People v. Crowson

• Decision Date: 02 October 1981
• Docket Number: Cr. 11963
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Earl Bradley CROWSON, Defendant and Appellant.

Page 352

177 Cal.Rptr. 352

124 Cal.App.3d 198

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

Cr. 11963.

Court of Appeal, Fourth District, Division 1, California.

Oct. 2, 1981.

For Opinion on Hearing see 190 Cal.Rptr. 165, 660 p.2d 389.

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

WIENER, Associate Justice.

A jury found Earl Bradley Crowson guilty of one count each of robbery and burglary, both offenses committed while armed with a firearm. (Pen.Code, §§ 211, 459, 12022(a).) ¹ Crowson admitted a prior federal felony conviction. The court sentenced him to a six-year prison term which included separate enhancements for both the firearm allegation and the prior prison term served on the federal offense. (§ 667.5, subd. (b).)

On appeal from the judgment of conviction, Crowson contends (1) the interrogation technique used violated his Fifth Amendment rights to be free from coercive interrogation as defined in Miranda; (2) the interrogation also violated his rights to privacy; (3) the enhancement for a prior prison term is improper because the federal conviction is not equivalent to a California felony offense as required by Penal Code section 667.5, subdivision (f). None of these contentions have merit.

Factual and Procedural History

The facts show a residential robbery and burglary directed against the victim John Tilotta and his friend Susan McClain, occurring at Tilotta's residence at 3911 California Street, San Diego, about 4:15 p. m. on September 15, 1978. Tilotta testified Crowson came to the front door asking about a vacant house which was for sale next door. When Tilotta momentarily left the doorway to answer his telephone, Crowson and two other men, including co-defendant Ruben Romero, pushed their way into the house and threatened Tilotta with a gun, demanding money and drugs. They took $300 to $400 from Tilotta and pistol whipped him in an effort to force him to tell them where drugs were. Both Tilotta and his friend McClain were bound with tape. After ransacking the residence the men left. Police arrived just as the robbers were leaving in a white Volkswagen. The license plate led the police to the owner, Romero, and he in turn fingered Crowson. Crowson was arrested that same day in a bar.

After Crowson was brought to the police station, Officers Long and Schreck put him in a small interview room. He was next to the room where Romero was being interviewed and could, according to his own testimony, hear Romero giving incriminating information about Crowson, including the fact that Crowson was the owner of the gun Romero used. Although the record is unclear whether Miranda warnings were given to Crowson, that conclusion is inferable from Schreck's testimony he knew Long had given Crowson "the admonishment" and Crowson "had nothing to say," i. e. declined to be questioned. Schreck then put both Romero and Crowson in the back seat of a police patrol car and put a tape cassette recorder in the front seat, hoping they would discuss the robbery. They did. The transcript of the tape, admitted in evidence over objection of defense counsel, contained a number of incriminating admissions by Crowson which ceased when the defendants discovered the tape recorder. The discovery was followed by self-serving and exculpatory conversation. Defense counsel objected to admission of the tape on violation of privacy grounds.

The Tape was Properly Admitted into Evidence

Although Crowson objected below only on violation of privacy grounds, he now asserts a violation of Miranda's proscription of coercive interrogation, contending the interrogation technique used involved a " ' "process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support (a person's) arrest and ultimately his guilt. " ' " (People v. Rucker (1980) 26 Cal.3d 368, 386, 162 Cal.Rptr. 13, 605 P.2d 843, quoting People v. Pettingill (1978) 21 Cal.3d 231 at p. 244, 145 Cal.Rptr. 861, 578 P.2d 108.) Citing the recent United States Supreme Court case of Rhode Island v. Innis (1980) 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297, he explains "the term 'interrogation' under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." (Fns. omitted.) (Id., 100 S.Ct. at p. 1689.) He argues the failure to assert a Miranda objection below is not a bar since (1) the right asserted is a fundamental constitutional right and (2) such failure to object, if prejudicial, would amount to incompetence of counsel requiring reversal (People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859).

As we will explain, although we accept Crowson's statement that he received the Miranda warning and declined to answer questions, we nevertheless conclude the police procedure used did not violate his Fifth Amendment rights.

