People v. Williams

Decision Date22 February 1982
Docket NumberCr. 22299
Citation180 Cal.Rptr. 734,128 Cal.App.3d 981
CourtCalifornia Court of Appeals Court of Appeals
PartiesPEOPLE of the State of California, Plaintiff and Respondent, v. Johnny Ray WILLIAMS and David Stone, Defendants and Appellants.

Ernest Krause, San Francisco, for defendants and appellants.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., William D. Stein, Asst. Atty. Gen., Herbert F. Wilkinson, Ronald E. Niver, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SCOTT, Associate Justice.

Johnny Ray Williams and David Stone appeal from judgments entered after a jury convicted them of burglary (Pen.Code, § 459). Appellants contend that the court erred when it (1) admitted into evidence a conversation recorded while they sat, under arrest, in a police car; (2) ruled that appellant Williams' robbery prior was admissible for impeachment purposes; and (3) granted the prosecutor's mid-trial motion to amend the information. Appellants also contend the prosecutor committed misconduct and their trial counsels were incompetent. We affirm the judgments.

The Facts

Shortly after midnight, Linda Heath was in the upstairs bedroom of her townhouse. She heard something rustling in her backyard, and a metallic scratching at her living room window. Believing someone was trying to break in, she called police.

At the police dispatcher's request, she remained on the line until he told her that police had arrived, and instructed her to let them in. As she went downstairs, she could still hear the metallic scratching. When she opened the door, she saw no one. She quietly closed it, and went back upstairs. The dispatcher then assured her the police had now arrived, and again told her to open the door. As she passed the lighted living room, she saw someone's leg and foot coming through the window. She quickly opened and slammed the door, and ran back upstairs.

At about that time, police officers arrived. As they approached the apartment, they saw the door open and slam shut. Because they believed that the person inside was the intruder who would attempt to flee, they took positions in the yard. One officer jumped on top of a fence to gain access to the backyard. He saw appellants crawl out the window. He yelled, "Halt," but they fled across the yard. Within minutes, two deputies found appellant Stone crouched in some nearby bushes; another officer found appellant Williams hiding in a neighbor's yard. The two were placed in the back seat of a patrol car, where their conversation was recorded with a tape recorder which one deputy had left on the front seat. When asked why he left the tape recorder on, the deputy replied, "... to strengthen the case we had." Appellants discussed their efforts to hide, their capture, the effect of the incident on their probation, the possible penalties each faced, and what they would say to police. The tape was played for the jury.

Appellant Williams did not testify. Appellant Stone testified that although the two men were together that night, he alone tried to burglarize Heath's home. He tried to force open the window in order to steal money, jewelry, or stereo equipment; he denied that he actually entered the apartment.

Admissibility of the Taped Conversation

Appellants attack the admissibility into evidence of their recorded conversation on numerous grounds. First, they contend the trial court should have granted their motion to suppress the tapes in its entirety, because it violated their right to privacy as guaranteed by article I, section 1 of the California Constitution. 1 Appellants contend that the state was required to show a compelling interest in order to justify any infringement of their privacy rights, and that the gathering of evidence is not such a compelling interest. Appellants acknowledge 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 and People v. Todd (1972) 26 Cal.App.3d 15, 102 Cal.Rptr. 539, which held that individuals who had been arrested and placed in the rear of a patrol car had no reasonable expectation of privacy while so confined, and that the recording of their conversations while in the car did not violate their constitutional rights to privacy. (Newton, supra, 41 Cal.App.3d at p. 296, 116 Cal.Rptr. 690; Todd, su pra, 26 Cal.App.3d at p. 17, 102 Cal.Rptr. 539.) 2 Appellants characterize Newton and Todd as Fourth Amendment cases, however, and contend that a different result is required by California's privacy amendment.

