THE PEOPLE, Plaintiff and Respondent, v. PAUL ZAMORA et al., Defendants and Appellants
Crim. No. 18869
Supreme Court of California
Dec. 16, 1976
18 Cal.3d 538
Alan A. Katz, under appointment by the Supreme Court, Lindsey & Newman, James T. Lindsey, Balash, Huckle & Perrett and S. R. Balash, Jr., for Defendants and Appellants.
Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, S. Clark Moore, Assistant Attorney General, Norman
OPINION
WRIGHT, C. J.—Defendants Paul Zamora, Milo P. Saling, and Michael B. Szymanski, contend on appeal that charges resulting in their convictions for conspiracy and grand theft are barred by the applicable statute of limitations. We conclude that such contentions are meritorious and reverse the judgments.
On June 22, 1972, the Santa Barbara County Grand Jury returned a five-count indictment against defendants. The charges stemmed from a fire which partially destroyed the interior of a residence on April 10, 1968. Count I alleged a conspiracy to commit arson (
Defendant Zamora filed a motion to set aside the indictment (
During the course of the subsequent 31-day jury trial, allegations of overt acts committed on June 12, 1972, and April 17, 1972, were stricken on the motion of the People and the indictment was amended to allege that the most recent overt act in furtherance of each of the three conspiracies occurred in late December 1970 or early January 1971. Each defendant was found guilty on each of the five counts of the indictment. Motions by all three defendants for judgment notwithstanding the verdict or in the alternative for a new trial based, inter alia, on the statute of limitations, were denied. On appeal defendants once again contend, in a variety of different ways, that the limitation periods had run and that therefore the trial court committed reversible error in not sustaining the demurrers and in failing to grant the post-trial motions and the motions to set aside the indictment.3
THE FACTS
In 1967 defendant Saling owned several companies known as the M.S. Group, a real estate management and development firm involving all facets of real estate operations. Saling and defendant Szymanski directed various aspects of the brokerage, escrow, renovation and management services provided by the company. During October 1967, Saling, Szymanski, and Guido Hanak, a painting foreman for the M.S. Group, allegedly conspired and attempted to burn down a residential structure owned by the M.S. Group on Clifford Street in Santa Barbara. Only minor damage was done, however, because closed doors within the structure acted as firebreaks. Fire Department Inspector Nielsen suspected that an act of arson had been committed and believed that Hanak was the perpetrator, but Neilsen was unable to develop a case for prosecution and the investigation was terminated.
Defendant Zamora was the manager of Oakdale Manor, Inc., a family corporation which invested in real property, and he had previously worked for Saling as a real estate salesman. Other principals in Oakdale Manor included Daryl Skare, Zamora‘s brother-in-law who was a Santa Barbara police officer, and Mr. and Mrs. Wood, parents of Zamora‘s
Hanak was driven to the Garcia Road residence by Zamora on the night of April 10, 1968. Zamora left for a prearranged meeting place and Hanak spread five gallons of highly flammable lacquer thinner, which he had purchased earlier in the day, throughout a basement kitchen and hallway. Unknown to him, Szymanski had already saturated the area with other flammable liquid and when Hanak struck a match an explosion occurred. Hanak was severely burned and sustained a number of cuts when he threw himself out a window to escape the flames. Hearing approaching sirens, he ran from the yard leaving his eyeglasses, smoking pipe, and flashlight in the kitchen. He telephoned Zamora and went to Zamora‘s house where an attempt was made to treat his severe burns and cuts.
Later that evening Hanak, Zamora, Saling, and Szymanski met at Saling‘s residence to devise a plan to aid Hanak. They agreed that Hanak would be taken to receive medical attention the next morning and that Saling and Szymanski would report that Hanak had fallen into Saling‘s backyard barbeque pit while holding a gallon of paint thinner during a wild party on the preceding evening. Zamora agreed to pay Hanak‘s medical bills secretly through Saling in order to obscure any connection between Hanak and Zamora or the fire on his property. The conspirators also planned to place Hanak in a private hospital on the far side of Santa
Notwithstanding the conspirators’ efforts, investigators quickly learned of Hanak‘s burns and suspected that he was the perpetrator of the fire on Garcia Road, particularly because they already knew that he had been the prime suspect in the Clifford Street fire investigation. Saling and Szymanski were believed to be a part of a conspiracy to commit an arson because they supplied Hanak‘s alibi and because both of them had been suspected of involvement in the Clifford Street incident. Once fire department investigators had gathered initial evidence implicating Saling, Szymanski, and Hanak, the task of preparing the case for prosecution was largely undertaken by the Santa Barbara Police Department. Several police officers participated in the initial investigations, but the ultimate responsibility for the investigation was assigned to Officer Lenz. Although he suspected arson and conspiracy, Lenz was unable to connect Hanak with the eyeglasses which had been left at the scene of the fire and he was unable to uncover a motive for arson. Lenz discussed the case with Officer Skare, Zamora‘s brother-in-law, but he learned little to aid in the investigation. The possibility of insurance fraud was not pursued and the insurer paid about $15,000 for restoration work on the structure. The investigation was soon relegated to Lenz’ spare time. Because of lack of progress the fire department offered to do additional investigative work but their efforts were unfruitful. No further investigation was made by Lenz after mid-1968.
In February 1972, Fred Cobler, the painter, informed an investigator from the district attorney‘s office that he knew that the fire on Garcia Road was the result of arson and that Zamora had been involved. The lead was pursued аnd in June Hanak was offered immunity from prosecution in exchange for his testimony. Hanak had not been fully reimbursed for his medical expenses and, in fact, Saling had sued Hanak during the previous year and had won a judgment against him. Hanak accepted the offer of immunity and recounted all the details of the arson plan and the coverup scheme. He also took part in efforts to gain further evidence incriminating Zamora, Saling, and Szymanski. These disclosures resulted in the indictment which was returned on June 22, 1972. All
THE CONSPIRACY CONVICTIONS
There appears to be little dispute that People v. Crosby, supra, 58 Cal.2d 713, sets forth the controlling principles of law for determining whether the instant conspiracy convictions are barred by the statute of limitations.4 However, the People suggest that we should go beyond Crosby and analogize to our recent decision in People v. Leach (1975) 15 Cal.3d 419 [124 Cal.Rptr. 752, 541 P.2d 296].
