__________________________________________) DECISION AND ORDER
Petitioner Efren Cruz was convicted by jury on December 1, 1997, of the crimes of Second Degree Murder (Penal Code Section 187), Attempted Murder (Penal Code Section 664/187), and Possession of a Dirk or Dagger (Penal Code Section 12020(a)). The trial proceeding was conducted by this court, and lasted 23 trial days. Petitioner had, prior to trial, pled No Contest to a charge of Possession of Cocaine (Health and Safety Code Section 11350 (a)).
Cruz appealed to the Court of Appeal and the judgment was affirmed. He now brings a Petition for Writ of Habeus Corpus, asserting that new evidence has arisen which proves that another, and not Petitioner, is the person who was the shooter in what has become known as the “Parking Lot 10 Case”. It was upon the theory that Cruz was the shooter in that case that he was convicted of Second Degree Murder and Attempted Murder. He asks that those convictions, and the findings and special allegations and the sentencing related thereto be vacated and set aside.
Respondent, the People of the State of California, by and through the District Attorney of Santa Barbara County, conceded that the original petition presented prima facie evidence which, if found to be true, would entitle the petitioner to the relief requested. The court thereupon conducted lengthy evidentiary proceedings regarding the contentions raised by the petition pursuant to Penal Code Section 1484. It is the truth of the disputed allegations in the petition that are determined through the evidentiary hearing. In re Serrano (1995) 10 Cal. 4th 447; Rose v. Superior Court 81 Cal. App. 4th 564, modified on rehearing, review denied.
Where there is a claim of actual innocence on the basis that someone else committed the crime, the issue to be determined is whether that other person actually committed the crime. In re Johnson (1998) 18 Cal. 4th 447. Petitioner bears the burden of establishing the essential allegations of his petition that serve as the basis for his requested relief. Petitioner’s burden is by a preponderance of the substantial credible evidence. Ex parte De La Roi (1945) 27 Cal. 2d 345; In re Malone (1996) 12 Cal. 4th 935. The issue presented in this proceeding, therefore, is whether petitioner has shown by a preponderance of the substantial credible evidence that Gerardo Reyes, and not he, was the shooter in Lot 10 on January 26, 1997.
“To warrant habeus corpus relief new evidence must be such as to undermine the entire structure of the case upon which the prosecution was based; it must point unerringly to the petitioner’s innocence and must be conclusive; it is not sufficient that the new evidence conflicts with that presented at trial and would have presented a more difficult question for the trier of fact. (Citations omitted) Concomitantly, the new evidence must be credible and convincing.” In re Wright (1978) 78 Cal. App. 3d 788. Although the evidence must point “unerringly to innocence” the court will not “impose either the hyper technical requirement that each bit of prosecutorial evidence be specifically refuted, or the virtually impossible burden of proving there is no conceivable basis on which the prosecution might have succeeded”. In re Hall (1981) 30 Cal. 3d 408. “Obviously a confession by another party exonerating the petitioner does point unerringly to petitioner’s innocence and, if credited, undermines the entire case of the prosecution.” In re Branch (1969) 70 Cal. 2d 200, 215.
The writ proceeding evidence centered on statements made by petitioner’s cousin, Gerardo Reyes. Reyes made a number of statements in a wired jailhouse conversation which amount to a confession that he had been the shooter in Lot 10 on January 26, 1997. It is undisputed that Reyes had been at the location where the conflict began on the night of the shootings (then known as the Hurricane Club), but respondent’s position has been throughout that Reyes was never in Lot 10, and that he did not park his vehicle in Lot 10. In addition to the evidence at trial against Cruz, Respondent relies upon Reyes’ position that prior to the events in question he parked up State Street. His position was further that after the conflict arose within the bar, he and his wife walked up State Street to their car and drove home. The testimony at trial of some witnesses either directly, or inferentially, supported Reyes’ version of events. An issue is then presented as to whether Reyes’ vehicle was in Lot 10 on the evening in question. The evidentiary review will focus on the identity of the shooter in Lot 10, and the related issues that bear on that question.
Writ Proceeding Evidence
Taped Conversation between Peter Zuniga and Gerardo Reyes
Employees of the Oxnard Police Department and the Ventura County District Attorneys Office became concerned that Efren Cruz might have been wrongly convicted for the Lot 10 shootings beginning in 1999. Officer Dennis McMaster, the foremost gang authority within the Oxnard PD, had been a prosecution witness in the Cruz trial. He received information that an inmate at Pelican Bay State Prison had information about the case. That inmate had provided him with accurate information on a confidential basis in the past. He contacted the inmate, Peter Zuniga, at Pelican Bay and through a cryptic form of communication was told that Zuniga believed that Gerardo Reyes, and not Efren Cruz, had been the Lot 10 shooter. Zuniga informed McMaster that he was willing to wear a wire to prove the truth of this information. McMaster thereafter shared this information with the Ventura District Attorneys Office, and they, sometime thereafter, decided to determine whether the information could be verified. Zuniga was transported from Pelican Bay to Ventura County Jail prior to August of 2000, at a time when Gerardo Reyes was an inmate at that facility.
Ventura authorities arranged for Mr. Zuniga to be transported to Ventura County Jail on the pretext that he had a child custody matter to attend to. An operation was developed for Zuniga to wear a wire in a court holding facility when Reyes would be the only other person present. In order to gain Reyes’ interest Zuniga had, in prior communications with Reyes, led him to believe that Efren Cruz was letting it be know that Reyes was the actual Lot 10 shooter and that he was also saying that Reyes had “snitched” on him. Zuniga had fabricated a story he related to Reyes of having knifed Cruz in prison. He had acted in response to Reyes’ request that he harm Cruz in order to keep Cruz quiet about Reyes. Zuniga dictated a letter purporting to be from a Pelican Bay inmate to him asking that he pursue some form of written verification (i.e. a newspaper article, police report or court document) regarding the opposing contentions in order to resolve the issues presented. As a “soldier” for the Mexican Mafia, Zuniga claimed to need such verification in order to obtain support for his actions against Cruz on behalf of Reyes while behind bars.
