HUGHES v. PEOPLE (1985)

This writ arises out of a prosecution for murder with special circumstances.   The special circumstances are based on an allegation the murder occurred while petitioner was engaged in committing the crimes of arson, robbery and burglary.   The writ presents three issues.   First, did the prosecution offer sufficient evidence at the preliminary hearing to establish probable cause to believe petitioner committed the murder?   Second, did the expiration of the statute of limitations on the associated felonies of arson, robbery and burglary bar prosecution for special circumstance murder?   Third, must the arson special circumstance allegation be stricken because the murder statute references a repealed code section in defining the crime of arson?

We conclude the evidence was sufficient to show probable cause and the special circumstance murder charge is not barred by the statute of limitations.   Moreover, we hold the erroneous statutory reference does not require striking the arson special circumstance allegation in the circumstances of this case.

 I. FACTS AND PROCEEDINGS BELOW

The proof of a corpus delicti is not disputed.   On the evening of May 26, 1980, firemen were called to extinguish a blaze at a duplex in Lynwood.   Inside they discovered the body of an eighty-year-old woman, Alma Burk.   She had died from stab wounds.   A bloody meat fork was found nearby.   The apartment itself had been turned upside down.   Someone had pulled drawers out and strewn papers across the floor.   Later investigation established the fire was deliberately set by human hands.

The day after the crime detectives interviewed the victim's neighbors.   At that time, they noticed the petitioner, Horace Hughes, in the next door apartment.   But by May 30th neither petitioner nor anyone else was there.

On August 13, 1980, a metal box turned up at a junkyard.   It contained the victim's will, some of her securities, a traveler's check envelope and other papers.   But it was March 1983 before petitioner's prints were taken and a fingerprint comparison completed.   The fingerprint expert testified the petitioner's prints were on the will, two of the bonds, and the traveler's check envelope.

On July 11, 1983, the prosecution filed a complaint charging petitioner with the murder of Alma Burk.   This pleading also alleged special circumstances—murder during the commission of the felonies of robbery, burglary and arson.   The latter offenses were charged as independent crimes in other counts of the complaint.   After a preliminary hearing, the magistrate committed petitioner to the superior court on all the charges alleged in the complaint.

On May 18, 1984, the superior court sustained petitioner's demurrer to the burglary, robbery and arson counts.   The court held these counts were barred by the three-year statute of limitations applicable to ordinary crimes.   However, on June 14, the court denied petitioner's further motions to strike the special circumstance allegations and to set aside the remaining murder charge in the information for lack of sufficient evidence.   On June 29, 1984, petitioner filed a petition for writ of prohibition in this court.   We granted an alternative writ on July 30, 1984, returnable on October 4, 1984.

 II. DISCUSSION

Petitioner raises three contentions.   First, the evidence introduced at the preliminary hearing was insufficient to commit him on the murder charge.   Second, the court should strike the three special circumstance allegations because the underlying crimes are barred by the statute of limitations.   Third, the court should at least strike the special circumstance allegation based on arson because the murder statute cites to a repealed code section in its definition of arson.

A. The Evidence at the Preliminary Hearing Was Sufficient to Satisfy the Rather Minimal Standard of Proof Applicable at This Stage of the Proceedings.

 The prosecution's burden of proof at a preliminary hearing is far different from its burden at trial.   At trial it must prove the defendant's guilt beyond a reasonable doubt.   In a preliminary hearing it need only produce enough evidence to show “some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it.”  (People v. Hall (1971) 3 Cal.3d 992, 996, 92 Cal.Rptr. 304, 479 P.2d 664;  italics added.)   Moreover, the evidence need only support a reasonable inference of guilt.   It need not be the only inference the court could draw nor even the more probable one.  (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474–475, 62 Cal.Rptr. 581, 432 P.2d 197;  Greenberg v. Superior Court (1942) 19 Cal.2d 319, 322, 121 P.2d 713.)   Thus, if the inference of guilt is a logically defensible one this motion to set aside the information was properly denied.

