A police officer requested
"lethal cover" before an unlicensed bail agent opened fire and killed a man wielding a knife in Palm Springs, a prosecution witness testified in a preliminary hearing today.
Fabian Hector Herrera, 36 years-old, was arrested on April 23 for the shooting death of 33-year-old David Spann. The shooting occurred on the same day at about 2:30 a.m. in the 100 block of East Via Escuela. Authorities say he fired the fatal shots after Spann, wielding a knife, lunged toward him and several police officers inside his home.
Herrera has pleaded not guilty to charges of murder and for being a convicted felon in possession of a gun, body armor and ammunition, along with multiple sentence-enhancing allegations. Herrera's attorney alleges that his client fired the shots only after being ordered to do so by Palm Springs police officers.
Herrera's preliminary hearing is scheduled to resume on Sept.20 at the Larson Justice Center in Indio and he is being held at the Robert Presley Detention Center in Riverside on $2 million bail.
His mother, Lisa Roberta Vargas, 53, was arrested May 20 in connection with the shooting death of Spann. Vargas is scheduled for a felony settlement conference Oct. 12. Along with murder, Vargas is charged one felony count each of delivering a firearm to a person prohibited from possessing one, and committing perjury by false affidavit. Herrera and Vargas face potential life sentences if convicted as charged.
The sheriff's department reported that while Spann was wanted by a bail agency, there was no warrant for his arrest issued by a law enforcement agency. Herrera, was "not properly licensed'' as a bail agent, and was also prohibited from possessing firearms due to his criminal history, according to sheriff's officials.
Herrera has two felony convictions, both for assault with a deadly weapon, one in Los Angeles County and the other in Riverside County, court records show.
Herrera's preliminary hearing was scheduled for a second day so that the owner of the bail agency that allegedly hired Herrera and Vargas can testify.
Jail records show Spann posted a $100,000 bond April 1 in a misdemeanor restraining order violation case, although it remains unclear why he was being pursued by the defendants.
Deputies were initially sent to the Via Escuela location on a report that a bail agent needed assistance in apprehending a fugitive, according to Palm Springs police. Prior to officers being dispatched, police said they spoke to Herrera multiple times, once with him reporting he had planned to arrest the fugitive, and another to say the suspect was holding a knife and that he needed help.
Officers also received a call from Spann himself, who said someone was trying to break into his home, along with a call from Spann's alarm company to report the same incident.
During the preliminary hearing today, Riverside County Sheriff's Department Deputy Jarred Bishop provided a timeline of the calls, testifying that Herrera called the Palm Springs Police Department to report that he intended to arrest Spann. The next call to be received was from Spann and his alarm company, reporting the break-in. Bishop testified that Palm Springs police were able to recognize the connection and attempted to reach out to Herrera. When Herrera picked up the phone, Bishop alleges that he reported having Spann at gunpoint and was requesting backup from Palm Springs police.
Once on scene, officers contacted the knife-wielding suspect, who refused orders to comply, prompting an officer to use a stun gun on the man, but he continued to defy officers' orders, police said.
During the preliminary hearing, body camera footage from the officer showed the attempt to use a stun gun on Spann, but prior to doing so, audio from the video plays in which the officer tells Herrera
"you got lethal."
Bishop testified that this statement was a request for lethal backup, in which, prior to attempting to use non-lethal force, an officer requests a second officer to be prepared to use lethal force in the event that non-lethal force does not work in containing the suspect.
According to Bishop, the officer believed Herrera to be a fellow officer despite Herrera calling the initial incident in as a "fugitive recovery agent."
Bishop testified that the only one of the two prongs from the officer's stun gun lands on Spann, and that Spann then gets up and continues to move towards the officer with the knife.
Audio from the footage can then be heard in which the officer says
"shoot" and it is then when Herrera shots Spann, according to Bishop's testimony and the clip played in court. It was disputed by the prosecution attorney as to whether the word "shoot'' was meant to be an order to Herrera or simply an exclamation of the stun gun not working on Spann.
Spann was pronounced dead at the scene despite life-saving measures performed by first responders, according to police. No Palm Springs police officer fired a lethal weapon, officials said.
Because Palm Springs police were present during the shooting, investigators from the Riverside County Sheriff's Force Investigations Detail were called in to spearhead the investigation, and later arrested Herrera and Vargas.