People v. Gallego

• Decision Date: 20 December 1990
• Docket Number: No. S004561,S004561
• Court: California Supreme Court
• Parties: , 802 P.2d 169 The PEOPLE, Plaintiff and Respondent, v. Gerald Armond GALLEGO, Defendant and Appellant.

Page 679

276 Cal.Rptr. 679

52 Cal.3d 115, 802 P.2d 169

The PEOPLE, Plaintiff and Respondent, v. Gerald Armond GALLEGO, Defendant and Appellant.

No. S004561.

Supreme Court of California In Bank.

Dec. 20, 1990.

Rehearing Denied Feb. 27, 1991.

Roderick R. Bushnell, under appointment by the Supreme Court, Thomas Marc Litton and Bushnell, Caplan & Fielding, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Steve White and Richard B. Iglehart, Chief Asst. Attys. Gen., John H. Sugiyama, Asst. Atty. Gen., Morris Beatus, Aileen Bunney, Ronald S. Matthias, Dane R. Gillette and Christopher J. Wei, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

LUCAS, Chief Justice.

Defendant appeals from a judgment of guilt and sentence of death. A jury found him guilty of two counts each of first degree murder and kidnapping, and found he was armed with, and used, a firearm in the commission of those crimes. It also found true two special circumstances as to each killing: (i) multiple murder and (ii) murder in the commission of kidnapping.

I. Facts

After venue was moved from Sacramento County to Contra Costa County, defendant elected to represent himself at the guilt trial. The following evidence was presented.

Guilt phase

1. The prosecution case

After drinking at the Sports Room bar in Sacramento until the early morning hours of November 2, 1980, defendant told his pregnant wife, Charlene, he was "getting that feeling" and wanted her to "get [him] a girl." Charlene drove defendant in his car to a nearby shopping center where they noticed a young couple entering a car. Defendant gestured toward them, but Charlene told him, "No, that's a couple." Soon defendant noticed another couple--victims Craig Miller and his date, Mary Beth Sowers--entering their car. He ordered Charlene to stop the car, got out, and brought Miller and then Sowers to the car at gunpoint. Charlene saw Miller throw his own car keys out the window, and mentioned this to defendant. On defendant's order, Charlene got out and looked for the keys, but could not find them. The keys were found in the parking lot the next morning.

Soon thereafter Andy Beal (a friend of Miller) approached, recognized Miller and Sowers, and walked to defendant's car. Miller told Beal that he did not belong there, and swore at him, telling him to leave; Charlene slapped Beal and told him to go. Beal noted the car's license number as it left the parking lot, and immediately recounted these events to his friend Mike Wasserman, who happened on the scene as defendant's car departed.

Defendant directed Charlene to drive north toward a lake, and then ordered her to stop the car. He took Miller's wallet, and asked Sowers, "What are you doing with a bum like this?" He asked Charlene if she "wanted" Miller, and when she said, "No," defendant forced Miller to remove his shoes, ordered him out of the car, and shot him three times in the head.

Defendant entered the back seat with Sowers and told Charlene to drive to his apartment. He embraced Sowers, and told her she was going to be his "Mary Ellen tonight." As explained below, defendant's daughter's name is Mary Ellen.

At his apartment, defendant took Sowers into the bathroom and then the bedroom. Charlene heard arguing, and the sounds of a headboard hitting the wall. Thereafter defendant and Sowers emerged, and defendant told Charlene to get her coat and follow him. They put Sowers in the back of the car, tied her hands behind her back with ribbon, and drove north on a route different from the one they had taken previously that evening. Again, Charlene drove and defendant gave directions. Finally, as daylight was breaking, they stopped. Defendant took Sowers into a field and shot her three times. They drove back to defendant's apartment and on defendant's orders Charlene cleaned the car. They then drove to a park where defendant threw his gun and some of Sowers's jewelry into a river. Defendant told Charlene he loved her, that he did not want to "let her go," and that he'd never let anything happen to her. The two then went out for doughnuts.

Back in the apartment, defendant told Charlene to gather up the laundry, change the linen on the bed, and put the coat he had worn the previous night in a dumpster. They then left for the house of Mercedes Williams (Charlene's mother), and on the way discarded Miller's shoes in another dumpster.

