Newberry

Petitioner is charged by information with one count of first degree murder. He is also charged with one count each of grand theft and unlawful taking of a vehicle, both allegations arising from his alleged theft of the murder victim’s car. In addition, the information alleges two special circumstances: (1) that the murder was committed by means of torture (Pen. Code, § 190.2, subd. (a)(18)); and (2) that the murder was carried out for financial gain. (Pen. Code, § 190.2, subd. (a)(1).) Newberry challenged the two special circumstance allegations on a motion brought under Penal Code section 995. Upon denial of that motion, Newberry filed this petition for writ of prohibition to restrain respondent court from further proceedings on the special circumstance allegations. We grant the petition in part and deny it in part.

Newberry’s challenge to the torture-murder special circumstance is based on the allegation that the People failed to prove the corpus delicti of the special circumstance at the preliminary hearing. He argues that the People must establish the corpus of a special circumstance as they must for a substantive crime, meaning that such proof must be independent of…