The California Supreme Court has consistently declared that in determining whether an illegal search has occurred under article I, section 13 of our Constitution, the appropriate test is whether a person has exhibited a reasonable expectation of privacy, and if so, whether that expectation has been violated by unreasonable governmental intrusion. (People v. Blair (1979) 25 Cal.3d 640, 646, 651-652, 159 Cal.Rptr. 818, 602 P.2d 738; Burrows v. Superior Court (1974) 13 Cal.3d 238, 243, 118 Cal.Rptr. 166, 529 P.2d 590; People v. Hill (1974) 12 Cal.3d 731, 764, 117 Cal.Rptr. 393, 528 P.2d 1, overruled on other grounds in People v. DeVaughn (1977) 18 Cal.3d 889, 896, fn. 5, 135 Cal.Rptr. 786, 558 P.2d 872; People v. Triggs (1973) 8 Cal.3d 884, 891, 106 Cal.Rptr. 408, 506 P.2d 232, disapproved on other grounds in People v. Lilienthal (1978) 22 Cal.3d 891, 896, fn. 4, 150 Cal.Rptr. 910, 587 P.2d 706; North v. Superior Court (1972) 8 Cal.3d 301, 308, 104 Cal.Rptr. 833, 502 P.2d 1305; see also In re Deborah C. (1981) 30 Cal.3d 125, 136, 177 Cal.Rptr. 852, 635 P.2d 446.) In contrast, when generally discussing the right of privacy declared in article I, section 1, the court has also said that intrusion into that right must be justified by a "compelling interest." (Loder v. Municipal Court (1976) 17 Cal.3d 859, 864, 132 Cal.Rptr. 464, 553 P.2d 624, cert. den., 429 U.S. 1109, 97 S.Ct. 1143, 51 L.Ed.2d 562; White v. Davis, supra, 13 Cal.3d at p. 775, 120 Cal.Rptr. 94, 533 P.2d 222.) The interface between these two analytical frameworks has yet to be definitively explained by the Supreme Court. 3 (See Kornhauser, Privacy: The New Constitutional Language and the Old Right (1976) 64 Cal.L.Rev. 347.) In that regard, in the context of a conversation between two arrestees recorded in a police station interview room, this court has concluded that the distinction between what is "reasonable" under the Fourth Amendment and what is "compelling" under article I, section 1, is nonexistent. (People v. Owens (1980) 112 Cal.App.3d 441, 448, 169 Cal.Rptr. 359; but see conc. opn. by White, P. J., at p. 450, 169 Cal.Rptr. 359.) However, we need not explore that distinction in this case, because we believe that the constitutional amendment did not alter the fundamental rule that an individual's expectation of privacy must be objectively reasonable before he can complain of any intrusion. (People v. Dominguez (1981) 121 Cal.App.3d 481, 505, 175 Cal.Rptr. 445; People v. Estrada (1979) 93 Cal.App.3d 76, 98, 155 Cal.Rptr. 731; see Armenta v. Superior Court (1976) 61 Cal.App.3d 584, 588, 132 Cal.Rptr. 586; see also In re Deborah C., supra, 30 Cal.3d at p. 135, 177 Cal.Rptr. 852, 635 P.2d 446.) Accordingly, we conclude that appellants had no objectively reasonable expectation of privacy when they conversed in the back seat of the patrol car after being taken into custody. 4 (People v. Jardine, supra, 116 Cal.App.3d 907, 172 Cal.Rptr. 408; People v. Newton, supra, 42 Cal.App.3d 292, 116 Cal.Rptr. 690, and People v. Todd, supra, 26 Cal.App.3d 15, 102 Cal.Rptr. 539.) The motion to suppress was properly denied.

Appellants then contend that the admission of the tape violated the rule stated in People v. Aranda (1965) 63 Cal.2d 518, 47 Cal.Rptr. 353, 407 P.2d 265, because in it, each made statements incriminating the other. Appellants' reliance on Aranda is misplaced. That case involves the admissibility of an extrajudicial statement of one defendant made to a third party and implicating a codefendant. The extrajudicial statement here is a conversation between the two codefendants, and was admissible against each under the adoptive admission exception to the hearsay rule. (Evid.Code, § 1221; People v. Preston (1973) 9 Cal.3d 308, 313-314, 107 Cal.Rptr. 300, 508 P.2d 300; People v. Osuna (1969) 70 Cal.2d 759, 765, 76 Cal.Rptr. 462, 452 P.2d 678.)

Appellants also contend that the taped statement was admitted in violation of their Miranda rights, a contention utterly without merit. The procedural safeguards set forth in Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, come into play only where custodial interrogation is involved. Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody. Absent evidence of complicity on the part of law enforcement officers, the admissions or statements of a defendant to a private citizen infringe no constitutional guarantees. (In re Eric J. (1979) 25 Cal.3d 522, 527, 159 Cal.Rptr. 317, 601 P.2d 549.)

Finally, appellants contend that the court abused its discretion when it refused to excise those portions of the taped conversation in which they expressed concern about possible probation revocations. Appellants contend that this evidence was of limited probative value, and was unduly prejudicial, particularly because the jury was thereby permitted to speculate about the nature of their prior offenses.

Evidence of crimes other than those for which a defendant is being tried is admissible if relevant to prove a material fact, such as identity. (Evid.Code, § 1101, subd. (b).) However, because such evidence is prejudicial, its admissibility must be scrutinized carefully. (People v. Thompson (1980) 27 Cal.3d 303, 314, 165 Cal.Rptr. 289, 611 P.2d 883.) Even if relevant, if evidence of other crimes is merely cumulative...

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