PEOPLE v. WASHINGTON (1988)

OPINION

The opinion in this matter was originally filed December 5, 1986.   Thereafter the California Supreme Court granted hearing and this matter was retransferred to this court, 246 Cal.Rptr. 672, 753 P.2d 628, for reconsideration in light of People v. May (1988) 44 Cal.3d 309, 243 Cal.Rptr. 369, 748 P.2d 307.   We have reconsidered in light of that case and revised our opinion accordingly.

On March 19, 1984, an information was filed charging defendant with robbery (Pen.Code, § 211;  count I), unlawfully taking a vehicle (Veh.Code, § 10851;  count II), and murder (Pen.Code, § 187, count III).   It was alleged the murder was committed during a robbery, a special circumstance, within the meaning of Penal Code section 190.2, subdivision (a)(17)(i).

Defendant's motion to dismiss (Pen.Code, § 995) ¹ the robbery charge and the special circumstance allegation was granted.   The information was amended to add an allegation defendant served a prison term for a prior conviction within the meaning of section 667.5, subdivision (b).

A jury found defendant guilty of murder and the vehicle theft.   In a special finding, the jury found “that the defendant ․ committed the murder of Janet Prince during the commission of robbery.”   The court found the prior conviction allegation not true.

FACTS

On June 24, 1982, the partially decomposed body of Janet Prince was discovered in her Garden Grove apartment.   Defendant was convicted of murdering Prince, with whom he had once lived, and of unlawfully taking her car.   The evidence against him was entirely circumstantial.

From May until mid-June of 1982 defendant lived with Freddie Varner in Fountain Valley.   On June 16, 1982, defendant talked to his federal parole officer.   Sometime that month, defendant mentioned to him that he might travel to Ohio to visit his parents, but he did not mention traveling to San Francisco.²

On June 17, a telephone call was made from Varner's residence to David Ian's place of business in San Francisco.³  On June 17 or 18, defendant moved out of Varner's residence and placed his clothes in his Datsun truck.   He left the truck at Varner's residence.   Two or three months prior to that time, defendant told Varner he was going to San Francisco.

Prince's friend Rickey Utley testified that approximately a month before June 21 he heard Prince refuse to lend her car to “Bobby.”   He testified she said “she had told that person before that she was not going to loan the car out.”   On several occasions, Prince stated she would not allow anyone to borrow her car, a 1973 Toyota Celica, because she had recently bought it for $3,999, and it was not insured.

On Monday, June 21, 1982, Brian Hyatt ⁴ saw Janet Prince in her car between 8 and 9 a.m.   Prince asked for directions to Highway 57.   She had an appointment for a job interview.⁵  At about 10 a.m. Hyatt saw defendant coming out of the back gate of the apartment complex where Prince lived.   Around 3 p.m. Prince borrowed some salt and a couple of dollars from her neighbor, Vickie Icenogle.   Between 3 and 4 p.m. Hyatt saw Prince's car parked on the street by the apartment complex.   Sometime after 3 p.m. Prince's friend, Virginia Young, saw her at the liquor and wine shop where Young worked.   Around 5 p.m. Steve Icenogle saw Prince's car at the apartment complex.⁶  Between 6 and 7 p.m., near dusk, Prince bought some gas at a service station in Garden Grove.   Brenda Payne, the attendant, knew Prince and said she was not her usual self on this occasion.  “She was very quiet,” and “was hasty to get her transaction done and leave.”   Payne saw a black person, who she presumed was a man, in Prince's car.   Around 9 p.m. Hyatt saw Prince's car near her apartment.   Prince's kitchen light was on.

Jane Richmond testified that defendant, driving Prince's car, picked her up on June 21, while she was hitchhiking in San Francisco.   Her testimony as to the time she was picked up was somewhat indefinite.   At first she testified defendant picked her up between 6 a.m. and noon on June 21.   She testified she rode around with him for hours before Prince's car broke down and they walked to a motel.   However, at another point in her testimony, she stated her recollection as to when defendant picked her up was dependent upon her remembrance of the condition of the sky.   Thus, she testified “When he picked me up, it was dusk or dawn.   It was right in between.   Okay.  Because it was not bright or was not dark, so I know that.”