In their meeting at the Ventura County Jail on August 25, 2000, Reyes read the letter (Flaco letter), and then flushed it down the cell toilet. Reyes and Zuniga then discuss the need for Reyes to obtain “paper” (written verification) in regard to what he may have said about Cruz and whether that information would disprove the contention that Reyes was a snitch. Reyes references a newspaper article and his discussions with Cruz about it when they shared a jail cell after the shootings. Reyes claims that Cruz is attempting to say that Reyes has put forth the contention that Cruz had argued with an individual in the bar, and that the same individual had been killed in the confrontation outside the bar. If such were true, it would support the contention that Cruz was the shooter by supplying motive.
Reyes attempts to discredit Cruz by pointing out that it was well known that the person involved in the bar argument with Cruz was not the individual subsequently killed in the parking lot.
Reyes: “—he knows dog—he knows, to me what he’s trying to do, ‘cause I, he brought it up to my attention, homie, when I was up there with him, I was his cellie, what happened right here eh I go Efren what is your problem? Why don’t you fucken say what the problem is. Do you think I would fucken say that? The only thing I said to him was that, supposedly that he was arguing with the vato. But, hey check this out, homie, but you told me, remember when you told me that he was saying that’s the vato that got killed?”
Reyes: “—that ain’t him, homie.”
Reyes: “It ain’t him, homie. Leo (Leo Gonzalez) knows it ain’t him. Leo was his bunkie, his bunkie for eight months after I jammed. It ain’t him. Little Gera (Gerardo Palencia) knows it ain’t him. And Sporty (Ramiro Reyes) knows it ain’t him, homie. We all know it ain’t him, ‘cause the vato Leo’s had been talking to (INAUDIBLE), you know what I mean and it’s-it’s not him, homes it’s-it’s not him. That vato that we were talking to, that guy came to court to testify. Okay, he keeps saying it’s him, homie, just to try to make me look bad. But, I suppose (UNINTELLIGIBLE) I didn’t tell the juras (police) you were arguing with them. They asked me why, why was Efren, your cousin Efren arguing with the guy.” (Transcript, p. 22-23)
Reyes then relates that “two days after it happened” his aunt (Cruz’s mother) called him over to her house. His aunt tells him the police know everything and are looking for him. In his perspective, Cruz is the snitch because he told his mother what had occurred on the evening in question.
Reyes: “I go over there and she’s telling me, the juras (police), they already know everything, they’re looking for you, Efren’s up there. They want you and your wife, and I’m like what, she came and told me everything, how it happened, homes. I’m like damn, Efren, ain’t right, homie, ya know, he called her up and told her that shit on the phone. You know what I mean?”
Zuniga: “Ohhh so that’s—“
Reyes: “And so that’s how my aunt knew everything. So she tells me, okay, check this out, either you’re gonna turn yourself in, they’re gonna get you some day. But, the jura doesn’t have to listen to what Efren said, she told me, what Efren said, she goes, well, I want you to say that he wasn’t with you. That he didn’t go over there with you, that he went in my cousin’s car. I said, allright. I told her, I talked to my jaina (wife), my jaina, my hefa (mother) and everything. Me and my jaina, we were gonna have the same story dog. (UNINTELLIGIBLE)—“
Zuniga: “And she was with you?”
Reyes: “Yeah, dog, she was with me all day, homie. I did it, dog.”
Reyes: “I did it, and she drove me away.” (Transcript, p. 23-24)
Zuniga then relates that he had “heard something about that”, but that he had thought Sporty (Ramiro Reyes) had done it. “That’s what I always thought, Sporty did it.” Reyes says, “why am I gonna tell em something,” and Zuniga responds, “you gonna tell on yourself.” Reyes expresses anger because “they” wanted him to blame Sporty. He relates the pressure that Cruz’s family placed upon him and that his plan was to, if necessary, take the blame in order for his wife to avoid problems. He states that in all the times he has gotten arrested, he has never talked to the police. The police are telling him that “they already told us that you did it”. Under pressure from the police who are threatening to arrest his wife, Reyes tells Zuniga, “I go, I-I’ll-I’ll try to answer some of your questions, what you got?” Reyes then relates the police questioning and states that he confirms the family’s story with police. He tells them that Cruz went to Santa Barbara in his own car, because the family told him to say that. In reality Cruz had gone in Reyes' car to Santa Barbara.
Reyes: “He went on (in?) my car dog, I’m just saying this to back him up, man, like my tia told me, what he told the juras. He told the juras he was trying to fix the car, and shit that’s why he, was still on the scene, whatever.” (T: p. 27)
(At the time of his original detention at the shooting scene, Cruz had told police that he had been upstairs trying to fix his car when he heard the shots downstairs.)
Reyes then relates that the police inquire as to why Cruz was arguing with the other person. He responds “I don’t know if he was arguing. I don’t know.” He states he then snapped because he was aware there was a videotape inside the bar which would have recorded their actions. He sticks to his story with police, refusing to acknowledge whether Cruz was in any argument. He notes that the cameras helped him out. He related that he told police he had gone over, introduced himself, had shaken the person's hand they were arguing with, and that these events were recorded. He informs Zuniga that Cruz was drunk at the time he interceded. He tells Zuniga that he went to the bathroom and when he returned, the conflict had resumed. He then relates that in response to police questioning, he explained that after they were kicked out of the bar, he and his wife simply left.
That completed Reyes’ rendition of police questioning to Zuniga, but he notes that at the preliminary hearing, “there’s like two vatos saying that I was a peacemaker inside, and I was thinking, ‘the camera’”. (T: p. 30) Both are then heard laughing on the tape.
