Felony Murder Rule

by Sheldon Siegel

  He laced his fingers behind his head. “How much longer you gonna do this?”

  “I can start collecting my pension in seven years, six months, four days, one hour, and twenty minutes. Realistically, I’m not going anywhere until Grace and Tommy finish college.”

  “My younger daughter is only ten. I still have at least a dozen years.”

  “It’ll be here before you know it.” Given San Francisco’s precarious finances, I hope there will be a few bucks left in the till when my number comes up. One of the reasons Rosie decided to run for P.D. was the possibility of a bigger retirement package. Welcome to the world of public pension roulette.

  Lee touched the lapel of his Men’s Wearhouse suit jacket. “Heard you’re representing Thomas Nguyen. When did you start trying cases again?”

  “Now. Betsy McDaniel won’t give us an extension. Jury selection starts Monday.”

  “You really just found out that this kid is your nephew?”

  “Great-nephew. I met him for the first time this morning. His mother, too.”

  “How long has she lived here?”

  “Thirty years. She never contacted us.”

  “Interesting family dynamics. This kid is your older brother’s grandson?”

  “Yup.”

  “I thought he died in Vietnam.”

  “He did. We were told it was in a plane crash. Turns out he died a few years later.”

  “You’re absolutely sure this kid is your great-nephew?”

  “The DNA tests checked out.”

  “How did you get results so fast?”

  “Pete has a guy at UCSF.”

  “Figures. He doing okay?”

  “Fine. Keeps busy.”

  “Good.” His clasped his fingers in front of his face. “And now I suppose you want my help.”

  “Professional courtesy.”

  “I don’t recall any from you on the Davis case. You knew his alibi witness was lying.”

  The other homicide inspectors were now watching us. “She lied to me, too.”

  “You should have known.”

  “I know.” Three years ago, I helped a client of less-than-stellar character beat an armed robbery charge when his sister-in-law provided a less-than-truthful alibi. Two weeks later, my client shot a police officer during a traffic stop. The cop ended up in a wheelchair. “I’m sorry.”

  “So am I. Either way, I don’t have to talk to you.”

  I recited a defense lawyer’s catechism. “You have a legal obligation to provide information that might exonerate my client.”

  “There is none.”

  The games begin. “Nguyen was just sitting in the car.”

  “I didn’t invent the felony murder rule.”

  I had to grovel. “Please, Ken.”

  An eye-roll. “I’ll give you five minutes of professional courtesy.”

  It was better than nothing. “What happened at the store?”

  “This is where I’m supposed to tell you to read my report.”

  “Can you give me the highlights?”

  Another eye-roll. “Tho went inside and started to pull a gun. The owner shot him in self-defense. End of story.”

  “I watched the security video. You can’t see a gun.”

  “Doesn’t matter. Ortega Cruz thought Tho was going to shoot him. Cruz found the gun under the body. Tho’s prints were on the handle. A jury will put the pieces together.”

  “They found Cruz’s prints on the gun, too.”

  “He disarmed it.”

  “He could have planted it.”

  “Sure. Sell it to the jury.”

  Gee, thanks. “Why didn’t Tho fire the gun?”

  “He never had a chance.”

  “Had he ever been inside the store?”

  “A couple of times.”

  “Criminal record?”

  “Arrested for shoplifting and possession. Did a few weeks in juvie, but never spent any time with the big boys.”

  “We heard he got thrown out of Galileo for dealing weed.”

  “We didn’t have enough evidence to charge him.”

  “Do you know the name of Tho’s supplier?”

  “If I did, I would have arrested him.”

  “You must have found something on his cell phone or computer.”

  “He had a throwaway phone.”

  I was using up my remaining four minutes quickly. “We heard that the owner of the store had an acrimonious divorce. Domestic violence?”

  “I’m a homicide inspector, not a marriage counselor.”

  “Does Ortega Cruz have a criminal record?”

  “A few traffic tickets.”

  “Arrests?”

