How are debts and other claims against a decedent’s estate handled in California?
Often a properly completed creditor’s claim form needs to be timely filed in a probate court proceeding. (Note: An equivalent court proceeding is sometimes opened by the trustee of the decedent’s trust estate provided no probate exists, but this is uncommon.) Other claims do not require filing a creditor claim. Let us discuss each.
Foreclosure actions by a secured creditor (e.g., a bank), claims against an Insurance Policy, and claiming a property ownership in property either possessed by or titled to the decedent’s estate do not require the filing of creditor claims.
A secured creditor or a judgment creditor with a lien against real property can simply foreclosure on the security interest and recover from the sale proceeds. A secured creditor may still have an unsatisfied portion and may file a creditor’s claim form for that amount.
A person with an insurance claim can proceed against the insurance company to the extent of the policy limits. Again, any claim above the policy limits would require filing a creditor’s claim form in a probate or trust administration proceeding.
A person claiming ownership in real or personal property possessed by or titled to the decedent’s estate can petition to recover the property without filing a creditor’s claim form.
Anyone seeking payment from the decedent’s estate must timely file a creditor’s claim form in the probate court proceedings.
Claims must be filed within one year of a decedent’s death. If no probate, or equivalent trust administration court proceeding has been opened, a creditor may open a probate proceedings in order to file their own creditor’s claim.
When a decedent dies owing large debts the surviving beneficiaries of the estate may delay administration of the decedent’s estate until past the one year anniversary of the decedent’s death to time bar creditor claims.
Generally speaking, most creditor claims become unenforceable unless filed within the first year in the decedent’s probate proceedings.
During the first four months of commencing probate, the decedent’s personal representative notifies all reasonably ascertainable creditors and provides them each with a creditor’s claim form.
A creditor then has until the end of the four months, but at least sixty days, to file a timely claim with the court and with the personal representative.
Untimely claims past the four months creditor claim period are discretionary with the court and depend on facts and circumstances. On occasion, when equity (fairness) demands, a claim may even be allowed after the one year mark.
Once filed, the personal representative has ninety days to either accept, deny or partially accept and partially deny the claim. A creditor with a rejected claim has ninety days from rejection to proceed with a lawsuit against the personal representative.
Usually a personal representative waits until the four month period is over, and perhaps later if there further creditor claims are expected, to pay the accepted claims.
If the decedent’s estate does not have sufficient assets to fully pay all accepted creditor claims the personal representative seeks court guidance on how much not to pay each creditor based on a California’s priority of debts. Expenses of administration – including the court costs and the fees owed to the personal representative and her attorney – are paid before creditor claims.
Secured debts, however, take priority even over expenses of administration to the extent of the security interest. For example, a bank mortgage must be fully satisfied before any remaining proceeds from the sale of a residence are available to the decedent’s estate to pay expenses of administration and to pay creditor claims.
Given the complexity and the grey areas in this broad area of law, persons seeking to recover against a decedent’s estate should consult a qualified attorney in order to proceed properly.
Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. and 707-263-3235. His Web site is www.DennisFordhamLaw.com.
Off the coast of Hawaii’s Big Island and more than 3,000 feet beneath the ocean surface lie the warm, bubbling springs of a volcano — a deep-sea location that may hold lessons for the search for extraterrestrial life.
Here, NASA and its partners are blending ocean and space exploration, with a project called SUBSEA, short for Systematic Underwater Biogeochemical Science and Exploration Analog.
Lessons learned in both fields will be mutually beneficial and could help design future science-focused missions across the solar system.
Saturn’s moon Enceladus and Jupiter’s moon Europa are thought to have liquid oceans and hydrothermal activity under icy crusts.
Locations on Earth with key similarities to future deep-space destinations are called analog environments. SUBSEA’s target, the springs emerging from a volcano forming the next Hawaiian island, called the Lō`ihi seamount, is an analog for these ocean worlds.
When NASA’s Cassini mission to Saturn discovered a plume of water erupting from beneath the icy surface of Enceladus, the characteristics of the plume told scientists what conditions might be like on the sea floor.
This included the temperature, pressure and composition, and suggested the presence of hydrothermal activity. Scientists think these moons are good places to look for potential life, because water interacting with rock on their sea floors could yield chemical reactions that would make microbial metabolism possible.
Lō`ihi is an especially good place to test predictions about seafloor hydrothermal systems and their ability to support life.
Previous research focused more on locations where tectonic plates come together, but the Lō`ihi seamount involves molten magma erupting from the middle of one of these plates.
This is the type of volcanic activity scientists think could be similar to seafloor volcanoes that may exist on Europa and Enceladus. The zones where plates meet may actually be too hot to provide a realistic representation of hydrothermal activity on the moons of Jupiter and Saturn.
Throughout the 2018 SUBSEA expedition aboard the vessel Nautilus, the team’s scientists from NASA, the National Oceanic and Atmospheric Administration and various academic institutions will study the conditions around Lō`ihi’s seafloor springs across a range of pressures and temperatures.
What they learn here will increase our understanding of the potential for conditions that could support life forms on other ocean worlds.
Abby Tabor works for NASA's Ames Research Center in Silicon Valley, Calif.
