Alberto Alvarez is either a violent, ruthless executioner or a victim of excessive police force, prosecution and defense attorneys said in starkly different opening statements at Alvarez's murder trial Monday in a San Mateo County courtroom.
Prosecutors launched the trial with an emotional punch Monday morning: They played 911 recordings and showed photos of slain East Palo Police Officer Richard May to the jury and a packed courtroom audience.
Alvarez, 26, is charged with murder with special circumstances -- killing an on-duty police officer -- and possession of a firearm as a convicted felon for the Jan. 7, 2006, slaying of May.
May was killed by a shot to the face, allegedly after chasing Alvarez, whom witnesses reported had engaged in a brawl with another man at the nearby Villa Taqueria at 2380 Cooley Ave.
Steve Wagstaffe, San Mateo County chief deputy district attorney, told jurors that Alvarez shot May three times -- twice into his bullet-proof vest and once in the shoulder -- before walking over the dazed officer lying on his back in a Weeks Street driveway and executing him with a fourth, point-blank shot to the face.
Wagstaffe said the coroner determined the other three shots had not been life threatening.
Alvarez knew he had a choice to make: submit to Officer May and face prison for being a convicted felon in possession of a firearm or shoot his way out, Wagstaffe said.
"He made the horrible choice to shoot his way out. Even when he put the officer down on his back, dazed, he goes up and fires again," Wagstaffe said.
Alvarez, looking pallid and thin and wearing a light-blue shirt in court Monday, stared blankly at Wagstaffe throughout most of his opening statement, which lasted about an hour. Many in the courtroom, however, shed tears.
There is no dispute that Alvarez shot and killed May, lead defense attorney Charles Robinson said in his opening statement Monday afternoon. But he acted in self-defense against excessive and unlawful police force employed by May, he said.
Robinson argued for a charge of second-degree murder or voluntary manslaughter. Or, he said, it could have been self-defense. There was no special circumstance because May was not acting in his lawful capacity as a police officer, Robinson said.
Alvarez fled from May but at no point did he make any threatening gestures or reveal his concealed weapon till May struck him twice from behind on his right arm with a retractable ASP baton in a driveway on Weeks Street, Robinson said.
Under East Palo Alto Police Department guidelines, a baton should only be used as a defensive weapon. By striking Alvarez from behind, May used excessive and illegal force, Robinson said.
After he was struck, Alvarez fled toward the garage door by squeezing sideways between two vehicles parked on the driveway. May shot and hit him in the right thigh, Robinson said.
The defense aims to prove that May fired at Alvarez first. Robinson said Alvarez then returned fire and shot May in the face -- the lethal shot that killed him.
Wagstaffe earlier said Alvarez "executed" May by standing over him and firing a final, fatal shot into his face while the wounded officer was lying on his back, floored by three earlier shots.
"There's no question in our mind that there was no execution," Robinson said. "Alberto Alvarez was chased, beaten and shot at for no reason, and he responded to that and that alone."
Robinson further said the bullet that struck May in the face "came in at a slightly downward angle toward his spinal cord," and that shot could not have been fired by someone standing over May, who was on the ground.
Meanwhile, the two bullets that hit May in the chest were fired "at a steep angle" in relation to May's body, likely by someone standing over him, Robinson said.
The court heard testimony from three witnesses: East Palo Alto Police Chief Ronald Davis, Villa Taqueria co-owner Marcia Velasquez and Joal Chavez, who was in the restaurant with his family when the fight happened.
Velasquez said Alvarez was eating in Villa Taqueria when a young man came to the door and began shouting at Alvarez at around 4:30 p.m. An older man who stayed outside the restaurant accompanied him, she said.
She called 911 after Alvarez and the individual began pushing and fighting. That individual pushed Alvarez first, she said.
Chavez, who has known Alvarez since the latter was little and calls him "nephew" though they are not related by blood, also testified that Alvarez was pushed first. However, he said both men entered the restaurant and flanked Alvarez while he was seated. Alvarez and the other two individuals left the restaurant after Velasquez dialed 911.
The defense aims to prove Alvarez was not the aggressor in this entire case, even in the restaurant, Robinson said.
The prosecution is scheduled to present four witnesses today (Tuesday) at the courtroom of San Mateo County Superior Court Judge Craig Parsons: the teenage police Explorer who was riding in the patrol car with May the day of the shooting, two dispatchers and another customer at the taqueria.
Alvarez remains in custody on no-bail status. The trial will not be in session Wednesday, Thursday or Friday.