Defendant told Richmond he had just arrived in San Francisco and had borrowed the car.   He said he was from Los Angeles and “had had a bit of trouble” there and “had to get out.”   Defendant also told Richmond he had had trouble with an “ex-old lady” and had hit her before.   Defendant and Richmond drove around town for hours just passing time while trying to make contact with David Ian.   At one point, the car stopped near a gas station, and they pushed the car into the station and left it there.   Richmond testified the station was closing when they arrived.⁷  They then went to the Capri Hotel, where they stayed for the night.   The motel records showed Richmond checked in at about midnight on June 21.   The manager of the motel testified Richmond arrived in a car driven by a black man.   It was Richmond's best estimate that she had been with defendant “at least five hours” before they checked into the motel.   Later she said it was between two and five hours.

At about 7:30 a.m. on June 22, the service manager of the gas station noticed Prince's car there.   He called Courtesy Tow and had the car towed away.   Shortly after 10 a.m. a large black man inquired about the car and was told where it had been towed.⁸

Between 9 and 9:30 a.m. on June 22, George Hyatt and his son Brian entered Prince's apartment to spray for insects and roaches.   The bedroom was dark and they saw a figure lying on the floor at the foot of the bed.   The two men then turned around and left.

On June 22, defendant went to David Ian's office.   He told Ian he had driven to San Francisco in a car he borrowed from a friend or a girlfriend and the car had been towed the evening he arrived.   Defendant stayed in Ian's office for a few nights.

Between 9 and 9:30 a.m. on June 24, George and Brian Hyatt entered Prince's apartment again to spray.   Nothing had changed except for the presence of an unknown odor.   The body was still in the bedroom in the same position as before.   It was Prince's body.   Upon realizing Prince was dead, they called the police.

There were no signs of forced entry to Prince's apartment.   The kitchen, living room and dining room were fairly neat and showed no signs of having been ransacked.   In the bedroom almost all the drawers in two dressers and two nightstands were open.   An open purse was found on the bed.   Another purse and wallet were found in one of the closed dresser drawers.   Besides various forms of identification, it contained two money orders.   A personal telephone book was found.   It contained several crossed out names, including “Bob Washington.”

An autopsy was performed at 2:40 p.m. on June 24, 1982.   Decomposition of the body had already begun.   The pathologist's opinion was that blunt force trauma, caused by hands or fists, was inflicted on the right eye, lips, and temple of the victim.   Trauma to the neck was caused by strangulation by fingers or a forearm.   The cause of death was asphyxiation due to strangulation.

In the pathologist's opinion, abrasions to the victim's shoulders had been inflicted at least eight hours before the other injuries.   In his opinion, the time of death was around 8 a.m. on June 22;  although the range of the possible time of death was 48–72 hours before the autopsy, with death most probably occurring between midnight and 8 a.m. on June 22.

In San Francisco, David Ian called Courtesy Tow for defendant and inquired about getting his clothes out of Prince's car that was in storage.   The tow company wanted $60 before they would allow the personal items to be removed.

Sometime in July 1982, defendant met Jacqueline McKinon in San Francisco.   Defendant told McKinon he needed $60 to get his clothes from a car at Courtesy Tow.   He told McKinon he bought the car from Debbie Washington, an acquaintance, for $500.   On the morning of August 1, 1982, defendant gave McKinon the keys to the car.   Later that day, McKinon went to Courtesy Tow to get defendant's clothes.   Shortly after she arrived there, the police appeared.

McKinon pointed out the building where defendant lived, but defendant was not there.   While Officer Dutto waited at a nearby corner for a relief unit, defendant got off a city bus, smilingly looked at Dutto, and said, “Hi.   You must be looking for me.”   When defendant said he was “Bobby Washington,” Dutto arrested him.

Ronald Shave of the Garden Grove Police Department went to San Francisco to investigate the Prince homicide.   Defendant's clothes were found in the trunk of Prince's car.   Officer Shave arrested defendant on August 2, 1982, at the San Francisco Police Department.   A tape recording of the interview he had with defendant was played for the jury.   In the interview, defendant said he used to date the victim and that he bought her car.

A preliminary hearing was held on September 14, 1982.   Although defendant was originally charged with both crimes, the prosecutor sought a bind over on the car theft charge only and not on the murder charge because a witness, Ms. Richmond, did not appear.   The prosecutor dismissed the murder charge.   The car theft charge was dismissed on November 5, 1982, because the magistrate found there was insufficient evidence.

Defendant had a federal parole revocation hearing on February 8, 1983.⁹  A recording of that hearing was played to the jury.   In that hearing, defendant made statements about how he came into possession of Prince's car that conflicted with other statements he made to police officers after he was released from federal custody.   Defendant said he bought Prince's car;  however, on other occasions, he said he borrowed the car or rented the car.