Artist rendering showing an interior cross-section of the crust of Enceladus, which shows how hydrothermal activity may be causing the plumes of water at the moon’s surface. Credits: NASA-GSFC/SVS, NASA/JPL-Caltech/Southwest Research Institute.
The Open fire in the Mendocino National Forest in Northern California began on the afternoon of Friday, June 1, 2018. Photo courtesy of the Mendocino National Forest.
MENDOCINO NATIONAL FOREST, Calif. – Mendocino National Forest officials reported Friday evening that fire crews are on the scene of a wildland fire on the forest’s Grindstone Ranger District.
The report from forest spokeswoman Punky Moore said fire crews are actively engaged on the Open fire, located approximately 25 miles west of Willows.
The Open fire is burning in grass, oak and mixed timber on Open Ridge. Moore said it was reported at 2 p.m. Friday.
The fire is estimated at 60 acres with zero-percent contained, according to the Moore’s early Friday evening report.
Moore said there are 100 federal and state resources assigned to the incident, including three engines, three water tenders, four crews, two helicopters and two single engine airtankers or SEATs.
There are no structures immediately threatened, Moore said.
Moore said the cause of the fire is under investigation.
LAKE COUNTY, Calif. – A South County firefighter injured Monday in the fire that destroyed the Middletown Hardester’s Market has been released from the hospital.
Cal Fire firefighter Justin Costa was released from the UC Davis Medical Center burn center in Sacramento on Wednesday afternoon, Cal Fire reported.
Officials said Costa currently is resting at home.
On Monday afternoon Costa was on the first engine reported to have arrived at the scene of the fire in downtown Middletown.
He went into the building and was burned, and another firefighter and California Highway Patrol Officer Efrain Cortez pulled him to safety once he emerged.
Costa, a paid call firefighter who works for both Cal Fire and South Lake County Fire Protection District, was reported to have suffered second- and third-degree burns in the fire.
The Hardester’s building was a total loss.
A Cal Fire Serious Accident Review Team is currently investigating the fire, the cause of which remains under investigation, Cal Fire said.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it.. Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.
The Resilience project at the Main Street Gallery in Lakeport, Calif. Photo by Middletown Art Center staff. LAKEPORT, Calif. – The Resilience project has arrived in Lakeport and is being celebrated with a Friday event.
The project now has exhibits at several locations in Lakeport: Lakeport City Hall, 225 Park St.; the Lake County Arts Council’s Main Street Gallery, 325 N. Main St.; and the Lake County Courthouse, 255 N. Forbes St.
The city of Lakeport held a reception for the exhibition before the May 15 city council meeting.
Resilience is a project of the Middletown Art Center, or MAC, with support from a grant from the California Arts Council, as well as assistance from Adventist Health, Lake County Arts Council and other local partners, agencies and businesses.
The project arose as a response to the wildland fire devastation the county experienced.
Executive Director Lisa Kaplan told the Lakeport City Council that 28 MAC members lost their homes in the Valley fire. She was one of them.
“Losing your house is a big deal. Losing your artwork is devastating,” said Kaplan, who knows the full extent of that personal tragedy, having lost 40 years of her own work, documentation and sketches. “That’s pretty intense.”
In the fire’s aftermath, as she set about getting back to everyday life, she said she was noticing nature coming back, and seeing what remained. There was new green growth set against red earth.
“This is how I survived all of this time of recovery is by finding beauty in the change that was happening around us, and seeing it as an opportunity to reframe tragedy,” she said.
She said nature can be a mirror for the community’s recovery. “When we look at the resilience of nature we can find the resilience inside of us.”
The environment didn’t just change in response to the fire; the economy and the county at large also were altered, she said.
“All of my work has been about the fire,” Kaplan said. “I don’t even mean for it to be. It just works out that way.”
Kaplan said MAC is “an incredible little flower that keeps on growing.”
The Resilience project has provided low-cost classes in a variety of mediums – painting, photography, written word and printmaking – since June 2017. MAC said more than 220 people – from age 12 to 85 – have participated in the classes as part of reframing their experience of the wildland fires.
Last week MAC opened its latest exhibit, “Resilience: Art In Dialogue with Nature,” at its Middletown headquarters, 21456 Highway 175 at the junction of Highway 29. The exhibit is open Thursdays, 11 a.m. to 4 p.m.; Fridays, 11 a.m. to 6 p.m.; Saturdays, 10 a.m. to 6 p.m.; and Sundays, 11 a.m. to 4 p.m.
This Friday, the Lake County Arts Council’s First Friday Fling will include an opening reception for the Resilience project at the Main Street Gallery. The event takes place from 5:30 to 7 p.m. Featured artwork comes from the project’s Soul Painting and Drawing the Inside Out classes, exhibited in half of the main gallery.
Another Resilience exhibit will be featured from 4:30 to 6:30 p.m. Saturday, June 9, at the Fore Family Vineyards tasting room in Kelseyville, 3920 Main St.
MAC said additional upcoming exhibits are planned at Clearlake City Hall and Adventist Health Clear Lake’s Mountain View Café.
Visit http://middletownartcenter.com/ for more information.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it.. Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.