In its brief, the prosecution attempts to make something out of the fact the petitioner was present in an adjoining apartment the day after the crime but not there four days later.   Purportedly, from this the court could have inferred the petitioner attempted to avoid contact with the police which is a specie of “flight” evidencing a consciousness of guilt.   This argument illustrates the kind of evidence and the sort of inference which are too speculative to support a finding of probable cause in a preliminary hearing.   For all this evidence shows, petitioner could have been away at the grocery store or on a family visit when the police returned to this apartment four days after the crime.   He could have returned later that day or the next and stayed there for weeks or months thereafter since the police never revisited those premises.   The police also noted none of the other people who had been in this adjoining apartment the day after the crime were present when they returned four days later.   Are we to infer their guilt, too, from what may have been a temporary absence?   In this instance, the slim evidence presented is consistent with so many innocent inferences and the inference of “flight” so improbable it cannot sustain a probable cause determination petitioner had a “consciousness of guilt.”

At the same time, the evidence petitioner was present in an adjoining apartment the day after the crime does supply ample proof of another important factor—the opportunity to commit the murder.   However, many other people—including but not limited to the others present in this neighboring apartment on this same day—also had an opportunity to kill Alma Burk.   Thus, this is usable evidence but far from enough to hold petitioner to answer on the murder charge.

Which brings us to the primary evidence introduced against petitioner at the preliminary hearing—the presence of his fingerprints on documents belonging to the victim.   We first observe the circumstances are sufficient for the magistrate to infer these documents were taken from Alma Burk's apartment by the murderer and later discarded by him.   Indeed this is the most probable inference.   The apartment had been ransacked in a manner indicating a search for valuables.   These securities and other papers were just the sort of item a thief could be expected to seize.   And they were found in a junkyard, not the sort of place Alma Burk is likely to have chosen to store her last will, her bonds and other important papers.

Still, Alma Burk could have been murdered and her papers stolen by any one of the scores or hundreds, including petitioner, who had an opportunity to commit this crime.   The only evidence identifying petitioner as the one among these many who actually committed the crime are his fingerprints on the will, two of the bonds and the traveler's check envelope.   Petitioner points to several cases where appellate courts found fingerprint evidence alone to be insufficient to support a conviction or, in some instances, even a probable cause finding.   We are not persuaded these decisions control this case.

When we canvass the possible explanations for petitioner's fingerprints appearing on these stolen documents this court is not driven to conclude the explanation consistent with guilt is improbable or speculative.   Indeed, on reflection, it seems a very reasonable inference from the evidence.  (Whether this evidence alone would be enough to sustain a verdict of guilty after a trial is a different and more difficult question.   However, as noted above, that question is not before us.)

For the most part, the contents of this metal box were Alma Burk's most private and valuable papers—her last will and testament, her bonds, etc.   It seems highly unlikely she would show them to anyone, with the possible exception of her closest family members.   It seems even less likely she would allow someone to actually touch her will, or her securities or the envelope containing her traveler's checks.   Of course, it is conceivable petitioner became a close friend and frequent visitor in Burk's home.   And it is conceivable Burk grew to trust him as a confidant and, in order to obtain his advice, showed him the will, the securities, and the traveler's checks.   But this is highly speculative conjecture finding little support in the evidence before the magistrate.   Alternatively, it also is conceivable Alma Burk was eccentric and went around the neighborhood showing people her private papers.   However, if this were the case one would assume these documents would have been covered with the fingerprints of friends, neighbors and strangers.   But there is no evidence in the record suggesting they were.   It is also conceivable petitioner discovered these papers after they had been discarded by the “real murderer.”   He merely looked through them and returned them to the trash instead of turning them in to the police.   But no evidence was introduced before the magistrate even suggesting this explanation might be true.

What we are left with is the presence of petitioner's fingerprints on stolen documents.   Significantly, these are not ordinary documents.   Rather they are the type of papers which are so private and so valuable the owner is unlikely to have allowed anyone to touch them.   In the absence of evidence suggesting petitioner had a special relationship with the victim, it is unlikely he saw or touched those papers with Burk's consent.   Thus, it is entirely reasonable to infer he obtained them only after she was in no position to withhold consent, that is, after he killed her.