In Leach we clarified the views set forth in People v. Saling (1972) 7 Cal.3d 844 [103 Cal.Rptr. 698, 500 P.2d 610],5 wherein we interpreted the scope of
Initially, we note that there is a point at which the major evidentiary consideration, that of reliability, overlaps with some of the concerns which have motivated the enactment of statutes of limitation. To some extent, the concept of a period of limitation developed in recognition of the ever increasing difficulty faced by both the government and a criminal defendant in obtaining reliable evidеnce (or any evidence at all) as time passes following the commission of a crime. However, this
Other policy considerations which underlie the concept of a period of limitation vary in purpose. The possibility of self-reformation by the criminal offender may lessen the need for society to impose corrective sanctions and society‘s impulse for retribution may correspondingly diminish as time passes. Statutes of limitation also encourage the swift and effective enforcement of the law, hopefully producing a stronger deterrent effect. They tend to limit the chance that the first offense will spawn blackmail of the offender by others threatening disclosure—crime breeding more crime. Finally, adoption of a period of limitation represents a legislative recognition that for all but the most serious of offenses (such as murder or kidnaping) a never-ending threat of prosecution is more detrimental to the functioning of a civilized society than it is beneficial. (See generally, Model Pen. Code, § 1.07, com. (Tent. Draft No. 5, 1956); Note, The Statute of Limitations in Criminal Law: A Penetrable Barrier to Prosecution (1954) 102 U.Pa.L. Rev. 630, 632-634; Note, Conspiracy, Concealment and the Statute of
It has long been the rule in conspiracy cases that a limitation period begins to run from the time of the last overt act committed in furtherance of the conspiracy. (People v. Crosby, supra, 58 Cal.2d 713, 727-729; Bompensiero v. Superior Court (1955) 44 Cal.2d 178, 184-185 [281 P.2d 250].)7 Our task, therefore, in the present case is to ascertain
In an effort to make the requisite showing, the People analogize to the holding in People v. Leach, supra, 15 Cal.3d 419, 423-424, an approach
of some unlawful object, or to the attainment of some lawful object by unlawful means; it must be directed to the attainment of one of the objects specified. Nor is it enough that the overt act be directed to the attainment of some other object; it must be directed to the attainment of the object which brings the conspiracy within the interdiction; and when that object is attained ‘the object of the conspiracy,’ in the sense of the statute, is effected.” (Id., at p. 481.) A careful reading of
With the reasons for the Crosby rule and the definition of the term “overt act” clarified by the foregoing historical analysis, the remaining question for us to determine as to the conspiracy counts in the instant case is what constitutes “successful completion of the contemplated crime” for purposes of the statute of limitations? And, as we have already pointed out in our discussion of the inapplicability of People v. Leach, supra, 15 Cal.3d 419 and People v. Saling, supra, 7 Cal.3d 844 to the present case, the result reached for purposes of the statute of limitations may vary from the result in the context of hearsay questions or conspirator liability for the acts of fellow conspirators.
Preliminarily, it should be noted that we perceive three “aims” rather than the “one major aim” mentioned in the People‘s contention, for we fail to comprehend how arson, grand theft, and concealment of those offenses can be characterized as one “major aim” of the conspiracies. In any event, while this contention illustrates the confusion which conspiracy cases seem to engender, it does bring us to the crux of the issue. Simply stated, the crucial question is: can acts of concealment committed by conspirators subsequent to the completion of the substantive offense which is the object of the conspiracy be construed as overt acts in furtherance of the conspiracy so as to delay the commencement of the running of the limitation period? We note that the United States Supreme Court was presented with a similar issue in Grunewald v. United States (1957) 353 U.S. 391 [1 L.Ed.2d 931, 77 S.Ct. 963, 62 A.L.R.2d 1344], and an examination of that case provides a useful framework within which to consider the case at hand. Before beginning our discussion of Grunewald, however, it is necessary to briefly set the context in which that case came before the high court.
Grunewald was preceded to the Supreme Court by two other conspiracy cases, Krulewitch v. United States (1949) 336 U.S. 440 [93 L.Ed. 790, 69 S.Ct. 716], and Lutwak v. United States (1953) 344 U.S. 604 [97 L.Ed. 593, 73 S.Ct. 481]. However, both of those cases, unlike Grunewald and the instant case, dealt not with the commencement of the running of a limitation period but rather with the duration of a conspiracy for purposes of the coconspirator‘s exception to the hearsay rule. Thus the
In Krulewitch the defendants were charged with conspiracy to transport a woman in interstate commerce for the purpose of prostitution. At trial the prosecution sought to introduce against Krulewitch hearsay statements of a coconspirator who had attempted to conceal Krulewitch‘s part in the scheme. The statements were admitted under the coconspirator‘s exception as having been made in furtherance of the conspiracy despite the fact that they were made one and one-half months after the woman had been successfully transported from New York to Miami. The Supreme Court reversed the resulting convictions on the ground that the hearsay statements could not have been in furtherance of the charged conspiracy since the government had failed to plead that the scheme had encompassed a subsidiary conspiracy aimed at preventing detection and punishment. Significantly, the court chose not to base its holding on the broader ground that the conspiracy, as a matter of law, could not have continued once the woman was no longer in interstate commerce. Mr. Justice Jackson, in a frequently cited concurring opinion, further suggested that the crucial flaw in the government‘s position was its failure to appreciate the difference between an implied and an explicit agreement to conceal reached before commission of the substantive offense which was the object of the conspiracy. Although he strongly condemned the doctrine of implied conspiracies, noting that an implicit conspiracy to conceal could be imputed to almost every conspiracy thereby impermissibly creating a conspiracy of indeterminate duration, Mr. Justice Jackson invited the government to allege and prove an explicit agreement to conceal as a means of extending the duration of such a conspiracy. (Krulewitch v. United States, supra, 336 U.S. 440, 455-457 [93 L.Ed. 790, 800-801].)
