Kelly Thomas, a 37-year-old homeless man in Fullerton, CA, died after a brutal beating from six police officers. The altercation was caught on a nearby surveillance camera, and after significant public pressure three of the officers are charged with murder and manslaughter in Thomas’ death. The case has brought the Fullerton Police Department under intense national scrutiny and led to the early retirement of Fullerton’s Police Chief. Manuel Ramos, 39, charged with second-degree murder and involuntary manslaughter and ex-Cpl. Jay Cicinelli, 41, charged with involuntary manslaughter and the use excessive force, will face trial together. A third Officer, Joseph Wolfe, 36, is also charged with involuntary manslaughter and excessive force, but he will be tried separately since he was not charged until more than a year after the other officers.
Manuel Ramos: Charged with one felony count of second degree murder and one felony count of the use of excessive force. Ramos faces a potential sentence of 15 years to life if convicted of second-degree murder and four years if convicted of involuntary manslaughter.
Jay Cicinelli: Charged with one felony count of involuntary manslaughter and one felony count of use of excessive force. He has pleaded not guilty and faces up to four years in prison if convicted.
Joe Wolfe: Charged with one felony count of involuntary manslaughter and one felony count of use of excessive force. He pleaded not guilty to the charges at his arraignment September 27, 2012, and surrendered on $25,000 bail. He faces up to four years in prison if convicted.
California Penal Code section 187-190 – Second Degree Murder
187. (a) Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.
(b) This section shall not apply to any person who commits an act that results in the death of a fetus if any of the following apply:
(1) The act complied with the Therapeutic Abortion Act, Article 2 (commencing with Section 123400) of Chapter 2 of Part 2 of Division 106 of the Health and Safety Code.
(2) The act was committed by a holder of a physician’s and surgeon’s certificate, as defined in the Business and Professions Code, in a case where, to a medical certainty, the result of childbirth would be death of the mother of the fetus or where her death from childbirth, although not medically certain, would be substantially certain or more likely than not.
(3) The act was solicited, aided, abetted, or consented to by the mother of the fetus.
(c) Subdivision (b) shall not be construed to prohibit the prosecution of any person under any other provision of law.
188. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
When it is shown that the killing resulted from the intentional doing of an act with express or implied malice as defined above, no other mental state need be shown to establish the mental state of malice aforethought. Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice.
189. All murder which is perpetrated by means of a destructive device or explosive, a weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under Section 206, 286, 288, 288a, or 289, or any murder which is perpetrated by means of discharging a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict death, is murder of the first degree. All other kinds of murders are of the second degree.
As used in this section, “destructive device” means any destructive device as defined in Section 16460, and “explosive” means any explosive as defined in Section 12000 of the Health and Safety Code.
As used in this section, “weapon of mass destruction” means any item defined in Section 11417.
To prove the killing was “deliberate and premeditated,” it shall not be necessary to prove the defendant maturely and meaningfully reflected upon the gravity of his or her act.
189.5. (a) Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it, devolves upon the defendant, unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable.
(b) Nothing in this section shall apply to or affect any proceeding under Section 190.3 or 190.4.190. (a) Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without
the possibility of parole, or imprisonment in the state prison for a term of 25 years to life. The penalty to be applied shall be determined as provided in Sections 190.1, 190.2, 190.3, 190.4, and 190.5. Except as provided in subdivision (b), (c), or (d), every person guilty of murder in the second degree shall be punished by imprisonment in the state prison for a term of 15 years to life.
192. Manslaughter is the unlawful killing of a human being without malice. It is of three kinds:
(a) Voluntary–upon a sudden quarrel or heat of passion.
(b) Involuntary–in the commission of an unlawful act, not
amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. This subdivision shall not apply to acts committed in the driving of a vehicle.
(1) Except as provided in subdivision (a) of Section 191.5, driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.
(2) Driving a vehicle in the commission of an unlawful act, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence.
(3) Driving a vehicle in connection with a violation of paragraph
(3) of subdivision (a) of Section 550, where the vehicular collision or vehicular accident was knowingly caused for financial gain and proximately resulted in the death of any person. This provision shall not be construed to prevent prosecution of a defendant for the crime of murder.
This section shall not be construed as making any homicide in the driving of a vehicle punishable that is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death, in an unlawful manner.
