PEOPLE of the State of California, Plaintiff and Respondent, v. Milo P. SALING et al., Defendants and Appellants.
On June 22, 1972, the grand jury returned a five-count indictment against Milo P. Saling (Saling), Paul Zamora (Zamora) and Michael B. Szymanski (Szymanski). Count I charged a conspiracy to violate Penal Code section 447a (arson of a dwelling house); Count II charged a conspiracy to violate Penal Code section 548 (burning of insured property with intent to defraud insurance company); Count III charged a conspiracy to violate Penal Code section 487, subd. 1 (theft of property of a value in excess of $200—grand theft). Each of the conspiracies was alleged to have occurred during the period from the latter part of 1968 up to and including June 12, 1972. The indictment alleged the commission of nineteen overt acts, each of which was alleged to be in furtherance of each conspiracy. The most recent overt act (No. 14) was alleged to have occurred on June 12, 1972. Count IV alleged a violation of Penal Code section 487, subd. 1 (theft of property of a value in excess of $200—grand theft) on May 3, 1968, which was not discovered until February 22, 1972; Count V alleged a separate violation of Penal Code section 487, subd. 1 on September 16, 1968, which was not discovered until February 22, 1972.
Zamora interposed a Motion To Set Aside the Indictment and a Demurrer to Counts I through V of the indictment on the ground that each was barred by the statute of limitations, Penal Code section 800. Saling and Szymanski moved to dismiss under Penal Code section 995 and interposed a demurrer to Counts I through V of the indictment on the ground that each was barred by the statute of limitations. In a memorandum opinion a judge other than the trial judge denied the motions and overruled the demurrers. During the course of a 31-day jury trial, the court granted the motion of the people to strike overt act 14 and overt act 15. An amended indictment was filed to conform with the court's order. The most recent overt act (overt act No. 17) alleged in the amended indictment was alleged to have occurred in the latter part of December 1970 or early January 1971. After jury trial guilty verdicts were returned on each of the five counts as to each defendant. The motion of each defendant for judgment notwithstanding verdict or for a new trial was denied. Zamora's application for probation was denied. Zamora was sentenced to state prison for the term prescribed by law on each Count, the sentences to run concurrently, sentence on Counts I, II, III, and IV was stayed pending completion of sentence on Count V. The application of Szymanski for probation was granted and pronouncement of judgment was suspended on condition that Szymanski pay a fine of $5,000 in monthly installments of not less than $100 per month and that he make restitution in the sum of $5,140 at the rate of not less than $85 a month. Saling's application for probation was denied. Saling was sentenced to state prison on Counts I, II, III, IV and V, and sentence on Counts II, III, IV and V was suspended pending completion of sentence on Count I. Each defendant appeals from the judgment.
All three appellants contend:
I. The prosecution of the alleged crimes was barred by the statute of limitations and the trial court committed reversible error in not sustaining the demurrers and granting the motions to set aside the indictment and the motion for new trial on this ground.1
Appellant Zamora contends in addition:
I. His conviction must be reversed because it was based on the uncorroborated testimony of accomplices.
II. The court erroneously denied his motion for acquittal.
III. He did not receive effective representation by counsel who:
A. Failed to move for a separate trial and
B. Failed to move to suppress certain evidence.
IV. The court erroneously denied a motion for a mistrial which should have been granted when the court admitted extra-judicial statements by Saling implicating Zamora.
V. That he could not be prosecuted under Penal Code section 487, subd. 1, a general statute and Penal Code section 548, a specific statute.
VI. That he can only be convicted of one count of grand theft.
VII. The court gave the jury erroneous instructions on the law.
On April 10, 1968, at approximately 8:22 p. m., a fire and explosion occurred in a residence at 1010 Garcia, Santa Barbara (Garcia Building). Results of investigation by Fire Department personnel and police induced them to conclude that the fire constituted arson by flammable liquid. The Garcia Building had been recently painted by Fred Cobler. Gas had been previously shut off by the gas company. The Garcia Building had been previously rented to some ‘hippie’ types who had been evicted. The Garcia Building had been vacant for several weeks. The fire inspectors and police found a flashlight, eyeglasses, a (smoking) pipe and a five-gallon can of lacquer thinner which Cobler said were not his. Cobler said he had not painted the day before the fire but on several occasions prior thereto he had found that someone must have entered residence after he had locked it up because various doors had been unlocked and left open. The arson investigation also revealed that the glass in the kitchen window was broken, that it had blood on it (type O)3 and that drops of blood formed a trail down the driveway and up the street for about one-half mile, where they suddenly stopped. The police checked hospitals to try to find anyone injured who had been burned. At St. Francis Hospital they found Guido Hanak (blood type O) who had sustained severe burns. However, Hanak claimed he had been burned in a barbecue pit (as the residence of Saling at 1623 Los Canoas Road) which had exploded as the result of the use of gasoline. Such and explosion had been reported to and investigated by the fire department at about 7:00 a. m. April 11, 1968. Police suspected that Hanak might have been responsible for an earlier arson at 815 Clifford. Hanak claimed he fell into and rolled over in the exploding barbecue pit, but there was no debris in the wounds—they were clean flesh burns and there was a cut on his arm. However, Saling and Szymanski told police that they were present when Hanak was burned in the barbecue pit and verified his claim. Saling was Executive President of M. S. Diversified Company, handling real estate and supervising escrows. Szymanski was Executive Vice President of the company. Saling had recently managed the Garcia Building for the owners. He was also a principal in Oakdale Manor. Hanak had been employed by the M. S. Diversified Company as a painter.
