People v. Fierro, No. 25699

CourtUnited States State Supreme Court (California)
Writing for the CourtARABIAN; LUCAS; MOSK; KENNARD
Citation821 P.2d 1302,1 Cal.4th 173,3 Cal.Rptr.2d 426
Parties, 821 P.2d 1302 The PEOPLE, Plaintiff and Respondent, v. David Rey FIERRO, Defendant and Appellant. S004726. Crim.
Docket NumberNo. 25699
Decision Date26 December 1991

Page 426

3 Cal.Rptr.2d 426
1 Cal.4th 173, 821 P.2d 1302
The PEOPLE, Plaintiff and Respondent,
v.
David Rey FIERRO, Defendant and Appellant.
S004726.
Crim. No. 25699.
Supreme Court of California,
In Bank.
Dec. 26, 1991.
Rehearing Denied Feb. 19, 1992.

Page 432

[1 Cal.4th 199] [821 P.2d 1308] James S. Thomson, Sacramento, under appointment by the Supreme Court, and Michael Laurence, San Francisco, for defendant and appellant.

John K. Van de Kamp, and Daniel E. Lungren, Attys. Gen., Sacramento, Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Asst. Atty. Gen., Louis R. Hanoian and Lilia E. Garcia, Deputy Attys. Gen., San Diego, for plaintiff and respondent.

[1 Cal.4th 200] ARABIAN, Justice.

Defendant David Rey Fierro was convicted by a jury of first degree murder (Pen.Code, § 187) 1 and two counts of robbery (§ 211). The jury found true the special circumstance allegation that the murder was committed during the perpetration of a robbery (§ 190.2, subd. (a)(17)(i)), and also returned a special finding that defendant shot and killed the victim. As to each

Page 433

[821 P.2d 1309] count the jury also found that defendant used a firearm to commit the offense. (§ 12022.5.) The jury fixed the penalty at death. This appeal is automatic. (§ 1239, subd. (b).)

I. FACTS

A. Guilt Phase Evidence

1. The Prosecution

On the evening of January 6, 1985, Sam Allessie was robbed and murdered in front of the small grocery store which he owned with his wife, Trudy, in Glen Avon. Defendant, who was on parole for burglary, was arrested two days later. He was linked to the crimes by eyewitness identifications, fingerprints which he left on the victim's truck, bloodstains in his car, and money from the robbery found in his wallet. As recounted at trial, the facts of this tragic episode unfolded as follows.

About 6 p.m. on the evening in question, Sam and Trudy Allessie were preparing to close their store for the night. As was their custom on Sunday evenings, they planned to deposit the day's receipts in the night slot of their bank and then go to dinner. Trudy had placed in her purse approximately $4,000, comprised of checks, money orders and about $1,000 in cash. The cash was in $50 and $100 denominations. Trudy observed Sam look into his wallet, which he carried in his back pants pocket, for money to pay for dinner.

They left through the front doors of the market and approached Sam's pickup truck. Sam opened the passenger door for Trudy and circled around the back of the truck to the driver's side. As Trudy lost sight of Sam, she heard loud talking from the rear of the truck. Suddenly she saw a "kid" trying to unlock the driver's door with Sam's keys. She became scared and heard Sam holler, "Watch your purse, honey." Trudy opened her door to join her husband and at that moment was confronted by the same "kid" she had seen moments earlier. He demanded money. Trudy responded, "All right, all [1 Cal.4th 201] right," and opened her purse and handed him a bundle of currency. He then grabbed the purse and ran toward the rear of the truck, out of view.

Trudy thereupon started out of the truck and heard a shot. 2 Running to the front of the store she found Sam on the ground, bleeding. As she screamed for help, a light colored car sped out of the parking lot and turned onto Mission Boulevard toward the freeway.

About the time the Allessies were closing the store, Robert Gonzales was in a telephone booth outside the market talking to his girlfriend. Gonzales heard a gunshot and saw a man with a gun. Several seconds later, he observed the man fire a second shot and then run toward a yellow Pacer. As Gonzales took cover, he saw a figure enter the Pacer, which raced away in the direction of the freeway.

That same evening, Carol DiCenso and her husband, Antonio, were driving on Mission Boulevard in the area of Trudy's Market. Carol was in the rear passenger seat. As they approached the market, Carol observed three men standing in a group; one was dressed in a white, short-sleeved T-shirt; the man in the center, Sam Allessie, was dressed in dark clothing; the man to Sam's left was dressed in a black sleeveless tank-top shirt. As the DiCensos' car drove past, Carol saw and heard a gunshot blast fired by the man in the white T-shirt. Sam Allessie slumped to his knees and fell over. Seconds later, the man in the white T-shirt straddled the fallen body, stretched out his arm, and fired another shot into the victim.

