Conviction Is Rarity in Gray Legal Area of Shooting Intruders

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."

But Noyes also recalls testimony that Creek "wanted to stop people from breaking into his shop and some reference that he was going to get the next one." There also was testimony that the cash register had been left open with a light shining on it, Noyes said.

Undercurrent Opinion

"That was, I think, what clinched it," Noyes said. "A lot of people felt the guy was right in protecting his property. But there was a lot of undercurrent that he kind of set this up to pay somebody back for breaking into his place."

The self-defense rights of Californians were strengthened in 1984 to provide that a person in his own home must be presumed in fear of his life or in fear of suffering great bodily injury when an intruder unlawfully and forcibly has entered the residence. Many in the legal community feel that the addition to the Penal Code simply formalized a presumption already accepted by police, prosecutors and the courts.

"Actual danger is not necessary to justify self-defense," said Orange County Chief Deputy Dist. Atty. James Enright. "If a reasonable man in a like situation would be justified in believing himself in danger, then he has the right to act in self-defense, whether . . . the danger is real or just apparent."

Howard Garber of Anaheim, who heads an anti-crime advocacy group, Citizens Anti-Crime Task Force of Orange County, said: "To say we must wait until (an intruder) pulls a weapon is ludicrous and outrageous. How do you know somebody invading your home is interested (only) in property?"

However, authorities caution that homeowners have no license to shoot without regard to the circumstances.

Although the law presumes a homeowner to be in fear when someone has invaded his home, Deputy Chief Eugene Hansen of the Santa Ana Police Department said a prosecutor can rebut the presumption by showing that a "reasonable person" in the same situation may not have had cause to be afraid.

Protection of Property

"We all have a right to protect our property and personal safety, but that must be within reason," Hansen said. "Unless there's a sincere proof of a (concern for) safety, the homeowner could well find himself culpable."

Said Deputy Dist. Atty. Jim Cloninger: "We don't want the public to get the impression it is somehow OK to use deadly force just because somebody has invaded the home."

In recent months there have been four noteworthy Orange County shootings involving residents and suspected burglars. In only one were charges filed against the shooter.

In that case, Jesus Vasquez Romo, 31, was awakened at night on May 27 by what he believed to be a burglar stealing roosters from a backyard pen at his West 5th Street home. A sign on the door of Romo's home warned: "You loot, I shoot."

There is no dispute that Romo followed the fleeing suspect to the street, where he fired a shot that ricocheted off the asphalt and killed Salvador Saucedo Tinajero, 37.

Deputy Dist. Atty. Charles Middleton said there was no question that the second-degree murder charge was warranted.

"We are not talking about a person's personal safety inside a residence," Middleton said. "Just the fact that a person is taking some roosters is not grounds to shoot.

A Number of Burglaries

"Witnesses indicated (Tinajero) had his arms outstretched, unarmed," Middleton said.

But Romo's attorney, public defender James Egar, said his client had no intention to shoot Tinajero and shot into the ground to frighten him.

Also, Romo's home had been burglarized "on a number of occasions," Egar said.

Egar said "a lot of yelling was going on at the time. It was an excited situation, a burglar with squawking chickens. Then (Tinajero) started advancing across a dark street at my client. My client never crossed over the street.

"Nobody is saying vigilante justice is to be approved or encouraged," Egar said. "On the other hand, when somebody invades your property and steals your property and is advancing on you in the street, it's very dangerous activity."

Trial for Romo is set for Jan. 12.

There will be no trial for Ivo Frederico Garcia, 33, who was awakened late Sept. 25 by the sound of someone smashing the window of his van, parked below the second-story bedroom of his Buena Park apartment.

Deputy Dist. Atty. Mike Nunn reviewed the case and filed no charges against Garcia for wounding a prowler.

Kept Eye on Van

"I always have my shotgun under my bed," Garcia said. "I took it and put my shells in it, and I opened my window."

On a prior occasion, Garcia's van was broken into and his expensive stereo equipment stolen. As a result, he said, he began parking the van where he could keep an eye on it from the upstairs window.

Garcia told a reporter he was not afraid when he knocked his window screen off and shouted: "Hey, you guys, get . . . out." He said his wife pleaded: "No, no, no, no!"

Garcia fired once, aiming between a fleeing youth in the parking lot and his van, which was about 20 feet from the youth. One youth was struck in his upper body.

