A judge refused Thursday to dismiss a second-degree murder count against a man charged with the shooting death of a Pomona SWAT officer who was helping to serve a search warrant at the San Gabriel home of the defendant’s family.

Los Angeles Superior Court Judge Charlaine F. Olmedo said dismissal of the most serious charge against David Martinez was “not warranted,” telling attorneys that it will be up to a jury to decide if the defendant should be convicted or acquitted of the Oct. 28, 2014, killing of Officer Shaun Diamond.

The 45-year-old officer — who had 16 years of law enforcement experience with the Los Angeles, Montebello and Pomona police departments — died a day after the early-morning shooting.

Jurors in Martinez’s first trial acquitted him June 28 of first-degree murder, and deadlocked 3-9 in favor of acquitting him of second-degree murder after nearly five days of deliberations. The panel did not vote on the lesser charge of manslaughter or a separate felony count of assault with a firearm on a peace officer.

Defense attorney Brady Sullivan asked the judge to exercise her discretion to dismiss the murder charge, saying there is “no reasonable probability that we’re going to get a different verdict.”

Deputy District Attorney Michael Blake countered that retrials often wind up with different results.

During his first trial, Martinez testified that he fired a “warning shot” from his shotgun because he feared members of a motorcycle club to which he belonged were trying to break into the home he shared with his parents, common-law wife, two young children and his adult sister.

The defendant told jurors that he was startled to hear screaming after firing the gunshot, turned around, dropped the shotgun, laid down and said he was sorry.

“I kept saying I was sorry. I didn’t know it was the police,” Martinez testified. “I thought it was the Mongols. I would never fire at police or law enforcement ever. I have family that’s (in) law enforcement.”

Under cross-examination by the prosecutor, Martinez said, “I took aim and I pulled the trigger.”

“You shot to kill that day?” Blake asked.

“I shot to protect my family,” Martinez responded.

“You shot to kill the target that day?” the prosecutor said.

“There was no target, sir,” the defendant said, maintaining that he was trying to defend his family when he fired the shot, and never saw any police officers until they were coming into the house after the shot was fired.

Martinez said he had pondered dropping out of the Mongols after having a change of heart about his involvement in the motorcycle club, but had heard stories about other members who tried to quit and was concerned for the safety of himself and his family.

Deputy District Attorney Jack Garden told jurors that Martinez “shot Officer Diamond while Officer Diamond’s back was to the defendant, while Officer Diamond’s gun was in its holster, while Officer Diamond was walking away from the defendant. And they’re going to call that self-defense. Officer Diamond posed no threat to the defendant, zero threat. This is not a case of self-defense.”

The prosecutor repeatedly called Martinez a “Mongol” — referring to the motorcycle club to which he belongs, “a murderer” and “a manipulator,” saying that Diamond and his fellow SWAT officers “couldn’t plan for the defendant shooting Officer Diamond in the back of the neck” as the 6-foot-2-inch officer walked away from the home’s front door.

Diamond and his fellow officers were wearing green uniforms with large yellow letters indicating they were police, and both of Martinez’s parents heard the announcements that police were outside to serve a search warrant, Garden said, disputing the defendant’s contention that he thought members of the Mongols were trying to break into the family’s home and that he saw only a shadow.

Martinez’s lawyer countered that “tactical mistakes” were made by police and that Martinez acted reasonably in self-defense by firing once before quickly surrendering to police outside the home. He noted that his client apologized when officers entered the home and said that he didn’t realize that it was police officers who had been outside.

“Most defendants don’t testify … He wanted to take the stand. He wanted to tell the truth,” Sullivan said. “He took responsibility for his actions. His parents disagree with me. They’re convinced the police officers shot their own.”

Sullivan had urged jurors to acquit his client of first-degree murder, second-degree murder and manslaughter, along with the assault charge, calling it a “lawful self-defense and defense of his father and mother.”

As a result of Martinez’s acquittal on the first-degree murder charge, which included the special circumstance allegation of murder of a peace officer engaged in his duties, the judge agreed to set bail at $3 million for the defendant. He had previously been held without bail.

He is due back in a downtown Los Angeles courtroom Nov. 14 for a pretrial hearing. His retrial is tentatively set for Feb. 10.

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