The records of the county recorder's office showed title to the residence was vested in Robert H. Wood, but the insurance policy in the sum of $25,000 prior to March 28, 1968, was in the name of Robert H. Wood and Verna Wood, husband and wife as joint tenants. On February 2, 1968, Mr. and Mrs. Wood transferred title to Oakdale Manor. On March 28, 1968, the insurance company was advised that the beneficiary should be changed to Oakdale Manor, Inc. On March 29, 1968, the amount of the policy was increased to $35,0004 and W. D. Taylor, a second lien holder, was named as beneficiary in addition to Bank of America, the first lien holder. Saling told officers that the house was owned by Oakdale Manor Corporation and that Mr. and Mrs. Wood were Oakdale Manor Corporation and that he represented Mr. and Mrs. Wood. Saling told investigators that the Garcia Building had been previously rented to ‘hippies' who had been evicted a week or two before the fire by Saling Realty. Saling suggested to police that ‘hippies' could have burned the house. The insurance company did not believe that insurance fraud was a motivation for the arson since the property had a value at least equal to the policy. The insurance company (United Pacific Cascade Insurance Company) finally paid $300 on May 3, 1968, and $15,118.81 on September 16, 1968, to repair the fire damage. The money was paid to Zamora as President of Oakdale Manor. The general consensus was that the arson of the residence had been committed by disgruntled hippies.
The police checked various and sundry leads—with optometrists to try to identify the ownership of the eyeglasses, with paint companies to determine the origin of the lacquer thinner, with hospitals and doctors for other burn victims, with taxicab companies to determine if the person who left the trail of blood had been picked up by taxicab, and with fingerprint experts. In the course of these investigations police discovered that Zamora was the son-in-law of Mr. and Mrs. Robert Wood and that he was a principal of Oakdale.
In June 1968, Jim Baker of Albourjet Realty Company advised investigator Lenz (who was responsible for the investigation) that a confidential informant advised him that Hanak andSzymanski had burned the Garcia Building (that Szymanski had spread an additional quantity of paint thinner around on april 9, 1968), and that if he wanted more information to contact Marie Handelman (Hanak's girlfriend). Lenz did so, but Handelman denied all knowledge. Lenz testified that he worked under the supervision of Captain George—that George told him he had to come up with evidence of a motive and evidence that would refute Hanak's alibi, but he never was able to obtain enough evidence to request the issuance of a complaint. Lenz testified that he did not learn until 1972 that saling had paid Hanak's medical expenses. Apparently thinking the case could not be solved, the police destroyed certain evidence in the latter part of 1968 as part of a routine cleanup operation.
On February 22, 1972, Terry D. Arca, a criminal investigator for the Santa Barbara District Attorney, served a subpoena on Fred Cobler in connection with a narcotics case. Cobler indicated concern about Road. Cobler indicated that he suspected arson and that Zamora was behind it. Arca arranged for Cobler to talk to Deputy District Attorney Robert W. Schafer. Arca located and talked to Hanak in June of 1972, who indicated that he might tell what happened. Hanak requested immunity from prosecution which was promised (subsequently officially confirmed) and Hanak told Arca what actually happened.
What actually happened was that about a week and a half to two weeks before the fire of April 10, 1968, Zamora told Gene Raymond Torresani, a general contractor, that he (Zamora) wanted Torresani to remodel an old house and build two new houses on the two lots in the back. Torresani investigated and found that the old house (1010 Garcia Road) had been built on the property lime, so that part of the house was on both sides of the line. This fact apparently made it impossible to build the two houses as Zamora wanted. Torresani advised Zamora and Saling. Zamora asked what to do and Torresani ‘jokingly’ replied, burn it down. Saling laughed. Thereafter Zamora employed Cobler to paint the Garcia Building, instructed him to use an oil base paint and thin it heavily, as there might be ‘an accident there’; that if there was an ‘accident’ Cobler would be notified in time to get his equipment out. Later Zamora called Cobler and told him ‘Well you better get your equipment out.’ Cobler removed his equipment. Cobler owed money to Zamora and did not tell the police about what happened.
About two weeks prior to the fire (April 10, 1968) Zamora told Hanak that he was having problems with the Garcia Building—the house was in the way of development and Zamora asked Hanak ‘Is there any way that it could blow up or anything else?’ Zamora said ‘Nothing bungled like the Clifford place though.’ In October 1967 Hanak had attempted to blow up or burn down a residence at 815 Clifford for Szymanski and Saling, but he was only partially successful. Hanak told Zamora that in addition to painting the whole place they would have cans of lacquer thinner around which would explode and they would keep the doors open so the fire would spread. (Something they had failed to do at the Clifford job.) On April 10, 1968, at 11:00 a. m., Hanak went to the Garcia Building with five gallons of lacquer thinner. Zamora paid for the lacquer thinner. At 8:00 p. m., Zamora drove Hanak to the Garcia Building, Hanak spread lacquer thinner on the walls and supporting beams. He was going to ignite it with a candle. Hanak struck a match and everything exploded. Unbeknown to Hanak, Zamora had also spread an inflammable liquid around. Hanak threw himself through the kitchen window and fled, cut on the arm and badly burned. Hanak was unable to make contact with Zamora, who was to drive him away, but walked about one-half mile to his own car. He finally made contact with Zamora, who took him to Zamora's house to treat the burns. They called Saling (Hanak's employer) and went to his house where Szymanski also lived. Szymanski was also present. The four ultimately agreed that Hanak should go to a hospital, claim he fell in a barbecue pit and got burned and Saling and Szymanski would verify the alibi, but Zamora would pretend to have no knowledge of the matter. Saling and Szymanski arranged for an explosion in the barbecue pit in order to support the story. The barbecue pit explosion was reported to and investigated by the fire department. Hanak went to a doctor and ultimately to St. Francis hospital because there would be less chance that the police would check St. Francis which was several miles away. Zamora had told Hanak that Saling would pay the hospital and medical bills. When the hospital requested money, Saling obtained $1,000 from Zamora for a deposit on account and Saling arranged to pay off the rest of the bill monthly at $100 per month. Zamora agreed to reimburse Saling. The medical bills were not fully paid. In June 1970, Hanak tried to collect more money from Zamora. Saling tried to induce Zamora to give Hanak a couple of trust deeds for some of the monies that he had paid out for all of this. In late 1970 or early 1971 Saling tried to get Zamora to give Hanak a house on Garden Street for the bills.
