The murder of 19-month-old Donna Busch is not being tried as a capital offense case because it doesn't qualify under a list of "special circumstances" as defined by law, District Attorney Candice Hooper told the Free Lance.

Cheryl L. Busch has pleaded not guilty of homicide for the suspected killing of her daughter Wednesday in the 2300 block of Shore Road. As it stands if she's convicted of all charges, including a proposed enhancement from prosecutors, Busch could face a sentence of 50 years to life in prison. A capital offense conviction, meanwhile, qualifies for the death penalty.

"Only certain kinds (of murder cases) qualify for special circumstances," Hooper said.

The fact that this is not a capital case also means Busch will not be eligible to receive the sentence of life without the possibility of parole. But Assistant District Attorney Patrick Palacios explained to the Free Lance that Hooper has asked for an enhancement in this case due to the use of a firearm. If successful, it would increase her exposure "from 25 to life to 50 years to life," he said, while she is 39 years old.

"Special circumstances can be lying in wait, torture, cop killing and so on," said Hooper, who is heading the prosecution's case.

Hooper added that there are periodic attempts by state legislators to expand the special circumstances list.

A recent California bill, SB 817, actually sought three years ago to "make the first-degree murder of a child under the age of 14 a special circumstance which if charged and found to be true would be punishable by death or life without the possibility of parole." Sen. Roy Ashburn of Senate District 18, which includes Kern and Tulare counties, introduced the bill in February 2005. It failed to pass the Senate floor.