Carol DiCenso then observed the man in the white T-shirt bend over, put his arms around the victim in a "hugging" type motion and reach underneath him. In the meantime, the other man in the dark shirt, who had been standing nearby, started to run away. The shooter followed, running toward a car which had its lights on. Moments later, Benita Watson, who was a passenger in another car travelling down

Page 434

[821 P.2d 1310] Mission Boulevard, noticed a light colored AMC Pacer with a chrome luggage rack travelling in the same direction. Ms. Watson heard a woman scream and heard shouts to "follow that car." The Pacer then accelerated and pulled away.

Sam was dead when the police arrived at the scene. His car keys and wallet were missing. Blood spots and a bloody shoe print were observed leading away from the body. Based on the descriptions of the assailant and the getaway car and conversations with local law enforcement officers, Sergeant Turley of the Riverside Sheriff's Department focused on defendant [1 Cal.4th 202] as a possible suspect. Within several days, it was discovered that four fingerprints lifted from Sam Allessie's truck matched defendant's fingerprints. Shortly thereafter, defendant was detained and taken into custody. When he was stopped, he was driving an AMC Pacer with a luggage roof rack. His girlfriend, Laura Garcia (hereafter Laura Fierro), 3 and a small child were passengers in the car. A search of Laura Fierro's purse at the station disclosed a man's wallet containing defendant's driver's license. The wallet contained $650 in cash, comprised of four $100 bills and five $50 bills.

Several weeks later, Mrs. Allessie identified defendant from both a photographic and a live lineup. At trial, she identified defendant as the man who had robbed her. Robert Gonzales also picked defendant from a photographic lineup. 4 Although Carol DiCenso could not identify the man she saw that evening, her description of the shooter as wearing a light colored T-shirt matched Mrs. Allessie's description of defendant.

A search of Laura Fierro's house, where defendant lived, revealed several white short-sleeved T-shirts and a pink slip for the Pacer signed by defendant. Human blood was found on the sole of one of defendant's shoes. Testing could only determine that it was human blood. A search of defendant's Pacer revealed dried blood in the area of the front passenger door. Testing determined that it was not that of defendant but was consistent with the blood of Sam Allessie.

An autopsy disclosed that the victim died of two gunshot wounds to the chest. One wound was consistent with having been fired from a distance of up to 12 inches while the victim was standing, allowing the bullet to exit through the back. The other was a larger "contact" wound, meaning the muzzle of the gun was in contact with the victim's clothes. The nature and size of the entry wound, the bullet's trajectory, the crush-type injuries to the back and the piece of bullet lodged in the back all indicated that the victim was lying on the ground when the shot was fired. Dr. Hunter, who performed the autopsy, determined that the smaller wound was inflicted first, and that the larger "contact" wound was inflicted shortly thereafter. Either wound would have been fatal.

2. The Defense

The defense called several witnesses to show that a person other than defendant was seen leaving the scene after the shooting. Hubert Joubert, who lived across the street from Trudy's Market, testified that he saw a Mexican [1 Cal.4th 203] male wearing some sort of checkered jacket walking away from the scene shortly after the shooting. When this individual was a block away he "took off running." Joubert also stated that he saw two cars driving away from the scene on Mission Boulevard. Lori James, who also lived near the market, stated that she heard two gunshots and saw two men running from the scene; one of them had on a white T-shirt; she did not see the other because he had entered a yellow Pacer. The man in the T-shirt entered the passenger side of the car. Charles Dickey, who was driving his tow truck on Mission Boulevard, observed a Pacer similar to defendant's but with a different license plate.

Defendant also called several deputy sheriffs who spoke with Trudy Allessie shortly after the crimes; defendant attempted

Page 435

[821 P.2d 1311] to impeach Mrs. Allessie's trial testimony with prior inconsistent statements as to precisely when and where she heard the two shots, and the manner in which the robber took her purse.

Defendant also called two expert witnesses. David Duncan testified that the lack of damage to the bullet recovered from the victim's back indicated that it had been fired while the victim was standing, rather than lying on the ground. Jules Slaick testified as to various distances at the crime scene and the location of light fixtures.

Defendant did not testify at the guilt phase of trial.

B. Penalty Phase Evidence

The prosecution presented evidence of defendant's prior violent conduct in connection with a 1982 burglary conviction. The victim of the burglary, Tim Deno, recounted the circumstances of the crime. Defendant stipulated that he pled guilty to burglary with use of a deadly weapon.

In mitigation, defendant testified in his own behalf, denying that he shot and killed Sam Allessie. Six members of defendant's family also testified as to defendant's poor relationship with his father, his participation in Little League...

