Convicted killer given lesser sentence under old guidelines

By Matt Pordum (contact)

Wednesday, Nov. 24, 2004 | 9:02 a.m.

A man convicted of second-degree murder with use of a deadly weapon for the killing of a 21-year-old man received a minimum sentence Tuesday that is only half of current guidelines.

District Judge Michael Cherry sentenced 38-year-old Erasmo Pena to 10 years to life in prison for killing Marcos Valenzuela outside a party. The catch is that the fatal shooting occurred 13 years ago, so Cherry had to follow the sentencing guidelines that were in place at the time.

Chief Deputy District Attorney Ed Kane noted that the sentencing guidelines "changed in the mid-1990s."

"If this happened after the change, he (Pena) would be facing 20 years to life." Kane said. "I'm sorry that it's the old law, but I feel the judge did the right thing under the old law."

A warrant for Erasmo Pena's arrest was issued days after the November 1991 slaying, but after Pena saw his photograph on television news in connection with the death, he fled to his native El Salvador.

Pena returned to the United States about 2001, but wasn't taken into custody until the end of 2002 after a run-in with the law in California.

With no gun ever recovered and no forensic evidence linking Pena to the crime, the prosecution's case against Pena relied almost entirely on the testimony of four witnesses who were with Marcos Valenzuela as he drove away from a birthday party in the 6100 block of Westwind Road, which 13 years ago was a rural area with no paved roads or streetlights.

Marcos Valenzuela's girlfriend, Emma Garcia, and his brother, Manuel Valenzuela, testified that Pena confronted Marcos Valenzuela inside the party and put a gun to his forehead. After the party broke up, Garcia and Manuel Valenzuela testified, Pena ran out the back door, and as they drove away from the party, Pena was waiting for them and fired six shots at Marcos Valenzuela's car.

During the trial the defense challenged the validity of the eyewitness accounts of the murder and whether investigators did their due diligence in handling the case.

The defense argued that the eyewitness accounts didn't match the theory investigators set forth to explain how Valenzuela was shot. Investigators said the crime occurred as Marcos Valenzuela backed his car out of the driveway, while Garcia and Manuel Valenzuela said it didn't happen until they were a half a block away from the house.

Additionally, the defense lawyers highlighted the fact that while Garcia testified Pena jumped in front of the car and opened fire, none of the bullets went through the windshield of the vehicle.

Defense attorneys argued that 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 because such evidence could have helped reconstruct the scene.