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Court of Appeal, First District, Division 4, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Richard Randolph NICHOLS, Defendant and Appellant.

Cr. 7561.

Decided: February 19, 1970

Gary M. Merritt, San Bruno, for appellant (under appointment of the Court of Appeal). Thomas C. Lynch, Atty. Gen., of the State of California, Robert R. Granucci, John P. Oakes, Deputy Attys. Gen., San Francisco, for respondent.

Richard Randolph Nichols was indicted on two counts of murder (Pen.Code, § 187), one count of burglary (Pen.Code, § 459), and one count of arson (Pen.Code, § 447a). A jury found him guilty of murder in the first degree (both counts) and not guilty of the other charges. The appeal is from the ensuing judgment sentencing appellant to concurrent terms of life imprisonment.

Audrey Nichols, wife of appellant, was separated from him and living in San Francisco with a Mr. and Mrs. Hutchins. There were two Hutchins children, Tracy and Kimberly, aged two and five. In the early evening of February 8, 1968, appellant tried several times to contact his wife at the Hutchins home. Each time Mrs. Nichols requested her hosts to inform her husband that she was not at home. Later that evening Mr. and Mrs. Hutchins went out, leaving Mrs. Nichols and two of her friends in charge of the two children. Mrs. Nichols' car was in the garage, which was integral to the house.

At approximately 8:00 o'clock that evening, Mrs. Nichols and her friends heard a persistent ringing of the doorbell; they did not answer the door. Shortly thereafter, they heard breaking glass. After another interval they smelled smoke. On investigating these occurrences the occupants found that one corner of the garage was on fire. The hood of Mrs. Nichols' car was up. The occupants attempted to fight the fire themselves, but the failure of the house lights and increasingly dense smoke frustrated their efforts. A man attempted to rescue the children from upstairs, but his egress downstairs with the children was blocked by flames. Returning upstairs with the children, he lost them in the dark and smoke-filled bedroom while he was breaking open a window. Feeling himself about to be overcome by smoke, he jumped out of the window. The children were left behind; they died from smoke inhalation.

Police investigators questioned appellant the following day and once later. On both occasions appellant denied knowledge of the fire which killed the two children. A few days later appellant was again questioned, at police headquarters. After having been informed of his rights, appellant related that he had gone to his wife's residence for the purpose of talking to her and borrowing her car. Upon obtaining no answer at the door, appellant inspected a car in the driveway and noticed that it was registered to a man whom he did not know. Appellant assumed the man was visiting his wife. Appellant then saw his wife's car parked inside the garage and entered the garage by breaking one of the windows in the garage door. Discovering that the engine was cold, he concluded that his wife had been at home for some time. At this point he became angry, both because he felt that his wife was avoiding him and because he believed she was seeing another man. He then wadded newspaper around the carbureter of his wife's car and ignited it. He stated that he did this because he was angry and wanted to frighten his wife. Then, according to his statement, he became frightened and departed. At trial appellant testified that the statement was false—that he invented it in order to disarm possible suspicion of his wife's involvement in the deaths of the children.

Appellant contends that the statement should have been excluded because of a defect in the warning which the interrogating officer gave him in an attempt to comply with the requirements of Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974. Both the warning and the ensuing statement were recorded on tape. The warning was as follows:

‘Q. Now, I want to read this to you so that you'll be aware that (1) you have the right to remain silent; (2) anything you say can and will be used against you in a court of law; (3) you have the right to talk to a lawyer and have him present with you while you are being questioned; (4) if you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning if you wish one. Do you understand each of these rights I've explained to you?

‘A. Yes.

‘Q. Having these rights in mind, do you wish to talk to us now?

‘A. Stop the machine.

‘Q. No, I can't stop the machine. This is why we do this so you'll know it is going on, sir. As I told you, we want nothing but the truth. Do you understand what I'm saying Randy? As I told you, I wanted to take a statement from you regarding the incident.

‘A. Yes.

‘Q. Pardon me?

‘A. Yes, I do.

‘Q. All right, you understand and you wish to talk to us now?

‘A. Yes.

‘Q. All right, fine. Will you sign right here, please. As you can see, Randy, this is being tape recorded so please, as I've mentioned, keep your voice up.’

