People v. Crowson

• Decision Date: 24 March 1983
• Docket Number: Cr. 22415
• Citation: 660 P.2d 389,33 Cal.3d 623,190 Cal.Rptr. 165
• Court: California Supreme Court
• Parties: , 660 P.2d 389 The PEOPLE, Plaintiff and Respondent, v. Earl Bradley CROWSON, Defendant and Appellant.

Page 165

190 Cal.Rptr. 165

33 Cal.3d 623, 660 P.2d 389

The PEOPLE, Plaintiff and Respondent, v. Earl Bradley CROWSON, Defendant and Appellant.

Cr. 22415.

Supreme Court of California In Bank.

March 24, 1983.

Quin Denvir, State Public Defender, under appointment by the Court of Appeal, Jeffrey J. Stuetz, Deputy State Public Defender, and David W. Guthrie, San Diego, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Daniel J. Kremer, Asst. Atty. Gen., Harley D. Mayfield and John W. Carney, Deputy Attys. Gen., for plaintiff and respondent.

KAUS, Justice.

On this appeal from a criminal conviction, defendant Earl Bradley Crowson raises two claims of error. First, he contends that the trial court erred in admitting into evidence a tape recording of his conversation with an accomplice which the police secretly recorded while he and the accomplice were alone in the back seat of a police car shortly after their arrest. Second, he claims that the court improperly increased his sentence under Penal Code section 667.5 on the basis of a prior foreign conviction the elements of which differ from those of the corresponding California felony.

We conclude that the admission of the tape recording was proper, but that the trial court erred in imposing an additional one-year term on the basis of the "foreign" prior in question--a federal conspiracy conviction.

I

On September 15, 1978, at 4:15 p.m., a man appeared at John Tilotta's residence in San Diego and asked about the house next door, which had a "for sale" sign in front of it. Just then the telephone rang. When Tilotta answered the phone, the man broke through the screen door into the house brandishing a handgun. Two others followed. Tilotta dropped the phone and the intruders beat him with their fists and the handgun and demanded money and drugs. They ransacked the house. Tilotta and his girl friend, Susan McClain, were bound with tape; Tilotta was robbed of $400, including $300 in $50 bills, a gold chest, and two handguns.

The person whose phone conversation with Tilotta had been interrupted by the robbery apparently alerted the police and Officer Daniel Schreck and his partner arrived at Tilotta's residence just 30 seconds after the assailants left. They noted the license number of a white Volkswagen that was pulling away, and the car was quickly traced to Ruben Romero. About 5 p.m., Officer Long and his partner arrived at Romero's residence, and a minute later Romero pulled into the driveway at the wheel of the Volkswagen. He was arrested and driven to the central police station. A loaded handgun was found in the front seat of the Volkswagen, and the car was impounded. In a later search of the car, a metal chest was found. The gun and the chest were among the items taken from Tilotta's house during the robbery.

At the station Romero spoke with Officer Long and implicated Crowson in the robbery. Later that night, at 8:45 p.m., police officers took Crowson into custody at the Old Timer Bar, about a 10-minute drive from Tilotta's house. Crowson had approximately $235 on his person, including four $50 bills.

Crowson was taken to the central police station, where he was briefly questioned. He was then placed in a large interview room divided by partitions open at the top, where he was able to hear Romero speaking to a police officer behind a partition. He overheard Romero say that he, Crowson, was the owner of the gun used in the robbery.

Shortly thereafter, Officer Schreck placed Crowson and Romero in the back seat of a police car, telling them that they would be transferred to the county jail. In fact, Schreck hoped that if the two men thought they could not be overheard, they would make incriminating statements. ¹ A tape recorder placed in the front seat was activated, and the two men, left alone for 20 to 30 minutes, made several damaging admissions; then they discovered the tape recorder and thereafter made exculpatory statements. Afterwards police transported both men to the county jail in another car.

Thereafter, an information was filed charging Crowson with robbery and burglary while armed with and using a firearm (Pen.Code, §§ 211, 459, 12022, subd. (a), 12022.5). ² The information also alleged a 1975 federal felony conviction under 21 United States Code section 846 (conspiracy to possess a controlled substance with intent to distribute) for purposes of sentence enhancement under section 667.5, subdivision (b). Just before trial, Crowson stipulated to the prior federal conviction. ³

At trial, Tilotta identified Crowson as the first man through the screen door. Crowson presented alibi witnesses and testified that on the day of the robbery he was at the Old Timer Bar from 2 or 2:30 in the afternoon until his arrest. A bank employee testified that he had given Crowson a number of $50 bills a few days earlier when he cashed some traveler checks. Over Crowson's objections the jury listened to the tape recording of his police car conversation with Romero.

