Metropolitan News-Enterprise


Friday, January 3, 2003


Page 3


Retrial Not Barred After Defendant’s Release on Habeas Corpus—C.A.


By a MetNews Staff Writer


A man who had his murder conviction overturned after he was able to convince the trial judge that someone else did the killing might still have to face retrial for firing the fatal shots, this district’s Court of Appeal ruled yesterday.

A retrial of Efren Cruz, who had been convicted of having shot and killed a rival in a gang fight in a Santa Barbara parking structure, is not barred by collateral estoppel even though evidence at his habeas corpus proceeding established that his cousin actually pulled the trigger, Justice Steven Perren of Div. Six wrote.

Perren noted that collateral estoppel operates much like double jeopardy, which prohibits multiple trials for the same offense but does permit a second trial after a conviction is thrown out on the appeal level or through collateral attack for some reason other than the sufficiency of the evidence.

“The court hearing the habeas petition concluded that Cruz was not the Lot 10 shooter but made no factual finding that would affect a conviction on an aider and abettor theory,” Perren said. “To conclude otherwise would deny the prosecution a fair opportunity to prosecute Cruz.”

It is not clear whether the Santa Barbara District Attorney intends to retry Cruz, whose 1997 murder conviction was upheld on direct appeal by the Second District.

He insisted at trial that it was not he who did the shooting, and he offered the hearsay testimony of his girlfriend that it actually was Cruz’s cousin, Gerardo Reyes, who was the killer.

It wasn’t until after he was convicted that Cruz obtained a recording of Reyes admitting the killing.

For his habeas petition, he found himself back in front of Santa Barbara Superior Court Judge Frank Ochoa, the same judge who presided over his murder trial.

Ochoa conducted an 18-day evidentiary hearing, then granted Cruz a writ of habeas corpus and vacated his convictions for murder and attempted murder and his enhancements for use of a firearm.

Ochoa then conducted a sentencing hearing on a remaining conviction. At that hearing, the prosecution took the position that the effect of the habeas grant and the vacation of the convictions was to reinstate the murder and attempted murder charges. But the prosecution then moved to dismiss those charges.

Two days later, Ochoa issued an order stating that the prosecution was precluded “by the collateral estoppel aspect of res judicata, based on the double jeopardy clause of the Fifth Amendment,” from relitigating the factual issues determined at the habeas proceeding.

“The fact that Mr. Cruz was not the shooter was a factual issue necessarily and actually determined on the merits in the habeas proceedings,” Ochoa wrote.

This time, the District Attorney’s Office appealed based on the “propriety” of the judgment. The prosecution did not challenge the factual finding that Cruz was not the shooter or object to the vacating of the conviction.

Perren agreed that Ochoa went too far in purporting to bar retrial.

“Although the finding of the habeas court in this case was unequivocal, a habeas corpus proceeding is not a trial of guilt or innocence and the findings of the habeas court do not constitute an acquittal,” Perren said. “The scope of a writ of habeas corpus is broad, but in this case, as in most cases, it is designed to correct an erroneous conviction. It achieves that purpose by invalidating the conviction and restoring the defendant to the position she or he would be in if there had been no trial and conviction.”

Just because there was a delay in getting the Reyes evidence, he said, that did not serve to “unseat” the jury as the fact-finder. Despite Cruz’s ability to persuade Ochoa that the conviction was wrong, he said, the question of Cruz’s guilt or innocence is still up to a jury—which arguably still could convict, even with the Reyes confession.

The case is In re Cruz, B154156.


Copyright 2003, Metropolitan News Company