend called police shortly after 3 p.m. to report that Herrera, who appeared to be under the influence of methamphetamine, had punched her and taken her cellphone, the report said.
Villareal and Officer Brian Miali responded to the 911 call. On the way to the girlfriend’s residence, Miali saw Herrera walking in the middle of the street. Miali told investigators that Herrera was walking toward his marked police car with his hands in his sweatshirt near his waistband.
Villareal arrived in a second marked police vehicle, at which point Herrera started walking toward his car. Villareal told the investigators that he ordered Herrera to show his hands, firing at him when he didn’t comply.
Herrera was struck in the chest and pronounced dead at the scene. No weapons were found on or near him.
Villareal told investigators that he shot Herrera due to his fear that Herrera was about to shoot him.
“Officer Villareal’s claim that he was fearful that Herrera would shoot is corroborated by Officer Miali, who had the same belief and fear and who himself had drawn his weapon based on his own observations and interactions with Herrera just prior to Officer Villareal’s encounter,” investigators said. “No evidence was found which disproves Officer Villareal’s claim that he acted solely out of the perceived need to defend himself.”
After the shooting, Herrera’s girlfriend told investigators that he had been making suicidal comments before the police confrontation. When told that he had been shot by police, the girlfriend remarked that Herrera “always said he wanted to go out like that,” the report said.
Herrera was on parole at the time of his death, having previously served prison time for possession of a controlled substance for sale, battery and firearm possession. A toxicology test determined that he had several drugs in his system at the time of his death, including methamphetamine.
By SEAN EMERY/ THE ORANGE COUNTY REGISTER
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