“Gross negligence,” as used in this section, shall not be construed as prohibiting or precluding a charge of murder under
Section 188 upon facts exhibiting wantonness and a conscious disregard for life to support a finding of implied malice, or upon facts showing malice, consistent with the holding of the California Supreme Court in People v. Watson, 30 Cal. 3d 290.
193. (a) Voluntary manslaughter is punishable by imprisonment in the state prison for 3, 6, or 11 years.
(b) Involuntary manslaughter is punishable by imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years.
(c) Vehicular manslaughter is punishable as follows:
(1) A violation of paragraph (1) of subdivision (c) of Section 192 is punishable either by imprisonment in the county jail for not more than one year or by imprisonment in the state prison for two, four, or six years.
(2) A violation of paragraph (2) of subdivision (c) of Section 192 is punishable by imprisonment in the county jail for not more than one year.
(3) A violation of paragraph (3) of subdivision (c) of Section 192 is punishable by imprisonment in the state prison for 4, 6, or 10 years.
California Penal Code section 422.6 – Excessive Force
(a)No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.
(b)No person, whether or not acting under color of law, shall knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States, in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.
(c)Any person convicted of violating subdivision (a) or (b) shall be punished by imprisonment in a county jail not to exceed one year, or by a fine not to exceed five thousand dollars ($5,000), or by both the above imprisonment and fine, and the court shall order the defendant to perform a minimum of community service, not to exceed 400 hours, to be performed over a period not to exceed 350 days, during a time other than his or her hours of employment or school attendance. However, no person may be convicted of violating subdivision (a) based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat.
(d)Conduct that violates this and any other provision of law, including, but not limited to, an offense described in Article 4.5 (commencing with Section 11410) of Chapter 3 of Title 1 of Part 4, may be charged under all applicable provisions. However, an act or omission punishable in different ways by this section and other provisions of law shall not be punished under more than one provision, and the penalty to be imposed shall be determined as set forth in Section 654.
For the first time in history, a uniformed police officer in Orange County will stand trial for murder after an on-duty and in-uniform incident.
Manuel Anthony Ramos, 39, is charged with second-degree murder and involuntary manslaughter, and ex-Cpl. Jay Cicinelli, 41, is charged with involuntary manslaughter and excessive force in connection with the beating death of Kelly Thomas, a homeless man reported to have schizophrenia.
Southern California is no stranger to reports of police brutality, from the Rodney King beating in 1991 to the Rampart corruption scandal in in the late 1990’s. However, the infamous and often race-motivated altercations are most commonly associated with LAPD activity in inner city Los Angeles neighborhoods, not from police departments in affluent Orange County cities like Fullerton, CA.
The murder trial will bring front and center the conduct of various police officers, the authorized and permissible use of force, and the rights of citizens to defend themselves when confronted with the threat of violence by law enforcement.
On the evening of July 5, 2011, Fullerton Police Department (FPD) Dispatch received a call from a manager at the nearby Slidebar nightclub reporting a “homeless” man looking in car windows and pulling on handles of parked cars in the Fullerton Transportation Center (FTC) parking lot. Officer Ramos and Officer Joe Wolfe responded to the call, arriving at the scene in separate patrol vehicles.
Surveillance footage from an FTC pole camera, remotely controlled by FPD dispatch, shows Officer Ramos confronting the shirtless and bearded Thomas, instructing him to sit on the curb, and requesting to search his backpack – the contents of which reportedly include items purportedly belonging to other people including mail from a nearby lawyer’s office.
After several minutes Officer Ramos requested that Thomas put his legs out straight while placing his hands on his knees, to which a confused Thomas responded “I can’t do both.” Officer Ramos then snapped on latex gloves and said “Now see my fists? They are getting ready to F you up. …If you don’t f***ing start listening.”
It is these threats that prosecutors allege escalated a lawful detainment to an unlawful use of force.
What would have otherwise been a routine arrest then turned into a 10-minute altercation involving six officers that left Thomas beaten, shocked several times with a Taser, and laying in a pool of his own blood. Officer Cicinelli responded to calls for assistance from Officer Wolfe and is accused of kneeing Thomas, using his Taser in an unreasonable manner, and striking the restrained man with the front end of the Taser. Throughout the struggle Thomas can be heard yelling “I can’t breathe,” “I’m sorry, dude,” “Please,” “Okay, okay,” and pleading for his Dad to help.