In Lutwak v. United States, supra, 344 U.S. 604 [97 L.Ed. 593] the government unsuccessfully sought to overcome the objections posed by the Krulewitch majority. Lutwak and his codefendants were convicted of conspiring to obtain the illegal entry of three aliens into the United States by arranging to have the aliens marry three honorably discharged veterans who would then return to the United States with their newly acquired “war brides.” Once the aliens were successfully admitted the unconsummated marriages were to be dissolved. Various acts and
Finally in Grunewald the court was once again confronted with the effect of acts of concealment on the duration of a conspiracy. Significantly, while the court noted that Grunewald was not an evidence case as had been Krulewitch and Lutwak (Grunewald v. United States, supra, 353 U.S. 382, 399-401 [1 L.Ed.2d 931, 940-942]), it did not employ any different analysis from that which it had used in the earlier cases. The defendants in Grunewald were executives of two business firms which were investigated by the Treasury Department for tax evasion. It was alleged that such defendants conspired with Treasury and other governmental officials to obtain “no prosecution” rulings from the Bureau of Internal Revenue in 1948 and 1949. Charges of an improper coverup were not brought until the defendants were indicted in 1954. In an attempt to avoid the difficulties which had arisen in Krulewitch and Lutwak the government alleged conspiracies on three different theories, only the first of which is here relevant. The government sought on that theory to bring the conspiracy within a three-year limitation period by arguing that even if the main objective of the conspiracy was to “fix” the tax investigations, there was proof of an actual subsidiary agreement by the conspirators to conceal the conspiracy in order to escape detection and avoid punishment. The government charged within the three years prior to 1954 the commission of overt acts of concealment pursuant to the agreement and submitted proof thereof at trial.
Application of the Grunewald analysis to the conspiracy counts in the present case would require reversal of count I (conspiracy to commit arson of a dwelling house) and count II (conspiracy to burn insured property with intent to defraud the insurer). As we interpret Grunewald there is insufficient evidence in the present record to support a finding that the conspirators explicitly agreed to conceal those conspiracies prior to the commission of the arson which was their central object. Since that object was completed at the instant that the Garcia Road building was set ablaze,12 no agreement subsequently entered into with the object of concealing those conspiracies could extend the time period within which the People might have charged those violations. (See Grunewald v. United States, supra, 353 U.S. 382, 405-406 [1 L.Ed.2d 931, 943-944].)
Central to a resolution of this question is the distinction first raised by Mr. Justice Jackson‘s concurring opinion in Krulewitch between implied and explicit agreements to conceal a conspiracy. (Krulewitch v. United States, supra, 336 U.S. 440, 455-457 [93 L.Ed. 790, 800-801].) Although such a distinction is superficially appealing, closer analysis reveals that the distinction is one more of form than of substance.
Criminal liability for conspiracy, separate from and in addition to that imposed for the substantive offense which the conspirators agree to commit, has been justified by a “group danger” rationale. The division of labor inherent in group association is seen to encourage the selection of more elaborate and ambitious goals and to increase the likelihood that the scheme will be successful. Moreover, the moral support of the group is seen as strengthening the perseverance of each member of the conspiracy, thereby acting to discourage any reevaluation of the decision to commit the offense which a single offender might undertake. And even if a single conspirator reconsiders and contemplates stopping the wheels which have been set in motion to attain the object of the conspiracy, a return to the status quo will be much more difficult since it will entail persuasion of the other conspirators. (Callanan v. United States (1961) 364 U.S. 587, 593-594 [5 L.Ed.2d 312, 317-318, 81 S.Ct. 321]; Goldstein, Conspiracy to Defraud the United States (1959) 68 Yale L.J. 405, 413; Developments in the Law: Criminal Conspiracy (1959) 72 Harv.L.Rev. 920, 924.) In response to these evils and as a deterrent to
The attempt to extend the duration of the conspiracy in the present case can be seen as a further attempt to deter future concerted criminal activity by the use of a special theory unique to conspiracy law. Although we support this salutary goal, we cannot agree with the means proposed to achieve it. It can be argued that group activity increases both the likelihood that the criminal objective will be attained and the possibility that the perpetrators can more easily escape subsequent detection and punishment (Pinkerton v. United States, supra, 328 U.S. 640, 644 [90 L.Ed. 1489, 1494-1495]; United States v. Rabinowich (1915) 238 U.S. 78, 88 [59 L.Ed. 1211, 1214-1215, 35 S.Ct. 682]), but it may be just as likely that “a large number of participants will increase the prospect that the plan will be leaked as that it will be kept secret.” (Goldstein, supra, 68 Yale L.J. 405, 414.) Because we perceive little distinction between concealment of a crime by conspirators and the concealment usually undertaken by a single criminal offender, we conclude that the context in which a conspiracy is undertaken affords little reason to create a special
Adoption of an implicit-explicit concealment distinction would also result in the effective elimination of the rule that a limitation period runs as to a particular conspirator from the time he withdraws from a conspiracy. (See People v. Crosby, supra, 58 Cal.2d 713, 730.) “A defendant‘s mere failure to continue previously active participation in a conspiracy is not enough to constitute withdrawal; there must be an affirmative and bona fide rejection or repudiation of the conspiracy, communicated to the coconspirators.” (Id.)