These circumstances easily distinguish the instant case from decisions relied on by petitioner.   For instance, in Birt v. Superior Court (1973) 34 Cal.App.3d 934, 110 Cal.Rptr. 321, the sole evidence was defendant's fingerprints on a lighter found inside a rented van used in a robbery.   The court ruled this insufficient to support a probable cause finding, stressing she could have left the lighter in the rental van on some occasion long before the van's use in the robbery.  (34 Cal.App.3d at p. 938, 110 Cal.Rptr. 321.)   The court also emphasized the absence of “evidence that petitioner's fingerprints were found ․ on any of the stolen property.”   Here, by way of contrast, petitioner's fingerprints indeed were found on the stolen property.   Moreover, that property was not a lighter—an object anyone might be allowed to touch.   Nor was it found in a rental van—a location to which scores of people might have access over the period of a few weeks.   Instead this property consisted of private papers no one but the owner ordinarily would be allowed to touch and which had been stored in a private home.  People v. Jenkins (1979) 91 Cal.App.3d 579, 154 Cal.Rptr. 309 can be distinguished on similar grounds.   There the defendant's fingerprints were found on some bottles used in a narcotics laboratory.   This was held to be insufficient evidence to convict since these particular bottles did not contain narcotics and the bottles were readily accessible to people not involved in the narcotics manufacturing process.   In the instant case, petitioner's fingerprints were found on the contraband itself—the stolen documents—and the contraband was virtually inaccessible to anyone other than the owner and the thief.

 Under the circumstances of this case, we hold the fingerprint evidence was sufficient to supply probable cause to commit petitioner to the superior court for trial for the murder of Alma Burk.

B. The Three Special Circumstance Allegations Need Not Be Stricken Merely Because the Statute of Limitations Had Run on These Offenses Were They Charged as Independent Crimes.

 The crime against Alma Burk was committed on May 26, 1980.   Petitioner was not charged with these offenses until July 11, 1983, more than three years later.   There is no statute of limitations for murder.   (Pen.Code, § 799;  People v. Jordan (1955) 45 Cal.2d 697, 708, 290 P.2d 484.)   But robbery, burglary and arson—the three felonies which are the basis of the special circumstance allegations against petitioner—each carry a three-year statute of limitations.  (Pen.Code, § 800.)   Accordingly, the prosecution is barred from proceeding against petitioner on these other crimes.   Indeed the trial court properly dismissed the counts which charged these three offenses as independent crimes.   However, petitioner contends the court also should have dismissed the special circumstance allegations since they too were barred by the three-year statute of limitations.   We disagree.

Petitioner's argument is predicated on the language of Penal Code section 190.4, subsection (a).

“․ Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime.”

He argues these three felonies cannot be “charged and proved pursuant to the general law” because “a statute of limitations ․ is an essential element of the offense charged, to be proven by the prosecution, ․”  (People v. Witt (1975) 53 Cal.App.3d 154, 162, 125 Cal.Rptr. 653, cert. den. (1976) 425 U.S. 916, 96 S.Ct. 1518, 47 L.Ed.2d 768.)   Since these crimes are barred by the statute of limitations they cannot be “charged and proved” within the meaning of section 190.4 and thus cannot provide special circumstances to support imposition of the death penalty.

This argument has a certain surface appeal.   However, it represents a strained interpretation of section 190.4, subsection (a) which is inconsistent with the purposes both of that law and of statutes of limitation.

But before looking closely at this section and the underlying policies, we first note the California Supreme Court already has confronted this precise issue in an analogous context.  Penal Code section 189 raises certain murders from second degree to first degree depending upon whether they took place during the commission of designated felonies.   These felonies obviously have statutes of limitations.   Sometimes the murder is not solved and the charges are not filed until after the statute has run on the felonies which would elevate the crime of murder from second to first degree.   Thus it is not surprising the very issue posed by petitioner in this case arose in the context of section 189—may the defendant be prosecuted for the more serious form of murder even though the statute of limitations has expired on the associated felony.

