PEOPLE v. CRUZ
Filed 7/24/08 (this opn. should follow S148029, also filed 7/24/08)
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S042224
v. )
) Sonoma County
TOMAS VERANO CRUZ, ) Super. Ct. No. 21687
)
Defendant and Appellant. )
)
Following a stipulated change of venue from Shasta County to Sonoma County, a jury convicted defendant Tomas Verano Cruz of the first degree murder of Shasta County Deputy Sheriff Kenneth Perrigo (Pen. Code, 187),[1]and forcible escape ( 4532, subd. (a)). Each offense was found to have been committed with personal firearm use ( 12022.5). Three special circumstances were found true: murder for the purpose of perfecting or attempting to perfect escape from lawful custody ( 190.2, subd. (a)(5)); intentional murder of a peace officer while engaged in the performance of his or her duties (id., subd. (a)(7)); and lying in wait (id., subd. (a)(15)). After a penalty trial, the jury returned a verdict of death. The trial court denied the automatic motion to modify the penalty verdict ( 190.4, subd. (e)) and imposed the death sentence. This appeal is automatic. ( 1239, subd. (b).) All of defendants claims having been found to be without merit, we affirm the judgment in its entirety.
I. Facts
A. Guilt Phase
Early in the morning hours of October 21, 1991, Shasta County Deputy Sheriff Kenneth Perrigo was fatally shot with his own handgun by defendant, Tomas Cruz, then 23 years old, as he was transporting defendant and codefendant Carlos Estrada, both of whom had been arrested for being drunk in public, from the sheriffs substation in Burney to the main county jail in Redding. The defendant, while handcuffed, managed to reach under the front seat of the patrol car in which he was being transported and retrieve the deputys fanny pack, in which was stored a backup nine-millimeter service handgun. The People alleged, and the jury so found, that defendant then lay in wait until an opportune time to shoot the officer, for the purpose of making good his escape from the patrol car along with codefendant Estrada, and that Deputy Perrigo was intentionally murdered while engaged in the performance of his duties as a peace officer.
The Shasta County Sheriffs Department maintains a small substation in Burney housing a small office, justice courtroom and holding cell to serve the surrounding rural communities. Burney is 50 miles from the county seat in Redding, where the main jail facility is located. The substation holding cell was only used while a detainees paperwork was being prepared. Detainees who would be kept in custody overnight were always transported to the main jail in Redding.
Deputy Perrigo was assigned to the Burney substation and was on duty working the 7:00 p.m. to 3:00 a.m. shift on the night of October 20. Deputy Kevin Pitts, whose shift started at 11:00 p.m., was also on duty, as was Deputy Buck Dikes, whose shift would end at 11:00 p.m. Sometime around midnight, Deputy Perrigo was dispatched to the nearby town of McArthur on a theft-related call. Deputy Pitts offered to provide backup, which Deputy Perrigo declined.
Charlene Fry had made the call to 911 shortly before midnight. She gave the following account of the events that ensued. Fry was at the home of her friend Sherry Wadsworth in McArthur when defendant and Estrada knocked on the front door. Estrada had been romantically involved with Wadsworth and had been asked to move out of her house sometime prior to the incident. Both men appeared to have been drinking and were slurring their words. Defendant was carrying an open beer in one hand and a partial 12-pack in the other. Estrada got into a verbal altercation with Wadsworth over possession of his Social Security card. Defendant stuck his foot in the front door, became angry and cursed at Fry. Defendant and Estrada refused to leave the area until Wadsworth threatened to call the sheriff. Eventually the two turned their attention to a car belonging to Wadsworths roommate, Miguel, parked in front of the house. They attempted in vain to start the vehicle, after which defendant opened the hood and removed the battery from the vehicle. The two then walked away with the battery, prompting Fry to call the sheriff.
