By Tanya Decendario
WOODLAND, CA – Describing the conduct of West Sacramento Police officers as “excessive and unnecessary,” and video “alarming and disturbing,” Yolo County Superior Court Judge David Reed last week threw out all three charges of resisting a police officer leveled against Daniel Silva, a self-described homeless person. A misdemeanor battery charge remains.
Judge Reed appeared distressed after hearing testimony and watching video of police officers, apparently not properly trained in de-escalating conflict resolutions, bullying Silva after he made a sarcastic remark to officers after being “rousted” by the officers when he was found sleeping with an open container.
Officer Andrey Kinda and Officer-in-training Jesus Gonzales, according to preliminary hearing testimony and other evidence, escalated a situation and used excessive force on Silva, even after he repeatedly said he did not feel good and is injured.
Deputy Public Defender Aram Davtyan presented an image to the court, the image of the injury on Silva ’s face, asking Officer-in-training Jesus Gonzales, “That injury on his face was not there before you guys contacted him, right?” Gonzales answered, “I don’t recall him having that injury before contact, sir.”
PD Davtyan asked Officer Gonzales if he had conflict resolution training at his police academy, to which
Gonzales said he trained for at least once a week in a time frame of six months. Although unsure of the exact amount of hours, he was certain that he trained extensively.
“What conflict resolution did you or Officer Kinda utilize in diffusing this situation?” PD Davtyan then asked.
“I do recall talking to Mr. Silva and I also remember Officer Venikov asking Mr. Silva to basically calm his tone and to relax before Mr. Silva attempted to kick Officer Venikov,” said Gonzales.
Under questioning by Deputy District Attorney Michelle Serafin, he noted that Silva was not compliant to any of the orders given to him and did not complain about any injuries.
“Did he make any other verbal threats to you or any of the officers on scene?” DDA Serafin inquired. Officer Gonzales nodded and answered, “On multiple occasions.” He added that Silva attempted to headbutt him.
Judge Reed intervened and asked Officer Gonzales if he confirmed whether Silva had a warrant or was on parole, to which the officer responded he could not recall.
PD Davtyan presented the court a four-minute video of the incident. In this video, Silva is clearly seen lying on the concrete floor with a blanket over him.
The police officers approach Silva and state that “some people saw you out here and wanted to get you checked on…so we want to make sure you’re okay and would like to let you know you can’t sleep here.”
Officer Gonzales takes Silva ’s information and waits for dispatch. Meanwhile, Silva covers up under his blanket. Officer Kinda emphasizes “don’t cover up please, we still want to see your hands.” Silva complied.
While Officer Kinda trains Gonzales, he suggests to make small talk, like: “Hey Mr. Silva, hey Silva what’s the plan for the day? Where are you gonna go to?”
“I don’t know. I’m homeless, man” Silva explains.
Officer Kinda specifies, “Away from here though, right?” and asks, “Are you on probation at all?”
“I’m on f***king parole, okay man” Silva responds.
“For what?” Officer Kinda asks.
Silva exclaims, “For killing you guys! Man, stop asking questions. You have my name, just do what you gotta do.”
The tone of Officer Kinda’s voice changes, and he demandes Silva put his hands on the back of his head.
Silva then attempts to explain his situation, to which Officer Kinda responds, “I don’t give a s***. Listen to what I’m telling you.” He continues to state, “You have an open container with you, you’re being detained. Sit up.”
Silva repeatedly pleads, “Sir.”
Officer Kinda warns him, “You don’t want to cooperate? We’re gonna do this the hard way.”
Again, Silva explains, “Sir, I don’t feel good okay”
“I didn’t ask you if you feel good. I told you to cooperate,” Officer Kinda asserts.
Silva continues to plead to the officer, repeating that he is injured.
Officer Kinda continues by putting force upon the defendant, and as a result Silva bites him.
Silva exclaims, “No. I’m not bothering nobody, okay. I’m not bothering, nobody. Stop hurting me!”
He repeatedly cries out, “I’m injured sir! Why are you hurting me?”
In another video, Silva is shown with Officer Alexei Venikov.
After the altercation with Officer Kinda, Silva appears to be in distress, yelling “F*** you” to the police officers on scene.
Officer Venikov tells Silva to calm down, to which he responds, “No, I’m not going to calm down…F*** you Mr., I think I’m a hero.”
As the video ended, Judge Reed asked for the DDA’s holding orders.
The DDA stated that she will be asking for a holding order on all counts,saying that “he escalated the contact by saying he was on parole ‘for killing one of you guys’…I don’t believe that that Silva thought that the officers would believe that that’s true and his only intent in making that comment is to agitate the officers and to escalate the situation.”
She added, “In order to avoid being arrested and he continued being verbally aggressive and also physically aggressive and the other two, (and the) PC 69 against Officer Venikov was when he tried to threaten Officer Venikov saying that he’s going to beat his ass and then tried to kick (him) off.”
PD Davtyan agreed with DDA Serafin regarding the “for killing you guys” comment, arguing “that is absolutely clear and I’m sure the officers also knew that he wasn’t on parole for killing a police officer, he would not be on parole for killing a police officer.
“That just annoyed the officer and his comments after that about ‘I don’t give a s***’ clearly show that. He gave Silva I think 10 seconds of that to comply with his orders to put his hand behind his back after finding the open container,” the PD noted, adding that Silva was compliant as he provided his name, date of birth.
He disagreed with the fact that Silva attempted to kick Officer Venikov and explained, “Officer Venikov was further away from him and if he actually tried to kick he could have easily gotten closer to kick Officer Venikov and the second kick was meant for Officer Kinda as Silva bent his leg towards Officer Kinda’s body camera but he’s clearly so far away that he’s not attempting an actual kick.”
He pointed out that the police officers were not using any conflict resolution tools in trying to calm him down. “He was put in pain and he reacted,” PD Davtyan added.
Judge Reed stated the videos are alarming and disturbing. He concluded, “There was no evidence that being there was illegal. None of the testimony was that he was committing a crime.”
He explained that Silva’s statement of “For killing one of you guys” was not a serious statement. He then stated, “I would agree that it could have been interpreted that that comment was intended to escalate the confrontation and if that was the intent, Officer Kinda…let himself get sucked in and he escalated a detention for an open container to detention with handcuffs, which was not justified.”
He concluded that he will not charge Silva with three counts of Penal Code section 69, as there was a lack of evidence regarding the force toward Officer Venikov, explaining that “what I saw was he swung his foot at him twice and it was clear to me that he never made contact with Officer Venikov and after kicking and missing twice, Officer Venikov exerted force to Mr. Silva. ”
However, Judge Reed found sufficient evidence for a misdemeanor battery charge.
“I’m somewhat distressed to see the way that these officers responded to this situation,” he explained. “I find that their response to his conduct was excessive and unnecessary and I find they’re the reason why this escalated, notwithstanding him being uncooperative for having an open container.”
The judge released Silva on his own recognizance (no bail), and continued his misdemeanor battery charge to March 22.
Tanya Decendario is a third-year student studying Legal Studies at UC Berkeley. She is originally from Sonoma, CA, but currently resides in Albany, CA.
To sign up for our new newsletter – Everyday Injustice – https://tinyurl.com/yyultcf9
Support our work – to become a sustaining at $5 – $10- $25 per month hit the link: