DEPUTY CAN'T CONFIRM STYLE OF SHOOTING; OFFICER UNSURE OF GUNFIRE PAUSE.

Byline: Jesse Hiestand Daily News Staff Writer

In testimony at a capital murder trial Thursday, a Ventura County sheriff's deputy failed to resolve the key question of whether a fellow deputy was slain execution-style last summer in Ojai.

Deputy James Fryhoff said he was unsure how many shots were fired or if there was a pause in the shooting as defendant Michael Raymond Johnson fatally shot Deputy Peter Aguirre in the home of Johnson's wife July 17, 1996.

Prosecutors have told jurors that Johnson fired three shots, two of which hit Aguirre, before walking up to the wounded deputy and finishing him off with a fourth shot to the head.

Defense attorneys, who have conceded that their client killed Aguirre, insist Johnson fired four shots in rapid succession and say there was no attempt to execute the fallen deputy, who never got his gun out of its holster.

Fryhoff testified that he heard three to four shots fired inside the Encinal Avenue home but could not remember the cadence of the ``pow, pow, pow.''

What was certain, he said, was how startling it was to hear gunfire on what was expected to be a routine domestic disturbance call he went to with his partner, Deputy Dave Sparks.

``We both just stopped immediately and couldn't believe it was happening,'' Fryhoff said. ``It didn't sound like gunshots (do) at the range. It was like a cap gun.''

Prosecutors say Johnson opened fire on Aguirre with a .45-caliber handgun in a desperate attempt to avoid a possible ``three strikes, you're out'' life sentence for kidnapping his wife at gunpoint earlier that day.

As soon as the shots rang out, Fryhoff said he retreated to the side of the house, where he made eye contact with Johnson through a window.

Fryhoff said he then moved to the front of the house to head off the fleeing suspect.

``Just as I came around the corner of the tree, (Johnson) raised his arms up and began shooting at me,'' he said. ``I could hear the bullets flying past me.''

Fryhoff said he returned fire and then took cover behind a large oak tree about 40 feet from the suspect.

``Once I got behind the tree I heard another volley of shots come from where the suspect was,'' he said.

The deputy said he peeked around the tree and saw Johnson lying on his back, both arms held straight up.

Fryhoff said he handcuffed the suspect, who had been shot in the chest.

In the confusion during and after the gunbattle, Fryhoff said he did not notice that Johnson had been naked the entire time. ``Somebody later told me he wasn't'' wearing clothes, he said.