Deputy Perrigo arrived on the scene, spoke with Fry and Wadsworth, left to look for defendant and Estrada, and eventually returned with the two men in the back of his patrol unit. Fry testified defendant was angry and screaming obscenities, yelling, Im not going to jail. Im going to kill you, while Estrada sat crying in the patrol car. Miguel, from whose car the battery had been taken, was awakened, and Fry, Wadsworth, and Miguel followed Deputy Perrigo in Frys car to the home of Edna Sanchez, where defendant and Estrada had been located by the deputy. Defendants brother Joaquin Cruz lived with Sanchez, and defendant was living in a station wagon parked in front of the Sanchez house.
Miguel looked under the hood of the station wagon and identified the battery as the one taken from his car. Deputy Perrigo removed it and placed it near his patrol unit, at which point defendant became even more upset. He began hitting the window of the patrol car with his handcuffs, flipping the bird, and screaming, Im going to kill you, you son of a bitch, Im not going to jail. Defendant started kicking at the door of the patrol car, threatening, in both English and Spanish, to kill Fry, Wadsworth, Miguel and Deputy Perrigo.
Deputy Perrigo retrieved a rope restraint from the patrol cars glove compartment. Deputy Pitts testified such a restraint is normally used when a suspect is physically abusive and refusing to cooperate with officers. When a suspect is handcuffed with his hands behind his back, the restraint is looped around the suspects feet and connected to the handcuff chain to limit movement of the legs or prevent the suspect from kicking or banging his head against the inside of a patrol car.
Fry observed Deputy Perrigo remove defendant from the rear seat of the vehicle and place his knee in the struggling defendants back to get him to lie prone on the ground, belly down, so that he could re-handcuff defendant behind his back and affix the restraint. While the officer was doing this, Fry heard defendant continuing to scream at him, calling him a son of a bitch and repeatedly threatening to kill him. After adding the restraint, Deputy Perrigo placed defendant back in the rear seat of the patrol unit. Fry testified Deputy Perrigo used very little force in restraining defendant and putting him back into the patrol car. She did not see any injuries on defendant, nor did defendant complain of any injuries. Fry did recall hearing Deputy Perrigo saying something to the effect of, I wonder how it feels to be a 50 pound sack of dogfood as defendant was yelling while being placed back into the patrol car.
Sherry Wadsworths account of the events that transpired corroborated Frys testimony. Both defendant and Estrada appeared drunk upon arriving at her front door. Estrada argued with her about the return of his Social Security card, while defendant became belligerent, asked her if she wanted problems, and stuck his foot in her door to prevent her from closing it. The men only left after she threatened to call the sheriff, with defendant removing and walking off with the battery from her roommate Miguels car.
Wadsworth testified that after Deputy Perrigo returned with the men, he asked her, Fry, and Miguel to follow him back to Edna Sanchezs house to identify the battery. They did so, and once in front of the Sanchez house, identified the battery as the one taken from Miguels car parked in front of Wadsworths house. Deputy Perrigo then asked Wadsworth to tell defendant and Estrada they were being detained for being drunk in public, and that theyd be released in the morning. Wadsworth told this to defendant and Estrada in Spanish, then repeated it in English to Deputy Perrigo. Estrada was crying, whereas defendant was angry, screaming over and over in a pretty loud voice, Im going to kill you, fucking cop. Wadsworth testified defendant began pound[ing] his handcuffed hands against the patrol car window, and refused to stop doing so when Deputy Perrigo asked him to be good, to be quiet. She then observed the deputy remove defendant from the patrol car while he continued to scream, Im going to kill you; re-handcuff him, this time with his hands behind his back; and use his knee to bring defendant to the ground when defendant refused to comply so that the rope restraint could be applied. Deputy Perrigo then placed defendant back in the rear seat of the patrol unit before driving off with the two men. Wadsworth saw no injuries on defendant, did not hear him complain of any injuries, and, contrary to Frys recollection, did not hear the deputy make any remarks to defendant as he was being placed back into the patrol car.
