People v. Zamora

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 bum insured property with intent to defraud the insurer). As to these counts, the applicable three-year statute of limitations (Pen. Code, § 800), in my view, commenced to mn when the substantive offense was committed, and expired prior to the time the indictment was filed.

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 acts 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 mn 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 bums, the cause of the fire, and Zamora’s *575 connection with Hanak. The prosecution further established the existence of two overt acts specifically committed in furtherance of the foregoing agreement, which acts occurred within the three-year limitations period, namely, (1) Saling’s offer on June 30, 1970, to obtain trust deeds from Zamora in payment for Hanak’s unlawful services, and (2) Saling’s attempt, in December 1970 or January 1971, to obtain money from Zamora to pay to Hanak for his participation in the arson.

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, “ ‘[particular circumstances may well disclose a situation where the conspiracy will be deemed to have extended beyond the substantive crime to activities contemplated and undertaken by the conspirators in pursuance of the objectives of the conspiracy,’ ” 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 tó 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 *576 against his coconspirators only when made during the conspiracy. Yet these general principles invoked by us in Saling and Leach certainly have equal force and application in the present case, for once again, this time in ascertaining the commencement of the statute of limitations, we are faced with the question—when has a criminal conspiracy terminated? While consistency is not everything it is something.

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 Grünewald “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 Grünewald, 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 Grünewald *577 principles, applicable to the facts in the case before us, this express agreement would have the effect of extending the grand theft conspiracy beyond the date of final payment of the insurance proceeds, and the statutory limitations period would not commence to run until the last overt act committed in furtherance of that express agreement, namely, Saling’s efforts to provide payment for Hanak.

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 Grünewald 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 (Pen. Code, § 800) requires that the indictment for grand theft must be found “within three years after its discovery.” Although the People alleged and proved that they discovered the insurance fraud on February 22, 1972 (only four months before the indictment was returned), the majority reverse the conviction on the ground that the People failed to proceed with “due diligence” in investigating the fraud. As I explain, and again, respectfully, the majority clearly err in so holding.

*578 The majority concede that, although the language of section 800 refers to “discovery,” California case law holds that the People must plead and prove that the theft could not have been discovered earlier in the exercise of due diligence. Further, the existence of such exercise is a factual issue for the trier of fact to decide. (People v. Swinney (1975) 46 Cal.App.3d 332, 344-345 [ 120 Cal.Rptr. 148 ]; see Hobart v. Hobart Estate Co. (1945) 26 Cal.2d 412, 440 [ 159 P.2d 958 ].)

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 juiy 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, section 800 and its “due diligence” requirement, were based upon the discovery provision of the statute of limitations for tort actions based on fraud (Code Civ. Proc., § 338). Yet were the present case an ordinary tort action brought by a private plaintiff, it is highly doubtful that this court would, for lack of due diligence, reverse a damage award for plaintiff under the circumstances in this case.

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 *579 was advised that the case against defendants was not strong enough to justify prosecution at that time. It seemed quite unlikely to the officers that insurance fraud was the motive for the arson, since the value of the residence was substantially equal to the amount of insurance.

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 *580 diligence. (See Hobart v. Hobart Estate Co., supra, 26 Cal.2d 412, 440-441 ; Schaefer v. California-Western States Life Ins. Co. (1968) 262 Cal.App.2d 840, 845-846 [ 69 Cal.Rptr. 183 ].)

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.