  “He was hauled in on a battery complaint a couple of years ago after he threw a homeless guy out of his store. The charges were dropped.”

  “Has he ever shot anybody else?” I wanted to see if Lee would provide any details.

  “He shot an armed robber a couple of years ago. The guy died at Pelican Bay. No charges were filed against Cruz. Self-defense.”

  This was consistent with the information in the file. “I heard he used a Bushmaster.”

  “An AR-15 purchased legally in Nevada. We confiscated the weapon and we aren’t giving it back. Nobody outside of the U.S. Army should have an assault rifle.”

  “I presume he has another weapon at the store?”

  “A handgun. Purchased legally. Licensed and registered.”

  “Did he know how to use the Bushmaster?”

  “Spent time at a range in South City. Also served in Vietnam, but didn’t see combat. Honorable discharge.”

  “Did he know Tho?”

  “He said he’d seen him in the store a couple of times. Never gave him any trouble.”

  “Has Cruz ever threatened anybody?”

  “About a year ago, a guy pulled a knife. Cruz grabbed his rifle and held him until a unit arrived.”

  “We’d like to talk to him.”

  “He’s dead.”

  Hell. “How many times has the store been robbed since Cruz shot Tho?”

  “None. Word is out—Cruz has a weapon and isn’t afraid to use it.”

  It was an effective—albeit heavy-handed—message of deterrence. I asked about Cruz’s kids.

  “Tony dropped out of City College. Isabel is a junior at Mercy. Tony has a couple of hits for buying weed and shoplifting, but he’s never done time. Isabel’s clean. No gangs, drugs, or other trouble.”

  We’d check. “I heard that Tony and Isabel were at the store that night.”

  “Tony works there. Isabel was waiting for her father to drive her home. Tony will corroborate his father’s story. Isabel didn’t see anything.”

  “Any chance Tony shot Tho?”

  “Not according to his father.”

  “Maybe Ortega was trying to protect his son or daughter.”

  “Not likely, Mike.”

  “Mind if we talk to them?”

  “I can’t stop you. They’re under no obligation to talk to you.”

  And their father is protective and owns multiple weapons. “Did either of them know Tho?”

  “Nope.” He glanced at his watch. “Your five minutes ended five minutes ago.”

  “Any chance Ortega Cruz was into other stuff? Drugs? Alcohol?”

  “He’s a deacon at St. Peter’s.”

  When I was a rookie priest at St. Anne’s, I learned that deacons weren’t always saints. “Violence? Fights? Problems with his neighbors?”

  “Nothing reported to us.”

  It was a more equivocal answer that I had expected. “How does he feel about the Vietnamese community?”

  “He’s made a living selling them booze.”

  “It doesn’t mean he likes them. Who else was in the store that night besides the son and the daughter?” I wanted to see if Lee’s answer matched up with the information in the file.

  “A deliveryman and a customer who didn’t see Tho come inside. They left through
the back door. A security guard was behind the counter near the window. His name is Hector Cruz. Twenty-four. He’s Ortega’s nephew.” He confirmed that Hector had two arrests for grand theft auto and one for armed robbery.

  “Was he armed?”

  “A piece registered to his uncle.”

  Great. “Loaded?”

  “They’re more effective that way.”

  “Did he know how to use it?”

  “His uncle took him to the range a few times.”

  “Did you consider the possibility that he shot Tho?”

  “His uncle admitted that he pulled the trigger.”

  “You can’t see who fired the shots in the security video. Maybe Ortega is protecting his son or his nephew.”

  “Either way, the shooter acted in self-defense.”

  “Nguyen told me that Tho didn’t have a gun.”

  “He’s mistaken.”

  “We’ll put him on the stand.”

  “Be my guest. Andy Erickson will take him apart on cross.” He stood up, signaling that our conversation was coming to an end. “You got nothing, Mike. The kid should have listened to Sandy Tran and taken the plea.”

  “I heard that Ignacio Navarro was the first officer at the scene.”

  “He was.”