Edna Sanchez also testified for the prosecution. Defendants brother, Joaquin Cruz, was her boyfriend and lived with her at her home. Defendant slept in a station wagon parked in front of her house. Sanchez testified that defendant and Estrada were sitting outside her house drinking beer starting at about 5:00 p.m. They did not seem drunk at the time, and eventually left. Later, around midnight, she heard the engine of the station wagon being raced loudly. Not wanting trouble with her neighbors, she went outside, saw Estrada in the drivers seat and defendant in the passenger seat, and hollered at them to knock it off.[2] When the two continued to rev the engine again, Sanchez went back outside to tell them to stop. Estrada grabbed Sanchezs wrist when she tried to reach for the station wagon keys, while defendant was smiling and kicking back in the passenger seat. Sanchez testified that shortly thereafter, Joaquin went outside and yelled at the two to stop revving the engine. Sanchez did not thereafter hear Deputy Perrigo arrive with the other witnesses to identify the battery that had been taken from Miguels car and placed in the station wagon.
The dispatchers log reflected that at 12:57 a.m. Deputy Perrigo radioed in that he had two suspects in custody for 647(f) ( 647, subd. (f) [hereafter section 647(f)]), which meant public intoxication. The dispatcher testified he recalled receiving Deputy Perrigos transmission, and that the deputy sounded out of breath. At 1:28 a.m. Deputy Perrigo radioed his dispatcher that he was returning to the substation with the arrestees. Shortly after 2:00 a.m., Deputy Pitts arrived back at the substation just as Deputy Perrigo was helping defendant get out of the rear drivers side door of his patrol car. Deputy Pitts walked over to assist Deputy Perrigo. He could see that defendants hands were handcuffed in front of him, with a rope restraint hanging down from the handcuffs, and one palm facing out while the other was facing in, which Deputy Pitts knew meant that defendant had slipped his cuffs by stretching his arms down behind him, bringing his knees to his chest, and drawing his legs up through his handcuffed arms.
Deputy Pitts assisted Deputy Perrigo in bringing defendant into the substation. Defendant stated, What are you guys going to do now, shoot me? Deputy Perrigo replied, Im not going to shoot you. Defendant began dancing, singing, laughing, and acting cocky. He commented to Deputy Perrigo, [A]ll it would take is one bullet in your head. Defendant saw a birthday cake in the room and asked for a piece. After being placed in the holding cell, he continued singing, asked for a piece of cake, and began tapping on the fingerprint table in the cell, making comments in Spanish and English as he got louder and louder. At one point Deputy Perrigo entered the cell, placed his hands on defendants shoulders and backed him into a bench and sat him down. As soon as the deputy exited the cell, defendant got up and started singing, dancing, and pounding on the table again.
Defendants mood soon changed. He told the deputies to stay away from his woman and not mess with her or he would kill them. Deputy Pitts testified defendant resumed banging on the table, making so much racket that you could barely hear yourself think. Deputy Pitts estimated that defendant threatened to kill Deputy Perrigo between five to seven times. Defendant, who is a Mexican national, kept repeating that he hated America, that Americans treated him like shit, and that he would just as soon kill all Americans.
Deputy Pitts testified defendant was again handcuffed with his hands behind his back so he would be quiet and quit pounding on the table. Defendant then stated he would be good if allowed to use the bathroom. Deputy Perrigo went back into the holding cell, removed defendants handcuffs, escorted him to the bathroom, then returned him to the holding cell. After completing necessary paperwork, Deputy Perrigo again handcuffed defendants hands behind his back and placed him and Estrada in the rear of his patrol car. Deputy Pitts offered to handle the transport so that Deputy Perrigo would not have to put in overtime. Deputy Perrigo declined the offer.
After Deputy Perrigo secured defendant and Estrada in the rear seat of his patrol car, he went back into the substation for approximately 15 minutes, leaving the two men alone in the vehicle. Deputy Perrigo arranged through his dispatcher to have a sheriffs unit from the main jail in Redding meet him halfway between Redding and Burney to take custody of the arrestees. Deputy Pitts testified Deputy Perrigo left the substation with defendant and Estrada just before 3:00 a.m. Deputy Perrigos last radio transmission was that he was en route to rendezvous with the patrol unit from Redding. Immediately thereafter, Deputy Pitts heard the Redding dispatcher confirm that a Redding patrol unit was heading toward the substation to make the arrestee exchange at the halfway point.
