The Salt Lake County District Attorney's Office is declining to file criminal charges against a man who was arrested last month for investigation of aggravated murder.
On Dec. 27, Xavier Bernal, 20, of Ogden, was shot at the Redwood apartments, 4000 S. Redwood Road in West Valley City, and later died at a local hospital. Police said that Bernal had arranged to meet someone at the apartments for an unknown reason.
Dylan Gregorio Upshaw, 21, was arrested a week later and booked into the Salt Lake County Jail for investigation of aggravated murder and obstructing justice. Police believe Upshaw was planning to flee to Arizona.
West Valley police submitted the case to the district attorney's office to be screened for formal charges. But according to a letter dated Jan. 11 from the district attorney's office sent to West Valley police, Upshaw claims he was acting in self-defense and prosecutors said they cannot prove otherwise at this time.
"Evidence provided to our office indicates that the deceased was likely engaged in an attempted robbery of the suspect at the time of the shooting. According to both a witness and the suspect, the deceased may have gone to the location of the shooting with the intent to rob the suspect," the letter from the district attorney states.
Prosecutors say it was Bernal who likely brought the gun to the scene and attempted to use it against Upshaw, but Bernal ended up being shot during a struggle with Upshaw, according to the letter.
The letter also notes that Utah's new self-defense law that went into effect in 2021 prevents prosecutors from filing charges. The law places "an additional burden on the prosecution ... by removing the initial post-preliminary hearing decision on self-defense from the hands of the jury at trial and instead placing the initial determination in the hands of a single judge," it says.
Because of the law, "in order to proceed to trial, the prosecution must now not only be able to demonstrate probable cause that the alleged crime was committed by the suspect, but the prosecution must also be able to prove by clear and convincing evidence to a judge at a justification hearing that self-defense does not apply before the case can be heard by a jury."
Because of that, prosecutors say in the case involving Upshaw: "We have determined that there is insufficient evidence at this time to overcome a justification hearing and we must therefore decline to file charges."
If additional information is developed in the case, the district attorney's office says it will revisit the matter.