The defense presented evidence that Janet Prince had been seen in the company of numerous men other than defendant and that on occasion she had been beaten up.

On appeal defendant contends among other things:  (1) he was denied due process by an unreasonable delay between his initial arrest and indictment;  (2) his trial and conviction for first degree murder based on the felony murder rule using the robbery was improper because the robbery charge was dismissed pursuant to section 995;  and (3) various statements of his were improperly admitted at trial.   For reasons stated below, we hold the prosecution was not barred by delay and that defendant's statements were admissible, but reverse on the ground defendant should not have been tried and convicted for first degree murder based on the felony murder rule using robbery as the underlying felony.

DISCUSSION

I

Defendant made a pretrial motion to dismiss claiming the delay between his initial arrest on August 1, 1982, and his indictment on the murder charge on November 17, 1983, denied him his right to a fair trial.

 An unreasonable delay between the time an offense is committed and an arrest is made or an indictment is filed may violate a defendant's right to a fair trial and due process of law under article I, section 15 of the California Constitution, and under the Fifth and Fourteenth Amendments to the United States Constitution.  (United States v. Marion (1971) 404 U.S. 307, 324, 92 S.Ct. 455, 465, 30 L.Ed.2d 468;  Scherling v. Superior Court (1978) 22 Cal.3d 493, 504–505, 149 Cal.Rptr. 597, 585 P.2d 219.)   In deciding a claim of precomplaint delay, “any prejudice to the defendant resulting from the delay must be weighed against justification for the delay.”  (Scherling v. Superior Court, supra, 22 Cal.3d at p. 505, 149 Cal.Rptr. 597, 585 P.2d 219.)   “In the balancing process, the defendant has the initial burden of showing some prejudice before the prosecution is required to offer any reason for the delay.  [Citations.]   The showing of prejudice requires some evidence and cannot be presumed.  [Citations.]”  (Garcia v. Superior Court (1984) 163 Cal.App.3d 148, 151, 209 Cal.Rptr. 205;  see also United States v. Lovasco (1977) 431 U.S. 783, 790, 97 S.Ct. 2044, 2048, 52 L.Ed.2d 752;  People v. Hill (1984) 37 Cal.3d 491, 209 Cal.Rptr. 323, 691 P.2d 989.)   Prejudice may be shown by loss of material witnesses due to lapse of time (People v. Hughes (1974) 38 Cal.App.3d 670, 676–677, 113 Cal.Rptr. 508);  loss of evidence because of fading memory due to the delay (People v. Archerd (1970) 3 Cal.3d 615, 640, 91 Cal.Rptr. 397, 477 P.2d 421);  and circumstances disclosed by evidence presented at trial (id. at p. 641, 91 Cal.Rptr. 397, 477 P.2d 421;  People v. Reeder (1984) 152 Cal.App.3d 900, 910, 200 Cal.Rptr. 479).

Defendant claims that several witnesses who might have supplied exculpatory testimony could not be located at the time of trial.   He also contends the statements he made at his parole revocation hearing and to police after his release from federal custody would not have been available to the prosecution but for the pretrial delay.

The prosecution's justification for the delay was that Jane Richmond, an essential witness to the People's case, was unavailable.   In ruling on the motion to dismiss, the court found defendant had been prejudiced by the delay but concluded that the delay was justified.   The court stated, “the investigation was ongoing from the time of the first preliminary hearing until the time the case was presented to the grand jury” and “there was justification in the fact that an investigation needed to be done and the missing witness needed to be tied down in some fashion.”   The court ruled that “the slight prejudice to the defendant is overweighed by the justification presented by the state.”   The trial court's decision denying the motion to dismiss is supported by the evidence.

 Defendant has not shown that the missing witnesses were in fact lost as a result of the delay.   Neither has he presented evidence that the statements he complains of would not have been obtained but for the delay.   When he was originally arrested on August 2, 1982, and charged with the murder of Prince, defendant was put on notice he was a suspect in the case.   With this in mind, he still made the contradictory statements as to how he came into possession of Prince's car.   The alleged prejudice resulting from the loss of witnesses was essentially speculative and minimal at best.   Finally, there is absolutely no evidence of deliberate action to delay the trial on the prosecution's part.   In short, defendant has failed to sustain his burden of showing that the trial court erred in refusing to grant his motion to dismiss based on claimed pretrial delay.

