Defendant’s Role on Deadly Night at Issue in Key Legal Test

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

Salazar, known as “Solo” to fellow members of Sol Trece, a street gang in Sun Valley, 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. The defense and the prosecution agree that 20-year-old Salazar, of Pacoima, was caught by surprise when Kirkpatrick suddenly forced two Taco Bell employees into a small closet in the back of the restaurant and shot them execution-style, with a bullet to the back of the head.

No Witnesses

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

Kirkpatrick, 23, a transient and former employee of the restaurant, was convicted of first-degree murder in Pasadena Superior Court in June, 1984. Pasadena Superior Court Judge Coleman A. Swart, noting that the murders were committed during a robbery, a special circumstance that allows the death penalty, sentenced Kirkpatrick to the gas chamber.

Now, in a case that could further test the controversial felony murder rule, the state also is seeking a first-degree murder conviction against Salazar. Traceable to 16th-Century English law and used 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.

Although 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 most murders, according to the district attorney’s office. Prosecutors must prove only that Salazar intended to commit the robbery that led to the killings.

In a motion submitted to Superior Court, defense attorney Donald H. Steier contends that a first-degree murder conviction for Salazar’s role in the robbery would result in a disproportionate sentence, a violation of the Eighth Amendment, which prohibits cruel and unusual punishment.

Steier’s motion further argues that Salazar’s guilt is different from that of Kirkpatrick, who intended to kill, and that to treat the two men alike would violate the principle that an individual is accountable only for his own acts.

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

Sufficient Evidence

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

Prosecutors are reluctant to comment extensively on the case until transcripts from a January preliminary hearing are submitted to the court. At the 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. Attorneys on both sides say that, if the judge finds Salazar guilty of robbery, under the felony murder rule he must also find the defendant guilty of first-degree murder. The case would then proceed to sentencing.

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 first-degree murder conviction. Steier expects to appeal if the court convicts Salazar of first-degree 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 had been fired recently from the Burbank Taco Bell and that he was going that night to collect money the 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 say, Salazar rubbed lipstick belonging to one of the girls over a tattoo on his neck. Steier said 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.

Obscuring 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. Kirkpatrick never acknowledged his role in the robbery-murder.

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

A probation report filed as part of the court record states that Salazar had a history of paint sniffing and alcohol, marijuana and PCP use. His juvenile record included 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 first-degree murder conviction.

‘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.

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 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 Eighth 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 it, saying that such a task is the province of the Legislature.

Inconsistent Interpretation

Because the Salazar case is similar 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.”