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

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

Cr. 11963.

Decided: October 02, 1981

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.

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, ss 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. (s 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. s 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. (ss 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 term for each prior separate prison term served for any felony; ”

An out-of-state felony conviction is included where that offense has all the elements of the particular felony as defined by California law. (s 667.5, subd. (f); People v. Roberson (1978) 81 Cal.App.3d 890, 894, 146 Cal.Rptr. 777.)

Crowson says because his earlier federal conviction under 21 United States Code section 846 does not meet the element test (s 667.5, subd. (f)), we must strike the enhancement. We conclude otherwise.

At the present time there is divergent authority as to what the prosecution may do to establish the congruent elements between the California and out-of-state offense. Roberson, supra, held the offenses need not be equivalent as a matter of law if it can be shown as a matter of fact the defendant's conduct resulting in the out-of-state conviction satisfies the elements of the corresponding California crime. Thus in Roberson, since the record did not establish certain elements required in California to convict of possession of a firearm by an ex-felon, the matter was remanded to give the People an opportunity to establish those facts.

On the other hand, People v. Hickey (1980) 109 Cal.App.3d 426, 167 Cal.Rptr. 256, holds that only the statutory elements of the crime may be compared and the deficiency may not be remedied by resort to the underlying facts of the out-of-state conviction whether obtained from the face of the pleadings or through legally admissible extrinsic evidence. (Id., at p. 442, 167 Cal.Rptr. 256.)

Without attempting to reconcile these two cases for all purposes, we conclude the court here properly used the prior felony to enhance Crowson's prison term.

Hickey explains its conclusion to avoid the use of extrinsic evidence to prove the out-of-state felony flowed

“from judicial necessity. It avoids geographical and logistic difficulties inherent in California retrials of out-of-state priors. Such retrials would be accompanied by a plethora of conflict of laws issues, both substantive and procedural, would unduly prejudice the defendant, divert the jury's attention from the primary case, and in general, impose insuperable burdens upon the legal processes in the trial courts.” (Id., at p. 438, 167 Cal.Rptr. 256.)

Unlike Hickey, this case involves a guilty plea in a federal court in California. Proof consisting solely of judicial notice of the indictment and Crowson's guilty plea does not present the unproductive and prejudicial use of time for the mini-trial posited by Hickey. Judicially noticing the law of other states, including documentary proof of a foreign conviction or indictment, to determine the elements of the foreign offense is neither difficult nor new. (See In re Wolfson (1947) 30 Cal.2d 20, 24, 180 P.2d 326; Evid.Code, ss 451, subd. (a), 452, subds. (a), (c) and (d).) Hickey's ban on “extrinsic evidence” does not include a total prohibition on evidence received through judicial notice for even Hickey acknowledges it is essential to refer to the foreign statute. (Id., at pp. 439-440, 167 Cal.Rptr. 256.)

The Legislature has declared the purpose of imprisonment as punishment which is best served by uniform terms proportionate to the seriousness of the offense. In order to accomplish this goal, a sentencing system has been enacted to eliminate disparity and to promote uniformity. (s 1170.) The concept of treating offenders equally underlies the enhancement required by section 667.5, subds. (b) and (f). Recidivists are required to serve comparable terms for comparable conduct wherever that conduct may have occurred.

Crowson's indictment in the United States District Court for the Southern District of California alleged two overt acts. Although those allegations may not have been essential to the pleading, they were for his benefit, legally proper, to advise him fully of the nature of the charges against him. Crowson does not suggest the meticulous and demanding requirements of the federal system pertaining to the entry and acceptance of his guilty plea were not satisfied. (See Fed.Rules Crim.Proc., rule 11.) His guilty plea was an admission of all the facts alleged in the indictment. (See United States v. Ruttenberg (7th Cir. 1980) 625 F.2d 173, 175; Moore v. United States (5th Cir. 1970) 425 F.2d 1290, 1291; United States v. Parker (6th Cir. 1961) 292 F.2d 2, 3; see also Arneson v. Fox (1980) 28 Cal.3d 440, 450, 170 Cal.Rptr. 778, 621 P.2d 817.)4

Under the circumstances, the general proscription of Hickey prohibiting recourse to the “indictment which brought the prosecution to the out of state court” (id., at p. 439, 167 Cal.Rptr. 256) must be qualified as not applying to an uncontested criminal proceeding. Where a defendant enters a guilty plea constituting his voluntary admission he committed the acts alleged in the indictment, acts which are equivalent to the elements of a felony under California law and thereafter serves a prison term for that crime, we conclude his prison term is properly enhanced by the one year required by section 667.5, subdivision (b).

In light of our holding, we also reject Crowson's Pope argument directed to his trial counsel's alleged lack of competence in stipulating the federal prior fell within the ambit of Roberson and the statute (s 667.5, subd. (f)). Unlike In re Crumpton (1973) 9 Cal.3d 463, 106 Cal.Rptr. 770, 507 P.2d 74 (see also In re Madrid (1971) 19 Cal.App.3d 996, 97 Cal.Rptr. 354), Crowson's stipulation was not “bottomed on a false premise.” (In re Crumpton, supra, 9 Cal.3d at p. 468, 106 Cal.Rptr. 770, 507 P.2d 74.) Here, the People, by solely requesting judicial notice, could have proved the elements of the federal prior were the same as the elements required by California law. Counsel's stipulation to that effect was proper.


Judgment affirmed.


1.  All statutory references are to the Penal Code unless otherwise specified.

2.  This is not a case involving the admissibility of recorded jailhouse conversations as presented in DeLancie v. Superior Court (S.F. 24095, hg. granted Nov. 29, 1979); Robertson v. Superior Court (S.F. 24185, hg. granted June 25, 1980); and People v. Maxie (L.A. 21556, hg. granted July 16, 1980).

3.  The People cite United States v. Melchor-Lopez (9th Cir. 1980) 627 F.2d 886, which includes dicta that an overt act may be required in the Ninth Circuit to convict under 21 United States Code 846. (See also United States v. King (10 Cir. 1975) 521 F.2d 61, 63.) However, federal cases in other circuits hold otherwise. Also, Melchor-Lopez was decided well after the prior offense was here committed on February 19, 1975 and therefore it cannot be said as a matter of law that an overt act was required to be proved when defendant was convicted of that offense.

4.  We conclude the distinction between the federal cases holding the indictment admits all the facts alleged therein and other federal cases holding that it admits only the elements of the offense (Hernandez-Uribe v. United States (8th Cir. 1975) 515 F.2d 20, 21; McCarthy v. United States (1969) 394 U.S. 459, 466, 89 S.Ct. 1166, 1170, 22 L.Ed.2d 418), or the well pleaded facts of the indictment (United States v. Smith (2d Cir. 1969) 407 F.2d 33, 35) is immaterial to our decision. After a guilty plea, a defendant may not challenge the accuracy of the basic facts charged in an indictment. (United States v. Willard (7th Cir. 1971) 445 F.2d 814, 816.) Here, the overt acts, a portion of a permissible pleading, constituted part of those basic facts.

WIENER, Associate Justice.

COLOGNE, Acting P.J., and WORK, J., concur.

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