The jury found Crowson guilty of one count each of robbery and burglary, both offenses committed while armed with a firearm. (§§ 211, 459, 12022, subd. (a).) He received a four-year sentence and one-year enhancements for the firearm allegation (§ 12022, subd. (a)) and for the prior felony conviction (§ 667.5, subd. (b)), for a total prison term of six years.

On appeal, Crowson contends (1) that the admission of the secret tape recording of his police car conversation with Romero was improper, and (2) that a conviction under 21 United States Code section 846 is not a prior felony within the meaning of section 667.5, since under California law a conviction for conspiracy requires proof of an overt act, whereas no overt act is required under the federal statute. We address each of the contentions in turn.

II

Crowson contends that the admission of the tape recording violated both his Fifth Amendment rights under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 and his constitutional right of privacy under article 1, section 1 of the California Constitution. In objecting to the admission of this evidence at trial, however, Crowson relied solely on the right of privacy theory and, as the Attorney General points out, a Miranda claim may generally not be raised on appeal in the absence of a specific objection on that ground at trial. (See, e.g., In re Dennis M. (1969) 70 Cal.2d 444, 462, 75 Cal.Rptr. 1, 450 P.2d 296; People v. Bennett (1976) 60 Cal.App.3d 112, 116-117, 131 Cal.Rptr. 305.) Although defendant urges the court to reach the Miranda issue either by finding that his trial counsel's failure to object was excusable because of a subsequent unforeseeable change in the law (see People v. DeSantiago (1969) 71 Cal.2d 18, 22-23, 76 Cal.Rptr. 809, 453 P.2d 353), or, alternatively, by finding that his trial counsel was constitutionally ineffective in failing to object on Miranda grounds (see People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859), the record in this case is simply inadequate to determine whether Crowson actually invoked his Miranda rights prior to the tape-recorded conversation or whether he knowingly and intelligently waived those rights. ⁴ If Crowson validly waived his rights, of course, Miranda would afford him no solace and his counsel's failure to raise the issue would be totally unimpeachable. Because Crowson failed to pursue this matter at trial, the People had no reason or opportunity to present evidence on this factual threshold question. Under these circumstances, we conclude that the Miranda claim may not be raised for the first time on appeal. Thus, the only issue before us is whether the admission of the tape recording violated defendant's right to privacy under article 1, section 1 of the California Constitution.

In the search and seizure context, the article I, section 1 "privacy" clause has never been held to establish a broader protection than that provided by the Fourth Amendment of the United States Constitution or article I, section 13 of the California Constitution. "[T]he search and seizure and privacy protections [are] coextensive when applied to police surveillance in the criminal context." (People v. Owens (1980) 112 Cal.App.3d 441, 448-449, 169 Cal.Rptr. 359.) "[Article I, section 1, article I, section 13 and the Fourth Amendment] apply only where parties to the [conversation] have a 'reasonable expectation of privacy' with respect to what is said...." (People v. Estrada (1979) 93 Cal.App.3d 76, 98, 155 Cal.Rptr. 731.) ⁵

Therefore, whether Crowson's challenge is based on article I, section 1, article I, section 13, or the Fourth Amendment, the issue is whether he had a reasonable expectation that he could conduct a conversation with a suspected accomplice free of police eavesdropping while under arrest and seated in the back seat of a police car. We conclude that he did not.

Crowson and Romero obviously had a subjective expectation of privacy; otherwise they would not have made incriminating statements. The "reasonableness" of Crowson's expectation of privacy, however, is ultimately a matter of common sense and practical judgment. "[T]he expectation [must] be one that society is prepared to recognize as 'reasonable.' " (Katz v. United States (1967) 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (Harlan, J., conc.).) Here, Crowson had just been arrested at a neighborhood bar--a most extreme interference with the "right to be left alone"--and remained in the custody of the police on the way to jail. Objectively, he surely had no reason to suspect that his conversation with a suspected accomplice in the back of the police car would be afforded any kind of confidentiality. Under these circumstances, we conclude that Crowson did not have a reasonable expectation of privacy.

To our knowledge, every court that has passed on this specific issue has reached...