  “Is he still on suspension?”

  “He just came back to work.” He glanced at his watch. “Time’s up.”

  14

  “I’M UNDER ORDERS”

  Sergeant Ignacio Navarro’s leathery face transformed into a circumspect smile. The one-time all-city defensive tackle at Mission High stroked his silver mustache and spoke to me in a guttural voice. “How’s Pete?”

  “Fine.”

  Three decades earlier, Navarro had shown my brother the ropes at Mission Station. He struggled to shoe-horn his two-hundred-and-sixty-pound frame into an overburdened chair at his new post at the public information desk in the bowels of Tenderloin Station, a windowless bomb shelter at the corner of Eddy and Jones, two blocks west of Alcatraz Liquors.

  “When did you get back to work?” I asked.

  “Last week.” His voice filled with contempt. “I haul in a serial rapist. He takes a pop at me when I’m putting him into my unit, so I defend myself. Next thing I know, he hires a lawyer, the city rolls, and I end up here in the dungeon. Your dad never had to put up with this crap. How do they expect us to serve and protect when the bureaucrats at City Hall won’t watch our backs?”

  “You have a right to defend yourself.”

  “Damn right.”

  I glanced at his half-eaten turkey sandwich next to the Chronicle sports section on his otherwise empty desk. Navarro was suspended after he’d cracked the skull of a man who had done time for rape, pimping, and dealing ecstasy. The prisoner wasn’t going to win a Presidential Medal of Freedom, but this sort of police behavior was frowned upon—especially since the guy’s hands were cuffed behind him. Navarro probably would have gotten away with it if a bystander hadn’t recorded the incident on his iPhone and showed it to a reporter at Channel 5. My dad never had to worry about seeing himself on YouTube.

  He took a draw from a can of Sprite. “Heard you got the Nguyen case.”

  “I did.”

  “Heard he’s your nephew.”

  “Great-nephew. Tommy was his grandfather.”

  “No kidding.” He set down his drink. “I didn’t know he had a kid.”

  “Neither did I. We thought Tommy died in a plane crash. Turns out he died a couple of years later.”

  “Your dad never said much about him.”

  “It was hard.”

  “Why didn’t Nguyen’s mother contact you sooner?”

  “Long story.”

  “I got time.”

  I didn’t, but I wanted to keep him talking. “She was afraid of being deported. Ken Lee said you were the first officer at the scene.”

  “I was, but I’m not talking.”

  “Please, Ignacio.”

  “I’m under orders. My lieutenant says I’m not supposed to talk about anything but the weather.”

  “You’re the public information officer.”

  “You aren’t the public.”

  “What do you do all day?”

  “I follow orders.”

  Despite his rough edges, Navarro was a straight shooter. “You’re on the witness list.”

  “You’ll find out everything I know at trial.”

  “You have a legal obligation to provide any exculpatory evidence.”

  “There isn’t any.”

  “If you give me a little help now, I might be able to convince my client to take a deal.”

  “Andy Erickson told me to keep my mouth shut. He’s a smart guy.”

  “Yes, he is.” I didn’t like begging, but I had no choice. “We go back a long way, Ignacio. Please tell me what you saw.”

  “Off the record?”

  No such thing. “Of course.”

  He finished his sandwich. “Tho was dead. The shopkeeper found a gun under his body. He disarmed it and left it on the floor. The shopkeeper admitted that he’d shot him. Said it was self-defense. His son corroborated his story. So did the security guard. His daughter didn’t see anything. Your great-nephew was out in the car dicking around, so we brought him in for questioning. Next thing I know, our esteemed District Attorney decided to charge him with felony murder.”

  “You think it was a good idea?”

  “I have no opinion.”

  “Who called it in?”

  “Ortega Cruz.”

  “You know him pretty well?”

  “Yeah. Been in business for a long time.”

  “How long did it take you to get there?”

  “About two minutes. I went by myself.”

  “Who else was there?”