Appellant's contention is that the foregoing warning was ineffective, in that he was not directly informed that he was entitled to have an attorney present at that moment if he so desired. This contention does not square with the record. As required by Miranda, the officer warned appellant that he was entitled to have an attorney appointed, ‘before any questioning.’ That advice explicitly included the matter urged by appellant; it meets the constitutional requirement.

We note from the passage quoted above that appellant at one point requested the officer to ‘stop the machine.’ It would perhaps have been possible to argue that this indicated that the further proceedings were in fact not voluntary; but that contention is not made on appeal. In any event, such a contention would be unavailing because it was not raised in the trial court, although the opportunity was afforded. The court properly conducted a hearing, out of the presence of the jury, before determining the admissibility of the confession. No claim was made that the request to ‘stop the machine’ represented a desire not to answer questions. The only objections offered at trial were on the untenable theories that the admonition was incomplete (as discussed above) and that the corpus delicti had not been established. We conclude, therefore, that there was no error in the trial court's determination that the statement was voluntary and admissible. (People v. Sanchez (1967) 65 Cal.2d 814, 826, 56 Cal.Rptr. 648, 423 P.2d 800, vacated 70 A.C. 598, mod. 70 A.C. 747, 75 Cal.Rptr. 642, 451 P.2d 74, pet. for cert. pending Sanchez v. California, 389 U.S. 999, 88 S.Ct. 567, 19 L.Ed.2d 597; see also People v. Bryan (1967) 254 Cal.App.2d 231, 62 Cal.Rptr. 137, cert. den. 390 U.S. 1044, 88 S.Ct. 1642, 20 L.Ed.2d 305.)

Declarations of the deceased children (or one of them), made concurrently with the event, to the effect that it was appellant who was ringing the doorbell on the night in question, were received in evidence over objection. Appellant contends that these declarations were inadmissible hearsay, citing Evidence Code, sections 1250 and 1252. But during cross-examination of Mrs. Nichols, the defense had impugned her motive for testifying against her husband, insinuating motives for fabrication; it therefore became proper for the prosecution on redirect examination to offer evidence rebutting the inference of bias which the defense had raised (see 2 Witkin, California Evidence, § 1277, and authorities cited therein). It was on this theory that the prosecution proved the declarations of the deceased children to the effect that it was appellant who rang the doorbell on the night in question: this evidence was offered to show that Mrs. Nichols' testimony against her husband was based upon reason, as opposed to mere bias. Because the children's declarations were introduced to demonstrate a reasonable basis for Mrs. Nichols' belief, rather than ‘to prove the truth of the matter stated’ the declarations were not hearsay in the context in which they were admitted. (Evid.Code, § 1200.) The court properly instructed the jury concerning the limited purpose for which evidence of the childrens' declarations were received. Moreover, where strong circumstantial evidence connected appellant with the crime, and his own admission that he set the fire was properly received in evidence, the reception of the childrens' statements identifying him as having been at the door a short time before the fire was hardly damaging to the defense, let alone prejudicial within the meaning of California Constitution, article VI, section 13, even if the court's ruling were held to be erroneous.

Appellant makes several complaints concerning jury instructions. The court instructed the jury that verdicts of guilty on the two murder counts might be returned, on a ‘felony-murder’ theory, if it were found that appellant had committed arson either of the house or of the automobile. It is contended, citing People v. Hebert (1964) 228 Cal.App.2d 514, 39 Cal.Rptr. 539, and People v. Kerrick (1927) 86 Cal.App. 542, 261 P. 756, that this instruction was defective in failing to advise the jury that verdicts of guilty on the murder counts must depend upon a finding that deaths of the children were proximately caused by the fire, instead of by the claimed intervening negligence of the adults in failing to get the children safely out of the house. This argument cannot be sustained. Penal Code section 189 refers to a killing ‘which is committed in the perpetration’ of designated felonies as falling within the felony-murder concept. The statute does not require ‘a strict causal relation between the felony and the homicide, and the homicide is committed in the perpetration of the felony if the killing and the felony are parts of one continuous transaction.’ (People v. Whitehorn (1963) 60 Cal.2d 256, 264, 32 Cal.Rptr. 199, 383 P.2d 783, 788.) Moreover, the strong evidence that the deaths of the children were caused by the action of appellant in setting fire to the car was not opposed at trial by any hint or suggestion, let alone evidence, of any other possible cause.

