Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF131552, William S. Lebov, Judge. Retired judge of the Yolo Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const. Judge.
Rod Pacheco, District Attorney, and Jacqueline C. Jackson, Deputy District Attorney, for Plaintiff and Appellant.
Benjamini & Benjamini, Emily A. Benjamini and Dean Benjamini for Defendant and Respondent.
OPINION
Gaut J.
The People appeal, pursuant to Penal Code section 1238, subdivision (a)(1), from an order of the Riverside County Superior Court dismissing a charge of pimping (Pen. Code, § 266h) against respondent Melanie Elizabeth Smith based on the trial court’s finding that the prosecution was barred by the statute of limitations. The People argue the court erred in dismissing the charge because pimping is a continuing offense and the complaint alleged a five-year span of conduct, a portion of which fell within the three-year limitation period. We affirm.
1. Background
Because this appeal does not involve the dismissal of other pending counts at the time of the preliminary hearing, we recite the following facts which were adduced at the hearing on the charge of pimping, as to which respondent Melanie Smith was held to answer:
Ron Ben, also known as Boaz Benmoshe or “Bo” Benmoshe, and his partners, Moti Vintrov, Eliran “Eli” Vintrov, and Ofer Lupovitz, operated an escort service called Elite Entertainment or Elite Escorts (Elite). Melanie Smith (respondent) is married to Bo Benmoshe, and was linked to Elite through her husband, by virtue of the fact she answered the telephones at the business for an unknown period of time, and through home loan applications made with her husband where the business was listed as an asset. Elite was an escort service which fronted a prostitution operation conducted by respondent’s husband and his associates.
Between early 2003 and late 2004 or early 2005, Rebecca Luna worked for Elite as a dancer and as a prostitute. Luna was familiar with respondent as a secretary at Elite and knew respondent was married to Bo. On unspecified occasions, Luna had conversations with respondent relating to jobs Luna had done for Elite. On one occasion, respondent spoke to Luna on the telephone and told Luna that a client had requested a specific sex act. Luna did not testify as to the date of this conversation, and investigator Chebahtah, who was the investigator assigned to the undercover operation, never asked Luna when any conversation about sex acts took place. However, Luna did say that on unspecified occasions she provided tips to respondent as well as the other secretaries after being dispatched to shows. Luna was initially charged with tax and loan fraud felonies, but agreed to testify in return for immunity.
Two other prostitutes, who worked for Elite between October 2003 and August 2006, were interviewed by the investigator, but did not indicate they ever saw respondent in the office at Elite, and did not indicate they ever spoke to respondent about acts of prostitution. In addition to the information obtained from prostitutes, investigator Chebahtah oversaw a series of “buy/walks,” between May 11, 2005, and April 14, 2006, which were operations in which an undercover officer would call Elite, order a female to a hotel room, and negotiate for acts of prostitution. Once the specific act had been negotiated and paid for, the undercover officer would contrive an excuse to call off the act and would leave; this way the female left without knowing of the investigation. Seven buy/walk transactions took place during the year-long investigation. However, none of those transactions involved respondent. Further, despite numerous dates of surveillance of the business office of Elite during that time frame, respondent Smith was never seen there.
Multiple charges of pimping (Pen. Code, § 266h), filing fraudulent tax returns (Rev. & Tax. Code, § 19705), and grand theft (Pen. Code, § 487, subd. (a)), against respondent, along with various charges against the other defendants. Through a convoluted process, and after an order partially granting respondent’s first motion to dismiss (Pen. Code, § 995), one charge of pimping, and two counts of grand theft (Pen. Code, § 487, subd. (a)) were charged against respondent in a separate complaint. As to each theft count, it was further alleged that the amount involved exceeded $200,000. (Pen. Code, § 12022.6, subd. (a)(2).)
After a preliminary hearing, the magistrate discharged respondent on the two grand theft counts. She was held to answer on the single count of pimping. On March 9, 2007, respondent Smith was arraigned on an information charging a single count of pimping. She made a motion to dismiss (Pen. Code, § 995) on March 27, 2007, on grounds that the statute of limitations had expired and that there was insufficient evidence of the elements of pimping. The motion was granted on April 6, 2007. The People appealed from the dismissal.
2. Discussion
The People argue that the trial court improperly set aside the information on statute of limitations grounds. They argue that pimping is a continuing offense and that the complaint was brought within three years of its commission. The People’s theory was that (1) respondent Smith was a member of a conspiracy to commit pimping, (2) as recently as November 28, 2005, respondent Smith signed loan documents where Elite, a business involving prostitution, was listed as an asset, and (3) respondent Smith actively worked at the business answering telephones, dispatching prostitutes to jobs and sharing tips derived from prostitution. Unfortunately, the crime of conspiracy was not charged and none of the acts alleged to have been committed by respondent Smith was shown to have been committed within the statute of limitations.
An information must be set aside if respondent was not legally committed by the magistrate or the respondent was committed without reasonable or probable cause. (Pen. Code, § 995, subd. (a)(2).) “‘[I]n proceedings under section 995 it is the magistrate who is the finder of fact; the superior court has none of the foregoing powers, and sits merely as a reviewing court; it must draw every legitimate inference in favor of the information, and cannot substitute its judgment as to the credibility or weight of the evidence for that of the magistrate. [Citation.] On review by appeal . . . the appellate court in effect disregards the ruling of the superior court and directly reviews the determination of the magistrate holding the defendant to answer.’” (People v. Herrera (2006) 136 Cal.App.4th 1191, 1205, quoting People v. Laiwa (1983) 34 Cal.3d 711, 718.)