  “Cruz’s son and daughter, a security guard, a customer, and a deliveryman. Their names are in the report.”

  “Why didn’t the guard stop Tho before he came inside?”

  “Because he’s a screw-up. Name’s Hector Cruz. He’s Ortega’s nephew. Big dumb kid with a phony uniform, a fake badge, and a real gun. He’s lucky he didn’t shoot himself.”

  “Where was everybody when Tho came in?”

  “Read the statements. Ortega was behind the register. His son was standing next to him at the deli counter. The daughter was doing her homework at a desk behind the deli counter. The guard was over by the window. The customer and the deliveryman were in the rear. They bolted out the back door when the shooting started.”

  “You got names?”

  “The deliveryman is Odell Jones. Works for Budweiser. The customer is Eugene Pham. Works at a restaurant on Larkin. Their contact info is in the report.”

  “Any chance somebody else was there?”

  “Not according to the witnesses.”

  Not exactly a complete denial. “Did anybody outside see anything?”

  “This is the Tenderloin, Mike. Nobody saw nothing.”

  “Did the owner know Tho?”

  “He said he’d come in the store a couple of times. Never gave him any trouble.”

  His story was consistent with the information from Inspector Lee. “You ever shop there?”

  “Occasionally. Most of the time, I went over to pick up shoplifters or investigate an armed robbery.”

  “How often did that happen?”

  “Shoplifting happens almost every day. You can count on an armed robbery at least once a month. Ortega has us on speed dial.”

  “He kept a gun behind the counter.”

  “You gotta protect yourself.”

  “I understand this wasn’t the first time he’d used it.”

  “He shot somebody a couple of years ago in self-defense. No charges were filed.”

  “Has he ever pulled a gun on anybody else?”

  “About a year ago, he pulled his piece on a guy who flashed a knife. He kept the gun on him until we got there and made the arrest.”

  “Was it the
same Bushmaster that he used to shoot Tho?”

  “No. It was a Glock. We would have confiscated a Bushmaster.”

  “Is Ortega a good guy?”

  “He isn’t a bad guy. He doesn’t take crap from anyone.”

  “Any funny business in the store? Selling booze or cigarettes to minors? Drugs? Numbers? Hookers?”

  “He used to take bets. Nowadays, people run book on their iPhones.”

  “Any run-ins with his neighbors?”

  “A couple of years ago, he beat up a homeless guy who was pissing in his doorway. A few months ago, he caught a kid spraying graffiti on his door. He put a gun to the kid’s head and told him he’d blow it off if he ever caught him again. Nobody pressed charges.”

  “Sounds like Cruz has a temper.”

  “So would you if people were pissing on your door.”

  “I wouldn’t put a gun to their head.”

  “You might if it happened twenty times.”

  Maybe. I asked him about the son.

  “Tony isn’t a brain surgeon, but he’s a decent kid. He partied a little too much in high school and got picked up a couple of times for buying weed, but he’s kept his nose clean for a couple of years.”

  “What about the daughter?”

  “Good kid. Honors student at Mercy. Never been in trouble.”

  “How much did she see that night?”

  “More than she should have. Her father yelled at her to duck under the desk when Tho came in. She didn’t see him get shot, but she heard everything.”

  “She must have seen the body.”

  “She did. Must have been horrific.”

  “Is she going to testify?”

  “Not my call, but I doubt it. She didn’t see Tho come in the store and her parents are dead-set against it.”

  “Can’t blame them. And the security guard?”

  “Hector is a lug who lives with his mother. He didn’t make it through City College, so he went to work at the store. He has two hits for grand theft auto. He’s still on probation for an armed robbery charge that he pleaded down. Ortega fired him after Tho got shot.”

  I was getting nowhere. “Did you know Tho?”

  “Only by name. Garden-variety street punk.”

  “I heard he did some work for one of your neighborhood drug dealers.”

  “He was a low-level errand boy who sold weed.”

  “You got the name of his supplier?”

  “No.”

  “Would you tell me if you did?”