Reyes then tells Zuniga how the conflict moved outside. Reyes was telling his friends to leave. His hand was broken, he had had to have surgery, and he was unable to “box”. (Jail medical records from February 11, 1997, contain an entry made by Reyes in the Medical History section which, under the heading “Past Hospitalizations (Past Surgery/Major Injuries) reads: “Right hand ring finger-bone broken”.) Efren had stayed at the scene of the confrontation and was calling for him, “Gera, Gera”. Reyes states he was upstairs getting into the car and decided that he couldn’t leave his cousin. He grabbed his gun and went downstairs, still yelling “let’s jam, let’s jam”. He then saw Michael Torres (the murder victim), and heard his name, Gera, being called. He then began to fire. He describes in detail the shootings, especially the killing of Michael Torres.
After the shooting he tried to get Cruz to the car, but relates that Cruz wanted to stay and “box”. Another homie grabbed the gun from him and he fled. He notes that others from the group began kicking the victims, and Cruz continued to refuse to leave. Reyes explains that Cruz was implicated because the gun was left near him and he had gunpowder on him.
The only possible “paperwork” presented as evidence in this proceeding was Respondents Exhibit 7, Det. Armando Martel’s report from an interview with Gerardo Reyes conducted on January 27, 1997. In that report, Martel memorializes his conversation with Reyes and states that the only negative contact Reyes remembered in the bar was a brief incident with an older man who had attempted to introduce himself to Reyes’ wife. “Reyes did say he did get involved in a matter between the security personnel and Efren Cruz, who was being escorted out by security. Reyes said he attempted to mediate the problem between Cruz and the security. Reyes said neither he, nor any of his friends were involved in a confrontation with any local Santa Barbara residence (sp) inside the bar.”
This police report is also significant in terms of what it relates as to the location of Gerardo Reyes’ vehicle on the evening in question. When Reyes is questioned two days after the shooting by Det. Martel, the detective memorializes part of the conversation as follows:
“Reyes said he and Beronica then decided to leave the bar and exited through the front door. He was followed out by several of his friends from Oxnard. Reyes said he was intoxicated at that time and was not sure where their vehicle was parked. Reyes said his wife, who was driving, had not been drinking and she led him to the vehicle. He believes they turned right as the(y) approached Ortega Street. I asked Reyes if the car was parked in a multi-level parking structure and he was not sure.”
(The videotape shows Reyes and his wife going north on State St. after leaving the Hurricane Club. Turning right as one approaches Ortega Street would have taken him into the vicinity of Lot 10, not up State Street.)
Reyes’ recollection that he said nothing to police which would be a form of ‘snitching’ was not contradicted by any evidence in the writ proceeding. But Reyes goes to great lengths to explain how Cruz had placed him in jeopardy by telling Cruz's mother about the events of the evening. In his version of events, it was necessary to break his long-standing rule of refusing to talk to police because Cruz, through his family, had implicated Reyes in the evening’s events. He lays blame at Cruz’s feet for not having taken an offer of 15 years to resolve the matter. He further justifies his course of conduct by asserting that his actions were taken in order to protect Cruz, and because his actions would have been unnecessary if Cruz had departed from the scene.
Reyes: “I—I feel sorry for the homie, ‘cause he got busted dog. But he had his chance, homie. Fifteen milas, dog, for a self-defense, homie—“
Zuniga: But that’s—that’s not even like, hmm, the issue no more homes. You know what I mean that—“
Reyes: “It’s ugly, ya know, ya estuvo, homie. You know what I’m saying (UNINTELLIGIBLE) Come on homes, you know what I mean, I’m not going another round for fucking nada (UNINTELLIGIBLE) I did it. You know what I mean? ‘Cause I didn’t do it for myself, homie, I did it for him. So why would I, fuck, that’s what he’s expecting me to do, homes, but fuck no homes. That’s not the way to go, homie, ya know? And fuck, homie, now he’s in there fuckin’ saying I told on him. It ain’t right, homie, ‘cause I know that, well, come on, Why am I gonna say something stupid like that, homes. That I did it. You know what I mean. Y que man, que homie, (UNINTELLIGIBLE) papales, for his trial, this is at his trial, homie, his hefa said, okay, my—my son won’t say anything. Ya know ‘cause he could get in trouble whatever. But his cousin, Gerardo Reyes, is the one that did it. And, and everybody, this, she was up there talking shit—“
Zuniga: “Were you tripping out, on, on how, hmm, she knew you did it?”
Reyes: “Yeah. (INAUDIBLE) He called her and told her, homie. I mean, that’s the only way, homie.”
Zuniga: “What’d you tell your hefa?”
Reyes: “I told my mom and dad, I did it, homie. You know, I go, hey mom and dad, I did it but, uh, I didn’t do it for me, ya know, I, shit, if I coulda left him, I could have left him there, homie. But I said, uh, I seen him, (UNINTELLIGIBLE) fuck, come on homie"
Zuniga: “Can’t let that happen—“
Reyes: “And I, ya know, and I wouldn’t have been able to live with myself, homie, I ya know, I rather, I, I’m glad I did this instead of leaving him there and he could have been killed, you know what I mean?” (Transcript, Tape 1: p. 49-50)
In later conversation, Reyes is explaining all that he has put his wife through. He discusses his unfaithfulness in marriage and the fact that his wife has been arrested with him on prior occasions. He relates to Zuniga that he instructed his wife to drive around the parking lot and that she had seen everything that had happened. She had “seen the fucking head blow, pow.” (Tape 2: p. 18) In discussing the fact that he had shot the murder victim in the back of the head, he explains that there were 15 of the Santa Barbara guys, “Big Boys, dog.” He referred to them as “work out vatos”. He then laments that his smaller homies were drunk and “acting stupid”.
He explains that he took his cousin’s girlfriend (Valerie Ortiz) with him on the trip back to Oxnard. He convinced her not to say anything that would implicate him in the evening’s events.
Reyes: “(INAUDIBLE) I’m a kil-kill you bitch. If you say something.”
Zuniga: “What you tell her?”
Reyes: “I told her, if you say something, I said, she said, I’m not saying nothing, I didn’t see nothing. (INAUDIBLE), so she didn’t say nothing (INAUDIBLE) anything, homes, ‘cause she didn’t see. She (UNINTELLIGIBLE) because (UNINTELLIGIBLE), (INAUDIBLE), that’s (UNINTELLIGIBLE) she’s cool, she ended up getting married with my wife’s primo (cousin).”