As an illustrative example of the problems engendered by the implicit-explicit approach, if we assume a conspiracy in which proof of an explicit agreement to conceal is shown, a coconspirator can withdraw from acting in furtherance of thе concealment objective only by confessing his crime to the authorities. If a conspirator in such a case communicates his “withdrawal” to the other conspirators after the substantive offense is completed and if he is thereafter approached by someone investigating the crime, he can fail to act in furtherance of the conspiracy to conceal only by revealing his own complicity. The “withdrawn” conspirator must necessarily answer investigative inquiries so as to conceal the involvement of his former associates in order to conceal his own involvement, thereby demonstrating his continued commitment to the concealment “objective” of the conspiracy.15 Indeed, the very failure to affirmatively confess his crime, even in the absence of an investigation, can be viewed as “playing the conspirators’ role to the hilt.” (Note, supra, 70 Yale L.J. 1311, 1342.)16 A requirement that a
Finally, we see no really significant benefit gained by characterizing some criminal schemes as “explicit” conspiracies to conceal while classifying others as merely “implicit” conspiracies to conceal. In reality, the distinction suggested by Mr. Justice Jackson in Krulewitch does little more than frustrate on technical grounds the prosecutor‘s attempt to negate the statute of limitations as a defense to conspiracy charges.18 There is simply no meaningful difference between one group of persons conspiring to commit a crime whose members firmly understand that (1938) 30 Cal.App.2d 185, 204 [85 P.2d 928].) If the only portion of the conspiracy which is still being committed is the concealment of the crime, then Jones would logically require a conspirator to confess his crime to the authorities before he could withdraw from further criminal conduct.
Although we agree that the sanctioning of such a theory could increase the scope of cоnspiracy prosecutions beyond reasonable limits, elimination of this threat does not require the implicit-explicit distinction.
Finally, an arbitrary requirement of evidence to show an “explicit” agreement to conceal is contrary to the well established rule that the unlawful design of a conspiracy may be proved by circumstantial evidence without the necessity of showing that the conspirators met and actually agreed to commit the offense which was the object of the conspiracy. (E.g., People v. Steccone (1950) 36 Cal.2d 234, 238 [223 P.2d 17]; see also, 1 Witkin, Cal. Crimes (1963) § 108, p. 103; Fricke, Cal. Criminal Law (1970) p. 126.) Were we to adopt the implicit-explicit distinction which Grunewald suggests we would create a rather confusing situation. On the one hand the jury could rely on all the evidence, both circumstantial and direct, in determining the scope and design of a conspiracy for the purpose of imposing substantive liability on the conspirators. At the same time, the jury would be limited in assessing the time span of the conspiracy for statute of limitations purposes by reference to direct evidence alone. Although such a result is not necessarily unworkable, we believe that there is a better solution to the problem.
Application of the foregoing principles to the instant case makes it clear that the instant conspiracy charges are barred by the statute of limitations. The conspiracies to commit arson and to burn insured property were completed on April 10, 1968, when the fire was ignited in the Garcia Road building. The conspiracy to commit grand theft was complete with receipt of the last insurance payment on September 16, 1968. Since those dates are more than three years prior to June 22, 1972, when the indictment was returned and filed, the charges contained in counts I, II, and III were barred by the three-year statute of limitations (
THE GRAND THEFT CONVICTIONS
Since the amendment of
On its face the 1969 amendment appears to set the limitation period running from the actual “discovery” of a theft. The new provision has nevertheless been interpreted to include the same requirement of “reasonable diligence” in discovering the facts of a theft that the courts have read into the “discovery” provision of the statute of limitations for tort actions based on fraud as set forth in
In the present case the People sought to bring the grand theft prosecution within the “discovery” provision of
At the conclusion of the hearing the court ruled that People v. Doctor, supra, 257 Cal.App.2d 105, was not apposite to the instant case in the pleading context because the Labor Code section there involved and
Prior to their deliberations the jurors were instructed on the various sub-issues of the limitation “discovery” question including the reasonable diligence requirement.27 Therefore the jury‘s verdicts of guilty on counts IV and V contain implicit findings that the facts constituting the acts of grand theft were not discovered more than three years before the indictment was filed nor could they have been discovered before that time with the exercise of reasonable diligence. The jury‘s findings on the “discovery” issue were on questions of fact and on appeal they are tested by the substantial evidence standard. We have examined the record and are unable to conclude that there is substantial evidence to support those findings. Furthermore, judged by the standards which have developed through application of the analogous civil statute (
Fire department arson investigators were on the scene only minutes after the blaze on Garcia Road was extinguished. During the initial inquiry by Inspectors Bishop and Bailey it was ascertained that the natural gas supply to the house had been previously disconnected and was therefore not a cause of the fire. Residue apparently left by a flammable liquid was discovered in several different burn patterns and Bishop was informed by the firefighters that the blaze had had all the characteristics of a fire fueled by such a liquid. Inspector Bishop also noticed that the house had been recently painted and that a strong odor of paint, paint thinner, and lacquer thinner was present in the air.
The following morning a pane of glass from a kitchen window was found 62 feet away from the house. The fire had started near the window and Inspector Bishop concluded from the condition of the glass and its location that it had been blown out by an explosion. Blood stains were found on the kitchen sink and leading away from the house. A flashlight, a smoking pipe, and a pair of eyeglasses thought to belong to the arsonist were found in the kitchen. Finally close examination of wood paneling confirmed the initial conclusion that a flammable liquid had been poured over it.
Fred Cobler, the painter who had been employed by Zamora, arrived and led Bishop on a tour of the house identifying and locating his various paint cans. An empty can labeled lacquer thinner was disavowed by Cobler and he also indicated that some of his paint thinner was missing. Cobler told Bishop that some unknown person had been entering the house each night after he locked it and left for his home, leading him to conclude that the visitor must have had a key. Finally, Cobler informed Bishop that he was in the process of purchasing an apartment building from Oakdale Manor, owner of the Garcia Road building. Cobler did not disclose the strange painting instructions he had been given by Zamora, nor did he state his suspicions that the Garcia Road fire had been planned because he only suspected arson and because he “wasn‘t asked the right question.”
