People v. Owens, Cr. 19880

• Citation: 112 Cal.App.3d 441,169 Cal.Rptr. 359
• Decision Date: 21 November 1980
• Docket Number: Cr. 19880
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur F. OWENS, Jr., Defendant and Appellant.

Page 359

169 Cal.Rptr. 359

112 Cal.App.3d 441

PEOPLE of the State of California, Plaintiff and Respondent, v. Arthur F. OWENS, Jr., Defendant and Appellant.

Cr. 19880.

Court of Appeal, First District, Division 3, California.

Nov. 21, 1980.

Steven L. Dylina, Burlingame, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brein, Asst. Atty. Gen., Clifford K. Thompson, Jr., Tiffany Rystrom, Deputy Atty. Gen., San Francisco, for plaintiff and respondent.

DOSSEE, ^* Associate Justice.

Appellant Arthur F. Owens, Jr. and his codefendant Charles Madry, Jr., were arrested at a service station in San Jose when, for reasons irrelevant to this appeal, a police officer ran a warrant check on the vehicle they were driving and discovered that it had been stolen.

The two suspects were taken to the police station where they were interviewed and separated and gave inconsistent tape recorded statements after waiving their right to silence. They were then locked together in an interview room where they engaged in inculpatory conversation which was secretly recorded. At one point in the conversation, Madry asked, "any speakers in here?" Appellant replied, "Don't you know that they probably have this thing wired?" Madry answered, "Damn. I messed myself up ... I don't know if they have this wired up or not ...."

Appellant was charged with taking or driving an automobile without the consent of the owner in violation of Vehicle Code section 10851. The information also alleged that he had suffered two prior felony convictions, one for the same offense and one for sale of a controlled substance (Health & Saf. Code, § 11352).

Appellant admitted the sale of a controlled substance allegation, but denied the other prior. Upon further investigation, the district attorney discovered that appellant had incurred only a misdemeanor conviction as a result of that charge. Accordingly, it was struck from the information.

Upon the jury's verdict of guilty, the trial court sentenced appellant to a state prison term of 16 months. Since he had admitted only one prior conviction and the People proved no other, probation as a sentencing alternative was not made unavailable by Penal Code section 1203, subdivision (e)(4), which prohibits probation for twice-convicted felons. The record, however, reflects a statement by the court that appellant was "statutorily ineligible for probation."

Appellant first contends that the court's statement reveals an assumption that probation was precluded as a sentencing option which caused a failure to exercise discretion. It is evident from the record, however, either that the judge misspoke or that his statement was not correctly transcribed because the record clearly demonstrates that he did not believe Penal Code section 1203, subdivision (e)(4) had any bearing on his sentencing choice.

Before sentencing was pronounced, defense counsel argued for probation, specifically reminding the court of his client's eligibility. The judge's response, read in conjunction with his notations on the probation report by which we have augmented the record, clearly show that he was referring to the probation report as he spoke. The report plainly states that appellant was eligible for probation, but that for various reasons, upon which the court freely commented, such a disposition was not recommended. A reading of the court's comments leaves no doubt in our minds that it recognized and considered the appellant's eligibility for probation.

Under the circumstances, we do not believe that appellant has met the heavy burden he bears in attacking an order denying probation to show a clear abuse of discretion. (People v. Goodsen (1978) 80 Cal.App.3d 290, 295, 145 Cal.Rptr. 489.) His first argument is therefore rejected.

Appellant's next argument, challenging the constitutionality of Penal Code section 1158, must also be cast aside. That section provides that the finding upon a charge of previous conviction shall be made by the same trier of fact to decide guilt or innocence on the principal offense. Appellant argues that the application of this section violated his right to due process under the California Constitution ¹ because it forced him to admit the existence of the charged prior in order to preclude the prosecution from bringing its existence to the attention of the jury.

The constitutionality of the statutory scheme for pleading and proving prior convictions has been upheld repeatedly, and the very argument now advanced by appellant has been rejected numerous times by the courts of appeal, with apparent assent by the California Supreme Court. (People v. Guillen (1974) 37 Cal.App.3d 976, 979, 113 Cal.Rptr. 43; People v. Cruz (1970) 6 Cal.App.3d 384, 394, 85 Cal.Rptr. 918, cert. den. 400 U.S. 966, 91 S.Ct. 377, 27 L.Ed.2d 386; People v. Mason (1969) 269 Cal.App.2d 311, 313, 74 Cal.Rptr. 708; People v. Hickok (1964) 230 Cal.App.2d 57, 59-60, 40 Cal.Rptr. 687 (petn. for hrg. den. by Supreme Court), cert. den. 381 U.S. 954, 85 S.Ct. 1811, 14 L.Ed.2d 726; People v. Hoerler (1962) 208 Cal.App.2d 402, 407-408, 25 Cal.Rptr. 209 (petn. for hrg. den. by Supreme Court); People v. McDaniel (1958) 157 Cal.App.2d 492, 321 P.2d 497, app. dism. sub nom. McDaniel v. California, 358 U.S. 282, 79 S.Ct. 323, 3 L.Ed.2d 299 (for want of substantial federal question).