In June of 1972, Hanak talked to Saling about the fact that the district attorney was investigating the matter and Saling stated ‘As long as we hold the same story, there's no problem,’ and ‘So long as we don't get overly unhappy with each other, we've got it made.’
A. The Statute of Limitations
Counts I, II and III each charged a conspiracy. In the case of a conspiracy the three-year statute of limitations (Pen.Code § 800) begins to run from the last overt act in furtherance of the conspiracy. People v. Crosby, 58 Cal.2d 713, 727, 729, 25 Cal.Rptr. 847, 375 P.2d 839; Bompensiero v. Superior Court, 44 Cal.2d 178, 184, 281 P.2d 250; 62 A.L.R.2d 1369; People v. Legerretta, 8 Cal.App.3d 928, 934, 87 Cal.Rptr. 587; People v. Aday, 226 Cal.App.2d 520, 542, 38 Cal.Rptr. 199, cert. den. 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343; People v. Hess, 104 Cal.App.2d 642, 678, 234 P.2d 65.
Witkin, California Crimes, Volume 1, page 226, ‘Defenses,’ section 237 states: ‘The crime of conspiracy is a felony (see supra, § 105). But it is unusual in that, although it is a continuing offense while the agreement continues, it is not punishable at all unless an overt act is committed. Hence the statute does not commence to run at the time of the agreement, but only on the commission of an overt act. And, although 3 years may have passed from the time of the first overt act, any subsequent overt act starts a new period running; i. e., a prosecution is not barred if any overt act was committed within the period . . .’
In the instant case the crime of arson occurred on April 10, 1968, on which date the crime of arson was complete. The grand jury indictment was returned and filed on June 22, 1972, more than four years later. In our view the object of the conspiracy to commit arson (Count I) was achieved and the conspiracy was completed as a matter of law on April 10, 1968, when the house was burned. No conspiracy thereafter entered into to cover up and conceal the initial conspiracy, the object of which had already been achieved, can extend the statute of limitations on the initial conspiracy. (Grunewald v. United States, 353 U.S. 391, 77 S.Ct. 963, 1 L.Ed.2d 931.) The statute of limitations on Count I therefore ran on April 10, 1971. The trial court should have dismissed Count I.
Count II charged a conspiracy to violate Penal Code section 548, which reads:
‘Every person who wilfully burns or in any other manner injures, destroys, secretes, abandons, or disposes of any property which at the time is insured against loss or damage by fire, theft, or embezzlement, or any casualty with intent to defraud or prejudice the insurer, whether the same be the property or in the possession of such person or any other person, is punishable by imprisonment in the state prison for not less than one year and not more than ten years.’
In our view that crime was complete and the object of that conspiracy was achieved as a matter of law as soon as the Garcia Building was burned on April 10, with the requisite intent. The object of that conspiracy therefore had been achieved on April 10, 1968. No conspiracy thereafter entered into to cover up and conceal the initial conspiracy the object of which had already been achieved can extend the statute of limitations on the initial conspiracy. (Grunewald v. United Sates, supra.) The statute of limitations on Count II therefore ran on April 10, 1971. The trial court should have dismissed Count II.
However Count III charged a conspiracy to violate Penal Code section 487, subd. 1—theft of property of a value in excess of $200—grand theft. The object of that conspiracy was not achieved and that conspiracy was not complete until the money was collected from the insurance company on May 3, 1968 and September 16, 1968. Before the object of that conspiracy had been achieved, while that conspiracy was still in existence and in progress, and as a part of that continuing conspiracy, the parties agreed to send the torch man, Hanak, to the hospital for medical treatment of injuries sustained by him in an effort to achieve the object of the conspiracy—grand theft from the insurance company—the parties agreed to fabricate an excuse or explanation for Hanak's medical condition and the parties further agreed that Zamora would pay such medical expenses. We cannot say as a matter of law that said agreements were not part and parcel of the conspiracy to commit grand theft from the insurance company and were not in furtherance of the object and purpose of such conspiracy. The jury found as a fact, under proper instructions and upon substantial evidence that said agreements were part of the conspiracy to commit grand theft and in furtherance of the object and purpose of such conspiracy. Unlike Counts I and II, the ‘barbecue pit agreement’ was a part of the substance of the conspiracy to commit grand theft, not a consequence of the arson. The jury could well conclude that the ‘barbecue pit agreement” was not a new conspiracy but a modification of the original conspiracy required by an unforeseen and unexpected development. We need not speculate as to the precise motivation for such agreements to send Hanak to the hospital, fabricate an explanation for his condition and have Zamora pay the bills. The motivation could have been to pay Hanak for services rendered or to pay him to buy his silence or to secure medical treatment without exposing the conspiracy and the identity of the conspirators or for some other reason. It is sufficient for our purpose, the jury found, that such agreements were a part of the continuing conspiracy to commit grand theft and to achieve the object and purpose thereof, and we cannot conclude as a matter of law that the jury was wrong. The statute of limitations therefore on Count III did not run until three years from the last overt act in furtherance of that conspiracy which included those agreements. The indictment (as amended) alleged that the conspiracy on Count III existed from ‘the latter part of March 1968 up to and including June 12, 1972.'5 and alleged 17 overt acts in furtherance of the conspiracy the most recent overt act being No. 17 ‘in late December 1970 or early January of 1971.'6 Overt act No. 16 charged an overt act in furtherance of the conspiracy on June 30, 1970.7 It was an essential element of said conspiracy to pay the medical expenses of the ‘torch man’ particularly where the act of arson which had been committed in order to commit grand theft had gone awry and Hanak had been badly burned. The prosecution's evidence was to the effect that Hanak, Saling, Szymanski and Zamora met at the residence of Saling during the early morning of April 11, 1968 (within hours after the arson), and agreed that Hanak (who then required medical treatment as the result of burns sustained in the arson) should fabricate an alibi that he had been burned in Saling's barbecue pit, that Saling and Szymanski would fake a fire in the barbecue pit, that Hanak should go to a hospital for medical treatment, that Saling and Szymanski would support and verify Hanak's alibi and that Zamora would pay the medical expenses.