Within minutes, the Burney dispatcher attempted to contact Deputy Perrigo to advise him the Redding unit was on its way. He got no response. After trying several more times, on several radio frequencies, to contact Deputy Perrigo, Deputy Pitts attempted to contact him on his hand-held radio. There were no responses.
Lorinda McCulley lived on Highway 299 on the outskirts of Burney. Shortly after 3:00 a.m. on the morning in question, she heard a car crashing near her home, followed by a series of loud noises and then a gunshot. She walked up onto the highway and saw a marked patrol unit with its lights flashing and the drivers side rear door open. She called the Burney substation to report that one of their officers had been in an accident. Diane Strickland, who also lived close to the scene, likewise heard a loud crash at approximately 3:00 a.m., then a gunshot from the direction of the noise. Deputy Pitts received McCulleys phone call on the substations normal business line and raced to the scene, which was 1.9 miles from the substation, or a two to two and a half minute drive away.
Upon arriving, Deputy Pitts observed Deputy Perrigos patrol car sitting kind of crossways on the highway, look[ing] as if it had rolled over, with the light bar hanging off and to the front and a visible dent in the vehicles roof. The drivers side rear door was open, and neither defendant nor Estrada was in the vehicle or vicinity. Deputy Perrigo was sitting still in the drivers seat slumped over to the side with his head on the window and his shoulder against the door post. There was blood on his face and clothing and his neck appeared to be broken. Deputy Pitts then noticed a hole in the Plexiglas partition and a hole in the back of [Deputy Perrigos] head. Additional officers and medical personnel were summoned to the scene.
Evidence technicians who later processed the crime scene observed the hole in the Plexiglas security screen between the front-seat and backseat of the patrol unit. Among other items found scattered on the front floorboard of Deputy Perrigos vehicle were a part of a metal toilet-paper-roll holder and the officers empty fanny pack, in which he was known to have kept a backup nine-millimeter service handgun. Expended nine-millimeter shell casings were found under the front and rear seats of the patrol unit, and unexpended nine-millimeter bullets were also found both inside and outside of the vehicle. The shell casing found under the rear seat was later determined to have been fired from the gun used to kill Deputy Perrigo. All of the windows in the patrol car were intact except for the rear drivers side door window, which was shattered out. There was a bullet hole in the drivers side rear door latch area; gunpowder residue on the inside of the door was consistent with the door latch having been shot at from inside the vehicle. Defendants palm prints were found on the handle of the open door.
The design of the Plexiglas security screen left an 11-inch gap between the bottom of the floor of the patrol car and the edge of the metal shield at the base of the screen. Testimony established that the officers fanny pack with the nine-millimeter handgun stored in it could be pulled through this opening near the automatic transmission hump. A toilet-paper-roll holder was soon discovered missing from the holding cell bathroom in the substation.
The medical examiners testimony established that Deputy Perrigo died of multiple gunshot wounds. He was shot once in the back of the head and once in the neck, with both gunshots having been inflicted while he was still alive. The gunshot wound to the back of his head was consistent with his having been shot through the Plexiglas security barrier. Bruising on the officers face indicated he was alive when the patrol units air bag deployed. The medical testimony further established the gathered evidence and findings were most consistent with Deputy Perrigo having been shot in the back of the head, and then slumping forward; having the airbag deploy into his face, causing him to fall backwards and fracture his neck; and then being shot a second time through the neck. Gunshot residue found on the front seat of the patrol car further suggested the second shot to the deputys neck was fired by someone standing in the doorway opening of the vehicle. Deputy Perrigos on-duty sidearm revolver was secured in its holster, which was still snapped closed, when he was transported to the hospital from the crime scene.
