Robbery Lookout Case to Test Controversial Rule

Eddie Ramon Salazar had never met Willie Kirkpatrick before the night of September 17, 1983, when he agreed to accompany Kirkpatrick on a robbery of a Burbank Taco Bell.

Salazar, known as “Solo” to fellow members of the Sol Trece or Sun (Valley) 13 Latino street gang, acted as a lookout while Kirkpatrick held up the fast food restaurant at gunpoint.

While admitting that Salazar participated in the robbery, a defense attorney contends that the defendant remained outside the restaurant throughout the robbery. The defense and the prosecution agree that the 20-year-old Salazar was caught by surprise when Kirkpatrick suddenly forced two Taco Bell employees into a small closet in the rear of the restaurant and shot them execution-style, a single bullet to the back of the head.

No Witnesses

One of the victims, a 27-year-old North Hollywood man, was pronounced dead at the scene. The other, a 16-year-old high school student, died in a hospital 11 days later. They were the only witnesses to the crime.

Kirkpatrick, a 23-year-old transient and former employee of the Taco Bell restaurant, was convicted of first-degree murder in Pasadena Superior Court in June, 1984. Pasadena Superior Court Judge Coleman Swart, noting that the murders were committed during a felony robbery, later sentenced Kirkpatrick to death.

Now, in a case that could further test a controversial law known as the felony murder rule, the state also is seeking a first-degree murder conviction against Salazar, a native of Pacoima. Traceable to 16th-Century English law and observed in California since 1872, the felony murder rule holds that a felon can be prosecuted for murder if deaths result from the acts of an accomplice.

Even while acknowledging that Salazar neither intended the killings to take place nor did anything directly to cause them, the state is seeking a first-degree murder conviction on the theory that the robbery and murder were essentially one indivisible act.

Proof of Intent

In such cases, the state need not prove malice or intent to kill as required in ordinary murders, according to the district attorney’s office. Prosecutors must simply show that Salazar intended to commit the robbery that led to the killings.

In a motion submitted to the Los Angeles County Superior Court, defense attorney Donald H. Steier contends that a first-degree murder conviction for Salazar’s role in the underlying felony would result in a disproportionate sentence, thus violating the Eighth Amendment ban on cruel and unusual punishment.

In an attempt to chip away at the felony murder rule, Steier’s motion further argues that Salazar’s guilt is different from that of Kirkpatrick, who intended to kill, and to treat the two men alike would violate the principle that people are accountable only for their own acts.

Salazar, now 23, has been been held in County Jail for nearly two years awaiting trial.

In addition to two counts of first-degree murder, he is charged with two counts of robbery and one count of burglary.

“He had been nowhere near the murder but was in fact waiting for Kirkpatrick outside the premises,” Steier said in an interview. “He had no knowledge that Kirkpatrick would act so unexpectedly and was in fact shocked at the events which occurred. . . . Eddie couldn’t prevent the disaster.”

Sufficient Evidence

Prosecutors are reluctant to comment extensively on the case until transcripts from a preliminary hearing last January are formally submitted to the court. At the preliminary hearing, the court found sufficient evidence to order Salazar to stand trial. Steier said he will not contest Salazar’s role in the robbery. Salazar has not entered a plea on any of the charges.

In lieu of a trial, the defense and prosecution have agreed to allow the judge to determine Salazar’s guilt or innocence based only on the preliminary hearing transcripts and transcripts from Kirkpatrick’s trial. Defense and prosecuting attorneys say that if the judge finds Salazar guilty of the robbery, under the felony murder rule he must also find him guilty of first-degree murder. The case would then proceed to sentencing, where arguments for and against sentencing required under the felony murder rule would be heard.

If the court were to agree with Steier’s contention that the felony murder rule should not be applied and that Salazar is guilty only of voluntary manslaughter, it could impose a lesser sentence than the 25 years to life required for a felony murder conviction. Steier expects to appeal the case if the court imposes the harsher sentence for felony murder.

“We don’t think the robbery and the murder were two separate events,” Deputy Dist. Atty. Loren Naiman said. “The murder occurred during the course of the robbery. A first-degree murder conviction and a sentence under the felony murder rule are clearly justified in this case.”

Hoping to Recruit

According to court documents and interviews with Steier, Naiman and Salazar’s family, Salazar and several fellow gang members were standing outside a Pacoima housing project when Kirkpatrick drove up carrying a handgun and hoping to recruit someone to help him with a robbery.