When a person is hired to commit the crime of grand theft, payment for services rendered is a part of the crime. See People v. Saling, 7 Cal.3d 844, 852, 103 Cal.Rptr. 698, 500 P.2d 610. Furthermore, here the object of the conspiracy which was charged in Count III was to collect the fire insurance proceeds which would become due as a result of the fire loss. We emphasize that object of the conspiracy had not yet been achieved when the conversations and actions of the early morning of April 11, 1968 occurred. In People v. Saling, supra, the Supreme Court at page 852, 103 Cal.Rptr. at page 703, 500 P.2d at page 615 said:
‘The conspiracy usually comes to an end when the substantive crime for which the coconspirators are being tried is either attained or defeated. (See, e. g. People v. Aleck, supra, 61 Cal. 137, 138–139; see also People v. Oldham (1896) 111 Cal. 648, 652–653, 44 P. 312; People v. Dilwood (1892) 94 Cal. 89, 91, 29 P. 420; People v. Gonzales (1887) 71 Cal. 569, 575, 12 P. 783.) It is for the trier of fact—considering the unique circumstances and the nature and purpose of the conspiracy of each case—to determine precisely when the conspiracy has ended. (People v. Smith (1966) 63 Cal.2d 779, 794, 48 Cal.Rptr. 382, 409 P.2d 222; People v. Holmes (1897) 118 Cal. 444, 459, 50 P. 675.) Particular circumstances may well disclose a situation where the conspiracy will be deemed to have extended beyond the substantive crime to activities contemplated and undertaken by the conspirators in pursuance of the objectives of the conspiracy. . . .’
Overt acts No. 16 and 17 were alleged to be in furtherance of that continuing conspiracy alleged in Count III to pay Hanak for services rendered in committing the arson by paying his medical bill for injuries sustained. Count III therefore charged an offense committed within three years prior to June 22, 1972 (after June 22, 1969).
Whether or not alleged overt acts Nos. 16 and 17 were true and, if true, whether or not they were in furtherance of the initial conspiracy charged in Count III were questions of fact to be determined by the jury under appropriate instructions on the law. As an appellate court we cannot determine as a matter of law either that alleged overt acts Nos. 16 and 17 were not true or that they were not in furtherance of the conspiracy alleged in Count III.
The court instructed the jury on the appropriate three-year statute of limitations.8 The jury's guilty verdict indicates that they found overt acts Nos. 16 and 17 to be true, since we presume that the jury followed the court's instructions on the law. No special finding is required. People v. Allen, 47 Cal.App.2d 735, 747, 118 P.2d 927. We conclude that the indictment properly alleged and the people proved by substantial evidence that the crime charged in Count III occurred within three years prior to June 22, 1972 (i. e., after June 22, 1969), and that therefore prosecution for such crime was not barred by the three year statute of limitations.
Counts IV and V charged grand theft. Under Penal Code section 800 an indictment for grand theft shall be found ‘within three years after its discovery.’ The crux of this case, therefore, insofar as Counts IV and V are concerned is to determine when each act of grand theft was discovered.
The appellants, particularly Zamora, claim that the police had all of the facts in 1968 which pointed to the fact that Oakdale Manor owned the house and that the house was covered by insurance; that Hanak was guilty of arson and that as the result of the arson Oakdale collected the insurance. Assuming, without deciding, that the factual elements of this argument are accurate, it does not follow therefrom that the theft was discovered in 1968. The motivation for this arson was extremely complex. It was not ‘to collect insurance’ as that phrase is commonly used, since the value of the residence was substantially equal to the amount of the insurance. Merely collecting insurance in an amount equal to the value of a residence is not a profitable operation and, therefore, normally does not constitute an adequate motive. It is only when additional unique factors were discovered that motivation became understandable. Those factors were that Oakdale (Zamora and Saling) wanted to remove the Garcia Building which was astride the property line without loss of money so that Oakdale could build two houses on and develop property in the rear, which development was prevented by the location and existence of the Garcia Building. Under these unique facts, arson of a residence insured only for its actual value became a profitable operation and therefore constituted motivation for the arson. The motivation was not to collect insurance at a profit but to destroy the Garcia Building without financial loss. Those unique facts were not discovered by the People until 1972, when Cobler, Torresani and Hanak finally told the truth and the whole truth. Prior to the discovery of such unique facts, the People were not chargeable with knowledge that the mere collection of the insurance constituted grand theft. When those additional unique facts were added to the known facts, the People were chargeable with knowledge that the collections of the insurance constituted grand theft. We conclude that the People properly alleged in the indictment that the grand theft alleged in Counts IV and V was not ‘discovered’ until 1972, which was within three years prior to the presentment of the indictment. The allegations of the indictment were sufficient. Sobiek v. Superior Court, 28 Cal.App.3d 846, 849, 106 Cal.Rptr. 516; People v. Rose, 28 Cal.App.3d 415, 417, 104 Cal.Rptr. 702. The People's evidence, if believed, was sufficient to prove the allegations of the indictment. The jury under proper instructions believed the People's evidence.
There is one other facet of this problem which causes concern. By pleading the statute of limitations as a defense and in arguing in support thereof, Saling, Szymanski and Zamora are attempting to take advantage of their own wrong in deceiving the arson investigators regarding the participation of Hanak in the arson and in attempting to derail the investigation with false claims that the arson was probably committed by disgruntled recently evicted ‘hippies.’ Having been successful in their efforts to deceive the investigators, appellants' present argument that they were not successful and that the indictment should have been presented at an earlier date is not persuasive. It is axiomatic that no person may take advantage of his own wrong. Having originally caused the delay, appellants' present complaint about delay is legally indefensible. Appellants sought delay. They should not now complain because they achieved what they sought. The alleged delay did not violate any of defendants' constitutional rights. People v. Archerd, 3 Cal.3d 615, 639–641, 91 Cal.Rptr. 397, 477 P.2d 421. Furthermore, there was no prejudice to defendants Saling, Szymanski and Zamora. It is true that the police routinely destroyed certain evidence in 1968, but that evidence related to the guilt of Hanak, who was granted immunity and who does not complain about the loss of evidence.