Sirryan Dawayne Dumetz, 23, of San Francisco, Calif., was arrested on Thursday, May 31, 2018, for drugs and weapons charges. Lake County Jail photo.
CLEARLAKE, Calif. – A call about a possible burglary led to a San Francisco man’s arrest for weapons and drugs.
Sirryan Dawayne Dumetz, 23, was taken into custody on Thursday afternoon, according to a report from Sgt. Dominic Ramirez of the Clearlake Police Department.
At 4:45 p.m. Thursday officers from the Clearlake Police Department were dispatched to a residence in the 13000 block of Lakeshore Drive for a report of a possible burglary in progress, Ramirez said.
A witness saw a male subject jumping the fence into the fenced property and notified police. Ramirez said it was reported there were three other subjects associated with the male who jumped the fence.
Ramirez said officers arrived on scene, locating a vehicle parked in front of the residence and saw the top of the wooden fence sustained damage, indicating someone had jumped the fence.
When officers approached the residence, a female was located outside along with three males inside the home, Ramirez said.
Ramirez said Dumetz was located in the living room with an unidentified male who ultimately jumped through a rear window of the residence with another unidentified male and fled the scene.
Surrounding Dumetz was approximately 12 pounds of processed marijuana packaged in numerous bags, which Ramirez said was indicative of sales.
There was also a black duffle bag in Dumetz’s immediate possession with more packaged marijuana, an AK 47-style assault rifle with a high capacity magazine, which contained live ammunition, Ramirez said.
Ramirez said Dumetz ultimately was arrested for marijuana for sales, possession of an assault weapon and possession of a high capacity magazine. He was booked into the Lake County Jail, with bail set at $15,000.
At the conclusion of the investigation it was determined a burglary had not occurred, Ramirez said.
LAKE COUNTY, Calif. – More Kmart and Sears stores are closing across the United States, but the latest list of sites to close does not include stores in Lake County.
Lake County is home to a Kmart store in Lakeport and two Sears Hometown Stores, one each in Clearlake and Lakeport.
Sears Holdings Co. Inc. reported on Thursday that in its ongoing effort to streamline operations and focus on its best stores, it had identified 100 unprofitable stores, 72 of which are set to close in the near future.
“We continue to evaluate our network of stores, which are a critical component in our transformation, and will make further adjustments as needed and as warranted,” the company reported.
On Thursday the company informed associates at 15 Kmart stores and 48 Sears stores about the store closures, to begin in early September. Eligible associates impacted by the store closures will receive severance and will have the opportunity to apply for open positions at area Kmart or Sears stores.
Of the stores set to close, only two are in California – a Kmart in Ridgecrest and a Sears in the city of Industry.
The announcement about the latest round of store closures came on the same day as the company reported its first quarter results for 2018, in which it had a $424 million loss.
The company generated total revenues of approximately $2.9 billion during the first quarter of 2018, compared with revenues of $4.2 billion in the prior year quarter, with store closures contributing to nearly two-thirds of the decline.
Sears Holdings said its first quarter results also showed a comparable store sales decline of 11.9 percent, which was comprised of a 9.5 percent decline at Kmart and a 13.4 percent decline at Sears, while both Kmart and Sears saw sales growth in areas such as apparel, jewelry and footwear during that period.
The full list of closures is published below.
Kmart
910 North China Lake Blvd., Ridgecrest, CA 9881 W 58th Ave., Arvada, CO 5400 E. Busch Blvd., Tampa, FL 4303 Nawiliwili Road, Lihue, HI 2535 Hubbell Ave., Des Moines, IA 5909 E. State St., Rockford, IL 4070 Ryan St., Lake Charles, LA 215 North Central Ave., Duluth, MN 2434 Barbour Ave., Passaic/Clifton, NJ 2100 Carlisle Ave., Albuquerque, NM 1000 Montauk Highway, West Babylon,NY 25301 Rockaway Blvd., Rosedale, NY 12350 N E Sandy Blvd., Portland, OR 1072 Mountain Laurel Plaza, Latrobe, PA 5000 San Dario, Laredo, TX
Sears
10001 N Metro Parkway, West Phoenix, AZ 100 S Puente Hills Mall, City of Industry, CA 7902 Citrus Park Town Center, Tampa, FL 320 Towne Center Circle, Sanford, FL 2201 Henderson Mill Road N.E., Atlanta, GA 1300 Southlake Mall, Morrow, GA 2100 Pleasant Hill Road, Duluth, GA 320 W Kimberly Road, Davenport, IA #2 Hawthorn Center, Vernon Hills, IL #2 Fox Valley Center, Aurora, IL 6136 W Grand Ave., Gurnee, IL 104 West White Oaks Mall, Springfield, IL 2415 Sagamore Parkway, S Lafayette, IN 40 Muncie Mall, Muncie, IN 6020 E 82Nd St., Indianapolis, IN 1781 Sw Wanamaker Road, Topeka, KS Alexandria Mall, Alexandria, LA Highways 114 and 128, Peabody, MA Eastfield Mall, Springfield, MA 3191 S Linden Road, Flint, MI 18900 Michigan Ave., Dearborn, MI 14100 Lakeside Circle, Sterling Heights, MI 1212 S Airport Road W, Traverse City, MI Shingle Creek Crossing, Brooklyn Center, MN