On the second tape, Zuniga and Reyes have extensive discussion about how to handle the situation. Zuniga repeatedly offers to handle the matter when he returns to prison, if Reyes desires this course of action. Reyes, after much equivocation, gives approval for Zuniga to act.
Reyes: “So fuck him, homes. You know what I mean, if he’s gotta go, he’s gotta go, I don’t give a fuck, homie, ‘cause I’m gonna be, he already let me know homie where he stands, dog. I think he’s gonna try to talk.” (Tape 2: p. 37)
Reyes clearly thinks he is going home soon at the time of the conversation between he and Zuniga. He is in court for a bail hearing, and states, “I should be getting out today dog. I got a good judge. And he’s gonna lower my bail.” (T: p. 44) He later says, “I’m gonna jam today, homie.” He also claims to have been arrested with his wife on six occasions for attempted murder (Transcript, tape 2: p. 21), so facing serious charges does not appear to have been a new experience for Reyes. He was released on a bail bond a short time thereafter.
March 27, 2001 Interview of Gerardo Reyes
Detective Jesse Rose and Sergeant Don Knapp of the Santa Barbara Police Department conducted a lengthy taped in-custody interview of Gerardo Reyes on March 27, 2001. Counsel have referred to this as the “recantation interview”. Reyes had been sentenced to 12 years in state prison after being convicted for the crimes he was in custody for at the time of his taped interview with Peter Zuniga some seven months earlier. The interview was conducted utilizing a questioning format which was admitted by the officers to be highly leading in nature. The officers made Reyes aware of the fact that they were recording the interview. They also note to him that they are not giving him a Miranda warning, and are not going to use his statements against him. The questioning is clearly intended to elicit responses supportive of law enforcement’s theoretical contention that Reyes knew he was being taped and was admitting to the shootings simply to help his cousin, Efren Cruz. In response to such leading questions, Reyes reluctantly agrees with the officers’ contention that he was aware Zuniga was wearing a wire in the discussion seven months earlier.
Det. Knapp: “Okay. Let me put it this; we’re not trying; I’m not; we’re not trying—I mean, you got; I’m looking at you right in the face right here, man. I’m not lying to you. Okay? We are not trying to get Peter (Zuniga). We are not trying to get—we’re; we’re trying to find out what in the world is the truth here. Okay? Now, if Peter called you, or told you on; in a letter, that he was going to come down and he was going to wear a wire…”
Det. Knapp: “Did he tell you that? In a letter? Just; look me in the eye, man! I’m not; we’re not trying to get Peter in trouble.”
Reyes: “Yeah. He was; he was down here. He was down; he didn’t tell me nothing like that on the phone, or letters.”
Det. Knapp: “Okay. Did you know he was being; that he was wired when he walked in there? Look me in the eye, man! He; did you know he was wearing a wire?”
Reyes: (Softly) “Yeah.”
Det. Knapp: “And how did you know he was wearing a wire?”
Reyes: “I just knew, man.”
Reyes reiterates his original version of the events of the evening in question. He confirms that he and Peter Zuniga are long time close friends. He agrees with the assertion put forth by the police interviewers that he made the statements he had made to Zuniga for the purpose of helping his cousin, Efren Cruz.
Det. Knapp: “…the only reason they have you on tape is because, you knew he was wired, and you were trying to help out your cousin. Now, like I said, we’re, we’re; is that your…”
Reyes: “I can’t tell you ‘Yeah,’ because I know you guys; see, now that you brought it up to my attention that, by doing that, you guys could press charges on me…”
Det. Knapp: “No; listen. Listen…”
Reyes: “As an accessory or something.”
Det. Knapp: “I’m telling you right now: We’re not going to file any charges on you for any of that, or any of those other two guys. Or anybody else. All we want; we’re just on an infor—a mission, here to make sure we know the truth. And, that the right guy’s doing the time.”
Reyes: “I wanted to help my cousin, man. I wanted to help my cousin.”
Reyes relates negative information about Cruz to influence the officer's perspective about the controversy involving the identity of the shooter. (He, of course, cannot tell them that he knows Cruz was the shooter because he denies he was in Lot 10 that evening.) He tells them that Cruz received a "dishonorable discharge" from the Army. They correct him and say Cruz received a "general discharge". They note Cruz was in a bar fight and Reyes offers, "He gots; for a stabbing, you know what I mean?" He then confirms to them that Cruz used a Leatherman knife in the Lot 10 case, just as he had in the Army bar fight. He then reminds them he didn't see Cruz commit the shootings.
"…obviously, obviously, there's people that said they seen him do it. You know? And he had gunpowder and stuff, but. And I just, "Fuck, man," you know? I miss him, and, and I love him, and--but it was a mistake for me to do that. I'm telling you: Yes, it was a mistake for me to do that. What I did." (referring to his taped confession, ostensibly made in order to help Cruz) (Transcript p. 18)
He later explains that the confrontation in the bar began when Ramiro Reyes and Efren Cruz became upset because "somebody's tried to mess with, with their girls". He then tells them that he only heard about later events and was informed that his guys got jumped, and there was fighting in the parking lot with three or four of his friends fighting "fifteen of them". He again points the finger at Cruz as the shooter: "If he says it isn't him, you know, why; why walk forward three, four years later, now; that; the guy, you know; I mean he had time to think in there and master-plan; whatever, and now he wants (indistinct)". A substantial portion of the remaining time spent during the conversation is focused on Det. Rose and Sgt Knapp's efforts to try to convince Reyes to submit to a polygraph examination. He is asked to take a polygraph and refuses at least a dozen times.
Peter Zuniga is a member of the Colonia Chiques gang in Oxnard. He grew up with Gerardo Reyes and testified to having engaged in gang related activities with him over the years. Zuniga was sentenced to state prison for three counts of home invasion robbery. He testified openly to his activities as a "soldier", or enforcer for the Mexican Mafia in state prison. He had known of Efren Cruz through Gerardo Reyes and testified that Efren Cruz was not a gang member. He said that Cruz "wore tight pants", meaning that he was not part of the gang lifestyle in any fashion when he had known him.