B. Was the Testimony of an Accomplice Corroborated?
Although the People called 35 witnesses in their case in chief, the only accomplice who testified for the People was Hanak. An accomplice is a person who may be prosecuted for the identical offense. Penal Code section 1111. No prosecution witness except Hanak could have been prosecuted for the same offense. The crime of arson—that the Garcia Building was intentionally destroyed by fire by use of flammable liquid—was established by substantial evidence other than the testimony of Hanak. Hanak's testimony provided the connecting link between the fact of arson and Saling, Szymanski and Zamora as conspirators to perpetrate the arson and aid and abet in covering it up in order to defraud the insurance company. Hanak's testimony also provided evidence of motivation. Hanak thus established the element of who (?) and why (?). His testimony was, however, corroborated by Torresani and Cobler. Zamora alleges that they were also accomplices. They were not! There was no substantial evidence to prosecute either Cobler or Torresani for the identical offense. At most, Cobler and Torresani had suspicions and may have been culpable (a point which we do not decide) in withholding information, but there was no basis for concluding that they were guilty of or could have been prosecuted for the identical offense. Furthermore, the testimony of Hanak was corroborated by evidence in addition to the testimony of Torresani and Cobler. It was corroborated by evidence of the financial involvement of Zamora, Saling and Szymanski in Oakdale Manor, Inc.; that the house was astride the lot line; in the fact that some of Hanak's hospital and medical bills were paid for by Saling; that Zamora reimbursed Saling; that Saling arranged credit for the balance of the medical expenses; that Saling and Szymanski contrived the fire in the barbecue pit and then made reports to the fire department regarding the contrived fire in the barbecue pit. The jury was correctly instructed that the testimony of an accomplice must be corroborated (CALJIC 3.11), regarding the sufficiency of evidence to corroborate an accomplice (CALJIC 3.12), that one accomplice may not corroborate another (CALJIC 3.13), that Hanak was an accomplice as a matter of law (CALJIC 3.16) and that the testimony of an accomplice should be viewed with distrust (CALJIC 3.18). We presume that the jury adhered to the court's instructions. Their verdict demonstrates that the jury believed that the People had corroborated the testimony of Hanak and that such corroboration was true. We conclude that Zamora's claim that the testimony of accomplice Hanak was not corroborated is devoid of merit.
C. Did the Court Erroneously Deny Zamora's Motion to Acquit?
Zamora's motion to acquit made at the conclusion of the People's case was based on the ground that the prosecution was barred by the statute of limitations (a point already disposed of, supra), that the testimony of accomplice Hanak was not corroborated (a point already disposed of, supra) and on the further ground that there was no substantial evidence to sustain a conviction. As we have seen, there was substantial evidence of Zamora's guilt. He was a principal conspirator to the agreement to commit grand theft and he was a principal conspirator to the agreement to pay Hanak's medical expenses. The court properly denied Zamora's motion to acquit.
D. Was Zamora's Trial Counsel Incompetent Under Ibarra Standards?
Zamora contends that his trial counsel was incompetent under principles enunciated in People v. Ibarra, 60 Cal.2d 460, 34 Cal.Rptr. 863, 386 P.2d 487, inter alia because he did not move for a severance when it became known that the People had a tape recording of a conversation by Saling in which he inferentially admitted guilt and implicated Zamora, and because of the introduction of evidence regarding the commission of a separate act of arson at 815 Clifford Street in which only Saling and Szymanski (but not Zamora) were involved. Zamora argues that the playing of the tape violated principles enunciated in People v. Aranda, 63 Cal.2d 518, 530, 531, 47 Cal.Rptr. 353, 407 P.2d 265, and Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620. 20 L.Ed.2d 476. However, since both Saling and Szymanski testified subject to cross-examination, there was no Aranda-Bruton error. Nelson v. O'Neil, 402 U.S. 622, 629, 630, 91 S.Ct. 1723, 29 L.Ed.2d 222; In re Rosoto, 10 Cal.3d 939, 951, 952, 112 Cal.Rptr. 641, 519 P.2d 1065; People v. Sosa, 26 Cal.App.3d 514, 518, 103 Cal.Rptr. 58. The policy of the law favors joint trials, particularly where all defendants are charged with the identical offenses and they have a community of interest in the crimes charged. Penal Code section 1098; People v. Graham, 71 Cal.2d 303, 331, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Lara, 67 Cal.2d 365, 394, 62 Cal.Rptr. 586, 432 P.2d 202, cert. den. 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407; People v. Isenor, 17 Cal.App.3d 324, 330, 331, 94 Cal.Rptr. 746. It is true that the matter of separate trials is addressed to the sound discretion of the trial court. People v. Graham, supra, 71 Cal.2d 303, 330, 78 Cal.Rptr. 217, 455 P.2d 153; People v. Simms, 10 Cal.App.3d 299, 307, 89 Cal.Rptr. 1. In our view it is highly doubtful that a trial court in the exercise of a sound discretion would have granted a separate trial in a case of this complexity (thirty-five People's witnesses in chief, eighteen rebuttal witnesses, seven defense witnesses and a total of approximately one hundred seventy exhibits) and requiring this amount of trial time (thirty-one trial days) merely because the evidence of guilt was not identical as to each defendant. If lack of identical evidence as to each defendant would require separate trials as a matter of law, it is doubtful that there would ever be any joint trials since evidence is rarely identical as to all of several defendants. We cannot conclude that Zamora's counsel was incompetent under Ibarra standards simply because he failed to move for separate trial which motion he may well have concluded would in all probability have been an exercise in futility.