Miller Hill Mall, Duluth, MN 250 S County Center Way, St. Louis, MO #1 Chesterfield Mall, Chesterfield, MO 1000 Turtle Creek Drive, Hattiesburg, MS 1515 Grand Ave., Billings, MT 2800 S Columbia Road, Grand Forks, ND 300 Quaker Bridge Mall, Lawrenceville, NJ 2341 Route 66, Ocean, NJ 2501 Mt Holly Road, Burlington, NJ 10000 Coors Bypass N.W., Albuquerque, NM 3649 Erie Blvd. E, De Witt/Syracuse, NY 2400 Elida Road, Lima, OH 17271 Southpark Center, Strongsville, OH 300 S Hills Village, Pittsburgh/South Hills, PA 1000 Robinson Center Drive, Pittsburgh, PA 205 W Blackstock Road, Spartanburg, SC 3101 N Main St., Anderson, SC 3400 Empire Mall, Sioux Falls, SD 2931 Knoxville Center Drive, Knoxville, TN 2401 S Stemmons Freeway, Lewisville, TX 1800 Green Oaks Road, Fort Worth, TX 11200 Lakeline Mall Drive, Cedar Park, TX Golden Triangle Mall, Denton, TX 4502 S Steele St., Tacoma, WA
Rafael Garcia, 43, of Los Angeles, Calif., was arrested on Tuesday, May 29, 2018, after he was found in possession of methamphetamine and a burglary tool. Lake County Jail photo.
CLEARLAKE, Calif. – The Clearlake Police Department said a Los Angeles man was arrested this week after an officer found him with methamphetamine and a burglary tool.
Rafael Garcia, 43, was arrested in the case, according to Sgt. Tim Hobbs.
Hobbs said that at 3 p.m. Tuesday Officer Steve Hobb, while on patrol in the Clearlake Park area, conducted a traffic stop on a vehicle for having false registration tabs.
Once the vehicle pulled over, Hobb observed the driver, identified as Garcia, throw a white-colored object out the driver’s window. Sgt. Hobbs said the object landed on the ground on the passenger side of the vehicle.
The report said Officer Hobb picked up the item and saw it was a plastic baggie containing approximately 1 ounce of methamphetamine.
During a search incident to arrest and inventory search of the vehicle, an item commonly used as a burglary tool was located in the vehicle, according to Sgt. Hobbs’ report on the incident.
Garcia was arrested and booked into the Lake County Jail for possession of a controlled substance for sales, transportation of a controlled substance for sales, having false registration tabs, possession of burglary tools and driving with a suspended driver’s license, Hobbs said.
Anyone with information regarding the unlawful possession or sales of controlled substances can contact the Clearlake Police Department at 707-994-8251. Callers may remain anonymous.
LAKEPORT, Calif. – District Attorney Don Anderson has released a report on a January officer-involved shooting that found the officer was justified in his actions.
The Jan. 24 shooting involved Clearlake Police Officer Jared Nixon, who shot at a Honda Accord that accelerated at him while he was investigating stolen vehicle cases.
No one was arrested in the case, which still remains under investigation, and Anderson’s report said it’s unknown if anyone in the car was hit.
Although no deaths or injuries have so far been reported, Anderson investigated the incident under the auspices of the county’s 2016 Law Enforcement Fatal Incident Protocol, he said.
“In this matter, it is the findings of the Lake County District Attorney's Office that the officer had been assaulted with a deadly weapon, namely the Honda Accord. The officer believed the driver of the vehicle would inflict serious bodily injury on him or death. The officer's fear that he would suffer great bodily harm or death, was reasonable in both his state of mind and in fact,” Anderson’s report said.
Anderson’s report said that Officer Nixon was walking along the east side of Oregon Avenue in Clearlake when he heard a red 1992 Honda Accord start up. It then backed out of an area surrounded by bushes and onto Oregon Avenue. The driver steered the car in the direction of NIxon, who held up his hand in a gesture to get the vehicle to stop.
The vehicle accelerated toward Nixon, who had no place to get to safety. “Officer Nixon could see the driver looking directly at him and turning the vehicle in his direction in an attempt to hit him. The vehicle accelerated with the tires spinning and breaking traction. It was obvious to the officer that the driver of the vehicle was trying to hit him,” according to Anderson’s report.
Anderson said Nixon fired a total of eight rounds from his Glock .40-caliber semiautomatic firearm. “It was later determined that one round entered the vehicle driver’s side bumper, three round entered the vehicle’s hood and three round entered the front windshield.”
Nixon jumped into the bushes and the Honda continued west on Oregon Avenue. Anderson said the vehicle was found abandoned later that day on Sonoma Way, approximately one mile from the shooting scene. No suspects were located in the area.
He said the Honda later was towed to the District Attorney’s Office vehicle storage area and processed for evidence by the California Department of Justice.
Anderson said Nixon’s testimony during the investigation was consistent with his activated body camera, some witnesses located near the area, physical evidence located at the scene and evidence observed on the vehicle.
No arrests have been made in the case, which Anderson said is still being investigated.