After a massive manhunt lasting nearly a week, defendant and Estrada surrendered and were taken into custody at the rice mill where defendant and his brother were employed. Recovered from the hayloft in which the two men were hiding was the murder weapon, a hacksaw, and portions of broken handcuffs.
Bernardo Sanchez, an employee at the rice mill, testified defendant and Estrada walked into the packing building where he was working sometime prior to their subsequent surrender to police at the mill. Defendant still had on his handcuffs, with his wrists cuffed in front of him, twisted wrist over wrist. Sanchez overheard another worker, Guadelupe Duran, ask Estrada if they still had the murder weapon. Estrada replied the gun was hidden in the alfalfa. Duran asked which one of them had done that wicked thing, a reference to the murder of Deputy Perrigo. Estrada motioned with his head toward defendant, who made no response. Defendant then stated that nothing would have happened if the lady had not called the police on them. Defendant asked the workers for money to buy clothes so that he and Estrada could flee to Oregon.
Detective Richard Newsome interviewed defendant and Estrada after their surrender, at which time defendant gave statements in which he confessed to killing Deputy Perrigo. Defendant told the detective that after he was restrained with the rope restraint and being transported to the Burney substation, he was able to get loose and slip his handcuffs to the front while still in the patrol car. He claimed that once inside the substation, he asked to use the bathroom but the officers would not permit him to do so. After being returned to the patrol car for transport to Redding, his hands were handcuffed behind him. Defendant stated he began kicking the front seat of the vehicle and a fanny pack with a weapon fell out. He retrieved the handgun, worked the action and saw that it was loaded and functional, then hid the gun behind him near where the seatbelt attaches to the seat. According to defendant, the two considered shooting Deputy Perrigo in the parking lot of the substation and escaping, but decided not to because there were other deputies present. They also discussed kicking out the back window of the patrol car to make their escape. Ultimately they decided to wait until they were on the road where there were no houses and shoot Deputy Perrigo, then escape. Defendant claimed that once the three were a short distance outside of Burney, in an area where defendant thought there were no houses, Estrada gave him hand signals and told defendant to shoot him. Defendant told Detective Newsome he put the gun up against the Plexiglas, aimed at the back of Deputy Perrigos head, closed his eyes and pulled the trigger. When asked why he shot Deputy Perrigo, defendant stated so they could escape, although he claimed Estrada had told him to shoot the officer. Sometime thereafter, defendant claimed he shot Deputy Perrigo because he (the deputy) was making fun of defendant.
Defendant also described how the patrol car then got in a wreck. Defendant kicked out the back window and got out of the vehicle. He claimed he put the gun down on the seat, and that Estrada picked it up and shot Deputy Perrigo a second time. The two men then ran to the woods.
The prosecution also introduced evidence that defendant had been arrested for being drunk in public a little over three months prior to this incident. On that occasion in July 1991, he began spitting and kicking at the doors of the patrol car in which he was being transported to the substation, slipped his cuffs from back to front, and threatened to kill arresting officer Dikes when he got out of custody by shooting the officer in the back of the head. Defendant was charged with threatening an officer in addition to the public intoxication charge on that occasion.
No defense to speak of was presented at the guilt phase. Defendants brother, Joaquin Cruz, lived with Edna Sanchez and was the supervisor at the rice mill where defendant had worked for several weeks, and from which location defendant and Estrada were taken back into custody after the murder of Deputy Perrigo. Cruz confirmed that defendant was living in the station wagon in front of Sanchezs house. On the night of the murder, defendant was supposed to go to work, but Cruz told him not to do so because he had been drinking and Cruz felt he might get hurt. Cruz testified that defendant, Estrada, and a third man who were drinking together appeared happy at the time. After the murder, when workers from the mill told Cruz that defendant and Estrada had showed up at the mill, Cruz notified the mills owner, and arrangements were made to have the two surrender to police.
The parties stipulated that defendant had been arrested on three prior occasions: On August 5, 1988, for being drunk in public ( 647(f)); on September 3, 1989, again for being drunk in public; and on January 7, 1990, for drunk driving (Veh. Code, 23152, subd. (a)).