Fire inspectors Bailey and Bishop followed the bloody trail leading from the house for some distance until it disappeared on a nearby road. Because they believed that someone in the house had been cut and burned in the fire they decided that the local hospitals should be contacted to ascertain whether anyone had been admitted with such injuries. Bishop also learned that Bailey had already responded to a fire call about 7 o‘clock that morning at 1623 Los Canoas Rоad. Bailey had discovered a small fire burning in a backyard barbeque pit and was told by a man calling himself Szymanski that an explosion had occurred when he came out and lit a fire in the pit. Szymanski suggested that the explosion might have resulted from someone pouring gasoline in the fire pit the night before. This, of course, was an attempt by defendants to corroborate Hanak‘s alibi. In spite of Szymanski‘s explanation, Bailey did not believe that an explosion had taken place because he examined Szymanski and saw no evidence of singed hair or flash burns which would have been present if the explosion story and gasoline hypothesis were true.
Detective Trainee Lenz of the Santa Barbara Police Department was also at the fire scene the morning after the blaze. He talked to Officer Skare who stated that the details of ownership and past tenants could be obtained from Saling Realty. Upon proceeding to the realty office Lenz met Saling who informed him who the owners, prior tenants, mortgage holder, and insurer were. During the conversation Zamora entered the office and Saling introduced him to Lenz explaining his relationship to the Garcia Road property. Zamora volunteered that he had inspected the property on the previous afternoon and had seen nothing out of the ordinary. Lenz concluded that it was unnecessary to talk with Zamora further because he felt that Saling had given him all available information.
On the evening of April 11th, Inspector Nielsen telephoned Inspector Bishop at his home and told him that Guido Hanak had been admitted
Detective Trainee Lenz met with Inspectors Bishop and Bailey on April 12th. He had already been informed about Hanak‘s condition and the connections with Saling and Szymanski. They agreed that the fire department would be allocated the task of ascertaining the immediate facts of the arson, i.e., such aspects as determination of the flammable liquid used to set the fire and observations of the neighbors when the fire began. The police department and Lenz in particular were to have the responsibility for investigating Guido Hanak and reconciling all of the evidence. Bishop indicated to Lenz that the fire might have been set for insurance purposes or in order to correct the lot lines problem, an apparent reference to the fact that the Garcia Road building sat across a lot line and blocked access to a rear canyon lot.
By April 15 the fire inspectors were convinced that the fire had been the result of arson. Bishop had discovered another broken window in the house with hair, pieces of skin and dried blood on it.29 From all the foregoing evidence Bishop concluded that Hanak had set the fire using lacquer thinner, had been trapped in the ensuing explosion, and had tried to escape by throwing himself out the window, suffering lacerations in the process. Saling and Szymanski were implicated because it was clear that the barbeque-pit story was a fabrication and because they had been involved with the Clifford Street fire investigation.
The next day, April 16, Lenz sought to connect Hanak with the eyeglasses found at the scene of the fire. At some point in his
An officer not involved in the investigation informed Lenz that a local realtor, Jim Baker, had told him that Hanak‘s former girlfriend, Marie Handelman, could supply information about the fire on Garcia Road. Lenz met with her on April 17 and although she promised to convey any information she subsequently learned, she claimed to have no knowledge of the fire. She indicated however that Hanak had left her apartment on the night of the fire about 8 p.m. stating that he was leaving to make a painting estimate.30
Near the end of April Lenz spoke with a deputy in the district attorney‘s office and discussed the Garcia Road case along with a number of others. He mentioned that Hanak had no apparent motive and questioned whether he should investigate the possibility of an insurance fraud. When he received no encouragement he terminated this line of investigation.
As time progressed the fire department investigators became increasingly concerned over the lack of progress in the police investigation, particularly because Lenz seemed to have relegated the case to his spare time. The fire department inspectors volunteered to investigate the
Lenz talked with James Brewer, an insurance claims adjuster, on April 26 and told Brewer that he was investigating because the property had been insured. When Lenz asked if any money could have been made by burning the property Brewer was noncommittal but indicated that if any “foul play” was involved the insurance company would want to hire its own investigators to conduct an independent inquiry.32
In May during the course of the fire department‘s continuing investigation Inspector Bishop learned that Zamora was the son-in-law of Mr. and Mrs. Woоd, two of the principals in Oakdale Manor and the original purchasers of the Garcia Road property. At the same time he was informed that either the Woods or Zamora had been experiencing
The last police activity in the case during 1968 occurred on June 17 when Lenz was again told that Jim Baker, the realtor, believed that Marie Handelman could confirm that Szymanski had been to the Garcia Road building on the afternoon of the fire and had spread a flammable liquid in the house, that Szymanski and Hanak had driven to the property on the night of the fire, that Hanak had gone inside to light the fire, and that Hanak had been burned in the explosion which resulted from Hanak‘s lack of information that Szymanski had already spread other flammables. Lenz met with Handelman but she once more claimed to have no knowledge of the fire. Despite the fact that Lenz had received the tips about Handelman‘s purported knowledge of the fire from another individual, Lenz made no effort to investigate that source or the origin of that information.
Lenz testified at trial that while the case was not officially closed no other investigation took place in 1968. He was busy with other investigations since he managed a workload of about 50 cases at any one time, and had been told that his inability to supply a motive for the arson or to connect Hanak to the eyeglasses meant that the case could not be taken to the district attorney. In November 1968, during a routine clearance of the police evidence room, Lenz told other officers that a door from the house could be disposed of since it had been analyzed. The other physical evidence including the eyeglasses, the flashlight, and the smoking pipe were mistakenly destroyed. Lenz had nothing further to do with the case until 1972 when he was approached by investigators from the district attorney‘s office who were following the leads given by Fred Cobler in his interview with Investigator Arca on February 22, 1972.