“It is the finding of this office that actions of Officer Jared Anthony Nixon were justified in that he was acting in self defense,” Anderson concluded.
Anderson’s full report is published below.
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it.. Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.
LAKE COUNTY DISTRICT ATTORNEY’S FINAL REPORT
REGARDING OFFICER INVOLVED SHOOTING
INTRODUCTION
On January 24, 2018, Clearlake Police Officer Jared Anthony Nixon was investigating a series of stolen vehicles in the Clearlake Park area, at about 11:48 AM he located a stolen vehicle with two occupants in it. The occupants drove the vehicle back and aligned it with the officer. The occupants accelerated at a high rate of speed towards the officer. The officer fired 8 rounds from his service firearm at the vehicle. The vehicle continued at a high rate of speed as the officer dove into the bushes. It has not been determined if anyone in the vehicle was hit from the officer’s rounds.
It is the finding of this office that actions of Officer Jared Anthony Nixon were justified in that he was acting in self defense.
PROCEDURES
Pursuant to the Lake County Law Enforcement Fatal Incident Protocol of 2016, the Lake County District Attorney Investigation Division conducted an independent investigation into the incident. Also, an internal investigation into the incident was conducted by the administration at Clear Lake Police Department.
This report and findings are conducted pursuant to California State law and the Lake County Law Enforcement Fatal Incident Protocol of 2016.
FACTS
Prior to the incident on January 24, 2018 the area of Clearlake Park commonly known as the “Gobbie Desert” was a high crime rate area. Commonly this area is used to steal and/or strip stolen vehicles.
On January 21, 2018, a 1992 Honda Accord, California license 3MIC421 was stolen from the area of 3812 Old Highway 53. In Clearlake. The victim had no suspects who could have taken the vehicle.
On January 24, 2018, in the late morning hours Officer Jared Anthony Nixon was patrolling the area of the “Gobbie Desert” with the intent of locating stolen vehicles. He had earlier spotted two individuals in the area and was watching their actions.
Officer Nixon abandon his patrol vehicle and went on foot in the remote area of Oregon and Mint Street in Clearlake. The roads in this immediate area are very narrow and covered with trees and brush. It is possible, but not easily passable by vehicles.
Officer Nixon was walking along the east side of Oregon Ave. when he heard a vehicle start up. This vehicle, a red 1992 Honda Accord backed out of an area surrounded by bushes and onto Oregon Ave., with the front of the vehicle facing Officer Nixon. The Honda started forward as Officer Nixon held up his hand in a gesture to get the vehicle to stop.
The vehicle continued to accelerate directly towards Officer Nixon and turned its wheels towards the officer. Officer Nixon started to flee west away from the vehicle; however, because of the speed of the vehicle and the closeness of the trees and shrub he had no place to get to safety.
Officer Nixon could see the driver looking directly at him and turning the vehicle in his direction in an attempt to hit him. The vehicle accelerated with the tires spinning and breaking traction. It was obvious to the officer that the driver of the vehicle was trying to hit him.
In an effort to divert the drive/vehicle from him or distract the driver, Officer fired a total of 8 rounds from his Glock .40 cal. Semi-automatic firearm. It was later determined that one round entered the vehicle driver’s side bumper, three round entered the vehicle’s hood and three round entered the front windshield.
The officer was finally able to leap to safety by jumping in some bushes. No round hit the side or back of the vehicle, indicating the Officer did not fire any further rounds once his immediate safety was secured. The red Honda Accord continued west on Oregon Ave. where the officer lost sight of it.
Early that afternoon the vehicle was located abandon on Sonoma Way approximately one mile from the shooting scene. There were no suspects located in the area. The vehicle was later towed to the District Attorney’s vehicle storage area and processed for evidence by the California Department of Justice.
No arrests have been made at this time; however, the case is still being investigated.
The testimony given by Officer Nixon during the investigation was consistent with his activated body camera, some witnesses located near the area, physical evidence located at the scene and evidence observed on the vehicle.
LEGAL ANALYSIS
Although this case is not a homicide, the relevant statutory law and case decisions are best defined in homicide cases. Therefore, the legal analysis below will be as though this was an incident involving a death. The relevant California statutory and case law regarding this matter is set forth below.
California Penal Code Section 197 states in part:
“Homicide is also justifiable when committed by any person in any of the following cases:
1. When resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person; or,… 3. When committed in the lawful defense of such person, or of a wife or husband, parent, child, master, mistress, or servant of such person, when there is reasonable ground to apprehend a design to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished; but such person, or the person in whose behalf the defense was made, if he was the assailant or engaged in mutual combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed; or,…”
The test for determining justifiable homicide is apparent necessity, i.e., an honest and reasonable belief in the apparent peril and the need for self defense is enough. The means used, whether deadly or nondeadly force, must be reasonable under the circumstances. In People v. Sonier (1952) 113 Cal.App.2d 277, 278 the court held “The justification of self defense requires a double showing: that defendant was actually in fear of his life or serious bodily injury and that the conduct of the other party was such as to produce that state of mind in a reasonable person.”