II

Defendant contends his trial and conviction for felony murder using robbery as the underlying crime was improper because the robbery charge was dismissed pursuant to section 995.   The factual basis for this claim is as follows:  A complaint charging defendant with murder and car theft was first filed on August 4, 1982.   As noted, the murder charge was dismissed by the prosecution and the car theft charge was dismissed for lack of evidence on defendant's section 995 motion.

Defendant was rearrested for the Prince murder in December, 1983.   This time the prosecution proceeded by way of indictment, and on November 17, 1983, an indictment was filed in Orange County Superior Court alleging murder and robbery as to Prince's car and keys.   The indictment also alleged as a special circumstance that the Prince murder was committed by defendant while in the commission of a robbery.  (§ 190.2(a)(17)(i).)   Defendant successfully moved to have a preliminary examination under the authority of Hawkins v. Superior Court (1978) 22 Cal.3d 584, 593, 150 Cal.Rptr. 435, 586 P.2d 916.

After the preliminary hearing, held in March, 1984, the magistrate dismissed the robbery charge and the special circumstance allegation.   In making his determination, the magistrate specifically found that the murder “was not committed during the course of a robbery.”   The magistrate held defendant to answer on the murder charge and on a violation of Vehicle Code section 10851 (auto theft).   Thereafter, the prosecution filed an information realleging all of the offenses and the special circumstance allegation which had been in the indictment.   In addition, the information alleged auto theft in accordance with the magistrate's commitment order.   The trial court granted defendant's section 995 motion and dismissed the robbery charge and the special circumstance allegation on the ground that the evidence was insufficient to support those charges.¹⁰

Defendant filed a motion to dismiss pursuant to section 1387 claiming the prosecution should be barred from relying on the dismissed robbery count in support of its felony murder theory.   However, that motion was placed off calendar by defense counsel “to see what decision the People make with regard to any appellate review that they might seek.”   Thereafter, the 1387 motion was not renewed;  however, the provisions of 1387 formed the basis of defendant's section 1118 motion made after the prosecution's case in chief.   The defense argued that the prosecution should be barred from relying on the twice dismissed robbery charge in support of their felony murder theory, and vigorously opposed instructions on robbery on the same ground.

On appeal, defendant argues it was improper to use the robbery to support a felony murder conviction where the robbery charge had been twice dismissed for insufficient evidence.   Respondent states defendant's contention lacks merit because “the granting of a 995 motion is not a final resolution and the People are free to refile at a later time upon obtaining more evidence.”

Respondent's statement is not entirely accurate.   Under section 1387, a charging allegation which has been twice dismissed is barred.   Section 1387 provides in pertinent part as follows:  “An order terminating an action pursuant to this chapter, or Section 859b, 861, 871, or 995, is a bar to any other prosecution for the same offense if it is a felony ․ and the action has been previously terminated pursuant to this chapter, or Section 859b, 861, 871, or 995․”   In Ramos v. Superior Court (1982) 32 Cal.3d 26, 184 Cal.Rptr. 622, 648 P.2d 589 the Supreme Court held that when a special circumstance allegation has been twice dismissed under section 871 the Superior Court should grant defendant's motion to dismiss the allegation.   In so holding, the Supreme Court distinguished the procedural situation involved in this case, stating:  “We note that this case does not present the question of the application of section 1387 to a case in which (1) a magistrate dismisses a charge one time under section 871, (2) the prosecution files an information recharging the dismissed matter under section 739, and (3) the superior court dismisses the refiled charge under section 995.   Accordingly, we express no view on that issue.”  (Id. at p. 37, fn. 12, 184 Cal.Rptr. 622, 648 P.2d 589.)   Later cases, however, make clear that section 1387 is applicable to the procedural facts involved here.¹¹

In Dunn v. Superior Court (1984) 159 Cal.App.3d 1110, 206 Cal.Rptr. 242, the prosecution dismissed an information and then refiled a second complaint realleging the dismissed charges.   The magistrate refused to hold the defendant to answer after determining there was insufficient evidence that a kidnapping or robbery occurred.   The prosecution again included all charges in the information.   The appellate court held the superior court should have granted defendant's motion to dismiss under section 1387, stating:  “Section 1387 of the Penal Code is a bar to prosecution of an action which has been twice terminated whether at the request of the prosecution or by the dismissal of a magistrate.   The section applies to bar the inclusion of counts of an information as well as to bar an entire information.  [Citations.]”  (Fn. omitted.)  (Id. at p. 1114, 206 Cal.Rptr. 242.)   And in In re Williams (1985) 164 Cal.App.3d 979, 211 Cal.Rptr. 32 the appellate court held defense counsel's failure to move to dismiss under section 1387 deprived defendant of effective assistance of counsel where counts dismissed by the magistrate were realleged in the information and dismissed again on defendant's motion under section 995.   The court stated, “The purpose of the statutory scheme in question is the prevention of prosecutorial harassment and forum-shopping.  [Citations.]   This purpose would be defeated by permitting the People to charge an offense a third time simply because the magistrate neglected to reduce his or her decision of dismissal to writing.”  (Id. at p. 983, 211 Cal.Rptr. 32.)