Thomas was taken by ambulance to St. Jude Medical Center in Fullerton and then transferred to UCI Medical Center in Orange where he passed away five-days later after being taken off life support.
The Orange County Sheriff Department Coroner’s death certificate, according to Orange County District Attorney Tony Rackauckas, lists the manner of death as homicide and the cause of death to be “anoxic encephalopathy with acute bronchopneumonia,” (asphyxia) caused by “mechanical chest compression with blunt cranial-facial injuries sustained during physical altercation with law enforcement.” However, according to John A. Huelsman, Officer Cicinelli’s step-father, the cause of death was initially listed as “unknown” and only changed to “homicide” after several visits from the OCDA’s office.
Ramos, Cicinelli, and Wolfe were dismissed from the Fullerton Police Department after Thomas’ death.
An investigation into the beating was initiated July 7, 2011, and involved a team of OCDA investigators along with FBI involvement. After news of the incident reached the media, Kelly’s father, Ron Thomas, and other community members organized large protests condemning the conduct of the officers. After considerable public pressure and a two-month investigation Rackauckas decided to file charges against the officers.
The evidence includes video from cell phones, surveillance video from the bus depot, on-board bus videos, 151 witness account, police reports from all the officers involved, medical reports, an examination of physical evidence, such as batons and stun guns used in the beating, and audio recordings, Rackauckas said.
Ramos faces a potential sentence of 15 years to life if convicted of second-degree murder and four years if convicted of involuntary manslaughter. Cicinelli faces a maximum sentence of four years in prison if found guilty.
A jury of eight women and four men was impaneled November 19.
Trial began December 2 with opening statements, and the Prosecution rested its case December 11. Attorneys for Ramos and Cicinelli began presenting their defense on December 12.
Trial will adjourn until after the holidays, with the conclusion of the trial and closing arguments scheduled to begin January 6.
Kelly Thomas (37) – Homeless man that died five days after a brutal police beating July 5, 2011, at the hands of police officers in Fullerton, CA. Thomas was a fixture on the streets of Fullerton and had about 90 documented run-ins with police dating to 1990. Various reports indicate that Thomas was also diagnosed with Schizophrenia.
Manuel Anthony Ramos (39) – Former 10-year veteran of FPD that is the first Orange County police officer in history to be charged with murder for an on-duty in-uniform incident. Officer Ramos is charged with one felony count of second degree murder and one felony count of the use of excessive force in the death of Kelly Thomas, a homeless man, in the Fullerton Transportation Center parking lot. Officer Ramos is accused of escalating an otherwise lawful arrest to an unlawful use of force when he allegedly threatened Thomas, creating a defensive situation, and hit him with a baton before tackling Thomas, punching, and kneeing him on the ground.
Jay Cicinelli (39) – Former 12-year veteran of FPD that responded to calls for assistance from Officer Wolfe and is accused of kneeing Thomas, using his Taser in an unreasonable manner including several times as a “drive stun” and one time with dart deployment, and striking the restrained man with the front end of the Taser. Officer Cicinelli also reportedly made comments shortly after the incident about his use of force and Thomas’ injuries, stating that he must have struck Thomas twenty times, although the exact number of blows is in dispute. Corporal Cicinelli is charged with one felony count of involuntary manslaughter and one felony count of the use of excessive force.
Joseph Wolfe (36) – Former 12-year FPD veteran that responded to an initial call from FPD dispatch about a “homeless” man pulling on handles and looking car windows, and arrived on the scene to investigate with Office Ramos driving separate vehicles. He was reviewing the contents of Thomas’ backpack when the altercation began and is accused of striking Thomas in his left leg with his baton as the homeless man attempted to back away. He is also accused of tackling Thomas, along with Ramos, and striking him with his knees and fists. In the initial OCDA press release on September 21, 2011, prosecutors did not file charges against Wolfe, stating that there was insufficient evidence that Officer Wolfe knew of the exchange that had taken place between Ramos and Thomas. However, over a year later, prosecutors changed their mind and charged Officer Wolfe with one felony count of involuntary manslaughter and one felony count of use of excessive force. His trial will be held separately from Ramos and Cicinelli because it was filed at a much later date.
Officer Hampton, Sergeant Craig, and Corporal Blatney – The three other officers involved in the altercation that arrived after Ramos, Wolfe, and Cicinelli. Charges have not been filed against any of these officers.
