Woman recounts events of night boyfriend was killed

Thursday, Aug. 12, 2004 | 8:59 a.m.

After 13 years of grieving, the girlfriend of a 21-year-old man allegedly killed by Erasmo Pena testified on Wednesday that Pena was the man who waited on the side of the road and shot her boyfriend as they left a birthday party together.

Emma Garcia sobbed as she recounted the evening of Nov. 30, 1991, the night the prosecution contends Pena, 38, shot Marcos Valenzuela, whom she knew as Gilbert.

A warrant for Pena's arrest was issued only days after the crime, but he wasn't arrested until late 2002, after a run-in with the law in California.

Garcia said she was at her friend Maria Neurater's birthday party at 6165 W. Wind Road, which 12 years ago was a rural area with no paved roads or streetlights. Garcia said she listening to music and watching people dance when Pena came walking through the crowd and pushed Marcos Valenzuela's brother, Manuel.

Garcia said Marcos Valenzuela stuck up for his brother saying, "Hey man, that's my brother. Leave him alone."

"He (Pena) stepped back, looked at Gilbert (Marcos Valenzuela) and pulled out and gun and put it to Gilbert's (Marcos Valenzuela's) head," Garcia said as she cried. "I lifted the gun away and pulled Gilbert's (Marcos Valenzuela's) head toward me. Someone then screamed, 'There's a man with a gun,' and everyone ran."

Chief Deputy District Attorney Ed Kane has said other than the altercation at the party, which mainly consisted of some pushing and arguing, the prosecution had no other known motive for Pena's actions.

Garcia said she saw Pena run out the back door, and along with Marcos Valenzuela and Manuel Valenzuela decided it was time to leave.

Emma Garcia said she got in the passenger seat and Manuel Valenzuela got in the back seat of Marcos Valenzuela's Ford Escort with Marcos Valenzuela driving. After making it a half a block down the street Garcia said she saw Pena.

"We were driving and I saw a man standing there," Garcia said. "I did recognize him. He was the same man in the party who pulled the gun. I'm certain."

Garcia said Pena then jumped in front of the car and "started shooting at us." Garcia said she saw Pena shoot the first shot, but then put her head between her legs as she heard six or seven shots hit what sounded like glass and metal.

Garcia said she stayed down until the shooting stopped and discovered Marcos Valenzuela had been shot.

"Gilbert (Marcos Valenzuela) said he was shot, but was still driving," Garcia said. "I told him to stop and to please let me drive. He just wanted to get us to safety. All of a sudden the car stopped and Manuel (Valenzuela) got in the driver seat and put Gilbert (Marcos Valenzuela) with me. He (Manuel Valenzuela) tried to drive, but he couldn't because the car was a stick (shift)."

A distraught Garcia then took Marcos Valenzuela out of the car and placed him on the roadside, where she began giving him CPR, until an ambulance came.

When he had testified earlier Wednesday, Manuel Valenzuela also identified Pena as the man who shot his brother. He said as his brother drove them away from the party he also saw Pena on the side of the road.

"I saw him (Pena) as he got closer to the car," Manuel Valenzuela said. "I saw when (Pena) pointed the gun at my brother and started shooting, but I closed my eyes after the shots."

On cross examination, Deputy Public Defender Dan Silverstein raised doubts about just how certain Manuel Valenzuela was about the identification, saying he originally told police he was not even sure if there was more than one shooter.

Additionally, Silverstein reminded Manuel Valenzuela that during a photo lineup of suspects performed two days after the murder, he didn't definitively identify Pena.

Silverstein said Marcos Valenzuela told police during the lineup that the photo of Pena was "closest to the person" who shot his brother.

Earlier in the day the defense pressed retired Metro Police officer David Hatch, who now as a civilian reviews cold cases, about what the defense called failures of the investigation that Hatch was a part of in 1991.

Deputy District Attorney Nancy Lemke asked Hatch why no gun residue tests were performed after the shooting. Hatch said technology was "a lot more limited" in 1991, but he did admit a nitrate test could have been performed.

In her opening arguments Tuesday, Lemke said by failing to test for gun residue and failing to thoroughly examine the two bullets recovered, investigators missed opportunities to discover who the shooter was, saying such evidence could have helped "reconstruct the scene."

Hatch testified that getting information upon arriving at the scene was difficult, as he was only able to determine from the 23 people he interviewed there was an incident inside the house and then there was a shooting in the street.

Hatch said aside from the lights of the residences in the area, there were no streetlights, which made investigating the scene at midnight difficult as well.