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Ventura County

Defendant a Surprise Prosecution Witness

Hearing: Lawyers trying to win freedom for convicted killer object when he's called to the stand.

July 06, 2001|TRACY WILSON | TIMES STAFF WRITER

A hearing to determine whether a 26-year-old Oxnard man was wrongly convicted of murder four years ago took an unusual turn Thursday when prosecutors called the defendant as their first witness.

"The people call Efren Cruz," said Santa Barbara County Deputy Dist. Atty. Hilary Dozer, drawing a quick objection by the defense.

Attorney Phil Dunn asserted his client's 5th Amendment right against self-incrimination, only to have Dozer tell him that the protection no longer applies because Cruz was found guilty of murder in 1997 and has since exhausted his appeals.

Deputy Dist. Atty. Gerald Franklin presented the court with a written brief on the matter and cited a federal case in which a convict fighting for release was deemed to no longer have such a constitutional protection.

Dunn told Judge Frank Ochoa that prosecutors never told him they planned to call Cruz. If the request to overturn Cruz's conviction is granted, he said, prosecutors could retry his client and use any statements elicited during the hearing against him.

"I think it is an example of trial by ambush," Dunn said. "I just think it is a very, very disagreeable tactic."

Ochoa agreed to give defense lawyers a few days to research the issue.

The prosecution's attempt to confront Cruz on the stand came after nine days of defense testimony in the Santa Barbara County Superior Court hearing. It was there that Cruz was convicted of murder, attempted murder and other charges in connection with a 1997 gang-related shooting at a downtown Santa Barbara parking garage.

Now, defense lawyers are fighting for his release based on new evidence they say implicates another man.

Last year, authorities in Ventura County obtained a secretly taped jailhouse confession from Cruz's 28-year-old cousin, Geraldo Reyes. On the tape, Reyes admits firing the shots that killed one man and seriously wounded another at a city parking lot.

However, Santa Barbara prosecutors say the tape-recording doesn't prove anything. They stand by their belief that Cruz was the gunman, not Reyes.

"There is nothing unique about the statement of Geraldo Reyes," Dozer said. "It shouldn't overturn the verdict against Efren Cruz."

On Thursday, the prosecution opened its case by returning to the scene of the crime.

Lawyers, judge and three investigators--followed by a small group of reporters and cameramen--walked through the parking structure at the corner of Ortega and Anacapa streets.

They looked at diagrams and crime scene photos. They stopped at the spot where the victims were found and paused at the site where the murder weapon, a chrome six-shot revolver, was recovered.

During the tour, Cruz, wearing a blue dress shirt and pants, sat on a folding chair and watched Ochoa survey the garage.

According to prosecutors, Cruz, Reyes and several of their friends got into an altercation with a group inside a State Street bar on the evening of Jan. 26, 1997.

Witnesses said gang signs were flashed by the Oxnard men as they left the bar and again when they encountered the rival Santa Barbara group inside the parking garage.

There, prosecutors say, Cruz grabbed a gun and ran down a stairway near the entrance of the garage, firing four to five shots at the group standing near the elevators a short distance away.

Michael Torres, 23, died from a gunshot to the back of the head. James Miranda, then 21, was seriously injured from a gunshot to the neck.

During Cruz's trial, a motorist who had been exiting the parking structure during the altercation identified him as the shooter. Authorities also found gunpowder residue on his hands.

"We feel we have very compelling evidence that Efren Cruz was the murderer in this case," Dozer said Thursday after visiting the site.

Defense lawyers, however, believe they presented sufficient evidence during the hearing to overturn the conviction.

Testimony is scheduled to resume today.

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