John Barnett – Defense Attorney for Manuel Anthony Ramos.
Michael D. Schwartz – Defense Attorney for Jay Cicinelli.
Michael Nasatir and Vicki Podberesky – Defense Attorneys for Joseph Wolfe.
Judge William Froeberg – Presiding judge in the case against Manuel Ramos and Jay Cicinelli.
Tony Rackauckas – Orange County District Attorney personally prosecuting Ramos and Cicinelli. Rackauckas’ handling of this case has come under close scrutiny under allegations from defense attorneys and defendants’ families of succumbing to public pressure to file charges and even personally influencing medical experts.
Ron Thomas – Father of Kelly Thomas. A retired law enforcement officer himself, Ron Thomas is familiar with the limits of police conduct. Following Kelly’s death, Ron took to the media in a campaign to seek justice for his son and see charges filed against the officers involved.
Dr. Aruna Singhania – Orange County Coroner and Pathologist who performed the autopsy on Kelly Thomas.
Dr. Michael Lekawa – Chief Trauma Surgeon at UC Irvine Hospital responsible for the care of Kelly Thomas following the incident. Dr. Lekawa is expected to be a key witness at the trial. At the preliminary hearing Dr. Lekawa testified regarding the cause of death: “It was during the time when the police officers were on top of him, and he was lying flat – or he was not lying flat, he was down – the police officers were on him, and I could see, or I could hear his mental state when complaining that he couldn’t breathe, and then his capacity to speak appeared to dissipate and eventually he went unconscious.”
Kelly Thomas VIDEO: Police Beating Full Video
November 19, 2013: Jury selection began this week in the trial against two ex-police officers for the murder of a mentally ill homeless man. This case has been absolutely explosive in the media since the first recordings of the beatings were released, but nowhere more so than Orange County, California. Those recordings were played nonstop on every local news channel for weeks following Kelly Thomas’ death.
Now attorneys for the officers and for the county face the unenviable task of sorting through 110 people and coming up with 12 who have not already formed an opinion about the innocence or guilt of the defendants.
Attorneys for both sides were armed with jury consultants and with juror questionnaires, hoping to determine which jurors would favor their respective sides. The questionnaires covered such issues as the jurors’ attitudes about the mentally ill to how much exposure they have had to the case. The jury consultants were probably doing on-the-spot research into each juror’s background – a task made very easy these days with the widespread availability of personal data on social media.
It’s difficult to imagine that the attorneys will find a truly unbiased jury. This case was widely publicized from the beginning, inciting protests in the streets of normally calm and conservative Orange County. Attorneys for the defense will attempt to find jurors who normally would take on a pro-prosecution bias – those with ties to police, military or other authority figures. Meanwhile, the role reversal continues as Orange County District Attorney Tony Racaukas – yes, that’s THE district attorney trying the case, not an assistant DA – will be looking for jurors who sympathize with the mentally ill and who can accept that not all police officers are honest and honorable in the execution of their duties.
Charges: Second degree murder versus Involuntary Manslaughter
Manuel Ramos is charged with second-degree murder and involuntary manslaughter, the first person in Orange County history to be charged with murder while on duty as a police officer. He could be sentenced to 15 years to life in prison if convicted of the second-degree murder charge, and four years if convicted of the manslaughter accusation.
Meanwhile, Jay Cicinelli is charged with involuntary manslaughter and assault under cover of authority. If convicted he is looking at up to four years in custody.
Although neither involuntary manslaughter nor second-degree murder requires the jury to find premeditation, like first-degree murder does, there is a substantial difference between the charges. Second degree murder, otherwise known as “heat of passion murder,” occurs when there is a homicide that was not pre-planned but instead arises from conduct designed to cause a killing (firing a gun into a crowd is a common law school example).
Involuntary manslaughter is an accidental killing, where there’s no intent to cause a death but extremely dangerous behavior. Criminal liability arises when the actions that lead to the accidental killing are so reckless that they show a disregard for human life.
It’s hard to know what the jury will do with this case. If the beatings were perpetrated by civilians, it’s clear that the conduct is dangerous enough to cause death and shows disregard for human life, thus creating criminal liability. But when law enforcement officers are the defendants, many jurors do a totally different analysis, accounting for the inherent danger of their jobs and the authority of the police to use force on unruly persons.