California Penal Code Section 196 (Justifiable homicide by public officers) states:
“Homicide is justifiable when committed by public officers and those acting by their command in their aid and assistance, either—
1. In obedience to any judgment of a competent court; or, 2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or, 3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.”
In Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1102, the court said officers “may use reasonable force to make an arrest, prevent escape or overcome resistance, and need not desist in the face of resistance.” “Unlike private citizens, police officers act under color of law to protect the public interest. They are charged with acting affirmatively and using force as part of their duties, because “the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to affect it.” Munoz, supra at p. 1109. “‘[Police officers] are, in short, not similarly situated to the ordinary battery defendant and need not be treated the [17] same. In these cases, then, “… the defendant police officer is in the exercise of the privilege of protecting the public peace and order [and] he is entitled to the even greater use of force than might be in the same circumstances required for self-defense.
In California, "a police officer who kills someone has committed a justifiable homicide if the homicide was 'necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty.'" The test for whether homicide was justifiable is "whether the circumstances 'reasonably create[d] a fear of death or serious bodily harm to the officer or to another.'" Kortum v. Alkire (1977) 69 Cal.App.3d 325, 333.
The court held “The test for determining whether a homicide was justifiable under Penal Code section 196 is whether the circumstances ‘reasonably create[d] a fear of death or serious bodily harm to the officer or to another.” Munoz v. City of Union City supra at p. 340 and Brown v. Ransweiler, 171 Cal. App. 4th 516, 533.
In Thompson v. County of Los Angeles (2006) 142 Cal.App.4th 154, 165 the court held that "Courts must apply the reasonableness standard objectively, viewing the facts from the perspective of the officer at the time of the incident and not with the benefit of hindsight . Graham v. Connor (1989) 490 U.S. 386, 394 and Martinez v. County of Los Angeles supra at p.343.
In this matter, Officer Nixon was on duty and acting in his official peace officer capacities when he was investigating suspicious activity and criminal conduct in the area. He came upon two men fleeing in a stolen vehicle. The driver attempted to run the officer over with the vehicle which could have caused serious injury of death to the officer.
The officer was in genuine fear for his safety and based on all evidence, such belief was reasonable under the circumstances. It does not appear that in weighing all facts of this case the officer had a less potentially dangerous alternative than the action he took.
FINDINGS
In this matter, it is the findings of the Lake County District Attorney's Office that the officer had been assaulted with a deadly weapon, namely the Honda Accord. The officer believed the drive of the vehicle would inflict serious bodily injury on him or death. The officer's fear that he would suffer great bodily harm or death, was reasonable in both his state of mind and in fact.
It is therefore my finding that the conduct of Officer Jared Anthony Nixon was justified.
Javier Martinez Cachu, 22, of Clearlake Park, Calif., seen here in his December 2015 mugshot, pleaded guilty in a homicide case and was sentenced to state prison. Lake County Jail photo.
LAKEPORT, Calif. – A Clearlake Park man is now serving a 90-years-to-life sentence in state prison for shooting and injuring a family friend and killing her fiance.
Judge Andrew Blum handed down the sentence last month to Javier Martinez Cachu, 22, during a hearing in which the family of the man who died, Luis Pimentel Arroyo, gave emotional testimony about the impact of the murder.
Earlier this year, Martinez Cachu reached an agreement with the District Attorney’s Office that led to him pleading guilty on Jan. 26 to the first-degree murder of Pimentel Arroyo and the attempted murder of Pimentel Arroyo’s fiancee, Evalia Prado, on Dec. 30, 2015, as Lake County News has reported.
Blum sentenced Martinez Cachu on those counts as well as special allegations of use of a firearm, which totaled the 90-years-to-life sentence.
District Attorney Don Anderson told Lake County News that someone who is under the age of 25 at the time of the crime – even one as serious as a homicide – may be eligible for parole, which was a reason for the plea agreement.
Tracy Gatlin, Martinez Cachu’s defense attorney, said the plea agreement was the right thing to do.
“At the end of the day, my client killed Mr. Pimentel,” she said, adding that she wasn’t excusing Martinez Cachu’s behavior.
Gatlin said the governor signed the new law into effect that offers the parole opportunity based on the scientific evidence that shows that the brains of people from age 16 to 22 are still developing. “They’re not children but they’re not fully adults.”
She said she was exceedingly grateful to Anderson and to Deputy District Attorney Daniel Flesch for agreeing to the case disposition. “I know it was against the wishes of the family.”
Gatlin credited Martinez Cachu’s first attorney, Barry Melton, for getting the death penalty taken off the table in the case, and for informing her of the new law about parole for young offenders. When Melton retired, she took over.
The District Attorney’s Office said the case motivation involved drugs and insurance money. Prado and Pimentel Arroyo lost their Middletown home in the September 2015 Valley fire.
Flesch told Lake County News that the investigation found that Prado received proceeds from an insurance claim for a home she owned that burned during the Valley fire and entrusted them to Martinez Cachu.
The District Attorney’s Office has reported the amount of money as $40,000, but Prado told Lake County News that it was closer to $100,000.
Martinez Cachu used the money to buy marijuana to sell, but after he was reportedly robbed, Martinez Cachu couldn’t pay Prado back, the District Attorney’s Office said.