Appellant next contends that no felony murder instruction should have been given at all, applying to the burning of the car as opposed to the burning of the house. The contention is that the burning of personal property, such as a motor vehicle, is not arson within the meaning of Penal Code section 189. It is true that Penal Code section 449a, which makes it a felony to burn personal property ‘of the value of twenty-five dollars ($25) and the property of another person’ or designated other items of personal property including a motor vehicle, appears in the Penal Code chapter entitled ‘Arson’; but that placement does not appear to reflect a legislative intention to implement the first degree felony-murder rule of Penal Code section 189 upon the burning of such items as a haystack or a pile of boards, as mentioned in section 449a. The latter section was included in the Code in its present form by Stats.1929, ch. 25, § 3, p. 46. The chapter heading, ‘Arson,’ is not part of the enactment; even if it were, it would not be a reliable indication of legislative intent. (Pen.Code, § 10004.) It is true that chapter 25 was designated in its title as, ‘An act to add new sections to the Penal Code * * * all relating to the crime of arson,’ but the title is not part of a statute. While the language of a title may be useful in assisting to resolve an ambiguity, it may not be used to enlarge ‘positive provisions in the body of the statute.’ (45 Cal.Jur.2d, Statutes, § 171.)

An analysis of the history of the arson statutes in California led the Supreme Court to conclude that, contrary to the common law rule, not only the burning of a dwelling (Pen.Code, § 447a) but also the burning of a structure other than a dwelling or its appurtenances, as condemned by Penal Code section 448a, is arson in California for the purpose of determining that an offender is an habitual criminal. (In re Bramble (1947) 31 Cal.2d 43, 48, 187 P.2d 411, cert. den. Bramble v. People of State of California, 337 U.S. 960, 69 S.Ct. 1522, 93 L.Ed. 1759.) Such burning has also been held to be arson for the purpose of implementing the first degree felony-murder rule. (People v. Chavez (1958) 50 Cal.2d 778, 787, 329 P.2d 907, cert. den. 359 U.S. 993, 79 S.Ct. 1126, 3 L.Ed.2d 982.) But the Bramble and Chavez analysis does not apply to the burning of personal property, as condemned by Penal Code section 449a. The word ‘arson’ does not appear in section 449a; the burning of the miscellaneous personal property listed in that section was not, before the 1929 amendment, within the code definition of arson. (See §§ 447 and 448, Pen.Code of 1872; In re Bramble, supra, at p. 49, 187 P.2d 411.) We conclude, therefore, that violation of Penal Code section 449a is not arson within the meaning of Penal Code section 189; it was therefore error to give a first degree felony-murder instruction applying to the burning of the automobile.

A subsidiary question is whether the first degree murder convictions can be sustained on a felony-murder theory as applied to the burning of the house. Although the jury found appellant not guilty of arson, that verdict would not affect the validity of a first degree murder verdict based upon the same act of arson. (Pen.Code, § 954; Witkin, California Criminal Procedure, § 549, p. 559.) The instructions on felony murder covered arson of the house as well as the burning of the car. But the only evidence of appellant's purpose was that he packed newspapers around the carburetor of his wife's car, and started the fire, intending to burn the car rather than the house. There was no evidence that he intended to burn the house at all. Therefore the first degree murder conviction cannot stand.