 Even if we were to find a dismissal of a charge under section 1387, followed by a refiling under section 739 and a subsequent dismissal under section 995, was insufficient, the facts of this case still invoke the bar of section 1387.   The original complaint filed in August 1982 charged murder and auto theft.   The auto theft count was dismissed on a 995 motion.   Thereafter, the prosecution filed another complaint charging murder, car theft, robbery, etc.   This time the magistrate dismissed the robbery count.   In Dunn v. Superior Court, supra, 159 Cal.App.3d at pages 1117–1119, 206 Cal.Rptr. 242, the court held a dismissal of an auto theft count and a subsequent dismissal of a robbery count, each based on taking the same car, constituted two dismissals of the same offense for purposes of section 1387.   The reasoning of Dunn is applicable here.

In the case before us, the robbery count was twice dismissed for lack of evidence and, hence, the prosecution was barred from refiling that count.   Of course, in this case, the prosecution did not refile the robbery or the special circumstance allegation.   It charged murder, but relied on the barred robbery charge in support of its felony murder theory.   The question presented then, is whether the prosecution could base its theory of felony murder on evidence that had twice been found inadequate to constitute probable cause for robbery.   The easy answer to this question is, of course it could.   After all, it is not necessary to charge the underlying felony when felony murder is relied on.  (See People v. Risenhoover (1968) 70 Cal.2d 39, 49–50, 73 Cal.Rptr. 533, 447 P.2d 925.)   Furthermore, instruction on felony murder is permissible even where the underlying felony is barred by the statute of limitations and thus could not be charged.  (See People v. Morris (1988) 46 Cal.3d 1, 14, 249 Cal.Rptr. 119, 756 P.2d 843;  People v. Lilliock (1968) 265 Cal.App.2d 419, 430, 71 Cal.Rptr. 434.)

We feel, however, that this matter is not so easily solved.   To begin with, the cases involving the bar of the statute of limitations present an unsatisfactory comparison.   The bar of the statute of limitations has nothing to do with the merits of the prosecution's case;  it involves only the passage of time.   Whereas, the bar of section 1387 is imposed because the prosecution has been unable to prove its case (see Lee v. Superior Court (1983) 142 Cal.App.3d 637, 640, 191 Cal.Rptr. 361;  compare People v. Morris, supra, 46 Cal.3d 1, 13–14, 249 Cal.Rptr. 119, 756 P.2d 843), and the prosecution has failed to pursue its remedies for judicial review.

To allow the prosecution to bootstrap a felony murder charge with evidence of a robbery that has been twice dismissed for insufficient evidence undermines the very purpose of the preliminary hearing process.   In People v. Superior Court (Mendella) (1983) 33 Cal.3d 754, 759, 191 Cal.Rptr. 1, 661 P.2d 1081, the Supreme Court stated a defendant has a “due process right to a pretrial determination of probable cause,” and emphasized that a preliminary hearing is a proceeding to “ ‘․ weed out groundless or unsupported charges․' ”   The court also stated, “The preliminary hearing and section 995 motion are not, however, limited to this function of screening out groundless prosecutions.   ‘It is of at least equal, and often far greater, importance that the defendant not be charged excessively․  [¶]  To deny that the defendant is prejudiced by such exercises of prosecutorial discretion is to overlook the serious increase in a defendant's burden of standing trial on the greater charge, the tactical advantage conferred upon the prosecutor in respect to plea bargaining ․ and the various collateral effects of the more serious accusation itself.   An adequate screening procedure must be concerned with these problems of the overcharge as well as of the wholly unfounded charge.’  [Citations.]”  (Id. at pp. 759–760, 191 Cal.Rptr. 1, 661 P.2d 1081.)   In the case before us the prosecution's freedom to rely on the twice dismissed robbery led not only to trial on what had twice been determined to be a wholly unfounded charge, but also gave the prosecution the tactical advantage of two arrows to its murder-charge bow.