A report from Anderson on the case said that Martinez Cachu intended to kill the couple so he wouldn’t have to pay back the money.
Flesch said that Pimentel Arroyo was driving a vehicle with Prado and that they were lured to a remote location on Butts Canyon Road in Middletown on the night of Dec. 30, 2015.
There, Martinez Cachu met them with a shotgun, opening fire on the driver’s side first, killing Pimentel Arroyo, before going to the passenger side and firing at Prado, Flesch said.
Prado had some residual spray from the shotgun, but nothing life-threatening, he said.
Following the shooting, Martinez Cachu fled the scene in another vehicle before his family took him to the Clearlake Police Department about two hours later to turn himself in.
“They walked him into the police station to confess to the crime,” Gatlin said of Martinez Cachu’s family. “They tried to do the right thing.”
Gatlin said that, at the time of Martinez Cachu’s arrest, cocaine was found on him, and he may have been under the influence.
At the jail, he informed staff that he was afraid for his family’s life, and asked that they be protected, Gatlin said.
“At the end of the day, this was a function of marijuana sales at an insane level,” said Gatlin, adding that Martinez Cachu “got caught up in the game.”
Anderson said Martinez Cachu has shown no remorse for the killing. However, Gatlin said he is deeply regretful.
A longtime relationship
Prado told Lake County News that she had been friends for about 20 years with Martinez Cachu’s mother, Maria. They had become so close that they had co-signed for each other in home purchases.
Prado said that was the case with the home she had in Middletown that burned in the Valley fire. The insurance money for that home went to Maria Martinez; Prado said Martinez was supposed to give the money to her son in order to have him deliver it to Prado. But Prado said she never got the funds, which she estimated totaled $100,000.
She said he told her that he had used part of the money to purchase marijuana and was robbed of it. He also purchased an SUV that his family still has with the rest of the funds.
When Martinez Cachu said he couldn’t pay her back, Prado said she wasn’t shocked. While her fiance wanted to fight with Martinez Cachu, she said she had told Martinez Cachu they would work it out.
Prado, who has a landscaping business, said Martinez Cachu came to them with a job prospect in the Middletown area. He said he had an address for a man who wanted them to come and do work for him.
On the night of the shooting, Prado said she and Pimentel Arroyo followed Martinez Cachu to a location on Butts Canyon Road and then parked. “We were waiting because supposedly he couldn’t find the address.”
They were sitting in their vehicle, with her fiance on the phone and Prado writing things down when, Prado explained, “I thought we were hit by a car.”
It wasn’t a vehicle. Rather, it was Martinez Cachu shooting into the driver’s side of the vehicle, killing Pimentel Arroyo. He then walked around to Prado’s side of the vehicle and shot again.
Prado said she was struck by shotgun pellets, resulting in blood all over her face. “He thought I was dead and then he took off.”
After Martinez Cachu left, Prado said she got out of the vehicle, tried to wave down a car and called Maria Martinez about what had occurred.
She said law enforcement responded and would take her to the hospital.
At about the same time, she got a call from Konocti Harbor, where he had been staying, asking if Martinez Cachu could go into her room.
She stayed overnight at the hospital. Eventually she would have 10 of the shotgun pellets removed, but she still has two, including one close to her eye that can’t be removed and one by her brain.
Prado said she can handle the pain. “The fear is the worst of everything.”
She said she’s received blame from her fiance’s family, and retaliation from Martinez Cachu’s, who went to the insurance company to accuse her of fraud, which she’s had to fight.
“I have done nothing wrong,” she said.
She maintains that the situation had nothing to do with drugs. She denied allegations made by Martinez Cachu’s family and attorney that she was a drug dealer and said she hadn’t threatened Martinez Cachu, who she said “could have just left.”
“They’re gonna say what they want to say,” she said, adding, “the reality is, it wasn’t about drugs.”
Likewise, Flesch told Lake County News, “It has been alleged by the defense that Prado is a big time dope dealer and that she may have set this whole thing up. There is zero evidence to suggest that she set any of this up.”
He said he was aware that Prado had previously been contacted by the sheriff’s office and was suspected of growing marijuana. Prado denies she was.
An emotional sentencing
At the April 3 sentencing, Pimentel Arroyo’s family sat on one side of the gallery, Martinez Cachu’s on the other.
Prado was not in attendance. She said it would have upset her too much.
Flesch called it “probably the hardest and most emotional sentencings that I have sat through.”
Family members brought with them a wooden urn containing Pimentel Arroyo’s ashes. Several gave statements to the court about the impact of his murder on their lives. As his sister-in-law, Laura Pimentel, gave her emotional statement, the urn sat before her on the witness stand.
Martinez Cachu’s brothers and mother also made statements to the court.
His older brother, Miguel, said he took his brother to the Clearlake Police Department after the shootings because he knew he had done something wrong. He said his family was sad over the shooting.
“It’s not an easy thing to go through to lose a brother, a son, an uncle,” he said. “I truly believe my brother is remorseful.”
Family also promised to support and encourage Martinez Cachu while he serves his prison term.
His mother, speaking through an interpreter, said to Pimentel Arroyo’s family, “I want to give my condolences to the family. We are very sorry.”
