People v. Kirkpatrick, S004642

Citation7 Cal.4th 988,30 Cal.Rptr.2d 818,874 P.2d 248
Decision Date13 June 1994
Docket NumberNo. S004642,No. 23921,S004642,23921
CourtUnited States State Supreme Court (California)
Parties, 8 Cal.4th 215A, 874 P.2d 248 The PEOPLE, Plaintiff and Respondent, v. William KIRKPATRICK, Defendant and Appellant. Crim.

Page 818

30 Cal.Rptr.2d 818
7 Cal.4th 988, 8 Cal.4th 215A, 874 P.2d 248
The PEOPLE, Plaintiff and Respondent,
William KIRKPATRICK, Defendant and Appellant.
No. S004642.
Crim. No. 23921.
Supreme Court of California,
In Bank.
June 13, 1994.
As Modified on Denial of Rehearing Aug. 11, 1994.

Page 822

[7 Cal.4th 998] [874 P.2d 525] Harvey R. Zall and Fern M. Laethem, State Public Defenders, and Edward J. Horowitz, Los Angeles, under appointments by the Supreme Court, Christine Zilius Mason, Musawwir Spiegel, George L. Mertens and Albert W. Brodie, Deputy State Public Defenders, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Steve White, Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Edward T. Fogel, Jr., and Carol Wendelin Pollack, Asst. Attys. Gen., Marc Alan Hart, Gary R. Hahn, Donald E. De Nicola, William R. Weisman, William T. Harter, Marc E. Turchin, Susan Lee Frierson and Robert C. Schneider, Deputy Attys. Gen., Los Angeles, for plaintiff and respondent.

KENNARD, Justice.

Defendant William Kirkpatrick appeals from a judgment of death under the 1978 death penalty law (Pen.Code, § 190.1 et seq.; all further statutory references are to this code unless otherwise indicated). A jury

Page 823

[874 P.2d 253] convicted defendant of two counts of first degree murder (§ 187), two counts of robbery (§ 211), and two counts of burglary (§ 459). The jury found as special circumstances that defendant had been convicted of more than one offense of murder in this proceeding (§ 190.2, subd. (a)(3)) and that the murders were committed in the perpetration of robbery and burglary (§ 190.2, subd. (a)(17)), and it found that defendant used a firearm to commit the offenses (§§ 1203.06, subd. (a)(1), 12022.5). After the jury returned a penalty verdict of death, the trial court denied the automatic motion to modify penalty (§ 190.4, subd. (e)), sentenced defendant to death on the two murder counts, and stayed execution of sentence on the remaining counts and enhancement allegations. This appeal from the judgment of death is automatic. (§ 1239, subd. (b).)

At about midnight on September 17, 1983, Jim Falconio and Wayne Hunter were found in a closet at a Taco Bell franchise restaurant in Burbank. Both had been shot in the head. Hunter was dead when found and Falconio died of his gunshot injuries 11 days later. The two victims were Taco Bell employees and had apparently been killed in the course of a robbery. The case against defendant, who had formerly worked at the same Taco Bell restaurant, included evidence that four days earlier defendant had obtained a [7 Cal.4th 999] gun that could have been the murder weapon by burglarizing another former place of employment, a gas station.


In late April or early May of 1983, defendant arranged a job interview for Donald Harper at the Burbank Taco Bell where defendant was then working. While Harper was at the Taco Bell for his interview, defendant told Harper he was upset about being transferred to a different Taco Bell location. Defendant said he wanted to "get back" at Wayne Hunter (an assistant manager) and at Fahimur Rehman (the district manager). Defendant said he wanted to kill Rehman, to stick a gun into Hunter's mouth and blow his head off, and to take the money from the register. Defendant asked Harper to obtain the combination of the safe, but Harper merely replied that defendant was crazy.

During the night of September 13-14, 1983, a gas station in North Hollywood was burglarized. Defendant had been fired from his employment at the station a few weeks earlier. Although the station had been locked as usual before closing on the 13th, and the burglar alarm activated, the station was found unlocked the next morning, and the alarm disconnected, with no signs of forced entry. A cash box and a desk drawer had been broken open. Items taken in the burglary included currency and coins, a .22-caliber pistol, a battery charger, and a customer's car stereo and equalizer. Two station employees had seen defendant near the station shortly before it closed on the 13th.

