“I thought he was going to kill me.” He took a deep breath. “Or my son or my daughter or my nephew.”
“How much time did you have to react?”
“A second or two.”
“What did you do?”
“What I had to do. I shot him in self-defense. I was protecting my kids and my nephew.”
“How did you feel after you shot him?”
“Terrible.”
“Given the circumstances, would you do it again?”
“Objection,” I said. “Calls for speculation.”
“Overruled.”
“Yes,” Cruz said. “I would do it again.”
Erickson stepped back from the box. “What did you do after you shot Mr. Tho?”
“I checked on him to make sure that he couldn’t fire his gun. Then I called the police.”
“Was he dead?”
“Objection. Mr. Cruz isn’t a doctor.”
“Sustained.”
Erickson didn’t hesitate. “Did it appear to you that he was dead?”
“Yes.”
“Did you touch the body?”
“Yes. To check for a pulse. There was none.”
“Did you move the body?”
“No.”
Erickson held up the Kel-Tec. “Do you recognize this weapon?”
“Yes. It’s a Kel-Tec P-3AT handgun that I found under Duc Tho.”
“How could you see it if it was under the body?”
“It wasn’t completely covered up.”
“Did you touch this weapon?”
“Yes. I removed the bullets to protect myself, my children, and my nephew. I left the gun on the floor and showed it to the police when they arrived.”
“You were familiar enough with this weapon that you were comfortable disarming it?”
“I was in the military. I own several firearms and I go to the range every weekend.”
Erickson was satisfied. “How long before you called the police?”
“Less than a minute. I checked on my kids and my nephew first.”
“Were you cooperative when the police arrived?”
“Of course.”
“Do you recall who was the first officer at the scene?”
“Sergeant Ignacio Navarro from Tenderloin Station.”
“Did you inform him that you had shot Duc Tho?”
“Yes. In self-defense.”
Erickson repeated, “In self-defense. You also told him that you disarmed the Kel-Tec?”
“Yes.”
“No further questions.”
“Cross exam, Mr. Daley?”
“Yes, Your Honor.” Game on. As I buttoned my jacket, I saw the note that Rolanda had scribbled on the legal pad. It read, “No surrender.”
I walked to the front of the box, and I wasn’t going to move. “Mr. Cruz, how long was Duc Tho inside your store before you say that you shot him?”
He took a sip of water. “A couple of seconds.”
“You were scared because he threatened you with a gun and demanded money?”
“Yes.”
“So scared that you had to shoot him?”
“Objection. Asked and answered.”
“Sustained.”
I took a step back and acted out Tho’s movements. “Mr. Tho walked inside your store, turned to face you at the register, demanded money, and pulled a gun, whereupon you shot him?”
“In self-defense.”
“In self-defense,” I repeated. “I just want to be sure that I understand the exact sequence. Did he pull the gun or demand money first?”
“He demanded money.”
“Before or after he turned?”
Cruz hesitated. “As he was turning.”
“What did he say to you?”
“‘Gimme the money.’”
“You’re absolutely sure that he said those words?”
He waited a beat. “Yes.”
“And then he threatened you with a gun?”
“Yes.”
“Before or after he demanded money?”
“Right after.”
“Did he point the gun at you?”
“No. I shot him before he had the chance.”
“But he drew the gun, right?”
“He was about to.”
“But you shot him first?”
‘Objection. Asked and answered.”
“Sustained.”
“Mr. Cruz, did you see the gun before you shot Mr. Tho?”
A pause. “No. It was still inside his pocket.”
“If it was still inside his pocket, how did you know that he had a gun?”
Cruz spoke deliberately. “He had a gun. I found underneath his body after I shot him.”
“In self-defense.”
“Right.”
“But you just said that you couldn’t see the gun.”
“I could tell.”
“But you said that his right hand was still inside his pocket when you shot him, right?”
His tone was more adamant. “He had a gun.”
I gave him a perplexed look. “Let the record show that Mr. Cruz just confirmed that he could not see a gun because Mr. Tho’s hand was still inside his pocket when Mr. Cruz shot him.”
Erickson was on his feet. “Move to strike. Mr. Daley is testifying.”
Yes, I am.
“The jury will disregard Mr. Daley’s interpretation of Mr. Cruz’s testimony.”
As if they’ll be able to un-ring the bell. “No further questions, Your Honor.”
“Redirect, Mr. Erickson?”
“Yes, Your Honor.” He spoke from the prosecution table. “Mr. Cruz, did you honestly believe that there was a gun in Mr. Tho’s possession when he walked inside your store?”
“Yes.”
“Did you fear for your life and the lives of your children and nephew?”
“Yes.”
“And based upon that fear, did you shoot and kill Mr. Tho in self-defense?”
“Yes.”
“And did you find a loaded Kel-Tec handgun underneath his body after you shot him in self-defense?”
“Yes.”
“No further questions.”
“Redirect, Mr. Daley?”
“No, Your Honor.”
“Please call your next witness, Mr. Erickson.”
“The People call Antonio Cruz.”