He spoke to Efren Cruz when both were inmates at Pelican Bay. They spoke in the yard and Cruz related to him that Gerardo Reyes had committed the Lot 10 shootings and he had gone down for it. Cruz said he was drunk and didn't remember much. Zuniga testified that he believed Cruz because Cruz had no "reputation" and the Lot 10 shootings were "something Gerardo Reyes would do."
Zuniga was offended that Reyes had let his cousin go down for his crime, so he contacted Reyes and told him his cousin was "going back on appeal" and was "going to tell on him". He sensed that Reyes was concerned and fearful when informed of this. Zuniga asked Reyes what he wanted him to do about the situation.
Zuniga sent Reyes a letter with an inmate undergoing release (Dopey), in which he offered to stab Cruz if Reyes sent him drugs in prison. Reyes sent the drugs but they were intercepted before they reached Zuniga. Zuniga later informed Reyes that he had accomplished the stabbing of Cruz for him in any event. Zuniga decided to contact law enforcement in order to reveal the information he had learned.
He was subsequently transferred to Ventura County Jail. There he spoke to Reyes and told him there was "paperwork" going around which might show that he was a "dry snitch" -- that he had said something to police, no matter how innocuous, that he wasn't supposed to say which would prove him a "rat". He conversed with Reyes and obviously developed his confidence in the relationship. The two talked "on the pipes" --through the county jail plumbing--and Reyes began to tell Zuniga what had happened in Lot 10. Zuniga told Reyes to shut up because others could overhear their conversation.
It took Zuniga several months to work out his agreement with prosecutorial authorities in Ventura County. It was finally agreed that if he helped with the wired conversation with Reyes, the authorities would endeavor to do what they could to assist him with obtaining an early release on his sentence. Zuniga testified that very little remained to be served of his sentence at that time.
Zuniga was obviously extremely nervous during the taped conversation with Gerardo Reyes. The tape is often difficult to hear because the words are muffled by an audible gulping or guttural noise Zuniga makes. He was likewise nervous while testifying. He testified to threats that had been made to his family members and said, "I've got a green light on me". A "green light" is an authorization to injure or kill in gang parlance. He insisted that he had not acted simply to get an early release, expressing disdain at the suggestion that he would have any problem serving out his sentence. He testified to being motivated by the wrongfulness of Gerardo Reyes' conduct in allowing his innocent cousin to go to prison for a crime he committed.
Rudy Ramos is the husband of Veronica Ramos, a first cousin to both Efren Cruz and Gerardo Reyes. He is an employed veteran with a wife and two children. His wife, Veronica, is a cousin to both Efren Cruz and Gerardo Reyes. At the time of the Lot 10 shootings, Efren Cruz resided with Ramos and his family in Oxnard, California. Earlier in the evening of January 25, 1997, Ramos had gone out with Cruz, Reyes, and several of their friends who were later involved in the Lot 10 confrontation. They had returned to the Ramos household before departing to Santa Barbara. Ramos decided not to go with the group to Santa Barbara due to objection from his wife.
Before the group departed from the Ramos household, Ramos testified that Gerardo Reyes showed him a weapon. He described the weapon as a .38 caliber revolver, shiny chrome or steel, with a broken brown wooden grip. This description matches the description of the murder weapon utilized in the Lot 10 shooting. He testified that Cruz, Valerie Ortiz, Gerardo and Beronica Reyes left from his home in the Reyes’ Mustang.
He testified that he and his wife began to call around the next morning because Cruz had not yet returned to their home. He spoke to Gerardo Reyes that morning and Reyes told Ramos to come to his house and he would tell him everything that had happened that night. He did not want to tell Ramos what had happened over the phone. He went to Reyes’ home around midday. Reyes told Ramos that they had gotten into an argument with some guys from Santa Barbara that evening and that Cruz had tried to calm both sides down. The argument continued and Reyes told Ramos that he and his wife left early. Reyes said he went to his car, opened the trunk and put on gloves and a knit cap. He got the gun went to the scene of the confrontation, and “shot one guy in the head and shot a couple more times”. Reyes said that he had shot the individual in the head and that blood went everywhere. He said that he had shot one other individual. Reyes said that he had thrown the shirt he was wearing away and had bought an identical shirt.
Ramos testified that Reyes and his wife had come to his house that afternoon before attending a Super Bowl party next door. Reyes repeated the substantive events that he had related to Ramos earlier in the day in the presence of Ramos and his wife. Ramos testified that he had not been interviewed by law enforcement at any time concerning these incidents. He further testified that he did not come forward voluntarily because of fear of Gerardo Reyes, and because he hoped that authorities would be able to figure out what had occurred without his having to do so. The Ramos family moved to Texas in the summer of 1997.
Veronica Ramos, the wife of Rudy Ramos is a first cousin to Gerardo Reyes and Efren Cruz. She testified about the events of the evening of the 25th of January. She testified that she saw Gerardo Reyes show her husband something that she believed was a gun before the group left for Santa Barbara. She saw the group leave in the Reyes’ Mustang and two other cars. Efren Cruz and Valerie Ortiz were in the Mustang with the Gerardo and Beronica Reyes.
She testified that she received a phone call from Gerardo Reyes between 1:00 AM and 2:30 AM the next morning. Reyes asked her if Efren Cruz was home yet. She asked why Reyes was inquiring about Cruz. Reyes' only response was that something bad had happened. Ramos testified that Reyes called two or three more times that night asking about Cruz.
Reyes and his wife went to the Ramos’ house that afternoon. Beronica Reyes told her that Gerardo had shot someone that night at the club. She told her that Gerardo had grabbed the keys from her, had popped the trunk open, and had retrieved the gun. She said he was “firing the gun, shooting like aiming to kill”. Beronica told Veronica that Gerardo threw his shirt out the window on the way home and that he had bought a new shirt of the same style the next day. She said he had thrown away gloves at the same time he threw the shirt.
