Reader advisory: Some accounts of sexual abuse in this story contain explicit details and strong language that some may find upsetting or objectionable.
esiree Martinez ran down a residential street in the small Central Valley town of Sanger, trying to escape. A muscular man wearing gray sweatpants and no shirt chased after her: her boyfriend, Kyle Pennington.
“I was like crying and yelling and screaming,” she said during a recent interview. But she could hardly produce any sound. “I had been choked, so I couldn't even talk.”
The police, responding to a neighbor’s call, arrived around 5:20 a.m. It was June 4, 2013.
“I just felt like such a relief,” Martinez said. “Like, oh my gosh, it's over. It's done.”
Martinez told Sanger police Officer Angela Yambupah that Pennington had placed a pillow over her face and tried to choke her with her own arm before she escaped the home through the garage. The officer told her that Pennington was going to be arrested, according to Martinez.
Then a senior officer, Sgt. Fred Sanders, intervened.
"He says, ‘No we’re not,’ " Martinez said. " ‘They're good people, I know the Penningtons and we're not going to arrest them.’ "
Sanders knew Pennington’s family because his father was a cop with the Sanger Police Department — and Pennington himself was a police officer in the neighboring city of Clovis. Pennington had also served in the military for more than a decade.
Sanger police did not arrest Pennington that morning. As a result, Martinez said, she was sent back into their house, where her boyfriend then beat, sexually degraded and raped her. Pennington denies these allegations.
"I was like, I’m trapped," Martinez said. "He [Pennington] said no one's going to believe me and no one's gonna help me and, you know, he's right."
The 9th U.S. Circuit Court of Appeals is currently considering whether responding police officers can be held accountable for repeated failures to arrest Pennington or otherwise help Martinez during any one of a string of domestic violence calls in 2013. A lower court dismissed much of Martinez’s lawsuit in 2017, but she appealed.
Appellate Judge Robert Lasnik laid out the issue on appeal at a hearing in January.
“The policing is horrible,” Lasnik said. “There is no question about that. But was it a clearly established constitutional violation or was it just really poor policing?”
The “poor policing” in Martinez’s case is not unique, according to some experts, who say it is part of a larger pattern of willful blindness, interference and even cover-ups that can occur when law enforcement is called to investigate one of its own for domestic violence. And when police fail to intervene in these cases, they place victims at an even greater risk.
In Martinez’s lawsuit, she alleges that both Sanger and Clovis police officers repeatedly failed to comply with the requirements of the federal Violence Against Women Act and their own protocols.
That 2013 incident wasn’t the first time police came to Martinez and Pennington’s residence. A month earlier, after a call from Martinez, two officers from Clovis showed up to check on her.
In a whisper, Martinez told Officer Kristina Hershberger the first time Pennington got physical with her was while they were on a trip to Dublin, in Alameda County, for his Army training. She described him trapping her in a hotel room where he choked her, took her phone and ripped the hotel phone out of the wall when she tried to call for help.
Martinez said Pennington stood just 15 feet away as she spoke to the officer. Hershberger got a recorder from the car and asked Martinez to tell her again what had happened in Dublin.
"[Hershberger] said it in front of him," Martinez said. "And then he looked over at me and I was all, ‘Nothing.' "
The way the officers handled these incidents goes against basic police training, according to Tom Walsh, a retired police investigator who teaches domestic violence classes through the state Commission on Peace Officer Standards and Training.
“You don’t do that,” said Walsh. He was a cop in San Francisco for 35 years and he’s currently a reserve officer with the East Bay Regional Park District. “The victim's not going to tell you anything. That’s going to place the victim in more danger. You've got to separate them so they can't hear one another and see one another because the victim knows, you know, when he gives me that look the beating’s going to be coming later.”
Martinez said that as the officers went to leave, she overheard Hershberger say something to Pennington.
“The girl said, 'Kyle, what are you doing? You know you're already under investigation, like you need to watch yourself,’ " Martinez said.
Internal affairs was already investigating complaints of physical abuse made by an ex-girlfriend, who told the department that Pennington kicked her, tried to throw her down the stairs and sodomized her, allegations that Pennington also denies.
Hershberger’s police report says that because Martinez seemed drunk and changed her story, there was no probable cause to arrest Pennington. The Clovis police chief maintains his officers did everything according to protocol during this incident.
But Walsh said these kinds of missteps happen all too often during officer-involved domestic violence investigations.
“I used to get really, really angry in the beginning,” he said. “Like why is this happening? Why would a cop not do a report at the scene? Or why would a cop not call out a detective in the middle of the night when one of these are going on?”
Because of the power and control dynamics at play in these kinds of cases, Walsh said, investigators can expect victims of domestic violence to recant in nearly all cases. When an officer is the suspect, it is even more difficult to gain the trust and cooperation of the abused individual.
Domestic violence often follows a predictable pattern, according to attorney Kevin Little, who specializes in these cases and is representing Martinez in her lawsuit against the police.
“The first stage of the cycle is the perpetrator begins by exerting control over the victim and then removing the victim from her social network so that she doesn't have other resources to rely on,” Little said.