Our review of the record persuades us that neither the victim of the thefts, the fire department investigators, nor the police department investigators actually knew that an insurance fraud had been perpetrated in 1968. However, we have already indicated that lack of actual knowledge is not required to bring the “discovery” provision of
We are cognizant of the ever increasing burdens placed on our law enforcement personnel to investigate crimes against society. The caseload carried by Detective Trainee Lenz in the instant case is ample testimony to that problem. Yet the Legislature did not incorporate an “over-burdened investigator” exception into the “discovery” provision of
The judgments are reversed.
Tobriner, J., Mosk, J., and Sullivan, J., concurred.
RICHARDSON, J.—I concur in the majority opinion to the extent that it reverses the judgment as to the first and second conspiracy counts (conspiracy to commit arson, and conspiracy to burn insured property with intent to defraud the insurer). As to these counts, the applicable three-year statute of limitations (
I respectfully dissent, however, from the majority‘s reversal of count III (conspiracy to commit grand theft) and counts IV and V (two separate acts of grand theft). In my opinion, the statutory period with respect to the conspiracy count was extended by virtue of the express agreement between the conspirators, made prior to the receipt of the insurance proceeds, to pay off one of the conspirators and to conceal evidence of the arson. This agreement was coupled with two overt aсts committed in furtherance thereof, all occurring within the three-year limitations period. Further, with respect to the grand theft counts, the statutory limitations period did not commence to run until the investigating officers, acting with due diligence, discovered the acts of grand theft in February 1972, once again well within the three-year limitations period.
1. The Grand Theft Conspiracy Count
As the majority recite the facts at considerable length, I will summarize only the essential points. The prosecution established that on April 10, 1968, the night of the Garcia Road fire, the conspirators met and expressly agreed to pay the medical expenses of arsonist Hanak, and to conceal the source of his burns, the cause of the fire, and Zamora‘s
The majority hold that since the last insurance payment was made on September 16, 1968, more than three years prior to June 22, 1972, when the indictment was returned, the grand theft conspiracy charge was not timely filed. I respectfully suggest, however, that the relevant cases of this court, and of the United States Supreme Court, support the contrary view.
First, in People v. Leach (1975) 15 Cal.3d 419 [124 Cal.Rptr. 752, 541 P.2d 296], we recently reaffirmed our holding in People v. Saling (1972) 7 Cal.3d 844, 851-853 [103 Cal. Rptr. 698, 500 P.2d 610], to the effect that although a conspiracy usually terminates when the underlying substantive offense is completed, “‘[p]articular 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,‘” and that it is a question for the trier of fact to determine when the conspiracy ended. (15 Cal.3d at p. 431, quoting from 7 Cal.3d at p. 852.)
In Saling, for example, we upheld the jury‘s implied finding that a murder conspiracy did not terminate until one of the conspirators had been paid for his services rendered in furtherance of the conspiracy. Likewise, in the present case the jury, as trier of fact, might reasonably have concluded that the grand theft conspiracy had not yet terminated when Saling offered, and later attempted, to arrange payment to Hanak. The majority, however, refuse to reach the foregoing conclusion, reasoning that since Saling and Leach involved an evidentiary question, rather than application of the statute of limitations, those cases are not applicable.
However no such distinction was recognized in Saling and Leach, which applied general principles of conspiracy law for purposes of deciding when a criminal conspiracy terminates. Both cases involved the application of the rule that a conspirator‘s statements are admissible
I think it significant that the United States Supreme Court has declined to follow the majority‘s course: As the majority concede, the Warren Court in Grunewald v. United States (1957) 353 U.S. 391 [1 L.Ed.2d 931, 77 S.Ct. 963, 62 A.L.R.2d 1344], a statute of limitations case, applied without hesitation the general conspiracy principles enunciated in two prior cases, Krulewitch v. United States (1949) 336 U.S. 440 [93 L.Ed. 790, 69 S.Ct. 716], and Lutwak v. United States (1953) 344 U.S. 604 [97 L.Ed. 593, 73 S.Ct. 726], both coconspirator-hearsay rule cases.
The majority not only decline to consider the “extended conspiracy” doctrine announced by our own Saling and Leach cases, but they likewise fail to follow the principles set forth by the United States Supreme Court in Grunewald, supra, to the effect that an express agreement between conspirators to cover up their crime may extend the applicable statute of limitations. In this connection the majority insist that Grunewald “never indicated what quantum of evidence would be sufficient direct proof of an agreement to conceal which would extend the duration of the conspiracy....” (Ante, p. 554.) To the contrary, with due deference, I must note that the high court carefully explained that the requisite agreement cannot be implied from mere acts of concealment, but must consist of an express agreement between the conspirators. Commenting on the nature of the evidence in Grunewald, the high court explained: “There is not a shred of direct evidence in this record to show anything like an express original agreement among the conspirators to continue to act in concert in order to cover up, for their own self-protection, traces of the crime after its commission.” (353 U.S. at p. 404 [1 L.Ed.2d at p. 943], italics added.)
In the present case, in contrast, there was direct evidence, in the form of testimony from coconspirator Hanak himself, that the conspirators met on the day of the Garcia Road fire and expressly and specifically agreed to cover up the crime, and their connection with it, and to pay for Hanak‘s medical expenses, thus meeting any reasonable standards as to the quantum of evidence required. As I interpret the Grunewald
The majority suggest that, for purposes of applying the statute of limitations, conspirators who expressly agree to conceal their crime must be treated no differently than any other offenders who take the usual steps to avoid being caught. It seems obvious to me that an express conspiracy of concealment poses a far greater hindrance to effective police investigation than that associated with the usual escape following commission of a routine criminal offense. In the matter before us the participants actively and by prearrangement and design aided and abetted each other by supplying alibis, cover stories, and subsequent financial and other assistance. It seems to me that, under such circumstances, the conspiracy should be deemed to continue until completion of the last of the overt acts done in furtherance of the prearranged plan and scheme.