Acting as a reviewing court of the magistrate’s decision, we draw every legitimate factual inference to uphold the magistrate’s decision. (People v. Scott (1999) 76 Cal.App.4th 411, 416.) However, a legal inference cannot flow from the nonexistence of a fact; it can be drawn only from a fact actually established. (People v. Herrera, supra, 136 Cal.App.4th at p. 1205.) An inference may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guesswork. (Ibid.)
The statute of limitations for the crime of pimping is three years. (Pen. Code, § 801.) An action is commenced with the filing of an indictment or information, or the issuance of an arrest warrant, not when the complaint is filed. (§ 804, subds. (a) & (d); People v. Johnson (2006) 145 Cal.App.4th 895, 900, 901.) Pimping is a continuous offense. (People v. Dell (1991) 232 Cal.App.3d 248, 265-266; People v. Lewis (1978) 77 Cal.App.3d 455, 460-461.) The statute of limitations for a continuing offense does not begin to run until the offense is completed. (People v. Keehley (1987) 193 Cal.App.3d 1381, 1383, 1385.) In order to hold a defendant over for trial, it was the People’s burden to produce evidence at the preliminary hearing which demonstrates that there is probable cause to believe that the prosecution is timely. (People v. Fine (1997) 52 Cal.App.4th 1258, 1263, citing People v. Zamora (1976) 18 Cal.3d 538, 565, fn. 26.)
Here, the action was commenced with the filing of the information on March 9, 2007. The limitations period was tolled for the two months between the filing of the first information and the granting of respondent’s first motion to dismiss. (Pen. Code, § 803, subd. (b).) Three years plus two months prior to the date the action was commenced would mean the crime had to have been committed between January 2004 and March 2007, when the information was filed, allowing for the time in which the action was tolled. Unfortunately, the People never established when respondent’s crime was committed, and the evidence of her involvement spanned a time beginning in early 2003, outside the three-year limitations period.
The People’s reliance on the continuous nature of the crime does not mean a pimp remains liable for income derived by third parties from acts of prostitution that may have been committed within the limitations period. In both People v. Dell, supra, 232 Cal.App.3d 248and People v. Lewis, supra, 77 Cal.App.3d 455, relied on by the People, a single defendant was charged with pimping based on the defendant’s own conduct and circumstances deriving support from a prostitute, not to the conduct of third parties. The issue in those cases was whether the pimp could be charged with more than one crime of pimping for multiple instances of receiving money from a prostitute. That issue is not before us because respondent was charged with only one count of pimping.
Only one prostitute, Luna, testified that respondent received money earned from an act of prostitution but Luna never indicated whether that act occurred in early 2003 (outside the statute of limitations) or early 2005 (within the limitations period). Luna’s statements also implicated others as engaged in pimping at Elite and other secretaries with whom she shared her tips. The evidence does not demonstrate that defendant’s acts were completed within the statute of limitations. We can only speculate when the acts occurred.
To get around this problem, the People attempt to argue a conspiracy theory, which would make the respondent liable as a principal for the acts of others committed within the limitations period. They assert that the limitation period begins to run with the commission of the last overt act alleged, relying upon the holding of People v. Crosby (1962) 58 Cal.2d 713, 728. There is a major flaw with this theory: respondent was not charged with conspiracy, so no overt acts were alleged that could bring the case within the limitations period. The People have cited no authority for the proposition that an uncharged conspiracy extends the applicable statute of limitations for a substantive crime, and we have found none.
The people incorrectly assert that the magistrate found that the people had established a prima facie case of conspiracy for purposes of admitting statements attributed to alleged coconspirators as a basis for concluding a conspiracy theory was alleged. The magistrate made no such finding. Instead, the record shows that after the bind over was ordered, the court ruled on the hearsay objections that had been taken under submission, stating “Oh, by the way, those objections to hearsay that were taken under submission because of conspiracy under 1223, be admitted.”
An uncharged conspiracy may allow for the admission of hearsay evidence (Evid. Code, § 1223; People v. Ambrose (1986) 183 Cal.App.3d 136, 139), but it does not extend the statute of limitations for a crime. To be considered timely, the burden was on the People to produce evidence showing that respondent received compensation from a prostitute within the three-year period preceding March 9, 2007. This was not done.
The People also argue that the conduct of others, committed within the limitations period, can be attributable to respondent. However, no theory of vicarious liability was pled in the information which named respondent alone, and the failure to allege a conspiracy involving other persons bars the People from extending the limitations period based on a third party’s overt acts. Instead, we are asked to engage in imagination, speculation, supposition, conjecture, or guesswork to conclude that the acts attributed to respondent were committed within the statutorily permitted time frame. (See People v. Herrera, supra, 136 Cal.App.4th at p. 1205.)
Because Luna did not specify when her contacts with the respondent occurred, it cannot be said there is probable cause to believe that the prosecution was commenced within the statute of limitations. Dismissal was proper.
3. Disposition
The judgment is affirmed.
We concur: Richli Acting P. J., Miller J.