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Conviction Is Rarity in Gray Legal Area of Shooting Intruders

November 16, 1986|MARK LANDSBAUM | Times Staff Writer

It was 12 years ago on an August night when Joe Fred Creek was alerted by the sound of breaking glass and found a barefoot, 15-year-old boy wearing only cutoffs moving through his darkened Sunset Beach bait and tackle shop.

Moments later Creek, who had been sleeping in the store in hopes of catching a burglar in the act, fired his .25-caliber rifle twice, striking the 5-foot-4, 120-pound teen-ager first in the chest, then in the back. The wounds left the boy paralyzed from the waist down.

An Orange County Superior Court jury deliberated less than two days and found Creek, then 57, guilty of felony assault with a deadly weapon.

The Creek case is the last Orange County one that many prosecutors and defense attorneys can recall in which a homeowner or a shopkeeper was convicted of a crime for shooting an intruder.

Creek's conviction came in a controversial area of law that some lawyers believe gives prosecutors wide discretion in determining whether deadly force was justified.

Case Goes to Grand Jury

On Thursday, the Orange County district attorney's office turned over to the grand jury a case involving a Costa Mesa auto parts shop owner who shot and killed a 15-year-old suspected burglar Oct. 29. David Alcides Gallardo was shot by Eric Vincent Holt, owner of Holtz VW Repair Shop. An employee at the shop said Holt told him the shooting was accidental.

The Orange County district attorney's office also recently filed a murder charge against a Santa Ana man who said he accidentally shot and killed a suspected rooster thief who had fled from the shooter's backyard, then moved toward him in the street.

Rarely are murder charges filed in such cases.

In a review of other publicized shootings in Orange County over the past two years involving intruders injured or killed by residents and storekeepers, none of the shooters were charged with a crime. In some cases the people shot were fleeing, and in others the confrontation occurred indoors.

Legal experts and police stress that it is the particular details of each case that determine whether shootings are legal (justified or excusable homicides) or crimes (manslaughter or murder). The factor on which most cases turn is whether the shooter had a reasonable belief that he or others were threatened by the intruder--regardless of whether there was an actual threat.

Use of Deadly Force

"You are entitled to use deadly force when reasonable in self-defense and (entitled) to use deadly force to prevent the commission of a felony," said Oakland defense attorney Lincoln Nathan Mintz.

In 1974, on the same afternoon he was convicted, Creek was sentenced to 60 days in County Jail, effectively reducing the crime to a misdemeanor. Superior Court Judge Mark A. Soden also immediately suspended the sentence and placed Creek on probation for six months.

Eight months later, Soden set aside the conviction and dismissed the charge. Soden, who has since retired, said last week that he could not recall the case.

"I suspected the judge was going to be pretty easy on him (Creek)," jury foreman Jonathan R. Noyes recalled recently. "He gave me the impression he wasn't in agreement with our verdict."

When Creek told police that he had fired without being in fear of his life, the district attorney's office determined a crime had been committed.

"The boy was moving away from (Creek) and was shot in the back," said Paul Meyer, who prosecuted the case but is now an defense attorney. "There had been no confrontation."

Had the boy died from his wound, Creek would have been convicted of "second-degree murder, at least," Meyer said.

But defense attorney Patrick Phelan viewed it differently.

"If this young man had been older, he (Creek) wouldn't have been indicted," Phelan said. "If (Creek) had kept his mouth closed, he wouldn't have been indicted. If he, the boy, hadn't been so severely injured, he (Creek) wouldn't have been indicted.

"It doesn't seem to me that anyone benefited from the whole transaction," Phelan said. "I've never gotten over it, and I'm sure Joe Creek didn't."

(Creek was killed in 1982 in an automobile accident in Santa Fe Springs.)

Not Over the Shooting

The boy's mother said her family has not gotten over the tragic shooting, either.

"The boy has paid 100-fold over for what he did," she said. "I felt (Creek) should have gone to prison. I felt the man had premeditated (a) murder. He was out to kill somebody, and it was my son he got."

Since the shooting, she has "spent more time in hospitals visiting the boy" than he has spent at home. "I wouldn't wish it on . . . anybody."

Her son, who is now 28, is unable to work, has had several operations and continues to live with his parents, who have moved from Orange County.

Several attempts to reach the son were unsuccessful.

Jury foreman Noyes recalled that some jurors initially argued for Creek's acquittal because the boy was a burglar. Indeed, the jury was instructed by Judge Soden to take into consideration that the boy "had committed a felony at the time he was shot."

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