44
“I THOUGHT WE WERE GOING TO DIE”
Erickson was standing in front of the witness box in the silent courtroom. “Where were you when Mr. Tho entered your father’s store?”
Tony Cruz was wearing an ill-fitting navy blazer. He poured himself a cup of water and looked for moral support from the gallery, but his parents were not allowed in court because they were on our witness list. “Behind the deli counter.”
Erickson pointed at the diagram. “That’s over here?”
Tony nodded.
“You’ll need to answer out loud for the record.”
“Yes.”
Rolanda and I figured that Tony’s role would be brief. Erickson would have him corroborate his father’s story and get him off the stand.
“Did you see Duc Tho enter your father’s store?”
“Yes.”
“What happened next?”
“He asked for money and threatened my father.”
“How did you feel about it?”
“I thought we were going to die.”
“What did your father do?”
“He yelled at us to duck and he shot Tho in self-defense.”
“You saw everything?”
“Yes. It was really bad. There was lots of blood.”
“You must have been relieved when it was over.”
“I was.”
“No further questions.”
I nodded to Rolanda, who walked over to the witness box. Her tone was gentle. “Was it busy when Duc Tho came inside your father’s store?”
“No.”
“What were you d
oing?”
“Watching TV.”
“What were you watching?”
“ESPN. SportsCenter, I think.”
Erickson stood up. “Your Honor, could you please instruct Ms. Fernandez to get to the point?”
“Please, Ms. Fernandez.”
Rolanda smiled. “I’m getting there, Your Honor.” She turned back to Tony. “Did you have your iPhone with you?”
“Yeah.”
“Were you talking to somebody on your phone when Duc Tho came inside?”
“No.”
“Watching a video?”
“No.”
“Listening to music?”
“Maybe.”
“Did you have your earbuds in?”
“I might have.”
“And you saw Mr. Tho come inside the store?”
“Objection. Asked and answered.”
“Sustained.”
Rolanda inched closer. “It was a scary experience, wasn’t it?”
“Yeah.”
“And it happened very fast.”
“Right.”
“Have you ever been at the store when it was robbed?”
“I’ve seen shoplifters.”
“What about armed robbers?”
“No.”
“Have you ever used a gun?”
“Just at the range. My dad takes us.”
“So you must have been really scared when Duc Tho pulled the gun, right?”
A hesitation. “Uh, yeah.”
Rolanda gave him an inquisitive look. “You saw him pull the gun, right?”
Tony swallowed. “Well, not exactly.”
“What do you mean?”
“It was inside his pocket. My father yelled at me and my sister and my cousin to get down.”
“And then your father shot him?”
“Yes.”
“So you didn’t see the gun until your father found it under Mr. Tho’s body?”
He nodded as if to reassure himself. “Yeah.”
“You said that Mr. Tho demanded money when he came inside.”
“He did.”
“What exactly did he say? ‘Gimme the money’?”
“I think he just said the word ‘money.’”
“You’re sure about that?”
“Pretty sure.”
“And you’re pretty sure that he said the word ‘money’ even though you had your earbuds in?”
“Yeah.”
“You were very brave, Tony.”
“I was lucky that my dad knew how to protect us.”
“No further questions.”
The judge glanced at Erickson. “Redirect?”
“No, Your Honor. The People call Hector Cruz.”
45
“HE DID WHAT HE HAD TO DO”
Hector’s direct exam was shorter than Tony’s. Following Erickson’s lead, he confirmed that he was standing near the window when Tho walked in. Tho threatened Ortega with a gun and demanded money. His uncle shot him in self-defense. His testimony was over in less than a minute.
I sent our not-so-secret weapon to handle cross exam. Rolanda gave Hector a comforting smile as she approached him. “May I call you Hector?”
“Okay.” He gulped water as he tugged at the lapel of his hand-me-down gray suit. I was surprised that his uncle hadn’t insisted that he wear a tie.
Rolanda put a hand on the edge of the witness box. “You were working as the security guard at your uncle’s store when Duc Tho entered, right?”
Hector nodded a little too emphatically. “Right.”
“You were carrying a gun that night, right?”
“Right.”
“You knew how to use it, right?”
“Right.” Hector sat up taller. “I’d shot it at the range with my uncle.”
“But you didn’t use it that night, did you?”
“By the time I realized what was happening, my uncle had already shot Duc Tho.”
“Makes sense.” Rolanda pointed at the diagram. “You were over here between the window and the register when Duc Tho came inside, right?”
“Right.”
“You saw him come in through the front door, right?”
“No.”
Rolanda gave him a perplexed look. “How is that possible? You were right there.”
“I was looking out the window.”
“But you saw him pull a gun, right?”
“Uh, no.” He started talking faster. “It happened fast. My uncle yelled at us to get down. Then he shot him in self-defense.”
“You didn’t see him pull a gun?”
“No.”
“But you heard him ask for money, right?”
“Right.”
“Did he say, ‘Gimme the money’?”