Zamora also argues that his counsel was incompetent under Ibarra standards because he failed to move to suppress ‘all evidence that the fire at 1010 Garcia Street was the result of arson.’ Zamora relies on Swan v. Superior Court, 8 Cal.App.3d 392, 87 Cal.Rptr. 280. We are not persuaded that Swan v. Superior Court supports the proposition which Zamora seeks to establish. In Swan the fire occurred on April 14, 1968, and police searched the house there involved ten days later, after it had been boarded up. The court there held that there was a violation of the owner's reasonable expectation of privacy and that the police had adequate time to secure a search warrant based upon what the arson expert had observed on April 14, 1968, under emergency circumstances. The court inferentially therefore held that what arson experts observed at the time and immediately after the fire was not the product of an unreasonable search since the court said that such information would have afforded the basis for securing a search warrant. This is true because evidence of what arson inspectors observe at the time of and immediately after a fire is not proscribed by the Fourth Amendment since it is observed under exigent or emergency conditions.
In the case at bar Kenneth R. Bishop, Battalion Chief for the Santa Barbara City Fire Department, testified for the prosecution as an arson expert. His qualifications as an expert were stipulated to. He testified that the fire department received the call of fire at the Garcia Building at 8:24 p. m., April 10, 1968; that four units responded; that he arrived at 9:15 p. m. and that he observed ‘Engine companies in the final stages of overhauling a structure which had been on fire.’ He entered the structure and ‘began an investigation as to the cause of the fire.’ He directed Jack Cogan, a police department photographer, to take photographs. That he (Bishop) observed ‘a residue on the inside of the structure which appeared to be left by a burning or an inflammable liquid’; that on the night of April 10, 1968, he observed ‘patterns' which ‘indicated a flammable liquid had been placed in these areas.’ (These patterns were pointed out by Bishop to the photographer and subsequently photographed on April 11, 1968, and the photographs were received in evidence.) Bishop testified to the details of what he observed the night of April 10, 1968.
He observed the broken glass in the door and kitchen window. He saw the burn paterns, the containers (with flammable liquids) scattered about the area and the broken glass. The fire department put a ‘fire watch’ on the premises in order to prevent recurrence of the fire and to prevent anyone from disturbing the premises. The same evidence was obtained on subsequent investigations by both the fire investigators and police officers. In addition they subsequently discovered evidence which related solely to Hanak—a pair of reading glasses, a smoking pipe, and a flashlight.
We emphasize that this appeal does not present a question of whether the search and seizure was unreasonable and therefore illegal9 but whether or not the defendant was deprived of the effective representation of counsel under Ibarra standards (People v. Ibarra, supra), because trial counsel failed to make a motion under Penal Code section 1538.5 to suppress evidence obtained during the course of the arson investigation. The record presented here does not justify a conclusion by us that such failure was the result of either negligence or incompetence or that it reduced the trial to a sham or farce. The failure may well have been justified for several tactical reasons. We call attention to the most obvious: Saling, who was the manager of the Garcia Building, pretended to cooperate with the investigators in the arson investigation in order to detour suspicion to some ‘hippies.’ The investigators here had the right to rely on the doctrine of implied consent. Zamora's counsel may well have refused to make a 1538.5 motion to supress since he well knew that the search had been consented to. A hearing on such a motion may well have demonstrated such consent beyond any doubt. In our view, the failure by Zamora's counsel to make a motion to suppress under Penal Code section 1538.5 does not indicate a violation of Ibarra standards.
Furthermore, assuming without deciding that there was an unreasonable search and seizure, once Hanak, Torresani and Cobler testified to the fact of the arson, the evidence uncovered by the fire investigators became relatively meaningless. The crime of grand theft by arson was clearly established by the testimony of Hanak, Torresani and Cobler combined with clearly admissible evidence that the Garcia Building was partially destroyed by fire. We conclude that beyond a reasonable doubt the result would have been the same if a motion to suppress had been made and had been granted.
E. Did Court Err In Denying Zamora's Motion for Mistrial?
Zamora claims that as to him the court committed error in admitting in evidence a tape recording in which Saling (an alleged accomplice) made various admissions which implicated Zamora. Zamora claims that this violated rules enunciated in People v. Aranda, 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265; People v. Terry, 2 Cal.3d 362, 388, 85 Cal.Rptr. 409, 466 P.2d 961 (error held not prejudicial); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. Zamora claims that the court erroneously denied his motion for a mistrial. If there was error it was cured by the fact that Saling was sworn and testified. Under such circumstances the constitutional right of confrontation of witness was satisfied. Nelson v. O'Neil, 402 U.S. 622, 629, 630, 91 S.Ct. 1723, 29 L.Ed.2d 222; In re Rosoto, 10 Cal.3d 939, 951, 952, 112 Cal.Rptr. 641, 519 P.2d 1065.
F. Could Zamora Be Prosecuted for Violating Penal Code Section 487 subd. 1 and Penal Code Section 548?
Zamora argues that he could not be presecuted and convicted for violating Penal Code section 487 subd. 1 (grand theft) which is a general statute and a violation of Penal Code section 548 (destruction of insured property with intent to defraud) which is a specific statute. He argues that when the general statute includes the same matter as the special act the special act will be considered and exception, citing In re Williamson, 43 Cal.2d 651, 654, 276 P.2d 593. See also People v. Gilbert, 1 Cal.3d 475, 479–481, 82 Cal.Rptr. 724, 462 P.2d 580. However, he recognizes that if the general statute requires an element of the crime which is not required by the special statute, the rule does not apply. People v. Cohen, 12 Cal.App.3d 298, 320–321, 90 Cal.Rptr. 612. Here the general statute (Penal Code section 487 subd. 1) contains an element not included in the specific statute (Penal Code section 548) namely the collection of money from the insurance company. Under Penal Code section 548 the offense is complete when the property is destroyed or concealed with the specific intent regardless of whether or not money is in fact collected from the insurance carrier. Penal Code section 487 subd. 1 requires the actual receipt of something of value. People v. Cohen, supra at 321, 90 Cal.Rptr. 612. The two statutes therefore deal with different offenses and were enacted for different purposes. People v. Clark, 241 Cal.App.2d 775, 779, 51 Cal.Rptr. 7. However, the objection is moot in view of our conclusion that Count II conspiracy to violate section 548 (destruction of insured property with intent to defraud) is barred by the three year statute of limitations.
