GREENBRAE (CBS SF) — A homeowner who police say survived being shot in the jaw during a burglary has received startling news: The burglary suspect sued him for returning fire.

The Marin Independent Journal reported Wednesday that Samuel Cutrufelli filed the suit claiming 90-year-old Jay Leone negligently shot him.

Cutrufelli is charged with two counts of attempted murder after Leone was shot in the face on Jan. 3. Police said Cutrufelli was wounded when Leone returned fire.

Leone has vowed to countersue. In an exclusive January interview at his bedside at Marin General Hospital, Leone told CBS 5 he had to outwit the burglar who held him captive at gunpoint.

According to Leone, the incident began when Cutrufelli kicked in the door, Leone said he was ordered not to move as the house was scoured for valuables. But after awhile, Leone insisted that he had to use the bathroom, and convinced his captor to let him go.

It was all a ruse. Leone had a .357 revolver stashed in the bathroom of the home on the 300 block of Via La Cumbre. He grabbed it and ran back and pointed it at the burglar.

The burglar fired once, hitting Leone in the cheek.

“He opened up on me,” said Leone. “He got me on the first shot.”

But Leone, a former Marin County Sheriff’s deputy, paused before returning fire. The gunman begged for his life, but Leone emptied his weapon anyway.

“After he shot me, I looked him straight in the eye,” said Leone. “He says, ‘Don’t kill me. Don’t kill me… I’ve got a daughter!’ I said, ‘f- you … pow, pow, pow, pow!’”

The ordeal wasn’t over. Three of those shots hit their mark, still the gunman rushed Leone and tried to shoot the 90-year-old with his own weapon.

“Sure enough, he wrestled me to the floor, put the gun to my head, pulled the trigger, and it went, ‘click,’” Leone said. “And then he got all panicky. He ran out the door.”

Greenbrae shooting victim Jay Leone. (Facebook)

Shortly after the incident, Cutrufelli called San Rafael police saying that he had shot himself, and was in the area of Tiburon Boulevard and Altena Street in San Rafael, about a mile from where the shooting occurred. He was also taken to Marin General Hospital for treatment.

Cutrufelli was arrested on suspicion of burglary and attempted murder.

According to the Marin Independent Journal, Cutrufelli had a prior criminal record, including a 2001 attempted murder charge after stabbing a Novato pedestrian who complained about nearly being hit in a crosswalk. He pleaded guilty to assault with a deadly weapon and received a six-year prison sentence.

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