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Alvarez case: 'Evil killer' sentenced to death

Superior Court judge called shooting of police Officer Richard May 'particularly savage and brutal'

Convicted cop-killer Alberto Alvarez showed little emotion in a packed Redwood City courtroom Monday morning as a judge handed him a death sentence for the Jan. 7, 2006, murder of East Palo Alto police Officer Richard May.

Surrounded by four sheriff's deputies, Alvarez, 26, looked squarely at San Mateo County Superior Court Judge Craig L. Parsons as the sentence was read, biting his lower lip and raising his eyes toward the ceiling only once as the weight of the sentence appeared to sink in.

It took Parsons an hour to spell out his reasons for imposing the sentence. He called the officer's murder "particularly savage and brutal."

"There was no moral justification ... for the defendant's conduct," Parsons said, rejecting defense arguments that Alvarez shot the officer under duress.

There were no extenuating circumstances in Alvarez's childhood, no mental illness and no cognitive impairment that would allow for a lesser sentence of life without the possibility of parole, Parsons said.

Jurors had voted to recommend the death penalty for Alvarez on Dec. 22, having convicted the drug dealer and former gang member of first-degree murder with special circumstances on Nov. 25, just before Thanksgiving.

Many jurors said after the trial they voted for death because Alvarez never showed any remorse during the trial.

Alvarez shot and killed May during a gun battle in a residential Weeks Street driveway. May had pursued Alvarez after being dispatched to the nearby Villa Taqueria to investigate a fight in which Alvarez was involved.

Alvarez had claimed he acted in self defense after the officer struck him from behind with a baton and shot Alvarez once in the leg. But prosecutors said Alvarez fired the first shot, felling May. Alvarez then deliberately shot the incapacitated officer twice, including the fatal shot into May's face as the officer hid behind his hands in a futile attempt to protect himself, prosecutors said.

Parsons, a 20-year veteran of the San Mateo County bench, rejected a defense motion for a new trial and a motion to reduce the sentence to life in prison without possibility of parole.

Alvarez's two past felony convictions and two assaults on inmates while incarcerated prior to trial figured into the sentencing, Parsons said.

One felony conviction stemmed from an August 2003 arrest for possession of a concealed firearm. During that incident, he brandished a firearm and threatened to kill a security guard outside the PAL Market in East Palo Alto after being told he could not loiter on the property.

After his release, he was told by two parole officers that he would return to prison if caught with a firearm, Parsons said. Alvarez's decision to shoot May was based "exclusively on a selfish desire" to avoid prison. The evidence shows the act "demonstrates extreme and gratuitous violence," Parsons said.

Firing into May's chest and face was premeditated and deliberate, Parsons said. Alvarez chose to carry a gun in violation of the law and not to submit to a lawful stop by an officer. He chose to shoot the officer, then hide behind the vehicles in the driveway.

Instead of escaping, Alvarez chose to walk down between the vehicles and toward where May lay wounded, firing two additional shots into the officer, Parsons said.

As Parsons read the sentence, Alvarez's mother sat crumpled and weeping in the courtroom gallery. The faces of other family members contorted with emotion.

Mixed emotions -- joy, sorrow and anger -- rippled through May's family, including his wife, Diana May; sister, Tami McMillan; mother, Clarice Merrill; stepfather, Frank Merrill; and father Rick May. They said they were grateful for the verdict and sentence.

"It's been 49 months now," Rick May said in final remarks to the judge. The one thing he had to look forward to in the last five months was this final day of sentencing, he said.

May's stepfather, Frank Merrill, echoed May's sentiments.

"This Thanksgiving was the first time I saw my granddaughters smile" after the verdict in November, he said.

May's wife, Diana, struggled to keep her voice from trembling.

"The man I expected to live with the rest of my life is gone forever. Rich was a very fine and gentle man," she told the court. "I am sickened when I think of what my husband was going through," looking through his fingers and knowing those were the last moments of his life and that he would not see his family again, she said.

"Alberto Alvarez took it upon himself to be (May's) executioner. He is an evil killer. He has shown absolutely no remorse. ... Therefore, he should receive the same -- death," she said, looking directly at Alvarez.

Asked by Judge Parsons if he wished to make any comment, Alvarez quietly declined through his attorney, Charles Robinson.

Steve Wagstaffe, senior deputy district attorney, said that some might argue against the death penalty, labeling it symbolic because of the length of time it takes to carry out the sentence. But the death penalty sends a warning, he said: When someone executes a person sworn to protect the community "it will merit the maximum outcome" society can give.

Alvarez's father, Leopoldo Alvarez, said outside the courtroom his son did not receive a fair trial. Issues about May's past while at the Lompoc Police Department and a 2003 domestic violence arrest for an alleged threat made to May's ex-wife during a dispute were not allowed by the court.

"Why don't they let them bring up the bad things and not only the good things?" he said.

Court records show a restraining order against May was ultimately denied and charges of abuse were never filed. Parsons said the 2003 incident was the subject of a pretrial motion that was ruled inadmissible, "irrelevant and unduly prejudicial." At least two judges also ruled against admission of May's Lompoc and East Palo Alto personnel files, he said.

Parsons also defended his decision to allow 15 witnesses during the witness impact portion of the trial. Defense attorneys Charles Robinson and Eric Liberman argued the court had erred by allowing too many family, friends and police officers to speak. But Parsons said the original list had been whittled down from 27 potential speakers and covered a cross section of categories of persons impacted by the murder.

Alvarez faces 25 to 30 years on California's death row before all of his appeals are exhausted prior to execution. An appeal is automatic under state law.

Diana May said the long wait does not bother her, since Alvarez faces a tough life as a death-row inmate away from the regular prison population. Every day he will spend 23 hours a day in his cell, she said.

Eric Liberman, one of Alvarez's attorneys, said he was hopeful Parsons would set aside the jury's decision but had no such expectation. He did not expect the judge would grant a motion for a new trial, he added.

"We do believe errors were made at the trial, and they were significant errors. As the years go by, the California Supreme Court will address these issues and will decide whether they were errors and how significant those errors were or were not," he said.

He and Robinson will not represent Alvarez on appeal. The law calls for assigning different appellate attorneys to impartially review the case, he said.

Alvarez will be transferred to San Quentin Prison within 10 days and must make $75,114.16 in restitution to May's family through the Victims' Compensation and Government Claims Board with future amounts to be determined, Parsons said. A weapons charge on which he was also convicted will be stayed since he is on death row, to be vacated after his death.

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