“Something like that.” Rolanda let the answer hang, and Hector felt compelled to fill the void. “He definitely said the word ‘money.’ I’m not exactly sure what else.”
Rolanda responded with a reassuring smile. “Hector, you were talking on your cell phone when Duc Tho entered the store?”
His eyes darted at Erickson for an instant. “Yeah.”
“With whom?”
“My ex-girlfriend.”
“What were you talking about?”
“Nothing in particular.”
“You must have been discussing something.”
“We were talking about maybe getting together.”
“Did you?”
“Objection. Relevance.”
“Sustained.”
Rolanda was still smiling. “Hector, when you talk on your cell, do you hold the phone up to your ear, or do you use a microphone with earbuds?”
“Depends.”
“Were you using buds that night?”
“I don’t think so.”
“So when Duc Tho walked into the store, you were holding the phone up to your ear and talking to your ex-girlfriend?”
“I think so.”
Rolanda held up a hand. “How did you hear Duc Tho ask for money if you were talking on your phone?”
His tone turned adamant. “I heard him say the word ‘money.’”
“Out of your other ear?”
“Yeah.”
Rolanda finally took a step back. “Hector, are you absolutely sure that Duc Tho said the word ‘money’ when he walked into your uncle’s store?”
“Objection. Asked and answered.”
“Sustained.”
“And are you absolutely sure that Duc Tho had a gun when he walked into the store?”
“Objection. Asked and answered.”
Rolanda finally turned to the judge. “He hasn’t answered that one, Your Honor.”
“Overruled. Please answer the question, Mr. Cruz.”
“Yeah, he was carrying a gun.”
“But you didn’t actually see it, did you?”
“My uncle found it under his body.”
“But you didn’t see it until after Mr. Tho was dead, right?”
“My uncle shot him in self-defense. He did what he had to do.”
“So he says.”
“Objection.”
“Withdrawn. Are you still working at the store?”
“No.”
“Why not?”
“My uncle decided that he didn’t need a security guard.”
“Or maybe he decided that he didn’t need you.”
“Objection. There wasn’t a question there.”
No, there wasn’t.
“Withdrawn.” Rolanda folded her arms. “Your uncle is intimidating, isn’t he?”
“Sometimes.”
“You’re afraid of him, aren’t you, Hector?”
“No.”
“He told you to say that Duc Tho demanded money and flashed a gun, didn’t he?”
“No.”
“And he told you to say that he acted in self-defense, didn’t he?”
“No.”
“You’re under oath, Hector.”
Erickson stood up
. “Objection, Your Honor. There wasn’t a question there.”
“Sustained.”
Rolanda was within two feet of Hector. “Your uncle didn’t shoot Duc Tho in self-defense, did he?”
“Yes, he did.”
“He told you to lie to protect himself, didn’t he?”
“No.”
“Or is he protecting you?”
His voice went up. “No.”
“You’re lying, aren’t you, Hector?”
“Objection,” Erickson said. “Argumentative.”
“Sustained.”
Rolanda hadn’t taken her eyes off Hector. “Where do you live, Hector?”
“Daly City.”
“Were you at home on Thursday night?”
Erickson was up again. “Objection. Relevance.”
“Overruled.”
Hector acknowledged that he hadn’t been at home on Thursday night.
“Where were you?” Rolanda asked.
“San Bruno.”
“At San Francisco County Jail?”
“Yes.”
“On what charge?”
Erickson tried again. “Objection. This line of questioning is irrelevant.”
“Your Honor,” Rolanda said, “we are entitled to question Mr. Cruz’s credibility.”
“Overruled.”
Rolanda cleared her throat. “Why were you in San Francisco County Jail?”
“They’re saying that I bought crystal meth, but they’re wrong.”
“It’s a set-up?”
“Yeah.”
“Are you out on bail?”
“Yeah.”
“Who paid your bail, Hector?”
“My uncle.”
“You owe him big time, don’t you?”
“Objection. Argumentative.”
“Sustained.”
Rolanda didn’t stop. “You’d do anything your uncle told you to do, wouldn’t you?”
“Objection. Argumentative.”
“Sustained.”
“You’d even lie for him, wouldn’t you?”
“Objection. This line of questioning is inappropriate.”
Yes, it is.
“Sustained.”
“No further questions, Your Honor.”
“Redirect, Mr. Erickson?”
“No, Your Honor.”
“Any other witnesses?”
“No, Your Honor. The People rest.”
The judge turned to me. “Mr. Daley, do you wish to make a motion?”
“Yes, Your Honor. Based upon the evidence presented thus far, we believe that as a matter of law, the prosecution has not shown that Duc Tho engaged in a provocative act when he entered Alcatraz Liquors. We further believe that Mr. Erickson has not introduced sufficient evidence that Ortega Cruz acted in self-defense when he allegedly shot and killed Duc Tho. As a result, pursuant to Section 1118.1 of the California Penal Code, a jury cannot find guilt beyond a reasonable doubt based upon the evidence presented. We therefore move that all charges against our client be dropped as a matter of law.”
Felony Murder Rule Page 19