G. Was Zamora Properly Convicted of Two Counts of Grand Theft?
Zamora collected $300 from United Pacific Cascade Insurance Company on May 3, 1968, which was the basis for Count IV and $15,118.81 from the same company on or about September 16, 1968, which was the basis for Count V. The people recognize the general rule that different grand thefts motivated by one general intent, impulse and plan can result only in one charge of grand theft. People v. Bailey, 55 Cal.2d 514, 519, 11 Cal.Rptr. 543, 360 P.2d 39; People v. Neder, 16 Cal.App.3d 846, 852, 94 Cal.Rptr. 364; People v. Robertson, 167 Cal.App.2d 571, 576–577, 334 P.2d 938. The People argue, however, that the $300 was collected on May 3, 1968, to deodorize the building, allegedly preparatory to rebuilding. This was done in order to induce the insurance company to believe that the property would be repaired in order to persuade it to pay $15,118.81 on September 16, 1968, for repairs which never actually took place. The People contend therefore that there were two thefts motivated by two different fraudulent plans. We do not agree. The People's evidence established that the ‘two plans' were part and parcel of the one original overall plan formulated shortly prior to April 10, 1968, to burn down the building and collect the insurance in order that the owner might develop other property in the rear of the development which was obstructed by the Garcia Building. The fact that the original plan was only partially successful because the Garcia Building was not completely destroyed, and therefore the money was collected piecemeal on different dates from the same victim dose not justify separate legal treatment where both collections were a part of and in furtherance of the same initial general overall plan. Just as the barbecue pit fire alibi was within the scope of the original conspiracy so the subsequent collection of the insurance proceeds in two payments was a part of the original overall plan which required adjustment from time to time to accommodate unforeseen developments. We will therefore order a reversal of the conviction on Count IV with an order that that charge be dismissed.
H. Was the Jury Properly Instructed?
The court instructed the jury:
‘In the case of Counts . . . III, the period of limitations commences to run from the date of the last overt act found to be true. The period is three years from that date. In order to find the defendant guilty of the crimes of conspiracy alleged in Counts . . . III, it is necessary that you find that at least one overt act alleged did occur after June 22, 1969. This means that unless you find either Overt Act No. 16 or Overt Act No. 17 to be true, you must find the defendant not guilty of crimes charged in Counts . . . III.’
Zamora claims that this constituted an instruction that overt acts 16 and 17 were in fact overt acts. However, the jury was instructed on what constituted an overt act as follows:
‘A conspiracy is an agreement between two or more persons to commit the public offense of willfully and maliciously burning of a dwelling house, in violation of Penal Code § 447a, the public offense of buring property insured against loss by fire with intent to defraud the insurer, in violation of Penal Code § 548, and the public offense of grand theft, in violation of Penal Code § 487, subd. 1, and with the specific intent to commit such offenses, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime.
‘In order to find a defendant guilty of conspiracy, in addition to proof of the unlawful agreement, there must be proof of the commission of at least one of the overt acts alleged in the Indictment, that occurred after June 22, 1969. It is not necessary to the guilt of any particular defendant that he himself committed the overt act, if he was one of the conspirators when such act was committed.
‘The term ‘overt act’ means any step taken or act committed by one or more of the conspirators which goes beyond mere planning or agreement to commit a public offense and which step or act is done in furtherance of the accomplishment of the object of the conspiracy.
‘To be an ‘overt act’, the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that such step or act, in and of itself, be a criminal or unlawful act.'
In other instructions the jury was advised that the prosecution ‘alleged that the following were overt acts [specifying the seventeen alleged overt acts] which were committed . . .’ for the ‘purpose of furthering the object of the conspiracies.’ The jury was also instructed that they were not to single out any single sentence or individual part and ignore the others, but that they were required to consider all of the instructions as a whole and were to regard each in the light of all of the others.
We presume that the jury followed the court's instructions. Under these circumstances we conclude that under the court's instructions taken as a whole the jury was fairly instructed that No. 16 and No. 17 were no more than alleged overt acts and if the jury did not find them to be true in the light of the court's instructions (quoted supra) on what constituted an overt act they were required to acquit.
Zamora also complains that the following instruction was an erroneous statement of law:
‘In the case of Count IV and Count V, the period of limitations commences to run from the date the crime of grand theft is discovered.
‘In order to prove the action was commenced within that three years of the date of discovery of the crime, the People must show:
‘1. That no law enforcement agency had knowledge of the commission of the crime of grand theft as charged in Counts IV and V before June 23, 1969.
‘2. That in the exercise of reasonable diligence, the facts constituting the crime of grand theft could not have been discovered before June 23, 1969.’
Zamora argues that the jury was required to determine the issue of the statute of limitations before they were required to determine the guilt or innocence of the defendant. He argues that Penal Code section 800 requires the discovery of the crime, not the identity of the criminal. Assuming the argument to be valid, the vice is in its application to these facts. Admittedly, the police knew certain facts more than three years prior to June 22, 1972 (the date the indictment was presented by the grand jury). The police knew that the Garcia Building had been burned by flammable liquids and was set by human agencies and therefore probably constituted arson. They also knew that at a later date the fire insurance company paid certain monies to the owner to reimburse him for his fire loss. The police knew certain facts but they did not know that those facts constituted part of the crime of theft until they discovered additional facts leading to the conclusion that the defendants had entered into a conspiracy to commit arson in order to collect the insurance. They then had knowledge of the crime of grand theft. (Coincidentally of course they ascertained the identity of the criminals.) Prior to that time they had no knowledge that the acts of which they had knowledge constituted the crime of grand theft.