The majority acknowledge that their extended decision herein sets aside multiple convictions for offenses which, in the words of the majority, “were actually committed by defendants.” (Ante, p. 574.) I respectfully suggest that the majority‘s conclusion need not follow and that the Leach and Saling cases of this court, and the Grunewald decision of the Supreme Court, furnish sufficient legal precedent for affirmance of the grand theft-conspiracy conviction.
2. The Grand Theft Convictions
In addition to the conspiracy counts, defendants were also convicted of two counts of grand theft, based upon their unlawful receipt of insurance proceeds following the fire. The applicable statute of limitations (
In the present case, both the trial court and jury made separate determinations on the issue of the People‘s diligence: (1) At a preliminary hearing, the trial court denied a motion to dismiss, expressly finding that the officers proceeded with due diligence in investigating the insurance fraud, and (2) at the trial, the jury was expressly instructed on the subject of due diligence and, as the majority concede, the verdicts of guilty “contain implicit findings that the facts constituting the acts of grand theft were not discovered more than three years before the indictment was filed nor could they have been discovered before that time with the exercise of reasonable diligence.” (Ante, p. 565.)
Despite the contrary findings of both trial judge and jury, the majority assert that there is no substantial evidence to support these findings of due diligence. My examination of the record, however, indicates what I think is overwhelming support for these findings of both the trial court and jury.
As the majority observe,
The extensive evidence disclosing the diligent efforts of detective-trainee Lenz and other investigating officers are summarized at length in the briefs and majority opinion herein. Rather than repeat the substance of this evidence, suffice it to say that Lenz and the other officers conducted an exhaustive investigation (including photographs, witness interviews, forensic analysis, and the like) which confirmed the officers’ suspicion that arson had occurred, but which afforded insufficient evidence of an insurance fraud. In fact, in 1968 Lenz had discussed the matter with both the district attorney‘s office and his own superiors, and
As was well stated by Justice Loring in the vacated opinion prepared by him for the Court of Appeal, Second Appellate District, in this case, “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 collection of the insurance constituted grand theft.” (Italics in original.)
It seems to me that there was substantial evidence in the record to support the finding, of both the jury and trial court, that the People acted diligently under the unusual circumstances in this case. No public policy is served by the imposition of unrealistic standards of diligence upon already overburdened investigative officers. (The record discloses that in the present case, for example, during the period from April through June 1968 Detective Trainee Lenz was working on approximately 100 cases, with approximately 50 cases pending at any one time.) The majority, admittedly assisted by the inevitable advantage of hindsight, note several “leads” which assertedly Lenz failed to follow. Yet the majority acknowledge that their recitation of the facts “has necessarily been limited to those lapses [in investigation] and perhaps does not adequately reflect the overall efforts of the investigators.” (Ante, p. 573.) The majority appear to marshall only those facts favorable to the defendants while ignoring our long recognized appellate function of determining whether any substantial evidence supports the jury‘s implied finding of due
I fear that the unwitting effect of the majority holding is to reward the devious. It may also induce prosecutors in future cases of this type to file premature or unsubstantiated criminal charges before fully completing the course of the investigation, in order to avoid dismissals based upon the exhaustion of statutes of limitations. No discernible public policy is served by encouraging such precipitous prosecutorial action in the course of insisting on the exercise of “due diligence.”
For all of the foregoing reasons I would affirm the grand theft-conspiracy and grand theft convictions.
CLARK, J.—I concur in reversing counts I and II, but, for the reasons so well expressed by Justice Richardson, dissent from reversing counts III-V.
Regarding counts IV and V, the grand theft counts, the standard of diligence required by the majority is altogether unreasonable. That they make such unrealistic demands upon our hard pressed law enforcement officials suggests that the majority subscribe to what a Rand Corporation study refers to as the “media image of the working detective,” i.e., “that of a clever, imaginative, perseverant, streetwise cop who... roam[s] the entire city for days or weeks trying to break a single case, which is ultimately solved by means of the investigator‘s deductive powers.” (1 Greenwood & Petersilia, The Criminal Investigation Process, Summary and Policy Implications (Rand Corp. Report prepared under a grant from the Nat. Institute of Law Enforcement and Criminal Justice, L.E.A.A., Dept. of Justice, 1975) p. 5 [hereinafter referred to as “Rand study“].)
The reality of criminal investigation, the Rand study reveals, is very different. To determine what factors contribute to case solution the Rand researchers analyzed a large sample of cleared crimes from a variety of crime types. In more than half of the cleared cases, they found, the identification of the offender was available at the time of the initial report because (1) the offender was arrested at the scene; (2) the victim or witness identified the suspect by name and address; or (3) some evidence available at the crime scene, such as a license plate or employee badge number, uniquely determined the identity of the suspect. Most of
One of the policy implications of these findings, according to Rand, is that police departments should reduce follow-up investigation on all cases except those involving the most serious offenses. The rationale of this proposal: “Our data consistently reveal that a regular investigator‘s time is preponderantly consumed in reviewing reports, documenting files, and attempting to locate and interview victims and witnesses on cases that experience shows will not be solved. Our data show, moreover, that most cases that are solved are solved by means of information spontaneously provided by a source other than those developed by the investigator. It follows that a significant reduction in follow-up investigative efforts would be appropriate for all but the most serious offenses in which public confidence demands some type of response.” (Rand study, p. 27.) That Rand made this recommendation—that the present level of follow-up investigative effort be reduced—is all the more significant in light of its finding that, under present practice, investigative efforts in over 86 percent of unsolved cases are suspended by the end of the first week. (Rand study, p. 19.)
In light of the Rand study, we can see that more, not less, than reasonable diligence was exercised in the investigation of this case. Despite the length of the majority opinion, this was, after all, not the crime of the century. It was a $15,000 arson and insurance fraud that involved no injury to innocent persons. Nevertheless, several investigators worked on it intensively for over two months before suspending their efforts because the suspect had an alibi and no motive was apparent. To demand a higher standard of diligence, given society‘s limited resources and apparently unlimited propensity to crime, is completely unrealistic.