Ramos testified that she overheard Gerardo Reyes tell her husband that he had shot two guys in Santa Barbara. She overheard him say that Ramiro Reyes had gone up to one of the victims, had kicked him and hit him with the gun. She overheard him say that the gun had been thrown away.
Mrs. Ramos did not tell law enforcement what she was aware of later that day when a search warrant was executed at the Ramos residence. She did tell family members, including Efren Cruz’s mother, about the statements made by Gerardo Reyes.
It is interesting to note that Respondent was unaware that Mrs. Ramos had returned to California after the family’s move to Texas, or that she had done so pursuant to prosecution subpoena. She was subpoenaed to the trial of Efren Cruz by the District Attorneys Office and waited for several days in the courthouse halls. She was never spoken to by any of the legal staff of either the prosecution or the defense. The respondent clearly was unaware that its office had subpoenaed this witness to trial. One is left to wonder what impact her testimony would have had on the trial proceeding in late 1997.
Mrs. Ramos did prepare a declaration in support of a motion for new trial in December 1997. This declaration will be discussed later in this decision. She prepared a subsequent affidavit with the help of Texas law enforcement in 1999. Those statements were generally consistent with Mrs. Ramos’ testimony in the writ proceeding. She testified that she had been less than forthright when originally questioned by law enforcement on January 26, 1997 because of fear. She feared what Gerardo Reyes could do to her or her family. She testified that Gerardo had been involved in “drive-bys (and) beating people up”. The source of her information was Gerardo Reyes. Detective Dennis McMaster of the Oxnard Police Department testified in the writ proceeding to a number of violent confrontations involving Gerardo Cruz and to his reputation as an extremely violent person. There was also evidence at trial from an uninvolved witness that she and her brother had been beaten up by Gerardo and Beronica Reyes on a prior occasion. Mrs. Ramos also testified to overhearing Beronica Reyes tell Valerie Ortiz, in a threatening manner, to lie to the police about the events that had happened. Overhearing these threats also caused fear on her part.
Officer Kim Fryslie
Kim Fryslie is an officer with the Santa Barbara Police Department. He was assigned as a Detective with the department on January 26, 1997. He was given the task of executing a search warrant at the home of Ramiro Reyes (Sporty) on that date. He arrived at the home around 7:00 or 8:00 PM. At the home he spoke to Veronica Reyes, the 15-year-old sister of Ramiro Reyes (unrelated to Gerardo Reyes). He asked her about her brother’s activities the evening before. Veronica Reyes was called as a witness in the writ proceeding and either denied having made statements to law enforcement or lacked recollection in response to most questions.
Veronica Reyes told Officer Fryslie that her brother had left home around 6:00 or 7:00 PM the prior evening. She said she was awakened at approximately 3:45 AM the next morning by a telephone call. The caller was identified through a proficient and careful questioning process undertaken by Detective Fryslie utilizing a photograph with a number of persons. The caller was Gerardo Reyes. He wanted to talk to Ramiro Reyes. She went to Ramiro’s bedroom to wake him up, and it took a long time to awaken him. He told her that he didn’t want to talk to the caller and she relayed that information to the caller. The caller insisted on speaking to Ramiro, and she went back to her brother, who finally went to the phone. She overheard parts of the telephonic communication.
She heard talk about a gun and that there had been some sort of trouble. Her brother said that it had taken some time to get out of there. He also said something about something being hidden under a car. (The gun used in the shootings on the first floor of Parking Lot 10 had been recovered under a vehicle near the stairwell corner of the second level of the parking lot—just above the shooting scene.) She said that her brother was using “backward talking”—a form of speech which is hard to decipher for one unfamiliar with it.
Sergeant Armando Martel
Sergeant Armando Martel interviewed Veronica Reyes and Margarita Reyes, both sisters of Ramiro Reyes in early 1997. His interviews did not result in formal police reports. Sergeant Martel had raw notes from his interview with Margarita Reyes. Margarita Reyes told him that she had overheard a conversation between her brother and Gerardo Reyes. The conversation occurred in the backyard of her residence and related to an incident that had occurred in Santa Barbara. Gerardo Reyes was angry with her brother. His anger related to a gun and Margarita overheard her brother, Ramiro, say something to the effect that, “I couldn’t, I couldn’t. It just clicked.” Margarita’s assumption, based on the content of the conversation, was that Gerardo was mad because Ramiro did not shoot the victim. Margarita told Detective Martel that Gerardo was mad about the gun, that he referenced going back to Santa Barbara, and that the conversation occurred Sunday morning, which would have been shortly after the homicide. Margarita told Sergeant Martel, based upon the content of the conversation overheard, and what she had heard from others, that she understood that Gerardo Reyes had shot the victim and then had given the gun to Ramiro to shoot the other victim.
Detective Roger Aceves
Detective Aceves testified that he contacted Margarita Reyes during the investigation. She told him that she had overheard a conversation between Gerardo Reyes, her brother Ramiro, and an individual know as Cuatros or Jose Arenas. She said that Big Gera—Gerardo Reyes—was angry and speaking in double speak. He was angry because Little Gera had thrown something under a car, he couldn’t get it back, and then the streets were blocked off.
Adela Reyes, Efren Cruz’s mother, testified that Gerardo Reyes had told her that he did it (committed the shootings). She testified that he said “I did it Tia, I did it.”
Paul Cabral was a member of the Santa Barbara group in the confrontation at Parking Lot 10. He testified that Gerardo Reyes was in the parking lot during the confrontation between the two groups. A stipulation was entered into during the trial that Mr. Cabral had testified to the same information at the preliminary hearing.
Peter Kolla testified that he was at the Paradise Cafe when gunshots were heard on the evening in question. He went out the front door observed a car pulling down Ortega Street. Three individuals ran down the street and got into the car. The car was a two door black sedan with a spoiler. The license plate had a “3” in it. (Reyes’ Mustang was a two door black sedan with a spoiler and its license plate began with a “3”.) The driver was female and had dark hair. She was Hispanic or white. The three who entered the vehicle were white or Hispanic and had dark coats, like heavy wool peacoats. They were running fast and one had tan suede ankle high boots. The car was similar to a Maxima, a Nissan or a Datsun. He testified that it was less likely that it was a Mustang, but possibly of that make.