During the early morning of September 14, defendant showed Manuel Rand a battery charger, a bag of coins, a car stereo, and a .22-caliber pistol. These items were in the back of defendant's automobile. Defendant said that he had burglarized a garage where he had previously worked, and that it would "teach them a lesson" for having fired him. On September 16, defendant asked Rand to help him commit a robbery but Rand refused. On the evening of September 17, defendant told Rand he was planning to rob the Burbank Taco Bell and asked Rand to help. Again Rand refused. Defendant then drove to an apartment complex where he met Eddie Salazar, known as Solo. Salazar borrowed lipstick and rubbed it over the tattoos on his neck. Defendant and Salazar left the apartment complex, after push-starting defendant's car, at approximately 11 p.m.

Around 11:50 p.m., two prospective customers found the Burbank Taco Bell open but apparently deserted. They telephoned the police. Shortly before the police arrived, persons gathering at the scene found the two [7 Cal.4th 1000] victims in a closet in the employee area at the back of the restaurant. There was no money in the safe; one of the registers was open and contained only loose coins. The money taken was estimated to be $625. There were no signs of a struggle. Police investigators found an expended .22-caliber bullet in the closet.

Page 824

[874 P.2d 254] Hunter died from a single shot to the back of the head with a small-caliber bullet, apparently fired from a distance of at least 18 inches. On Hunter's left upper cheek were a bruise and an abrasion that could have been caused by a blow. Falconio, who was 16 years old on September 17, was killed by a single bullet which entered behind the right ear and exited behind the left ear.

Defendant and Salazar returned to the apartment complex shortly after midnight. Salazar showed some money to Gina Esqueda. Victor Saldana saw defendant lift his shirt to reveal a gun in his waistband. Defendant drove to Rand's house and asked Rand's mother to awaken Rand. Defendant said the cops were looking for him and that he had just killed two guys, possibly a third. Rand's mother refused to awaken Rand but she did help defendant push-start his car. That afternoon, Rand's mother saw defendant holding a box containing rolls of coins. Defendant said the rolls were money taken in a robbery.

During that day, September 18, defendant telephoned Fidel Saballos, who had formerly worked with defendant at the Burbank Taco Bell. Defendant said he had a "bunch of money" and invited Saballos to the movies. Saballos accepted. In defendant's car, defendant showed Saballos a bag of coins. Defendant said he had "ripped off" the Taco Bell the previous night and had taken $850. Defendant said he had used "a .22" to kill two people, and that he done so because he did not want any witnesses. 1

Defendant was arrested on September 22. In defendant's automobile, police investigators found three .22-caliber cartridges and the equalizer taken in the gas station burglary. The cartridges were consistent with the expended bullet found in the closet of the Taco Bell restaurant.


Defendant testified in his own behalf. He was from New York City. His mother was Mexican and his father Black. For the six months to one year [7 Cal.4th 1001] before his arrest, defendant had worked in restaurants and gas stations. On the evening of September 13, 1983, defendant went to a gas station where he had formerly been employed. He talked to the employees, asking if they had anything they wanted to sell. Defendant was then self-employed in a kind of salvage business. Defendant said he did not enter the station after it was closed and did not take anything from the station. He denied any knowledge of the gas station burglary and denied telling Rand or anyone else he had burglarized a gas station. He testified that the equalizer found in his car was one he had purchased in June or July of 1983.

On the evening of September 17, 1983, defendant went to an apartment complex where he met members of a gang known as "Sol Trese". He allowed several of these individuals to use his car to "shoot" heroin. One of them had a bag with loose .22-caliber shells. Defendant did not own or possess a .22-caliber weapon. Defendant left about 11:15 or 11:20 p.m. to visit a friend in Whittier. He had car problems and spent some time searching for an open gas station. Eventually, about 12:20 or 12:30 a.m., defendant purchased a new battery and battery cable. After spending some time in a bar, defendant spent the rest of the night in a motel room. Defendant denied entering the Burbank Taco Bell on the night of September 17-18 and he denied having a conversation with Rand's mother during the early morning of September 18. Defendant said he went to the movies with Saballos on September 18, but defendant denied having any conversation with Saballos about a robbery or killing people.

A service station attendant testified that he had no independent recollection of selling a battery and cable to defendant but that the station records indicated he had made such a sale on September 18, 1983. The records did not indicate the time of the sale, but they did indicate it had occurred after a sale to a Robert Salisbury. At that time, the attendant

Page 825

[874 P.2d 255] was working the night shift from 9 p.m. to 9 a.m.

Robert Salisbury testified that during the early morning hours of September 18, 1983, he purchased a battery at a service station. The attendants were busy doing other things and it took about two hours to have the battery installed. Salisbury left about 2 a.m. During the two hours he was at the station, no other car was there having a battery put in.


On March 8, 1983,...

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