"He (Garcia) just wanted to scare them," Nunn said. "With a shotgun, if you really wanted to hit somebody, you could. I don't see anyway in the world a jury is going to convict him. Did he have the intent to shoot the kid? It doesn't appear he had the intent."

"It's not the kind of case you have to sit down and agonize over. And there wasn't any serious injury."

Meanwhile, burglary charges were filed against the 21-year-old prowler whom Garcia wounded, authorities said.

On an Oxygen Tank

About nine months earlier, a suspected burglar, Kenneth Eugene Lewis, 22, of Garden Grove, was shot and killed trying to escape through the window of a Garden Grove home by a man authorities describe as "very infirm" and reliant on an oxygen tank because of emphysema.

Cloninger reviewed the case, but no charges were filed.

A sign on the man's door, illustrated with a hand holding a gun, warned: "Never mind the dog. Beware of owner."

The shooter, whose identity police withheld for fear of reprisals, declined to be interviewed for this story, saying only: "I'm not well. I'm still living with killing that boy."

The frail 58-year-old man, who slept with a gun under his pillow, was awakened at 4:30 p.m., Cloninger said. When the man confronted Lewis, he told him to back off and wait for police. Instead, Lewis dived through a kitchen window and the homeowner fired two shots. One round severed Lewis' aorta, and he died seven hours later.

Even though the shooter told police that he "didn't have time to be afraid," prosecutor Cloninger believed that he was in fear.

"When you have a homeowner under these circumstances, it's my conclusion it was a justifiable homicide," Cloninger said.

Night Stalker Fears

In the City of Orange, Kevin Ralph Gull, 32, had kept a loaded .22-caliber handgun in his home ever since last year's panic over the string of slayings attributed to the so-called Night Stalker.

On Sept. 12, Gull fired three shots from his gun, wounding a 16-year-old burglary suspect whom he had found in his living room.

"I think everybody is threatened by somebody breaking into their home," Orange Police Chief Wayne Streed said.

"I think during the Night Stalker incident . . . there was the cause for a lot of people to get armed," Streed said. "There were people who had guns next to their nightstand. I don't see any (indication) that they have given up their guns."

No charges were filed against Gull. Moreover, the Citizens Anti-Crime Task Force of Orange County lauded him "for serving notice on criminals that we are indeed fed up and they risk their lives when they invade some of our homes."

Said Chief Streed: "People are basically tired of (having) their habitat invaded."

Unlike the situation that arises when residential settings are involved, there is no presumption in law that a person in a commercial establishment is in fear when confronted by an intruder. Nevertheless, several former and current prosecutors told The Times that it is difficult to convict shopkeepers who shoot robbers or burglars.

'Home Is His Castle'

"There's no question the English common law and American and Anglo-Saxon tradition is that a man's home is his castle," defense attorney Mintz said. "No one ever said his liquor store is his castle. A person's rights are of greatest magnitude in his own home.

"The law of justifiable homicide is a shield. It is not entitled to be a sword."

Nevertheless, no charges were filed against a Garden Grove liquor store clerk who on July 12, 1985, tried to shoot a tire iron-wielding robber but instead wounded a customer. Then the clerk chased the robber outside and around the side of the building, shooting him twice.

The wounded suspect and his getaway driver were charged and convicted of armed robbery.

And no charges were filed against a Westminster service station employee who shot and killed a suspected burglar last year.

The employee was sleeping in the gas station with his wife, partly because the business had been burglarized several times. David Ray Lewis, 24, of Westminster, broke into the garage, where the employee confronted him. Lewis was shot in the back as he attempted to flee through a window.

Enright and Deputy Dist. Atty. John Conley, who reviewed the case, said Lewis had headed for a refrigerator where money was sometimes kept.

'Yelling and Confusion'

Conley said the unarmed Lewis had his hand in his pocket and continued to advance toward the gas station employee even after seeing his rifle. The employee's wife called police and there was "yelling and confusion," Conley said.

As the intruder fled, the employee aimed for his buttocks or legs, Conley said.

"It was quite a close decision" on whether to prosecute, he said.

"We were wrestling with that one for quite a bit," Enright agreed, "because obviously (Lewis) was no longer a threat; he was going out the door, not coming in."

The decision not to prosecute was made after considering "how would a jury look at this" as well as other factors, Enright said.

After considering all the circumstances, Conley said, "we thought (the gas station employee) could reasonably believe that this was a dangerous burglar."

Times staff writer John Needham contributed to this story.

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