People v. Welch

GIBSON, C. J.

Defendant pled guilty to robbery and to the murder of Rosalie Hettriek and Salvatore Testa, and stipulated personally and through his attorney that each of the offenses of murder was murder in the first degree. A jury trial on the issue of penalty was waived by defendant and his attorney, and after hearing evidence the court sentenced defendant to prison for the term prescribed by law on the robbery charge and imposed the death penalty on the murder charges. This appeal is automatic. (Pen. Code, § 1239, subd. (b).)

During the summer of 1961 defendant worked at odd jobs in the Apple Valley area in San Bernardino County and in August was temporarily employed as a handyman at the Black Horse Motel. While so employed he was living at the home of a woman for whom he had formerly worked, and on the morning of August 9 (the day of the murder) he borrowed a truck from her to drive to the motel. Sometime during the morning he purchased four quarts of beer, which he put into an icebox in an empty room. He gave two of the bottles to an employee of the motel and drank about a quart and a half himself. He then searched the owner’s apartment for money with which to buy more beer. He stole approximately three dollars and purchased a six-can pack of beer. During the remainder of the morning and the early part of the afternoon he continued drinking beer. Later in the afternoon he returned to the owner’s apartment and stole a .22-caliber pistol which he said he intended to sell. Prom the motel he went to the Wild Stallion Café which was located nearby.

Three persons were in the café when he entered: Rosalie Hettriek, Salvatore Testa, and an unknown elderly man. Testa was seated at the counter eating a sandwich, and Mrs. Hettriek, the barmaid, was seated in back of the counter talking to Testa. Defendant ordered a glass of beer, and after drinking about half of it he went to the men’s restroom, When

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he came out, the older man had left the café. Defendant testified that he then decided to “rob the place” in order to finance a trip to Detroit, where he formerly lived. (He told police officers that he made this decision when he entered the café.) He drew the gun from his belt and pointed it at the two victims, telling them, “This is a stick-up. Don’t move and you won’t be hurt.” Defendant then removed the money from the cash register and ordered Testa to give him his money. Testa pushed some money along the counter, saying, “This is all I’ve got.” Testa appeared to be rising from his stool, and defendant, thinking that Testa was moving toward him, pointed the gun at Testa and fired. As Mrs. Hettriek started to move he shot her. He went back to the Black Horse Motel where he had parked the borrowed truck and drove out State Highway 18 toward Barstow. He had driven several miles when he began to have trouble with the motor of the truck, and eventually the motor stopped. He abandoned the truck and hitchhiked to Las Vegas, where he was arrested a short time later.