She said Pimentel Arroyo was a good man, as is her son, who she said also is a good father and hard worker.
Maria Martinez said her family didn’t know what happened, or what pushed her son to do it. “I still love him. He knows he can count on my support.”
Another brother, Juan Carlos Martinez, called Prado “the bad person” in the case, claiming she made Martinez Cachu do it. “I know he regrets what he’s done,” he added.
Gatlin told the court her client had taken responsibility.
She said the murder was another crime related to marijuana and the sales of it, and like Martinez Cachu’s family she made allegations against Prado, specifically, that she was a ringleader in a marijuana business and Martinez Cachu was working for her.
“My client is deeply remorseful for his actions,” she said, and she added that she hoped the victim’s family would consider the power of redemption and realize that people can change.
Prado, who has stayed in Lake County, said of the case, “It took away a good young man and put another one in prison.”
Email Elizabeth Larson at This email address is being protected from spambots. You need JavaScript enabled to view it.. Follow her on Twitter, @ERLarson, or Lake County News, @LakeCoNews.
CLEARLAKE, Calif. – A new grant will help increase the county’s emergency preparedness.
This week, Sen. Mike McGuire announced that $50,000 has been awarded to the Lake Area Rotary Club Association, or LARCA, to improve Lake County’s evacuation shelter system by Bay Area nonprofit organization, Tipping Point Community.
Sen. McGuire has been working with local elected officials and nonprofit leaders to secure the funds which will make desperately needed investments to enhance and modernize Lake County’s emergency shelter system.
“Lake County has suffered significantly from the impacts of five major fires over these past three years, and it’s become crystal clear the emergency shelter system had to be improved and modernized to meet what has become our new normal,” Sen. McGuire said. “We are grateful for the incredible generosity of Tipping Point, the Lake County Community Action Group who have been leading this effort and PG&E. All have stepped up to make these needed improvements and help the County and City become more resilient in times of disaster.”
The funds, awarded by Tipping Point – a nonprofit focused on breaking the cycle of poverty and a significant funder in the North Bay fire recovery efforts – will be used to make critical improvements to the Clearlake Community Senior Center, which acts as the area’s emergency facility during times of crisis.
“The impact of the North Bay fires will be long felt in the region, but those who are low-income will have the steepest climb ahead,” said Daniel Lurie, CEO and founder of Tipping Point. “Improvements to the evacuation shelter will provide a safe haven in the event of another disaster for those who have nowhere else to turn.”
Paired with grants from PG&E and other community groups, the improvements will include purchasing a generator so the shelter can provide uninterruptible power, 24-7, for 72 hours.
In addition, local officials will purchase or construct portable shower/bathroom facilities with one ADA compliant facility, a storage room for emergency supplies, and a trailer frame to transport the portable shower/bathroom facilities.
These enhancements will fix glaring challenges the county and city of Clearlake have faced during the multiple mass evacuations over the last few years, McGuire said.
“The Lake County fires, along with two flood events, have had an immense impact on our community over the past several years,” said Clearlake City Councilman Russ Cremer, who also serves as treasurer of LARCA.
“Thanks to the leadership of LARCA, Sen. McGuire and the fantastic generosity of Tipping Point, these funds will provide us with the ability to complete the infrastructure for an emergency evacuation shelter at our Clearlake Community Senior Center. Residents from all across the county will be better served by these enhancements during our greatest times of need,” Cremer said.
The total project budget is $169,437. Thus far, support for this project has been overwhelming, raising approximately $147,000. This includes the investment from the Tipping Point Emergency Relief Fund, a grant from PG&E of $75,000 to purchase a generator and transfer switch for the facility.
Clearlake Rotary, through fundraising, also will be contributing $14,000 to the project, and about $8,300 will be provided by the LARCA Fire Relief Fund.
Malik Zado Sohan, 48, of San Francisco, Calif., was arrested on Sunday, May 27, 2018, in Clearlake, Calif., for resisting arrest and possession of a narcotic controlled substance for sales. Lake County Jail photo.
CLEARLAKE, Calif. – Clearlake Police arrested a San Francisco man this week after finding him in possession of cocaine and heroin.
Malik Zado Sohan, 48, was taken into custody on Sunday, according to Sgt. Tim Hobbs.
At 9:15 a.m. Sunday, while on patrol at the Burns Valley Mall, Officer Steve Hobb watched Sohan drop a plastic baggie on the ground and kick it under a recycling container, according to Hobbs’ report.
He said Officer Hobb recovered the baggie and saw that it contained a large amount of narcotics.
When Officer Hobb attempted to contact Sohan in front of the Grocery Outlet store, he fled on foot. After a brief foot chase, Sohan was taken into custody, Sgt. Hobbs reported.
The baggie Sohan attempted to hide contained approximately 11 grams of crack cocaine, 4 grams of cocaine and 1 gram of heroin, according to Hobbs.
Sohan was arrested and booked into the Lake County Jail for resisting arrest, and possession of a narcotic controlled substance for sales. His bail was set at $30,000.
Anyone with information regarding the unlawful possession or sales of controlled substances can contact the Clearlake Police Department at 707-994-8251. Callers may remain anonymous.