When the magistrate made the decision that the murder of Prince was not committed during the course of the robbery, he perforce determined there was no support for a felony murder based on robbery.   First degree felony murder is the unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as the result of the commission or attempt to commit arson, rape, robbery, burglary, mayhem, or any act punishable under section 288, and where there is in the mind of the perpetrator the specific intent to commit such crime.  (See § 189;  People v. Dillon (1983) 34 Cal.3d 441, 475, 194 Cal.Rptr. 390, 668 P.2d 697;  CALJIC No. 8.21.)   The intentional commission of the underlying felony is not only an essential element of the crime of first degree felony murder;  it is the sole basis for holding the killing is murder in the first degree.¹²

In People v. Green (1980) 27 Cal.3d 1, 164 Cal.Rptr. 1, 609 P.2d 468, defendant killed his wife after ordering her to disrobe and placing her clothes in his car.   He also took her wedding rings from her finger after she was dead.   The day after her death defendant burned her clothes, her purse and her rings.   Based on this evidence the jury found defendant guilty of robbery and the special circumstance of murder committed during the commission of a robbery (former § 190.2, subd. (c)(3)(i)).   In Green, the court held that a conviction of robbery cannot be sustained in the absence of evidence that the accused intended to steal either before committing the act of force against the victim or during the commission of that act.   However, if the intent to steal arose only after the defendant used force against the victim, the taking would only amount to theft.   The court stated, “We conclude that like the nonviolent taking in larceny, the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal in order to satisfy the requirement of section 20:  if the larcenous purpose does not arise until after the force has been used against the victim, there is no ‘joint operation of act and intent’ necessary to constitute robbery.”  (Id. at p. 54, 164 Cal.Rptr. 1, 609 P.2d 468;  see People v. Thompson (1980) 27 Cal.3d 303, 321–325, 165 Cal.Rptr. 289, 611 P.2d 883.)

Here, the only possible act of force against the victim which might support a robbery was the murder.   Did the defendant have the intent to steal prior to or during that act?   The magistrate stated, “[h]e has the car, and she doesn't have it.   She can't tell us what happened.   I think that may indicate there is certainly evidence that there has been a theft.  [¶]  The only evidence is we don't know whether it was taken from her by force or fear.   I don't know whether he killed her first[,] assuming he killed her[,] or killed her with the intent of taking [the car] or whether he killed her and then subsequently formed the intent to take the keys and the car.”   After more discussion between court and counsel, the magistrate stated, “So I'm going to make a finding that it [the killing] was not committed during the course of the robbery.”

The evidence concerning the murder was not conflicting.¹³  The evidence showed defendant wanted to go to San Francisco.   Prince was beaten and strangled.   Her bedroom was searched, but nothing was taken except her keys and her car.   Defendant appeared in San Francisco with Prince's car.   But there was no evidence Prince was killed during the course of a robbery, and the magistrate specifically so found.   Implicit in the magistrate's finding is that the all-critical intent to steal, the foundation of the robbery, was not shown to be present prior to or at the time of the murder.   The very element that might turn the killing in this case into first degree felony murder was specifically found to be lacking.¹⁴

In Jones v. Superior Court, supra, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241 the Supreme Court held the prosecution could not proceed on an information which charged “offenses not specified by the committing magistrate nor shown by the evidence to have occurred.”  (Id. at p. 663, 94 Cal.Rptr. 289, 483 P.2d 1241.)   Citing the constitutional requirement that one may not be prosecuted in the absence of a prior determination by a magistrate or grand jury that such action is justified, the court concluded that where the magistrate determines, as a factual matter, that a crime did not occur, the prosecution cannot include that crime in the information.   The upshot of the magistrate's factual determination that the murder “was not committed during the course of the robbery” was that felony murder was unavailable to the prosecution.   This is so because, under the facts, robbery was the only possible underlying crime to support a felony murder charge.   Since the prosecution was barred from realleging the robbery charge under section 1387 and the magistrate's decision ruled out felony murder as a matter of fact, we feel that a decision allowing the prosecution to rely on robbery as a basis for felony murder would subvert the purpose of the preliminary examination, and deny defendant due process of law.   As was said in Jones v. Superior Court, supra, 4 Cal.3d 660, at page 668, 94 Cal.Rptr. 289, 483 P.2d 1241, “In the instant case, petitioners were able to convince the magistrate that they did not commit the offenses charged in the complaint.   To permit the district attorney to include those same charges in the information would utterly defeat the purpose of the preliminary hearing to ‘weed out’ groundless charges, and would render nugatory the important rights which this court was so careful to preserve in Jennings [v. Superior Court (1967) 66 Cal.2d 867, 59 Cal.Rptr. 440, 428 P.2d 304].”