Two witnesses at trial had come out of the Paradise Café and had testified about seeing a car pick up three people on Ortega Street after hearing the gunshots. Their descriptions of the vehicle were similar but they recalled its direction of travel differently. Robert Aldecoa saw three Hispanic males with "darker colored skin, dark hair" running toward him. They jumped into a dark colored car he thought was a Toyota Celica. He believed the car was going toward State Street. Molly Aker saw three men "running as fast as they could". They jumped into an older style dark or black vehicle that was like a Toyota Celica. The car had "driven across the street to pick them up" and then had come up Ortega to Anacapa and turned right. She remembers baggy clothes and "one of the guys was tall, kind of big, I remember heavier set, maybe curly hair". He was perhaps "just the one I saw in front". She remembered seeing the color blue on one of their shirts.
Andrew Tynes was in Parking Lot 10 on the evening of the shootings. He witnessed the confrontation in the parking lot. He did not testify at trial. At the writ proceeding he testified to his perception that the confrontation involved a large group of men attacking a single man. That man was run out of the parking lot and returned with a gun. He shot several members of the large attacking group. He recalled that the individual who had confronted a female in the parking lot had been one of the shooting victims. The trial evidence clearly demonstrated that there was a large group of men from Santa Barbara (around a dozen) confronting a smaller group of men from Oxnard (perhaps 6-7). It was also clear from the trial evidence that the individual who confronted the female in the parking lot, Mark Gomez, was not a shooting victim.
Tynes recalled the shooter as an individual wearing a dark top and light pants. He was no more than 5’10” and did not have long hair. He later testified to having described the shooter as between 5’11” and 6’1”. His pants were white or lighter than tan. He could see the belt loops contrasting with the individual’s belt. His description of the dress of the shooting victims varied substantially from the trial testimony. He also testified that both shooting victims were shot in the front of their bodies. The second shooting victim, Michael Torres had clearly turned to run from the shooter and was shot in the back of the head.
October 17, 2000 taped interview of Efren Cruz
Efren Cruz was interviewed by Ventura County authorities on October 17, 2000. Investigator Dan Thompson and Deputy District Attorney Bill Haney conducted the interview. Oxnard Police Officers Dennis McMaster and Trent Jewell were also present. Cruz received a lengthy and appropriate introduction to the interview process. He related the following regarding the events leading up to, and including, the Lot 10 shooting.
Cruz related the movements and activities of the changing group on the evening of January 25, 1997. He stated that he was feeling the effects of the alcohol ingested at a bar early that evening, and that he used cocaine before leaving for Santa Barbara. He told the investigators that, before their departure, Gerardo Reyes was calling people to try to get a gun. Cruz informed Reyes that he had a gun in the house. Reyes prevailed upon Cruz to give him the gun. The gun had been handed to Cruz in a black knit Raiders beanie several nights before after he agreed to hold it for another individual. There was also a pair of brown gloves in the knit cap. Cruz felt that the gun was stolen, had been used in a crime, or that the group he was with felt the police were close. It was given to him because “he’s not on probation”—i.e. subject to search and seizure. Reyes tried on the gloves and loaded the gun in Cruz’s bedroom before they departed in Reyes' black Mustang automobile.
They went to a club in Camarillo and then decided to go to Santa Barbara. They had bought beer and were drinking on the highway. Cruz and Ramiro Reyes were “playing races”—seeing who could drink the fastest. Cruz stated that he blacked out and didn’t remember the parking of the vehicle or getting to the club. “I don’t-I don’t remember nothin’. I remember bein’ in the freeway and I remember drinking one last beer and listening to some songs and I remember we threw the beers out to the grass and that’s all I remember.” (Transcript: p. 38)
Cruz next remembers being in the bathroom of the club with Gerardo Reyes. They were going to ingest more cocaine, and Cruz does not remember if he did so. He then drank two more beers at the club. His memory is thereafter confused, including a memory of a confrontation, possibly involving Gerardo’s wife, and then being outside the club next to some bushes. He remembered a lot of yelling in the area. He believed there was going to be a confrontation and he believed he pulled out a Leatherman tool with a knife blade at that time. He recalled a lot of yelling to “Gera”.
He ran up the stairs and saw Gerardo Reyes and two others coming toward him, down the stairs. He next remembers the confrontation with the other group and shots coming from behind him on his right side. Cruz claims he froze when the shooting started.
“And, um, I was right there and-and I thought I couldn’t run, I just kept staring straight ahead and I noticed somebody jumpin’ on him and kicking him and that’s all I remember at that time. Somebody was kicking him. I don’t know how, where or what, but I remember running. I don’t even remember running. I-all I remember is h-hearing a lot of sirens and I remember telling myself in my mind, ‘Go down there’, so they can know that you didn’t do it and that’s why I walked to-to-to where the sirens were coming from.” (Transcript, p. 50)
He told the investigators that the shooter was walking toward the other group as
he was shooting and that he knew that the shooter was his cousin, Gerardo Reyes.
Cruz: “I-I can’t really exactly say how, but, uh, it’s like I said when I was-when I had attention focused straight ahead of me, um, it’s just something that passes by on your right hand. I remember being stunned. I-I-I was shocked. I was like in-I couldn’t move, move my body. But out of the corner of my eye I remember seein’ that gun and my cousin’s hand stickin’ out.” (Transcript: p, 59)
Cruz related that he was very drunk and didn’t recall when he had taken the blade out on his Leatherman tool. He indicated that he was “half blacked out”. He did not recall hearing any glass breaking or any whistling. Those sounds at the time of the confrontation were the subject of testimony from witnesses at trial.
He said that he had lied at trial in regard to having thrown his hands up to the right side. He had done so in order to have a cover story when asked about the identity of the shooter. He stated that he didn’t want to identify his cousin for fear of retribution.