We conclude, therefore, that the court's instruction was correct. The jurors were not instructed that they had to first determine the identity of the criminal before they could determine whether or not the statute of limitations applied.
Zamora argues that the following instruction is an erroneous statement of law:
‘You are instructed that with respect to Counts IV and V charging grand theft, a false pretense may consist of any act, word, symbol, or token calculated and intended to deceive. It may be made expressly, or by implication.
‘The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact is a false pretense.
‘It is not necessary to sustain the charge of theft by false pretenses that the defendant expressly state the false pretense, if all his statements together reasonably create a belief to that effect.’
He argues that the underlined portion is erroneous because the statute of limitations on arson is three years from the arson, whereas by converting arson into the crime of theft by false pretense, the prosecution is extending the statute of limitations on the crime of arson contrary to the will of the Legislature. We fear that Zamora has fallen into his legal quagmire because of a stubborn refusal to recognize that simple arson and grand theft by arson in order to collect insurance are two separate and distinct offenses governed by two different statutes of limitations which Penal Code section 800 expressly recognizes. The statute of limitations on the latter offense does not commence to run until ‘after its discovery.’ As we have repeatedly stated herein, in this context the crime of grand theft was not discovered until the police discovered that the motivation for the arson was in order to remove the obstruction of the Garcia Building without financial loss by collecting insurance as the result of its destruction by arson. Before Zamora collected from the insurance company he had a duty to advise the company that the fire to the Garcia Building had been deliberately and intentionally set in order to collect the insurance and that collecting the insurance while suppressing that information constituted a false pretense. He falsely pretended that he was entitled to collect the insurance when he knew that he was not entitled to do so.
The judgment is reversed as to Counts I, II and IV as to each defendant, and the judgment is affirmed as to Counts III and V as to each defendant, and the trial court is directed to resentence Saling on Counts III and V.
1. Saling and Szymanski have alleged this ultimate issue in eleven different ways and Zamora has alleged it in four different ways. For sake of brevity we state it in its ultimate form and will discuss the various facets of the problem.
2. Time and space restrict us to only a brief skeletal outline of the evidence. The summary of facts in one brief runs over 100 pages. The reporter's transcript consists of 25 volumes aggregating 3290 pages.
3. Approximately 65 percent of the population has blood type O.
4. When Zamora testified in his own behalf, he testified that the Garcia Building had a value of from $33,000 to $38,000.
5. This probably should have been amended to read late December 1970 or early January 1971. The indictment was amended to conform to the court's ruling striking overt acts No. 14 and 15 but the charging paragraphs were not amended.
6. Overt act No. 17 read: ‘That thereafter, in late December of 1970 or early January of 1971, in pursuance of said conspiracies, and to effect the object thereof, the said defendant MILO P. SALING, in compliance with the promise of defendant PAUL ZAMORA to pay Guido Hanak for his participation in the crime, did attempt to obtain money from defendant PAUL ZAMORA to be given to Guido Hanak in payment for the participation of Guido Hanak, who at that time had never been paid for his participation in the arson promised by defendant PAUL ZAMORA.’
7. Overt act No. 16 read: ‘That thereafter, on or about June 30, 1970, in pursuance of said conspiracies, and to effect the object thereof, the said defendant MILO P. SALING offered to attempt to obtain for Guido Hanak a quantity of second trust deeds from PAUL ZAMORA in compliance with his promise to pay Guido Hanak for his participation is the burning of 1010 Garcia Road, said Guido Hanak at this time having never been paid anything by defendant PAUL ZAMORA.’
8. The court instructed the jury:‘This action was commenced when the indictment was found on the 22nd day of June, 1972. By entering a plea of not guilty, the defendants have placed in issue each and every element of the crimes charged therein. One such element is that this action must have been commenced within a specified period of time. The People, as plaintiff, bear the burden of proving that it has. . . .‘A conspiracy is an agreement between two or more persons to commit the public offense of willfully and maliciously burning of a dwelling house, in violation of Penal Code § 447a, the public offense of burning property insured against loss by fire with intent to defraud the insurer, in violation of Penal Code § 548, and the public offense of grand theft, in violation of Penal Code § 487 [subd.] 1, and with the specific intent to commit such offenses, followed by an overt act committed in this state by one or more of the parties for the purpose of accomplishing the object of the agreement. Conspiracy is a crime.‘In order to fine a defendant guilty of conspiracy, in addition to proof of the unlawful agreement, there must be proof of the commission of at least one of the overt acts alleged in the Indictment, that occurred after June 22, 1969. It is not necessary to the guilt of any particular defendant that he himself committed the overt act, if he was one of the conspirators when such act was committed.‘The term ‘overt act’ means any step taken or act committed by one or more of the conspirators which goes beyond mere planning or agreement to commit a public offense and which step or act is done in furtherance of the accomplishment of the object of the conspiracy.‘To be an ‘overt act’, the step taken or act committed need not, in and of itself, constitute the crime or even an attempt to commit the crime which is the ultimate object of the conspiracy. Nor is it required that such step or act, in and of itself, be a criminal or unlawful act.'
9. For reasons hereinafter stated, we conclude that it is unnnecesary to determine whether or not the arson investigation was illegal. However, in support of the legality of such search under exigent circumstances, we call attention to the following: Health and Safety Code sections 13109, 13107; Steigler v. Anderson, U.S.Ct. of App. 3rd Cir. 1974, 496 F.2d 793; 35 Am.Jur.2d 584, Fires § 4.
LORING,* Associate Justice. FN* Assigned by Chairman of the Judicial Council.
KAUS, P. J., and HASTINGS, J., concur.