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455 practice notes
  • State v. Williams, Docket No. 44300
    • United States
    • Idaho Court of Appeals
    • January 11, 2018
    ...invites this Court to follow California precedent, which held that shackles may not be used in pretrial proceedings. People v. Fierro , 1 Cal.4th 173, 3 Cal.Rptr.2d 426, 821 P.2d 1302 (1991). We decline to do so. In Fierro , the court held that shackles could not be used in the pretrial pro......
  • People v. Lara, No. F031900.
    • United States
    • California Court of Appeals
    • January 10, 2001
    ...P.2d 423] ...; see also People v. Marsden (1970) 2 Cal.3d at 118, 124-125[ 84 Cal.Rptr. 156, 465 P.2d 44] ....)" (People v. Fierro (1991) 1 Cal.4th 173, 204, 3 Cal.Rptr.2d 426, 821 P.2d 1302; People v. Hart (1999) 20 Cal.4th 546, 603, 85 Cal.Rptr.2d 132, 976 P.2d 683.) The trial court is no......
  • People v. Ledesma, No. S014394.
    • United States
    • United States State Supreme Court (California)
    • August 17, 2006
    ...by the prosecutor's misconduct. (People v. Medina, supra, 11 Cal.4th 694, 761, 47 Cal.Rptr.2d 165, 906 P.2d 2; People v. Fierro (1991) 1 Cal.4th 173, 211, 3 Cal.Rptr.2d 426, 821 P.2d 1302; People v. Ratliff (1986) 41 Cal.3d 675, 690, 224 Cal.Rptr. 705, 715 P.2d During the prosecutor's argum......
  • People v. Martinez, No. S032832.
    • United States
    • United States State Supreme Court (California)
    • August 18, 2003
    ...occurred here. (See People v. Hines (1997) 15 Cal.4th 997, 1072-1074, 64 Cal.Rptr.2d 594, 938 P.2d 388; People v. Fierro (1991) 1 Cal.4th 173, 244-248, 3 Cal.Rptr.2d 426, 821 P.2d 1302.) As previously noted, the court's explanation did not posit the possibility of a politically engendered c......
  • Request a trial to view additional results
455 cases
  • State v. Williams, Docket No. 44300
    • United States
    • Idaho Court of Appeals
    • January 11, 2018
    ...invites this Court to follow California precedent, which held that shackles may not be used in pretrial proceedings. People v. Fierro , 1 Cal.4th 173, 3 Cal.Rptr.2d 426, 821 P.2d 1302 (1991). We decline to do so. In Fierro , the court held that shackles could not be used in the pretrial pro......
  • People v. Lara, No. F031900.
    • United States
    • California Court of Appeals
    • January 10, 2001
    ...P.2d 423] ...; see also People v. Marsden (1970) 2 Cal.3d at 118, 124-125[ 84 Cal.Rptr. 156, 465 P.2d 44] ....)" (People v. Fierro (1991) 1 Cal.4th 173, 204, 3 Cal.Rptr.2d 426, 821 P.2d 1302; People v. Hart (1999) 20 Cal.4th 546, 603, 85 Cal.Rptr.2d 132, 976 P.2d 683.) The trial court is no......
  • People v. Ledesma, No. S014394.
    • United States
    • United States State Supreme Court (California)
    • August 17, 2006
    ...by the prosecutor's misconduct. (People v. Medina, supra, 11 Cal.4th 694, 761, 47 Cal.Rptr.2d 165, 906 P.2d 2; People v. Fierro (1991) 1 Cal.4th 173, 211, 3 Cal.Rptr.2d 426, 821 P.2d 1302; People v. Ratliff (1986) 41 Cal.3d 675, 690, 224 Cal.Rptr. 705, 715 P.2d During the prosecutor's argum......
  • People v. Martinez, No. S032832.
    • United States
    • United States State Supreme Court (California)
    • August 18, 2003
    ...occurred here. (See People v. Hines (1997) 15 Cal.4th 997, 1072-1074, 64 Cal.Rptr.2d 594, 938 P.2d 388; People v. Fierro (1991) 1 Cal.4th 173, 244-248, 3 Cal.Rptr.2d 426, 821 P.2d 1302.) As previously noted, the court's explanation did not posit the possibility of a politically engendered c......
  • Request a trial to view additional results
1 books & journal articles
  • Victim Character Evidence in Death Penalty Cases
    • United States
    • Criminal Justice Review Nbr. 34-4, December 2009
    • December 1, 2009
    ...v. State, 983 S.W.2d 249 (1998).McClesky v. Zant, 580 F. Supp. 338 (1984).People v. Edwards, 54 Cal.3d 787 (1991).People v. Fier ro, 1 Cal. 4th 173 (1991).People v. Kelly, 42 Cal. 4th 763 (2007).People v. Pollock, 32 Cal.4th 1153 (2004).People v. Prince, 40 Cal. 4th 1179 (2007).People v. Za......

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