They arrived at the Williamses' house and entered through the back door. The police had been notified by Beal of the previous night's events, and were in the living room, interviewing Charlene's parents. Defendant put the laundry bag on the back step, told Charlene to say nothing, and left. Charlene entered the house wearing a T-shirt reading "I'm the very best," which she had taken from defendant's apartment.

Charlene told the police she had been with her boyfriend (whom she called Steven Feil) at a movie the night before. While the police were interviewing her, defendant telephoned, and told Charlene to meet him at a nearby ice cream store. Charlene continued to talk with the police.

She gave conflicting accounts of which car they had driven the previous evening, and then gave the police permission to search the car that had been driven. The interior was quite clean, and the officers found nothing. When the police left, Charlene drove to meet defendant, who had decided to return to the lake area to move Miller's body. After purchasing a blanket in which to wrap the body, they drove to the lake but could not locate the body.

The police went to defendant's apartment but returned to the Williamses' home after finding no one. While there they were notified that Miller's body had been found. Additional officers were dispatched to defendant's apartment.

Defendant and Charlene returned, saw the police outside both the Williamses' home and defendant's apartment, and decided to flee. They arranged to meet the Williamses in a bar, drove to Reno, and then traveled by bus to Salt Lake City. Defendant called Mrs. Williams and told her she could find the car in Reno and should change its tires. In Salt Lake City, Charlene dyed her hair, stole a purse to establish a new identity, and asked the Williamses to send money. Thereafter the two traveled to Denver, then Pueblo, Colorado, where they obtained false birth certificates for themselves.

On defendant's direction, Charlene prepared a list of topics to discuss with her mother by phone. The list read in part as follows: "1) Lawyers fool, save money. 2) Try to gain release in any property (in) car, you have power of attorney. 3) Say nothing about anything to the police or the D.A. 4) Don't pay anything you don't have to. [This apparently referred to payments on Charlene's ring, which they had earlier pawned in Denver.] 5) Lawyer has not done anything that has been asked of him. 6) Please send money. 7) If need be, we will arrange for you to take care of the baby for awhile."

At some point, they spoke again by telephone to Charlene's parents, as well as an attorney; the Williamses and the attorney apparently balked about sending more money. Eventually defendant and Charlene went to Omaha, where they used the names Steve Calloway and Charlene Rae Bell.

They discussed several stories to tell the police if caught. In one, they would say Charlene met Sowers in a restaurant lounge at the shopping center, the four then went to a certain bar, and Miller and defendant left the bar before the women did. Alternatively, they would say they dropped Miller and Sowers at the parking lot and never saw them again.

Defendant and Charlene were arrested in Omaha when they attempted to retrieve money wired to them by the Williamses.

As noted, Miller's body had been discovered hours after the killing, on Sunday morning. He was fully clothed, but his shoes were missing. He had been shot three times in the head at point-blank range, and there was no sign of struggle. His wallet was found near the body, along with three .25-caliber Winchester Western shells.

Sowers's body was discovered three weeks later. It was badly decomposed, but it appeared that she had been fully clothed at death, and that her hands had been tied behind her back with ribbon. She had been shot twice in the head and once in the neck. Because of decomposition, it could not be determined if she had been sexually assaulted before she died. Two .25-caliber brass casings were found near the body.

Beal, Miller's friend, identified defendant in a police photographic lineup. The police conducted a warrant search of defendant's apartment, and found some .25-caliber ammunition, but no .25-caliber weapon. The ammunition was found in a partly full Winchester Western ammunition box.

The police discovered that defendant had worked as a bartender at a local bar, and had on two occasions fired his gun--a Baretta automatic--into the ceiling, and afterward patched the holes. A detective went to the bar and recovered five slugs located in the area where defendant had fired his gun. Experts determined that the recovered slugs and those from the victims' bodies were fired from the same weapon, and that the cartridge casings found near the two bodies came from the same weapon. The casings matched substantially the casings of the bullets found in defendant's apartment.

Charlene's mother, Mrs. Williams, visited defendant in jail at various times before his trial. He admitted to her that he encountered Miller and Sowers in the parking lot and that he owned the gun used in the killings. He told her his defense would be "diminished capacity," because he had taken LSD, and that he would willingly plead to second degree murder and take a sentence of 15 years "in a minute." He noted that his story had to be planned carefully, not "halfway," and that it had to be "done" with "realistic thoughts in mind." He told her, "The only thing that they could prove for fact is that it was my gun...