Freed Prisoner Can Be Retried

Times Staff Writer

A former Oxnard man who was released from state prison after a judge ruled he was wrongly convicted of a 1997 Santa Barbara slaying can be retried for the crime, an appellate court ruled Thursday.

Despite evidence that another man was the killer, the 2nd District Court of Appeal ruled that Santa Barbara County prosecutors have the right to retry Efren Cruz, 28, on murder and attempted murder charges.

The decision reverses a ruling by Santa Barbara County Superior Court Judge Frank Ochoa, who last year barred prosecutors from retrying Cruz after granting a defense request to throw out the conviction and release him from prison.

In granting the writ of habeas corpus, Ochoa freed Cruz after finding that new evidence proved another suspect was the gunman who shot two men, one fatally, during a gang fight at a downtown Santa Barbara parking garage six years ago.

In its ruling, the appellate court ruled Ochoa acted properly in overturning the conviction, but erred by telling prosecutors they could not retry Cruz.

"A habeas corpus proceeding is not a trial of guilt or innocence, and the findings ... do not constitute an acquittal," wrote Associate Justice Steven Z. Perren.

In a 12-page decision, Perren and two concurring justices ruled that double jeopardy principles do not apply to a writ of habeas corpus, which is a request to release a person from unlawful imprisonment.

A habeas writ is designed to correct an erroneous conviction, the court wrote, but does not end a prosecution.

If granting such a writ were to preclude prosecutors from refiling criminal charges, the justices said, it "would eviscerate the people's right to a jury trial and conflict with the strong public policy favoring determination of guilt or innocence in a trial."

The appellate court expressed no opinion on whether Cruz should be retried, stating that the decision rests with Santa Barbara County Dist. Atty. Thomas W. Sneddon Jr.

Sneddon said Thursday no decision has been reached on a possible retrial.

"Obviously we are very pleased with the court decision," Sneddon said. "We haven't really gotten together to discuss [a retrial] ... and we have no timetable for reaching that decision."

Ventura lawyer Kevin G. DeNoce, a former Ventura County prosecutor who represents Cruz, expressed disappointment with the court ruling and said he intends to appeal to the California Supreme Court.

But he also said it was not a clear-cut victory for the prosecution.

"If you boil the decision down, what it says is the people are entitled to get a second opinion from a jury," DeNoce said. "It doesn't change the fact that [another man] confessed to the shooting. It doesn't change the fact that the people's own expert has switched sides.... We have miles more than reasonable doubt here.

"I just don't see," DeNoce said, "how they could ever want to re-prosecute Efren unless they got some new and substantial evidence."

Cruz was convicted in late 1997, nearly a year after a gunman killed Michael Torres, 23, of Santa Barbara, and severely wounded James Miranda, then 21, of Santa Ynez, following a fight inside a city parking garage. Cruz denied firing the deadly rounds.

But a witness identified him as the shooter, and tests revealed the presence of gunshot residue on his hands. Cruz appealed -- to the same court that issued Thursday's ruling -- but the conviction was upheld.

In August 2000, Ventura County prosecutors obtained a secretly tape-recorded jailhouse confession from Cruz's cousin, Gerardo Reyes, who states that he, not Cruz, was the shooter.

Based on the new evidence, Cruz filed the writ of habeas corpus. After an 18-day hearing, Ochoa ruled in October 2001 that Cruz proved "beyond a preponderance of the substantial credible evidence that Gerardo Reyes was the shooter."

The conviction was set aside, and Ochoa later ruled that prosecutors could not retry Cruz. Convinced the judge had overstepped his authority, Sneddon appealed.

"They'll go to the Supreme Court," Sneddon said Thursday. "And we will prevail."

Meanwhile, Cruz has filed a federal lawsuit against Santa Barbara County prosecutors, accusing them of violating his civil rights. DeNoce said his client remains optimistic that one day he will live free of suspicion.

"The guy has great spirits," DeNoce said. "He has a lot of faith.... He has turned his life around."

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