Wounded Man Won’t Face Murder Charge : Crime: His alleged accomplice in a Winnetka burglary was slain when homeowner returned unexpectedly.

The district attorney’s office declined to file murder charges Tuesday against an alleged burglar who was shot twice by a homeowner after he caught two transients in his bedroom Sunday morning.

Police had arrested Ismael Rodriguez, 42, on suspicion of murder because his alleged partner, another transient, was killed by the homeowner while a felony was being committed. Rodriguez, who police said is being held in the jail ward at Los Angeles County-USC Medical Center, instead was charged with attempted grand theft and residential burglary.

Rodriguez and the transient who died--he was identified as Jose Aleman Menjivar, 47--were shot by homeowner Raymond John Komoorian just after midnight Sunday. Police said Komoorian, 47, had come home from an evening out and found the two men ransacking a bedroom at his home in the 6500 block of Keokuk Avenue.

After arming himself with a .45-caliber handgun, Komoorian confronted the intruders. When the two men lurched at him, Komoorian fired his weapon, striking both men, he told police.

Menjivar was hit three times and died instantly. Police said Rodriguez was struck twice, but managed to leave the house and run to a home on Victory Boulevard, where he collapsed.

Los Angeles Police Department detectives sought murder charges against Rodriguez because a death occurred while he was committing a felony, but prosecutors declined to file them, leaving no one criminally liable for the killing.

Deputy Dist. Atty. Larry Diamond said neither Rodriguez nor the homeowner was legally responsible for Menjivar’s death.

Prosecutors said Rodriguez could have faced murder charges if he made a “provocative act” that would led a reasonable person to retaliate with deadly force. Prosecutors did not interpret Rodriguez’s lurching at Komoorian to be provocative because the law states that the act must be likely to cause death.

Both Rodriguez and Menjivar were unarmed at the time of the shooting.

On the other hand, Komoorian is not legally responsible for Menjivar’s death either, prosecutors said.

A 1984 law passed by the state Legislature gives homeowners great leeway in retaliating against intruders. Any person using deadly force in his or her home after an unlawful entry is presumed to be acting out of a reasonable fear that makes the homicide justifiable.

“You have no duty to retreat in your own home,” Diamond said.

Rodriguez, who is also known as Jose Martinez, is also charged with having several prior felony convictions, including two burglary convictions from San Diego county in 1984 and 1985.

Detective Phil Quartararo said Rodriguez had been released from prison only two months ago and was wanted for a parole violation because he never reported to his parole officer.

Hours before the shooting, a Neighborhood Watch group cleaning up a stretch of railroad tracks behind Komoorian’s house discovered makeshift shelters where Rodriguez, Menjivar and possibly other transients lived.

The hovels were dismantled, and a wallet and some identification cards were turned over to police. Police believe that the two transients mistakenly targeted Komoorian’s house looking for their personal belongings, but had began to stuff clothes and jewelry into pillowcases when Komoorian returned home and surprised them.