The People presented testimony regarding defendants fourth arrest, on July 7, 1991, once again for being drunk in public, during which incident defendant also told arresting Deputy Dikes that when he (defendant) got out of custody he would get a gun and shoot the deputy in the back of the head. On this occasion defendant, who appeared drunk, began prowling around a mobilehome in McArthur at which two teenage girls were babysitting a nine-month-old infant. Defendants questions frightened the girls, who retreated into the home. Defendant then pressed his face against the kitchen window, further scaring the girls who began crying. One girl called her father who was nearby; upon his arrival he saw defendant attempting to open a window to gain access to the home. He chased defendant half a block before subduing him, and was kicked by defendant before police arrived and made the arrest.
The People also presented victim impact evidence at the penalty phase. Deputy Perrigo left behind a wife and three children. The oldest, an adopted child, Katie, age 14, was particularly devastated by the loss of her father; the middle child was nine years old, and the youngest four years old. Deputy Perrigos wife testified about the victims good character as a devoted father and citizen. He was a scoutmaster, was involved with the young mens program at a local church, and had served during his law enforcement career as an evidence technician, a hostage negotiator, and a SWAT team member. Deputy Perrigos father had been a California Highway Patrol officer for over 22 years. He testified about his sons career in law enforcement, and broke down on the witness stand when describing the devastating impact his sons death had on the fallen officers mother.
Finally, it was stipulated that registered nurse Claire Busby reviewed the jail medical records from all four incidents in which defendant was taken into custody, and that she found no evidence that defendant had suffered any physical injuries during or as a result of any of the arrests.
2. Defense Evidence
The defense presented the testimony of Claire Kantlehner, who was employed as the dispatcher at the Burney substation on July 7, 1991, the date on which defendant was arrested and taken into custody for being drunk in public during the prowling incident. Ms. Kantlehner had been a licensed vocational nurse prior to her employment as a dispatcher. She testified that upon being brought into the substation, defendant was obnoxious, struggling to break free of his restraints, spitting, blowing mucous out of his nose, kicking, and just intoxicated. Defendant was handcuffed, with his feet secured with a rope restraint, and Deputy Dikes wrapped some Curlex gauze around defendants mouth to prevent him from spitting. At one point Ms. Kantlehner noticed defendant was getting a little dusky like someone holding their breath. She suggested the deputies remove the gauze because she felt there was a possibility defendant was not getting enough air, and they did so.
Carol Shaw was a bookkeeper for the Fall River Wild Rice company in 1991. She knew defendants brother, Joaquin Cruz, who had worked for the company for about five years. Defendant came to the rice plant in the fall of 1991 and worked there for seven or eight weeks. Shaw testified she spent much time with defendant because he was Cruzs brother and so they wanted him to be comfortable. She felt defendant was more pleasant and congenial than most of the laborers, and knew of no problems with his work. Shaw never saw defendant drinking, and never felt concern about her safety around him, even after the murder of Deputy Perrigo, when she knew he would probably be heading toward the rice plant.
Defendant, age 23 at the time of this offense, had a wife, Alma Hernandez, who came from Mexico to testify in his behalf, and brought their son, Edgar, who was seven years old at the time. Hernandez gave birth to Edgar when she was 15 years of age. The family was from Antiguo Taumin, Mexico. Hernandez testified defendant stayed with her until Edgar was six months old, then left for the United States to work. Defendant sent her money every month. He returned twice to Mexico, and loved his son very much. Hernandez testified that when defendant returned in 1988, he took her to register for something about income tax, that she did not know she had actually married defendant, and that he laughed when she realized he had fooled her. Hernandez also recalled that once she and defendant were robbed by a truckload of policemen after attending a dance in Guadalajara.
Story Continue As Part II ..
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[1] All further statutory references are to the Penal Code unless otherwise indicated.
[2] At a pretrial hearing, Sanchez had testified that defendant was pretty drunk and slurring his words when she went out to tell him and Estrada to be quiet.
