Where the peril is swift and imminent and the necessity for action immediate, the law does not weigh in too nice scales the conduct of the assailed and say he shall not be justified in killing because he might have resorted to other means to secure his safety. People v. Collins (1961) 189 Cal.App.2d 575. Rather, the right to employ deadly force in self-defense or in the defense of another exists if the person claiming the right actually and reasonably believed that he or another was in imminent danger of great bodily injury or death. People v. Randle (2005) 35 Cal.4th 987, 994; People v. Mercer (1962) 210 Cal.App.2d 153, 161.
In protecting himself or another, a person may use that amount of force which he believes reasonably necessary, and which would appear to a reasonable person in the same or similar circumstances to be necessary, to prevent imminent injury. Where a person is confronted by circumstances which would cause a reasonable person in a like situation to believe the force was necessary, actual danger need not have existed. CALCRIM No. 505.
In this incident, the evidence demonstrates that Carrillo and Perez actually and reasonably believed Marquez posed an imminent threat of great bodily injury or death.
Carrillo first saw the handgun in the bedroom when Marquez drew it from a concealed location and pointed it at him. Carrillo's immediate and unequivocal response was to exclaim, "She has a gun! Gun! Gun! Gun! Gun!" and he urgently moved other personnel out of the apartment for their safety. Carrillo yelled to Marquez several times to, "Drop the gun!" in response to which Marquez neither denied having a gun nor informed Carrillo it was not an actual firearm.
Moments after running out of the apartment, Carrillo replied to an unknown question from Burgos by stating, "I don't know. It's a gun though...She pulled it out from underneath. She pulled out scissors first and then she grabbed the gun...Pointed it at me...She moved her blanket and then she grabbed it." As he explained his observations to Burgos, Carrillo repeatedly told Marquez to relinquish the weapon. When Marquez emerged from the apartment, Carrillo heard the sounds of a gun magazine being inserted, and a slide being "racked." Marquez approached the stairs, and Perez yelled, "Vanessa! Drop whatever's in your hand, right now!" and Carillo asked, "Does she have the gun?" Before Perez could respond to Carrillo's question, Perez yelled, "Drop it!" and the officer involved shooting occurred.
Perez first saw the gun in Marquez' left hand as she exited her apartment and crossed the landing. Like Carrillo, Perez also heard the sound of a firearm magazine being loaded, and looked to other officers who acknowledged the sound. Perez observed Marquez descending the staircase in what he perceived to be an aggressive manner, "definitely angry" and "charging" at them with the handgun drawn. Perez stated he did not see Marquez point the gun directly at the officers, but it was positioned and moving in a manner that caused him to fear for their safety, as she would be able to "open fire" on them at that time.
After Carrillo and Perez fired multiple rounds, the officers cautiously approached Marquez on the staircase. They each saw the black handgun next to Marquez as she lay on the upper stairs; Perez' BWV footage clearly shows the handgun by Marquez' left foot during their approach. Perez kicked the handgun down the stairs, away from Marquez. The handgun was later examined and determined to be an all-black BB gun resembling a Beretta 92FS firearm. It was
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