Appellant has advanced nothing that would permit us to depart from such well-established precedent. Although a certain amount of discretion exists to bifurcate the trial as appellant proposes (see People v. Fisk (1975) 50 Cal.App.3d 364, 373, 123 Cal.Rptr. 414; People v. Guillen, supra, 37 Cal.App.3d at 981, 113 Cal.Rptr. 43; People v. Luick (1972) 24 Cal.App.3d 555, 558, 101 Cal.Rptr. 252; People v. Romo (1962) 200 Cal.App.2d 83, 93, 19 Cal.Rptr. 179, failure to do so hardly constitutes a denial of due process.

A determination of whether due process has been afforded in a particular case is always "a question of judgment and degree to be answered in light of all of the circumstances and with a view to 'fundamental fairness' (citation) ...." (In re Saunders (1970) 2 Cal.3d 1033, 1041, 88 Cal.Rptr. 633, 472 P.2d 921.) "In determining applicable due process safeguards, it must be remembered that 'due process is flexible and calls for such procedural protections as the particular situation demands.' " (People v. Ramirez (1979) 25 Cal.3d 260, 268, 158 Cal.Rptr. 316, 599 P.2d 622, (quoting Morrissey v. Brewer (1972) 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484).)

Several factors militate against a finding of violation here. Penal Code section 1158 and the scheme of which it is a part serve the twin aims of judicial convenience and economy, both legitimate state purposes. It has been in use for a number of years, and has its procedural sibling, the joinder of offenses under Penal Code section 954. Evidence of prior convictions is ordinarily presented in non-inflammatory documentary form and juries are presumed to follow instructions which limit the evidence to its proper function. (See CALJIC No. 17.18.) In light of all these circumstances, we cannot find the application of Penal Code section 1158 to be fundamentally unfair.

Appellant's citation to People v. Beagle (1972) 6 Cal.2d 441, 99 Cal.Rptr. 313, 492 P.2d 1, is thoroughly distinguishable. Beagle considered the relationship between Evidence Code sections 788 and 352. It held that because section 788 uses the permissible word "may" rather than a mandatory word such as "shall," the court has discretion to exclude such evidence under Evidence Code section 352.

Beagle thus dealt with a problem entirely distinct from the one at bench, the use of priors for impeachment of a criminal defendant, not the proof of priors charged in the accusatory pleading to which a defendant has the right of trial by jury. Indeed, exclusion of non-inflammatory evidence necessary to prove a charged prior would undoubtedly constitute abuse of discretion under section 352. As the court stated in People v. Faulkner (1972) 28 Cal.App.3d 384, 393, 704 Cal.Rptr. 625, "(W)hile in the case contemplated by Beagle the prior conviction evidence goes only to a collateral issue (impeachment of witness), in the instant case the prior felony conviction is relevant to the very issue of guilt (of the prior offense charged in the information) .... It is therefore evident that no balancing process is required or allowed."

We next examine appellant's contention that the trial court erred in admitting the tape recording and transcript of his conversation with Madry. He argues that the monitoring system in operation at the San Jose police station violated his right to privacy under article I, section 1 of the California Constitution and that evidence of the conversation should have been suppressed for that reason. His position finds almost no support in existing authority.

It is firmly established under both state and federal law that in general no reasonable expectation of privacy, in the Fourth Amendment sense, exists in custodial conversation. (Lanza v. New York (1961) 370 U.S. 139, 143, 82 S.Ct. 1218, 1220, 8 L.Ed.2d 384; People v. Hill (1974) 12 Cal.3d 731, 764-765, 117 Cal.Rptr. 393, 528 P.2d 1; People v. Martinez (1978) 82 Cal.App.3d 1, 147 Cal.Rptr. 208; People v. Newton (1974) 42 Cal.App.3d 292, 116 Cal.Rptr. 690; cert. den. 420 U.S. 937, 95 S.Ct. 1147, 43 L.Ed.2d 414; In re Joseph A. (1973) 30 Cal.App.3d 880, 884, 106 Cal.Rptr. 729. ² ) Clearly appellant can find no comfort in the privacy protected by the Fourth Amendment.

He claims, however, that a different result is mandated by the so-called Privacy Amendment, which was added to the state constitution by popular vote in 1972. ³ In White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222, the Supreme Court held that any incursion into the as yet undefined realm of privacy shielded by that amendment...