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Anaheim police officer cleared in fatal shooting

March 21, 2013 | 12:15 pm

An Anaheim police officer had reason to believe his life was in danger after cornering a young man in an apartment complex and fatally shooting him in a known hotbed for gang activity, prosecutors say.

After a monthslong investigation, Orange County prosecutors said Wednesday they had cleared Officer Nicholas Bennallack in last summer's shooting -- one in a string of officer-involved shootings that prompted a torrent of unrest in the county's largest city.

"In such a scenario, one can have only a split-second to decide how to proceed," said Assistant Dist. Atty. Dan Wagner, who added that the evidence suggested that Bennallack "believed he was in imminent danger."

PHOTOS: Protests against Anaheim police shootings

Prosecutors said the examination was "thorough," based on dozens of witness interviews, as well as forensic analysis and a review of the employment record of Bennallack and criminal history of Diaz, 25.

In the report, prosecutors said Diaz was a gang member with a previous gun-possession conviction, and disclosed that investigators found a cellphone at the scene that had photographs of Diaz flashing gang signs and brandishing several handguns.

Dana Douglas, an attorney for the Diaz family, criticized the decision to not file charges, calling the findings "biased" and Bennallack — who had been investigated and cleared in another fatal shooting earlier in 2012 — "trigger-happy."

Douglas also represents the family of the first man killed, Bernie Villegas, 36, whom authorities have described as an alleged drug dealer.

"They are on the same team," Douglas said of the district attorney's office and police. "Frankly, I could have written their report the day after the shooting."

She said she was given the report Wednesday and had shown it to the family, who were "in tears" as they learned of its findings. The family also disputes authorities' contention that Diaz was a gang member.

"This is like a rape case," Douglas said. "Let's blame the victim."

Prosecutors said Bennallack, a 5 1/2-year department veteran, had been in the same alley — on Anna Drive in central Anaheim — weeks before when a suspected gang member was arrested on suspicion of possessing a handgun, which was in a holster on the man's front waistband. He also knew of the area's reputation as a gang stronghold.

About 4 p.m. on July 21, prosecutors said, Bennallack and his partner were patrolling the area in an unmarked police cruiser and spotted a parked car in the alley with several men around it. Diaz stood on the passenger side of the car. He had a shaved head, wore baggy jeans and a loose-fitting T-shirt.

Bennallack's partner, Officer Brett Heitmann, said he recognized Diaz and told investigators that he saw Diaz adjust something in his waistband. He said he believed that it could have been a weapon. Heitmann said that as the officers got out of the car, Diaz ran away, with his hands holding on to the front of his waistband and his elbows sticking out.

The officers, Heitmann said, yelled for him to stop, then chased Diaz from the alley to the apartment complex courtyard, where he was stopped by a wrought-iron fence. In an interview with investigators, Bennallack said he feared that Diaz wasn't "attempting to get away from me so much as he is [attempting] to get to a point where he can kill me."

Bennallack said he saw Diaz, with his back to the officers, holding an object he thought was a gun.

"At this time, I believed the suspect was attempting to turn and — to kill me," he said. He said Diaz held the object with two hands, something another witness corroborated.

"As he began to turn, in fear for my life, I drew and fired my weapon two times," Bennallack said. "I did this to save my life, as well as my partner's life."

Heitmann said he heard Bennallack shout something that sounded like "Guhh!" Heitmann also pointed his gun at Diaz, with his finger on the trigger. He heard two or three gunshots in rapid succession. The officers handcuffed Diaz and began searching him and the nearby area for a weapon, but did not find one.

An autopsy showed Diaz died of two gunshot wounds: one to the buttocks and another to the head. According to a toxicology report, Diaz's blood showed the presence of methamphetamine, amphetamine, THC and a prescription medication used to prevent seizures.

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-- Rick Rojas

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