This concern is more acute where the factually insufficient crime is used to bootstrap felony murder.   As was said by the court in People v. Dillon, supra, 34 Cal.3d at pages 462–463, 194 Cal.Rptr. 390, 668 P.2d 697, “We have repeatedly stated that felony murder is a ‘highly artificial concept’ which ‘deserves no extension beyond its required application.’  [Citations.]   And we have recognized that the rule is much censured ‘because it anachronistically resurrects from a bygone age a “barbaric” concept that has been discarded in the place of its origin’ [citation] and because ‘in almost all cases in which it is applied it is unnecessary’ and ‘it erodes the relation between criminal liability and moral culpability’ [citation].”  Under the circumstances, we hold the prosecution should not have been allowed to rely on the twice-dismissed robbery charge in support of its felony murder theory, and the trial court should have refused to give instructions on robbery.   Since the special findings of the jury indicate the sole basis for defendant's first degree murder conviction was felony murder, based on the crime of robbery, defendant's murder conviction must be reversed.

III

Defendant claims his statements made after his arrest were improperly admitted at trial.   Since this problem may arise again, we deal with the issue for the guidance of the trial court on any retrial.   The crime occurred after the passage of Proposition 8,¹⁵ hence federal constitutional law is applicable to determine the admissibility of defendant's statements.   (People v. May, supra, 44 Cal.3d 309, 315, 243 Cal.Rptr. 369, 748 P.2d 307.)

When defendant was arrested by the San Francisco police on August 1, 1982, Officer Kenney talked to him at the police station.   Defendant initiated the conversation by asking why he was being arrested.   Kenney responded that defendant “was charged with 187 and 10851.”   Defendant asked for an explanation of the charges.   Kenney explained and defendant said, “I don't understand about Garden Grove.   I don't know what you are talking about.”   At that point Kenney told defendant he had a right to remain silent and was stopped by defendant, who said, “I'm not going to talk to you anyway,” or “I'm not saying anything to anybody.”   Kenney ceased talking to him, and took him upstairs to book him.   During the booking process, defendant asked who he was supposed to have killed.   Kenney told him if he had anything to say he should talk to the Garden Grove detectives.

The next day Officer Shave of the Garden Grove Police Department talked to defendant after he took custody of him in San Francisco.   Prior to talking to defendant, Shave had been told by Officer Schneider of the San Francisco Police Department that defendant had not been advised of his rights.   No one told Shave about defendant's conversation with Officer Kenney.   After Shave advised him of his Miranda rights, defendant waived them and said he knew nothing about the charges.   When Shave told him he was accused of killing Janet Prince the following transpired:  “A  (In low audible tone.)   No, No!   Q  Can you tell me what your [sic ] thinking?   Obviously there's something on your mind.   A  I—I know Janet.   Q  Uh huh.   A  (In low audible tone.)   I use [sic ] to date her.  (Pause)  I bought her car from her.  (Pause)  But I didn't kill 'er.  (Pause)  That don't even sound right.   Are you, you sure you want to talk to me about, about murder, man?”   At that point, defendant requested a lawyer and questioning ceased.

Defendant moved to exclude the statements made to Shave on August 2, 1982.   The court denied the motion as to defendant's initial statements before he asked for a lawyer.   Defendant contends the denial of his motion was error because on August 1, 1982, he asserted his right to remain silent, and claims that assertion of his rights foreclosed questioning by Shave.   In Michigan v. Mosley (1975) 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 the United States Supreme Court explored the question:  Once a defendant has invoked his Miranda right to remain silent, in what circumstances is a resumption of questioning permissible?  (Id. at p. 101, 96 S.Ct. at p. 325.)   In Mosley the defendant was questioned at the time of booking after a complete Miranda warning, but questioning ceased when he stated he did not want to discuss the robberies.   After an interval of more than two hours Mosley was questioned by another police officer in another location in the jail about a different crime.   Prior to this second interrogation he was again given full and complete Miranda warnings.   He waived his rights and made incriminating statements.   The Supreme Court held the statements were admissible concluding it was not faced with a situation “where the police failed to honor a decision of a person in custody to cut off questioning․”  (Id. at p. 105, 96 S.Ct. at p. 327.)   In support of its conclusion, the court noted when Mosley first invoked his right to remain silent:  “the police ․ immediately ceased the interrogation, resumed questioning only after the passage of a significant period of time and the provision of a fresh set of warnings, and restricted the second interrogation to a crime that had not been a subject of the earlier interrogation.”  (Id. at p. 106, 96 S.Ct. at p. 327.)