The California Supreme Court has answered this question in the affirmative.   In People v. Risenhoover (1968) 70 Cal.2d 39, 73 Cal.Rptr. 533, 447 P.2d 925, cert. den. (1969) 396 U.S. 857, 90 S.Ct. 123, 24 L.Ed.2d 108, the prosecution sought to prove the defendant guilty of first degree murder because the victim died during an attempted robbery.   The defendant objected the attempted robbery allegation was barred by the statute of limitations.   The Supreme Court rejected this position ruling “[t]hat the statute of limitations may have run on all crimes [used to elevate the crime to first degree murder] except the murder is immaterial here.”  (Id., at p. 50, 73 Cal.Rptr. 533, 447 P.2d 925.)   The Risenhoover holding was summarized and followed in People v. Terry (1969) 70 Cal.2d 410, 422–423, 77 Cal.Rptr. 460, 454 P.2d 36, cert. den. (1970) 399 U.S. 911, 90 S.Ct. 2205, 26 L.Ed.2d 566, reh. den. (1970) 400 U.S. 858, 91 S.Ct. 26, 27 L.Ed.2d 97.

Petitioner seeks to distinguish this line of cases on grounds Penal Code section 189 does not contain the same sort of specific language used in section 190.4(a).   However, it is also true that under section 189 all elements of the felony used to elevate murder to the first degree indeed must be proved beyond a reasonable doubt.  (People v. Whitehorn (1963) 60 Cal.2d 256, 264, 32 Cal.Rptr. 199, 383 P.2d 783.)   The language of section 190.4(a) requiring the associated felony to “be charged and proved pursuant to the general law applying to the trial and conviction of the crime” can be interpreted to mean proof of the acts and mental state which comprise the crime.   On its face the statute itself does not also require proof the felony was committed within three years of the initiation of prosecution.   Thus section 190.4(a) can be construed merely to make explicit what also is the law under section 189.   Accordingly, the Supreme Court decisions interpreting the impact of statutes of limitations on section 189 may be equally applicable to section 190.4(a).

But there are independent and better reasons for holding section 190.4(a) does not require this prosecution be barred by the statute of limitations applicable to arson, robbery and burglary.   It must be remembered petitioner is not being charged in this count with commission of arson, robbery or burglary.   Rather he is being charged with murder.   The murder is deemed more serious—indeed serious enough to warrant the death penalty or life imprisonment without possibility of parole—because it allegedly took place while petitioner was committing certain other acts which comprise another crime.   The commission of these other criminal acts mark this defendant as a worse and more dangerous person.   He is just as bad and just as dangerous if the murder and associated criminal acts took place five years ago as if they were committed last week.   Thus in terms of the sole use of these other crimes—to elevate the seriousness and penalty of the murder charge—it is irrelevant whether statutes of limitation would bar conviction for those crimes.   Petitioner is not facing the death penalty because he was convicted of arson, robbery or burglary but because he committed the acts which comprise those crimes in conjunction with committing a murder.

Our research has uncovered an opinion not briefed by either party which supports this reasoning.   In People v. Lilliock (1968) 265 Cal.App.2d 419, 71 Cal.Rptr. 434 the defendant was charged with felony-murder.   Prosecution for the felony itself was barred by the statute of limitations.   Division Five of this court conceded the main point argued by petitioner in the instant case, that is, a statute of limitations “ ‘is jurisdictional, and ․ an indictment or information which shows on its face that the prosecution is barred by limitations fails to state a public offense․’ ”  (265 Cal.App.2d at p. 430, 71 Cal.Rptr. 434.)   Moreover, the court admitted:  “Semantically it is difficult to justify the word ‘felony’ in a felony-murder instruction if the acts can never constitute a public offense once the bar of limitations enfolds them.”  (265 Cal.App.2d at p. 431, 71 Cal.Rptr. 434.)   Nevertheless, the court went on to hold:

“[I]t must be remembered that the prosecution is for murder and not the constituent felonies.  ‘The purpose of the felony-murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit․  (citations omitted).’   In an opinion by Justice Tobriner ․, the court in Davis v. Superior Court (1959) 175 Cal.App.2d 8, 20–21 [345 P.2d 513]․, held that a prosecution for a conspiracy, a felony ․, was not barred even though the misdemeanors constituting the objective of the conspiracy were barred by limitations when the felony indictment was returned․  [¶]We, therefore, hold that a felony-murder instruction may be given in the trial of a murder case even though the prosecution for the constituent felony is barred by the statute of limitations. ”  (265 Cal.App.2d at pp. 431–432, 71 Cal.Rptr. 434, italics added.)