Implicit in Crowson's argument is that any defendant, in this case Romero, who cooperates with the police automatically becomes a police agent. This assumption, legally incorrect, is totally unsupported on this record. There was no complicity between the police and Romero to get Crowson to make incriminating admissions. Sitting in the back seat of the police car, Romero and Crowson, each unhappily bemoaning his fate, had the same status. Romero was as agitated as Crowson when the tape recorder was discovered.

Pre-Innis, post-Miranda cases have approved of placing non-police agents, co-suspects, in a patrol car with a recorder in order to allow the suspects every opportunity to reminisce over their criminal activity. (See, e. g., People v. Califano (1970) 5 Cal.App.3d 476, 482-483, 85 Cal.Rptr. 292.) Admittedly, this technique is not used for a defendant's benefit to memorialize the nostalgia of errant behavior or for therapy to relieve his guilty conscience, but for the express purpose of obtaining relevant evidence to convict him. This reasonable law enforcement goal is not forbidden police deception or trickery where the practice used does not tend to produce an unreliable result nor involve brutality. (See People v. Ragen (1968) 262 Cal.App.2d 392, 398, 68 Cal.Rptr. 700; also discussion in People v. Felix (1977) 72 Cal.App.3d 879, 885-886, 139 Cal.Rptr. 366.) Arguably, after Innis, some of the language in earlier cases may be overbroad (e. g., "The limits on the use of subterfuge in interrogation are defined by the potentiality of the subterfuge to produce an untrue statement" (People v. Felix, supra, 72 Cal.App.3d at p. 886, 139 Cal.Rptr. 366)), but Innis does not require a different result is this case.

Following Innis, interrogation is defined with a focus "upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a subject in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police." (Rhode Island v. Innis, supra, 100 S.Ct. at p. 1690.) "(A)ny police conduct or statements that would appear to a reasonable person in a suspect's position to call for a response must be considered 'interrogation.' " (Fn. omitted.) (Id., 100 S.Ct. at p. 1695 (dis. opn. of Stephens, J.).)

The passive technique of placing Crowson in the back seat of a police car with another suspect does not rise to the level of police action which calls for a response. Crowson's "singing" may have involved some police orchestration, but it was hardly police imposed. The cases Crowson relies upon are inapposite. Those cases involve either direct or indirect questions by the police or someone acting at their direction. (See, e.g., United States ex rel. Doss v. Bensinger (7th Cir. 1972) 463 F.2d 576, 578; United States v. Barnes (9th Cir. 1970) 432 F.2d 89, 91.)

Similarly, the technique used here does not invade any rights of privacy under the California Constitution or otherwise. (People v. Jardine (1981) 116 Cal.App.3d 907, 914, 172 Cal.Rptr. 408, hg. den.) Jardine states there can be no reasonable expectation of privacy in the back seat of a police car. Here with the tape recorder in plain sight, discovered halfway through the interrogation, the contention of reasonable privacy expectation borders on the absurd. ² The tape was properly admitted into evidence.

The One Year Enhancement for a Prior Prison Term was Properly Imposed

The federal offense of which Crowson was previously convicted (21 U.S.C. § 846), conspiracy to commit any (drug) offense defined in 21 United States Code chapter 13, subchapter 1, does not require allegation or proof of an overt act. (See United States v. Pringle (5th Cir. 1978) 576 F.2d 1114, 1120; United States v. Umentum (7th Cir. 1976) 547 F.2d 987, 989-991; United States v. Bermudez (2nd Cir. 1975) 526 F.2d 89, 94; United States v. DeJesus (1st Cir. 1975) 520 F.2d 298, 301, cert. den., 423 U.S. 865, 96 S.Ct. 126, 46 L.Ed.2d 94.) ³ California law, on the other hand, requires such proof in order to convict of felony criminal conspiracy. (§§ 182, 184, 1104.) In addition to whatever academic interest the difference between California and federal law may spark, it has a significant impact on Crowson.

Section 667.5, subdivision (b) provides that,

"(W)here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year...