It does not follow, however, that the result of the error in instructing on first degree felony murder as applied to the burning of the car should be a reversal of the judgment. There was no instruction that would support either a second degree verdict or a first degree verdict on some theory other than first degree felony murder. Hence the two first degree verdicts represented no more than the jury's determination, under the instructions reviewed above, that appellant willfully and maliciously set fire to the automobile and that the fire killed the two children. ‘A homicide that is a direct causal result of the commission of a felony inherently dangerous to human life (other than the six felonies enumerated in Pen.Code, § 189) constitutes at least second degree murder.’ (People v. Ford (1964) 60 Cal.2d 772, 795, 36 Cal.Rptr. 620, 625, 388 P.2d 892, 907.) More recently, the California Supreme Court has declared that ‘only such felonies as are in themselves ‘inherently dangerous to human life’ can support the application of the felony-murder rule.' (People v. Phillips (1966) 64 Cal.2d 574, 582, 51 Cal.Rptr. 225, 232, 414 P.2d 353, 360.) In making that assessment the courts are to ‘look to the elements of the felony in the abstract, not the particular ‘facts' of the case.’ (People v. Williams (1965) 63 Cal.2d 452, fn. 5, p. 458, 47 Cal.Rptr. 7, 10, 406 P.2d 647, 650.) The burning of some of the items of personal property mentioned in Penal Code section 449a would appear not to be inherently dangerous to human life, e. g., a haystack or a ‘pile of planks, boards, posts, rails or other lumber; * *.’ But the burning of ‘any streetcar, railway car, ship, boat or other watercraft,’ condemned in the same section, is inherently dangerous. Automobiles are included in the same series as the other human conveyances just mentioned. The burning of an automobile or other motor vehicle which may contain, convey, or be stored in close proximity to human beings, is also inherently dangerous. We therefore conclude that the willful and malicious burning of a motor vehicle does implement the second degree felony-murder rule. An instruction in these terms would not have changed in any way the factual determination to be made by the jury. It simply would have put into effect a different legal consequence. Accordingly, the effect of the error can be cured by a modification of the judgment.

The court instructed that appellant's statement to the police could not be considered unless the jury first determined that the corpus delicti of the crime of arson was established. Appellant complains that the instruction did not also require that the corpus delicti of murder and burglary be established before appellant's out-of-court statement could be considered for the purpose of either of those charges. But appellant was acquitted of the charged burglary, perhaps because the jury was not sure appellant had already formed a felonious intent when he entered the garage; there was hence no prejudice in omitting reference to that charge. The murder convictions could, under the instructions, be supported only by the felony-murder theory based on the burning of either the house or the car. The jury found appellant not guilty of arson in the burning of the house; this they might reasonably do where there was no evidence of specific intent to burn the house. But the instruction correctly required proof of the corpus delicti of ‘arson’ (including the burning of the car); hence the instruction properly regulated the only use which the jury could have made of the admission or confession in arriving at the verdicts which were returned.

Appellant's final contention with regard to the instructions is that the court should have given a further instruction on the intent requisite to a determination that appellant was guilty of arson. It is true that, ‘in order to establish a defendant's guilt of first degree murder on the theory that he committed the killing during the perpetration of one of the enumerated felonies, the prosecution must prove that he harbored the specific intent to commit one of such enumerated felonies' (People v. Sears (1965) 62 Cal.2d 737, 744, 44 Cal.Rptr. 330, 335, 401 P.2d 938, 943; People v. Chapman (1968) 261 Cal.App.2d 149, 160, 67 Cal.Rptr. 601). But both Sears and Chapman speak in terms of the evidence requisite to support a felony-murder theory; they do not require that some additional element of intent be added to otherwise proper instructions defining the mental element in the underlying felony. Here the court correctly instructed the jury concerning the mental element necessary to establish the underlying offense of burning either the house or the automobile: ‘Any person who willfully and maliciously sets fire * * *.’ (See 1 Witkin, California Crimes, § 466, p. 427.) There was uncontradicted evidence of the incendiary origin of the fire, implying a willful and malicious intent on the part of the perpetrator, without regard to any admission made by appellant. Therefore as applied to the evidence the instruction was sufficient.

Citing People v. Henderson (1963) 60 Cal.2d 482, 35 Cal.Rptr. 77, 386 P.2d 677, and pointing to the reference in the admission to appellant's jealous anger as his motive for setting fire to the car, appellant contends that, on its own motion, the court should have given an instruction on diminished capacity. But appellant's defense at trial was not diminished capacity; it was an alibi. Appellant could well have objected to an unsolicited instruction on diminished capacity as tending to undermine his defense. It was not error to fail to give such an instruction where diminished capacity was not a substantial factor in the case. (Cf. People v. Fain (1969) 70 A.C. 625, 637, 75 Cal.Rptr. 633, 451 P.2d 65.)

Other contentions advanced by appellant do not require discussion.

The judgment is modified by reducing both murder counts to second degree. As so modified, the judgment is affirmed.

CHRISTIAN, Associate Justice.

DEVINE, P. J., and RATTIGAN, J., concur.