Similarly, the special circumstance murder statute is designed to impose an even stronger deterrent against the commission of murder during certain very serious and dangerous felonies.  (Indeed only nine felonies are deemed serious enough to justify special circumstance penalties—Pen.Code, § 190.2(17).)   This deterrent should not depend upon whether the murder was solved and prosecution initiated within the limitations period applicable to the associated felony.

Another way of looking at this issue is as a choice between two statutes of limitation.   Should the crime of murder with special circumstances be governed by the statute of limitations applicable to murder or the one applicable to the constituent felony?   All of the reasons we allow prosecution for murder no matter how long it takes to solve the crime apply with equal force to the crime of special circumstance murder.  “The fact that the Legislature has decreed no statute of limitations for murder shows the importance that society places on governmental efforts to bring a murderer to the bar of justice.”  (People v. Shockley (1978) 79 Cal.App.3d 669, 681, 145 Cal.Rptr. 200.)   The statute of limitations for murder is infinite because the offense is so serious.   Indeed it is the ultimate criminal act, the one most horrifying and final in its consequences, the one deemed most reprehensible in its moral depravity, the one most threatening to the average citizen.

We can think of no reason to suppose evidence of murder is somehow less fragile than evidence of arson, robbery or burglary.   We suspect memories fade and physical evidence deteriorates at about the same pace no matter what crime may be involved.   Indeed, typically most of the evidence used to prove the murder will be the very same evidence which proves the arson, robbery or burglary.   Thus, the principal rationale for placing a time limitation on prosecution is no stronger for this type of special circumstance murder than for ordinary murder.

In the case of murder the heinous nature of the crime overcomes the policies justifying a limitation on the time for commencing prosecution.   If this consideration dominates for ordinary murders, all the more so when the crime is classified as the most egregious form of murder carrying the highest possible penalty.

For all these reasons we hold the special circumstance allegations need not be stricken even though the statute of limitations expired on the associated felonies before the charges were filed.

C. The Crime of Arson May Remain a “Special Circumstance” Allegation in This Information Despite the Use of an Obsolete Section Number in the Special Circumstance Murder Law.

 Penal Code section 190.2(17) lists the felonies which can be used as “special circumstances” justifying imposition of the death penalty or life imprisonment without possibility of parole.   This list includes arson which is referred to in the following words:  “(viii) Arson in violation of Section 447.”   There is no dispute the statutory reference used in this definition is simply wrong.   The proper current reference would be Penal Code section 451.   The correct reference at the time the special circumstance murder statute was enacted through initiative was probably 447a.   Section 447 has not defined arson since its repeal in 1929.   However, we do not find this admitted error in draftsmanship sufficiently misleading to require this court to strike the arson special circumstance allegation from the information at least under the particular facts alleged in this case.

We concede the legislative history reveals this is not merely a matter of renumbering the identical statute over the years.   Accordingly, the problem is not one of mere misnumbering.   Until 1929 arson was defined in section 447 as “willful and malicious burning of a building with intent to destroy it.”   The Legislature then repealed this section and substituted sections 447a et seq.   These sections expanded the definition of arson to include the burning of trailer coaches, vehicles and personal property.  (Former Pen.Code, §§ 447a, 448a, and 449a, 449b, 449c.)   The only one of these statutes which contained the digits 447 was 447a.   It imposed a penalty of two to twenty years imprisonment on anyone “who willfully and maliciously ․ burns ․ any trailer coach, ․ or any dwelling house, or any kitchen, shop, barn, stable or other outhouse that is parcel thereof, or belonging to or adjoining thereto, whether the property of himself or of another, ․”

Section 447a but not 447 was still on the books in November 1978 when the initiative measure passed which created Penal Code section 190.2.   Then a year later the Legislature repealed sections 447a et seq. and replaced them with section 451.   Under this new statute a person commits “arson when he willfully and maliciously ․ burns ․ any structure, forest land or property.”