Alcohol and Drug Evidence
Officer Patrick Clouse testified at both the trial and at the writ proceeding. He was on duty in plain clothes on the evening of the Lot 10 shooting. He arrived at Lot 10 and observed other officers attending to the shooting victims. Within a minute or two, he observed Efren Cruz walking down the center ramp, then northbound toward Ortega Street. Cruz looked nervous to Officer Clouse so he contacted him. Officer Clouse had removed his outer shirt so that his vest, gun belt and badge were visible. He grabbed Cruz when he appeared to be reaching for an object in his pocket. The object turned out to be the Leatherman tool with the blade exposed. Cruz had blood smeared on one finger. At the writ proceeding, Officer Clouse testified that Cruz had been drinking to a minor degree and that he showed no objective signs of intoxication.
A blood sample was taken from Efren Cruz some 8 hours after he was initially contacted in Lot 10. It was never tested for use at the trial proceeding. It was analyzed for alcohol and drug content during the course of the writ proceeding, and after Officer Clouse’s testimony by the California Department of Justice laboratories. Criminalist Norm Fort, who supervised the Ventura County Sheriffs’ Forensic Alcohol Program for 16 years, testified that given the blood alcohol level at the time of the blood draw, and extrapolating back with known burn off rates, Cruz’s blood alcohol level at the time of the incident would have been approximately .23. (He calculated a blood alcohol range of .19-.27 at the time of the incident.) .08 is the legal limit for impaired driving, so Cruz was approximately three times that limit. Fort testified that persons are intoxicated at that level. Cruz’s blood sample was also positive for cocaine metabolites.
The blood on Cruz’s finger had also never been analyzed for evidentiary use at trial. It was DNA typed during the writ proceeding and the blood was Cruz’s own, and not that of either victim.
Gunshot Residue Evidence
Steven Dowell, a criminalist with the Los Angeles County Department of the Coroner, and an expert in gunshot residue analysis, testified at both the trial and at the writ proceeding. He analyzed the gunshot residue kit evidence taken from the hands of Efren Cruz after the Lot 10 shootings. He testified that there were several unique particles of gunshot residue on Cruz’s right hand sample and several consistent particles of gunshot residue on his left hand sample. He opined that Cruz was either the shooter, or was within the environment where the shooting occurred. At trial he testified that residue would be in an environment within 2 ½ feet to the side, top, back, and bottom of the fired weapon, and within up to 5 feet in the muzzle direction of that weapon. He testified in a similar fashion at the writ proceeding, but added that new studies had shown that gunshot residue can exist up to 20 feet in the muzzle direction of the fired weapon.
Clothing and Physical Descriptors
The court spent considerable time during the writ proceeding, and after the submission of the matter for decision, reviewing the videotape from the front of the Hurricane Club on the evening in question. The videotape is taken at night in low light circumstances, but certain details regarding the clothing and descriptions of the participants can be discerned. This videotape was in evidence at trial.
The videotape and other evidence at trial or from the writ proceeding reveal the following about the clothing and physical descriptions of the Oxnard group.
Efren Cruz—is approximately 5’8” and has light skin and black hair. He was the shortest of the group that entered together. He weighed approximately 180 lbs. He was wearing a long sleeve dark and medium blue and white plaid pendleton type shirt (Size XL). His pants were dark blue levis. (Size 38 waist, 30 length) His shirt and pants were baggy in appearance. His shirt was untucked when entering the club and tucked in, but baggy in appearance upon departure. He wore black, ankle high combat type boots which were not visible at the ankle level because of his baggy pants. He had a light moustache, no other facial hair, and a “fade” haircut (very short around the ears and base of the head and longer on the top, or crown of the head) with slight sideburns below the center of the ear. His hair on top stood straight up and was longer than that of any of the other persons in the group.
Gerardo Reyes—is approximately 6’0”-6’1” (in the taped interview with Santa Barbara police, he said he was 6’1” or 6’2”). He has light skin and black hair. He weighed approximately 220 lbs. He bears a familial resemblance to his cousin, Efren Cruz. He was the tallest of the Oxnard group. He was wearing a dark long sleeve flannel type shirt with brown, possibly patterned into it. He wore dark levi type pants which were more form fitting than the pants worn by others. His shirt was tucked in when entering the club and tucked in upon departure. He wore brown ankle high hiking style boots, and the tops of the boots at ankle level were visible. His clothing was not baggy, and he appears thick through the upper torso (broad shouldered) and thin from the waist down. He had a moustache and a goatee. His hair was cut close to the scalp in a strong fade, with virtually no sideburns. He led the group up to the bar entrance, and led them away upon their departure.
Leo Gonzales—appears to be an inch or two shorter than Gerardo Reyes. He was wearing a tan or light brown short sleeve shirt. His shirt was not tucked in upon arrival, but was tucked in upon departure. He had dark pants which could be black levis. His shoes were dark or black. He had a fade haircut.
Ramiro Reyes—appears to be just slightly taller and somewhat thinner than Efren Cruz, and has brown hair. He wore a brown and white plaid pendleton type shirt. His shirt was not tucked in upon entering the club, but was tucked in upon departure. He wore blue levis and at times belt loops were visible. His clothing was baggy and he wore white tennis type shoes. He had a fade haircut.
Unidentified—an individual about the height of Leo Gonzales, with dark skin, a dark brown, tucked in long sleeve shirt and blue levis. Belt loops were visible at times. He wore brown shoes or boots. He had a hat or cap in one of his back pockets. This individual is seen throwing many gang signs and making verbal taunts to the interior of the bar upon departure.
Unidentified—a short individual (shorter that Cruz) seen throwing gang signs when the group left the front of the bar. Wearing a lighter brown and white patterned pendleton type long sleeve shirt and light pants. This individual is not seen arriving with the group, but leaves with them.
Gerardo Palencia—is seen arriving with the group, but not leaving with them. He wore a tan or light brown short sleeve shirt. His pants were black, or dark in color.