People v. Cruz

Citation80 Cal.Rptr.3d 126,187 P.3d 970,44 Cal.4th 636
Decision Date24 July 2008
Docket NumberNo. S042224.,S042224.
CourtUnited States State Supreme Court (California)
PartiesThe PEOPLE, Plaintiff and Respondent, v. Tomas Verano CRUZ, Defendant and Appellant.

Michael R. Snedeker and Lisa R. Short, Portland, under appointments by the Supreme Court, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Bruce Ortega, Ross C. Moody and Alice B. Lustre, Deputy Attorney General, for Plaintiff and Respondent.


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 defendant's claims having been found to be without merit, we affirm the judgment in its entirety.

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 sheriff's 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 deputy's 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.

1. Prosecution Evidence

The Shasta County Sheriff's 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 detainee's 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 Wadsworth's 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, "I'm not going to jail. I'm 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 Fry's car to the home of Edna Sanchez, where defendant and Estrada had been located by the deputy. Defendant's 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, "I'm going to kill you, you son of a bitch," "I'm 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 car's 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 suspect's 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 defendant's 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 Wadsworth's account of the events that transpired corroborated Fry's 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 Miguel's car.

Wadsworth testified that after Deputy Perrigo returned with the men, he asked her, Fry, and Miguel to follow him back to Edna Sanchez's house to identify the battery. They did so, and once in front of the Sanchez house, identified the battery as the one taken from Miguel's car parked in front of Wadsworth's house. Deputy Perrigo then asked Wadsworth to tell defendant and Estrada they were being detained for being "drunk in public," and that "they'd 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, "I'm 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, "I'm 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 Fry's 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. Defendant's 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 driver's seat and defendant in the passenger seat, and "hollered" at them to "knock it off."2 When the two...

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