Martinez said she relied on Pennington for a place to live. He asked her for her paychecks from the vitamin store where she worked, Martinez said, and tracked her movements. He alienated her from her friends, she said, and even her daughter.
“He knew exactly what he was doing,” she said.
Martinez said when she tried to call anonymously to get information about making a domestic violence report, a Clovis officer called Pennington. When she called another officer in the department who she said she trusted because she’d dated him in the past, it got back to Pennington. Each time Pennington found out about her attempts to report him, she said he punished her.
“The potential for violence becomes its worst if the victim tries to report the perpetrator to law enforcement or tries to leave, and at that point that's when many women get severely injured, or some even lose their lives,” Little said.
Martinez said Pennington repeatedly told her no one would believe her because he was an officer. It seemed to Martinez like he was right.
Clovis Police Chief Matt Basgall said that his officers did follow protocol in each interaction with Martinez and Pennington. Sanger police did not respond to requests for comment.
'Nothing’s Going to Change'
Over the years, as Walsh noticed this pattern of bungled investigations begin to emerge, he realized there was must be a reason for it. He said officers have a lot of trouble seeing past the person they know from the station.
“He's very professional,” Walsh said. “He makes really good arrests. He writes really good reports but this poor guy has a miserable home life, and they don't understand domestic violence enough to know that they're being manipulated by the batterer.”
Walsh realized the general domestic violence trainings he was teaching weren’t enough. Officers needed specific training in how to deal with both suspect cops, and with the interference from others in the department that could derail their investigation.
He has now been teaching investigators across the state for more than a decade.
But even the training, which isn’t mandatory, doesn’t go far enough, according to Walsh. He said lawmakers should make it a crime for anyone in the entire chain of command to interfere in an officer-involved domestic violence investigation.
“I'm talking about chiefs and sheriffs, deputy chiefs and commanders, or whatever rank you want to throw in there,” he said. “Until they hold those people accountable, nothing's going to change.”
Pennington was finally arrested and went to trial in late 2013. He maintains that Martinez lied in court, that he never hurt her, and that the only thing he’s guilty of is trying to make the best of a bad relationship. Pennington also pointed out that his ex-wife of 15 years testified that he was never violent with her.
“There was absolutely no injury done to her that wasn’t done on her own recourse from being a sloppy drunk and falling down,” he said.
But secret recordings that Martinez made at the time belie some of what Pennington said. On these tapes, which Martinez said she made in order to get someone to believe her about the abuse, Pennington admits to head-butting Martinez and putting his hands on her, and can be heard refusing to take her to the doctor. The jury in the criminal trial never heard those tapes.
Prosecutors never charged Pennington with rape, despite allegations from Martinez and his other ex-girlfriend.
Pennington said he is a victim of overzealous investigators and prosecutors who were motivated by the “big prize” of catching another cop doing something wrong. As the criminal case progressed, the Clovis Police Department suspended Pennington, and he eventually resigned from his job before the internal investigation was complete, according to records of that investigation released under a new police transparency law.
A jury found Pennington guilty of violating a restraining order in April 2014, but couldn’t come to a unanimous verdict on other charges. Prosecutors charged Pennington again, and he pleaded no contest to misdemeanor domestic violence.
The judge sentenced him to 30 days in jail.
'There Has To Be a Change'
If the 9th Circuit rules in Martinez’s favor, her lawsuit could go to trial within about a year.
“We're hoping one day to see not just one officer but all of the officers who assisted Mr. Pennington in putting Ms. Martinez through this ordeal, we're hoping to see them in defendants' chairs in a courtroom in front of a jury,” attorney Little said.
Diana Field, the lawyer representing officers from Clovis and Sanger, didn’t respond to repeated requests for comment. She argued before the 9th Circuit in January that the officers can’t be held accountable because they didn’t break any clear rule.
"Failure to perform a mandatory duty is not a constitutional right," she said.
More Police Records to Be Released
"If the officers showed up, and it was clear that they had a basis to arrest, there was probable cause. It looked like the victim had been beaten up, and they basically say, ‘You're good people because you're a police officer, we're not arresting you. You can keep doing this and leave.’ Is that not unconstitutional?” asked Judge Michelle Friedland.
"No," Field said. "The decision to arrest is a discretionary act in California."
"Is there any reason why we shouldn't announce a rule now that says that if a police officer stops an arrest when there was probable cause and communicates, ‘You can keep doing the — you can keep going with the assault because we're not going to arrest you’ — that that shouldn't be unconstitutional?” Friedland asked.
Martinez said she is still pushing forward with her lawsuit because it could create an important legal precedent that would help other survivors of domestic violence.
“There has to be a change,” she said. “Women are dying all the time from domestic violence and it's easy to give up and be like, you know what, I'm tired of this. I'm tired of reliving everything every day.”
Martinez said she’s still scared to be seen around Clovis, but she gets strength from working with a group of domestic violence survivors to let them know that help is out there.
“I know how it felt when no one helped me and no one was there,” she said. “So I just don't want anybody else to ever feel like they don't have anyone there to help them.”