Can a charge of murder be used to establish first degree murder under the felony-murder rule?

Furthermore, the majority argument suffers from other defects. First, there is no "well settled" rule that a felony barred by the statute of limitations may be used to establish first degree murder under the felony-murder [46 Cal.3d 46] rule. The two cases cited by the majority (People v. Risenhoover (1968) 70 Cal.2d 39, 49-50, 73 Cal.Rptr. 533, 447 P.2d 925; People v. Terry (1969) 70 Cal.2d 410, 422-423, 77 Cal.Rptr. 460, 454 P.2d 36), merely establish that a general charge of murder permits conviction on a felony-murder theory, that when the charge is filed within the statutory period for charging the felony, the fact that the statutory period may have expired prior to trial does not prevent proof of the felony, and that when the felony is collateral to the murder it is admissible.

In Risenhoover, supra, 70 Cal.2d 39, 49-50, 73 Cal.Rptr. 533, 447 P.2d 925, the defendant was arrested for murder the day after the homicide and was charged shortly thereafter. However, he was found presently insane and committed to a hospital, and after he was returned and stood trial, the trial court set aside his conviction by granting a motion for new trial. At the second trial, the prosecutor asked prospective jurors whether they could follow instructions on the felony-murder rule, and defendant objected on the ground that all felonies other than murder were barred by the statute of limitations. ( Id. at p. 49, 73 Cal.Rptr. 533, 447 P.2d 925.) The objection was overruled, and in holding there was no error this court stated: "[T]he information charged defendant with murder, and it was unnecessary for the information to state the method or the degree of the murder. (People v. Golston [1962], 58 Cal.2d 535, 539 [25 Cal.Rptr. 83, 375 P.2d 51]; People v. Mendez [1945], 27 Cal.2d 20, 23-24 [161 P.2d 929].) That the statute of limitations may have run on all crimes except the murder is immaterial here." (70 Cal.2d at p. 50, 73 Cal.Rptr. 533, 447 P.2d 925.) It seems clear that the court was holding that the statute was immaterial because the complaint was filed within the statutory period and the complaint effectively charged felony murder, which, of course, tolled the statute.