McComb, J., concurred.
Respondent‘s petition for a rehearing was denied January 13, 1977. Clark, J., and Richardson, J., were of the opinion that the petition should be granted.
Notes
The first federal courts to confront the question of the commencement of the running of the statute of limitations in conspiracy cases took the view that conspiracy was an “instantaneous” offense, because the crime became complete and subject to prosecution at the instant the first overt act in furtherance of the conspiracy was committed (of course necessarily after an agreement had been reached by the conspirators). Under this theory, the limitation period ran from the first overt act and subsequent overt acts did not affect the expiration of the statutory period. (See, e.g., United States v. Owen (D.Ore. 1887) 32 F. 534, 537-538; United States v. McCord (W.D.Wis. 1895) 72 F. 159, 161-166; Ex parte Black (E.D.Wis. 1906) 147 F. 832, 840, affd. sub. nom., United States v. Black (7th Cir. 1908) 160 F. 431.) The “first overt act” rule gradually fell from favor apparently beginning with United States v. Greene (E.D.Ga. 1902) 115 F. 343, 349-350, affd. (5th Cir. 1907) 154 F. 401, cert. den. (1907) 207 U.S. 596 [52 L.Ed. 357, 28 S.Ct. 261], in which the court applied a “continuing conspiracy” theory to a situation where the defendants conspired to defraud the government and win certain construction contracts over a period of years from 1891 through 1897. In Greene the government charged two
In Ware v. United States (8th Cir. 1907) 154 F. 577, the court attempted to answer the query posed by the court in Black. The conspiracy in Ware was one of the many Homestead Act frauds in which the conspirators hired individuals to file false land claims which were then transferred to the conspirators. As in Greene, the scheme contemplated many such transfers over a period of years. Consequently, the court was able to hold that there was a locus penitentiae after the performance of each new overt act, since any conspirator could withdraw from the conspiracy before new frauds were completed thereby escaping liability for subsequent acts of the remaining conspirators. (Id., at p. 579.) Since the crime charged was not limited to formation of a conspiracy, the court found no difficulty in holding that in a continuing conspiracy the statute of limitations ran from the last overt act. (See also Jones v. United States (9th Cir. 1908) 162 F. 417, 426-427, cert. den. (1908) 212 U.S. 576 [53 L.Ed. 657, 29 S.Ct. 684].) It was this theory which was adopted by the Supreme Court in Kissel and Hyde and which also underlies the Crosby rule in California. However, adoption of a “last overt act” rule does not answer the questions of what constitutes an “overt act” and when an “overt act” must occur. It is the answers to these questions which ultimately determine the result in the instant case.
Courts have struggled through the years to formulate a definition for the term “overt act,” and it has been said that no single definition can be adequate for all conspiracy cases. For our purposes, it is sufficient to say that “an overt act is an outward act done in pursuance of the crime and in manifestation of an intent or design, looking toward the accomplishment of the crime.” (Chavez v. United States (9th Cir. 1960) 275 F.2d 813, 817; see also,
Unfortunately, the term “overt act” has often been used in a loose fashion without regard to the particular issue under consideration. As a result the significance of the timing of “overt acts” has been considerably blurred. In the specific context of the statute of limitations we think the rule was correctly stated in Lonabaugh v. United States (8th Cir. 1910) 179 F. 476. “It is not enough that the conspiracy be directed to the attainment
The result reached in Eldredge is only one short steр from withdrawal cases in California. In People v. Jones (1961) 197 Cal.App.2d 503, 508 [17 Cal.Rptr. 252], the court held that the defendants had failed to show withdrawal from a conspiracy because they had done nothing to prevent commission of the offense. (See also People v. King
Section 800 has been subsequently amended to include other felonies within the “discovery” provision but the modifications do not affect the issues in this case.
In our earlier discussion of the rationales underlying the statute of limitations, we referred to the rule that the statute of limitations may properly be raised at any time before or after judgment. (In re Demillo, supra, 14 Cal.3d 598, 601; People v. McGee, supra, 1 Cal.2d 611, 613.) However, McGee and its progeny have dealt only with cases in which the accusatory pleading is deficient on its face, i.e., where it fails to plead facts showing that the prosecution is not barred by the statute of limitations. The decision of the trial court in the instant case rested in large part on McGee and the belief that since the statute of limitations is jurisdictional a defendant should not be forced to undergo a trial on many other issues when an early resolution of the limitation question might obviate the necessity of undertaking a more rigorous trial on the merits. Our own research indicates that the propriety of such a hearing is a question of first impression in California.
The meager authority from other jurisdictions on the issue is split. In the federal courts the rule is that it is within the discretion of the trial court to determine whether or not to hold a hearing on the limitation issue before proceeding to the trial of the general issues. (United States v. Haramic (W.D. Pa. 1954) 125 F.Supp. 128, 129; United States v. J. R. Watkins Company (D.Minn. 1954) 16 F.R.D. 229, 232-233; cf. United States v. Mathues (E.D. Pa. 1928) 27 F.2d 137.) However, the rule is based on specific authority,
We believe on balance that the federal rule is the preferable practice. We are aware of our past statements that the limitation issue is, upon proof of probable cause to believe that the statute is not a bar, a question for the trier of fact. But the limitation question is a
We think that the better view lies somewhere between the standards set forth in Doctor and Swinney. While we agree that an accusatory pleading should not stand or fall solely on the facts averred on the face of the pleading, Swinney goes too far in allowing a generalized pleading. The general rule is that the accusatory pleading must allege facts showing that the prosecution is not barred by the statute of limitations. (People v. Crosby, supra, 58 Cal.2d 713, 724.) We do not believe that technical rules of pleading in criminal