According to court documents, Kirkpatrick, who had grown up on the streets of New York and was intrigued by Latino street gangs, told the group that he recently had been fired from the Burbank Taco Bell and that he was going that night to collect money the fast food restaurant owed him. He passed around the .22 caliber handgun to the group and promised Salazar that he could keep the weapon if he agreed to accompany him as a lookout.

Salazar, who had been paroled from the California Youth Authority a few months earlier after serving a sentence for robbery, agreed to go along. At the preliminary hearing, Salazar’s friends testified that his decision to accompany Kirkpatrick was prompted not because he wanted the handgun, but because he thought it would impress some girls gathered outside the project.

Before he left, court records show, Salazar rubbed lipstick belonging to one of the girls over a tattoo on his neck. Steier says that it was a “macho act” prompted by Salazar’s crush on the girl and that Salazar was emboldened by a drinking binge that had begun 24 hours earlier.

Obscure Identity

Naiman argues that Salazar knew fully what he was getting into and used the lipstick to hide the tattoo and obscure his identity.

“That’s a crucial fact that goes to the heart of our case,” Naiman said. “Salazar wasn’t an unwitting participant. He knew that he was going along on a robbery and things might get hairy.”

Burbank police arrested Kirkpatrick six days after the killings. Detectives refused to say what led them to him, indicating only that the arrest resulted from information developed during the investigation. Kirkpatrick never acknowledged his role in the robbery-murder.

Salazar was arrested six months later in Colorado through information provided by other sources, according to the prosecution.

A probation officer’s report filed as part of the court record states that Salazar has a history of paint sniffing and alcohol, marijuana and PCP abuse. His juvenile record includes a conviction for a 1980 robbery and assault with a deadly weapon.

Steier said Salazar’s good employment record--he was working full time as a stock boy at the time of the robbery--his drunken state and the fact that he had never met Kirkpatrick and was unaware of his potential for violence mitigate against a sentence for first-degree murder.

‘Not a Hardened Criminal’

“All these facts point to a defendant who is not a hardened criminal who poses a grave threat to society,” Steier said. “To find him guilty of first-degree murder and impose the requisite sentence would be excessive and unconstitutional.”

In recent years, the felony murder rule has been increasingly attacked as inflexible and failing to consider the full circumstances of a crime and the intent of the offender.

Critics say it is one of the few areas of criminal law where a defendant can be punished solely for the consequences of a crime without regard to intent or direct action. John Kaplan, a Stanford University Law School professor who teaches criminal law, said the felony murder rule grew out of the “primitive morality that ‘you get what you deserve.’ ”

“A kid plays with a vase and he breaks it. He never intended to break it, but nonetheless his parents are going to punish him for breaking it and tell him he shouldn’t have been playing with it in the first place,” Kaplan said.

Crime Deterrent

Kaplan said that lawmakers and the public support the felony murder rule in the belief that it serves as a deterrent to crime. “It doesn’t make any sense, but the public overwhelmingly wants it. As a consequence, we are stuck with a rule in which we’re going to get these bizarre and unfair applications.”

In Hawaii and Kentucky, legislators cited widespread discontent with the rule before abolishing it in the mid-1970s. Ten other states have restricted its application and now require a showing of intent above and beyond the mere intent to commit the underlying felony.

In 1982, the U.S. Supreme Court disallowed the death penalty in first-degree murder convictions resulting from the felony murder rule. The court ruled that the imposition of the death penalty for Earl Enmund, a Florida man who acted as a lookout during a 1975 robbery-murder, would be inconsistent with the 8th and 14th amendments.

The California Supreme Court made a similar ruling and has repeatedly criticized the law as unfair. But the court has refused to abolish the rule, saying that such a task was the province of the Legislature.

Inconsistent Interpretation

Phil Johnson, a criminal law professor at Boalt Hall at the University of California at Berkeley, said the state high court has been inconsistent in its interpretation of the felony murder rule.

“There are a lot of statements by the California Supreme Court that say the felony murder rule is overbroad and anomalous,” Johnson said. “On the other hand, there are decisions by the same court that construe it broadly and refuse to restrict it even to the extent that it’s been restricted in other states.

“To try to make sense of California case law with regard to the felony murder rule is extremely difficult.”

Because the facts in the Salazar case conform to the Enmund case, Steier said he hopes to extend the U.S. Supreme Court’s decision against the felony murder rule beyond death penalty situations.

“Salazar did not kill or intend to kill and thus his guilt is plainly different from that of Kirkpatrick,” Steier said. “For the state to treat the two men the same is simply unfair.”

Ramon Salazar, the defendant’s father, agreed. “If Eddie was involved in the robbery, then the case should be about robbery, not murder. He shouldn’t be punished for a crime he didn’t do.”