So there is no doubt the substance of the crime of arson as well as the section numbering changed twice after the section which was erroneously mentioned in the special circumstance murder statute, Penal Code section 190.2(17)(viii).   However, can it truly be said this petitioner was confused or misled by this mistake?   The test is whether the statute “inform(s) those who are subject to it what is required of them․”  (Smith v. Peterson (1955) 131 Cal.App.2d 241, 246, 280 P.2d 522)  In deciding whether this test has been met “courts must endeavor, if possible, to view the statute from the standpoint of the reasonable man who might be subject to its terms.”   (131 Cal.App.2d at p. 246, 280 P.2d 522.)

Assuming petitioner committed the alleged crimes against Alma Burk would he actually have been misled had he consulted the statute books prior to doing so.   Remember section 190.2(17)(viii) does not define this crime solely by section number;  it also uses the word arson which has a common meaning.   It also should be noted the crime petitioner is alleged to have committed—the intentional burning of the victim's residence—would have constituted arson under any of the three definitions which have prevailed in California over the past 112 years.  (The original section 447 was first enacted in 1872.)   Had petitioner committed a murder during the course of burning a trailer coach or some forest land he might have a colorable claim the reference to section 447 did not give him adequate notice what he was doing constituted a special circumstance murder.   Conceivably, the section could be read to mean the Legislature intended to limit the arson special circumstance murder to those situations which would have constituted arson under the definition contained in old section 447.   If so, a person who killed someone in the course of burning a trailer coach or forest land could not be charged with the special circumstance of murder through arson since under 447 only the burning of a building could be arson.   Thus a defendant in that situation could claim to have been misled—or at least confused—by the reference to section 447 in section 190.2(17)(viii).

Not so the petitioner here, however.   We could not come up with any reasonable explanation for the use of this obsolete and repealed section number which could have misled this defendant into believing the crime he allegedly committed—setting fire to an occupied residence—was somehow not a special circumstance for purposes of the murder statutes.   Nor has petitioner's counsel offered such an explanation.   The most likely possibility appears to be simple mistake.   The draftsman intended to incorporate a reference to the current arson code section but somehow came up with an outmoded citation.   Neither this nor any other explanation we have been able to come up with would mislead anyone into believing what petitioner was alleged to have done here would be anything other than arson.   Hence we hold the arson special circumstance allegation may remain in this information.¹

At the same time, we urge correction of this erroneous statutory reference.   It is not merely a question of aesthetics.   As our above analysis implies, were the defendant charged with arson of a different sort of property the present statute indeed might be deemed to be misleading.   In that case the initiative draftsman's little mistake might require a court to strike the special circumstance allegation which is based on arson.

DISPOSITION

The alternative writ is discharged and the cause remanded for further proceedings consistent with this opinion.

FOOTNOTES

1.   We are aware the Supreme Court granted a hearing in another Court of Appeal opinion reaching the same result as we do on this issue.   (See People v. Oliver, Crim. 4914, reported in advance sheets at (1983) 146 Cal.App.3d 890 hearing granted October 20, 1983.)   Of course, we are unable to interpret the grant of this hearing either as an endorsement or rejection of the decision on the arson-murder issue.   People v. Oliver presented other issues which could have been the real reason for the Supreme Court's action.Indeed, on November 15, 1984, the Supreme Court retransferred People v. Oliver to Division Two of this court for reconsideration in the light of certain recent Supreme Court opinions—People v. Smith (1984) 35 Cal.3d 798, 201 Cal.Rptr. 311, 678 P.2d 886;  Carlos v. Superior Court (1983) 35 Cal.3d 131, 197 Cal.Rptr. 79, 672 P.2d 862, and People v. Garcia (1984) 36 Cal.3d 539, 205 Cal.Rptr. 265, 684 P.2d 826.   None of these decisions dealt directly or indirectly with the erroneous numbering of the arson statute in the special circumstance murder provisions.   Accordingly, Division Two apparently is not instructed to reconsider that portion of their holding in People v. Oliver.Moreover, the Oliver court reached its initial decision on this issue for a somewhat different reason than we do.   In effect, it did not deal directly with the citation to 447 rather than 447a in the special circumstance murder code section but only the effect of the subsequent change which substituted 451 for 447a in the arson sections.   We have sought to address both problems.

JOHNSON, Associate Justice.

LILLIE, P.J., and THOMPSON, J., concur.