 The reasoning of Mosley is applicable here.   Defendant's decision to cut off questioning was scrupulously honored by Officer Kenney.   The next day when Officer Shave interviewed him, defendant was readvised of his Miranda rights.   Shave questioned him about the same crime;  however, as was said by the court in Grooms v. Keeney (9th Cir.1987) 826 F.2d 883, 886, “We have stated that the crucial factor establishing a valid waiver ‘is the provision of a fresh set of warnings after the invocation of Miranda rights and waiver in light thereof.’  [Citation.]   In Heldt [United States v. Heldt (9th Cir.1984) 745 F.2d 1275], we indicated that the fact that a subsequent interrogation pertains to the same crime is not important.  [Citation.]”   We hold under these circumstances the trial court did not err in admitting defendant's postarrest statements.

In light of our disposition in this matter, defendant's other contentions need not be addressed.

The conviction for vehicle theft is affirmed but, for reasons heretofore set forth, the murder conviction must be and is reversed and the matter is remanded.

FOOTNOTES

1.   All statutory references are to the Penal Code unless otherwise expressly stated.

2.   Defendant was required to notify his parole officer if he was going to leave the area.

3.   Ian was a partner in a software firm and had met defendant in Orange County in 1980.   Several weeks earlier, defendant had called Ian to say he was going to San Francisco to look for work.   Ian told defendant he would probably have little trouble finding work there and that he could stay at his place.   Ian was going to assist defendant in getting a job in the computer field.

4.   Brian Hyatt did maintenance work for his father, George Hyatt, who managed the apartment complex where Prince lived.

5.   Prince had recently lost her job as a legal secretary.   Subsequently, she had been scheduling and attending job interviews.   One of the jobs she was seeking required her to have a car.

6.   Before the grand jury and at the preliminary hearing, Steve Icenogle testified that he heard Prince's voice outside his apartment talking to a man at about 11 p.m. on Monday, June 21.   At trial he recanted this testimony stating that, although he remembered hearing Prince's voice outside his apartment, he thought it might have happened on Saturday night.

7.   There was testimony that during the summer months the station generally closed around midnight.

8.   Defendant is black, 6 feet 31/212 inches tall, and weighed 245 pounds.

9.   Defendant had been on federal parole during the aforementioned events.   He violated his parole status by failing to notify his parole officer when he left for San Francisco.

10.   In making his ruling on the 995 motion the superior court judge stated, “I think the only reasonable inference from the facts is that there was a dispute of some sort resulting in a dead body, and then the taking of a vehicle and the keys.   I think that is the only reasonable inference I can draw from the facts.”

11.   At the time of trial, subdivision (c) had not been added to section 1387.  (Stats.1984, ch. 924, § 1, p. 3090.)

12.   “[T]he two kinds of first degree murder in this state differ in a fundamental respect:  in the case of deliberate and premeditated murder with malice aforethought, the defendant's state of mind with respect to the homicide is all-important and must be proved beyond a reasonable doubt;  in the case of first degree felony murder, it is entirely irrelevant and need not be proved at all.”  (People v. Dillon, supra, 34 Cal.3d at pp. 476–477, 194 Cal.Rptr. 390, 668 P.2d 697.)

13.   The evidence at the preliminary hearing concerning what happened at the time of the murder was the same as that presented at trial.

14.   It is true in People v. Superior Court (Day) (1985) 174 Cal.App.3d 1008, 1019, 220 Cal.Rptr. 330, the court held a magistrate's factual finding fatal to a criminal allegation under Jones v. Superior Court (1971) 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241, should not be implied.   The court was careful to distinguish the situation found in Walker v. Superior Court (1980) 107 Cal.App.3d 884, 166 Cal.Rptr. 209, where the uncontradicted evidence taken with the magistrate's expressed findings made the additional implied finding inescapable.   This case is similar to Walker in that regard.   The facts are uncontroverted, and the factual findings actually made by the magistrate lead inexorably to the implied finding we suggest.

15.   In People v. Smith (1983) 34 Cal.3d 251, 258, 193 Cal.Rptr. 692, 667 P.2d 149, the court held “that Proposition 8 applies only to prosecutions for crimes committed on or after its effective date,” that is, June 9, 1982.

SCOVILLE, Presiding Justice.

CROSBY and WALLIN, JJ., concur.