People v. Buonauro

113 Cal. App. 3d 688, 170 Cal. Rptr. 285, 1980 Cal. App. LEXIS 2580

• Court: California Court of Appeal
• Decided: December 19, 1980
• Docket: Crim. 37353
• Status: Published

Opinion

Opinion

ASHBY, J.

Appellant was convicted by jury trial of petty theft with a prior conviction of grand theft (Pen. Code, § 666) and was sentenced to state prison.

On July 28, 1979, Frank Ramos was store manager of the Clark Drug Store in Temple City. He was responsible for running all the operations of the store, including safeguarding store merchandise, but he was not a security officer.

At about 11 a.m. he observed appellant standing behind a counter, where customers were normally not allowed, in the photo department. Expensive items were stored at that display counter and on the shelf behind. Mr. Ramos stepped briefly into a storeroom and when he came back out appellant was gone from the counter. A customer came up to Mr. Ramos and said, “A lady just took two radios from the department and put them in her purse.” The customer’s description of the lady matched the person Mr. Ramos had seen behind the counter, appellant.

Mr. Ramos immediately went to the checkstand area and closed it off with a shopping cart and chain. He then observed appellant in aisle 16. He approached her and stated, “Will you please come with me to the back room, Ma’am? I would like to see what you have in your purse.” Without saying a word, she opened up her purse, took out a store radio, handed or threw it to him, and ran towards the checkstand. At the time appellant had opened her purse, however, Mr. Ramos observed a second store radio.

Mr. Ramos caught up with appellant near the checkstand. He told her she would have to come with him and two female employees to the storeroom. When she refused, Mr. Ramos “advised her she was under citizen’s arrest for shoplifting that she will have to go to the back on her own or we will have to force her to the back.” The two female employees took appellant by the arms and Mr. Ramos helped push appellant to the back of the store.

At the back of the store Mr. Ramos asked appellant for the other item in her purse and she handed the second radio to him. He asked if she had any money with which to buy the item and she said no. He asked appellant to fill out a form used by the store. She signed the form, giving a false name and address.

A deputy sheriff was summoned. When Deputy Sciarabba arrived, appellant gave him the same false name and address. She stated she had no money with which to purchase the radios but that she had brought them into the store herself to exchange them. She did not have a receipt. When booked at the sheriff’s station, appellant had $1.17 in her possession.

Appellant testified in her own defense. She stated that she came into the store for ice cream and saw the two radios on sale. She put them in her purse intending to buy them.. She testified she had $120 in her purse and that the sheriff’s booking records were in error. She also had a Master Charge card she could have used. She ran from Mr. Ramos because she was scared. He had come running up to her and grabbed her purse from her.

Appellant contends (1) the evidence is insufficient to support the judgment; (2) the radios and her statements should have been suppressed as fruits of an illegal arrest or search by Mr. Ramos; and (3) appellant’s statements to Mr. Ramos should have been suppressed because he did not advise her of her Miranda rights. None of these contentions has merit.

Appellant attempts to reargue the weight of the evidence, contending that appellant’s version of the events should have been believed, namely, that appellant intended to pay for the radios but lost her composure when confronted by Mr. Ramos. The credibility of appellant’s explanation was for the jury to determine. (People v. Jaso (1970) 4 Cal.App.3d 767, 770 [84 Cal.Rpt. 567].) There was substantial evidence justifying a conclusion appellant intended permanently to deprive the owner of the property. (People v. Thompson (1958) 158 Cal.App.2d 320, 323 [322 P.2d 489].) Appellant was seen behind the counter where customers were normally not allowed. When confronted by Mr. Ramos she handed or threw one of the radios at him, then fled with the other. She gave a false name and address. Her story at the scene, that she brought the radios with her to exchange them, was different from her explanation at trial, that when she saw them on display for sale she decided to buy them. There was conflicting evidence whether she had money with which to buy them. Substantial evidence supports the verdict. (See People v. Johnson (1980) 26 Cal.3d 557, 575-578 [162 Cal.Rptr. 431, 606 P.2d 738].) 1

Appellant contends that Mr. Ramos acted unlawfully and that all fruits of his conduct should have been suppressed as evidence. Mr. Ramos did not act unlawfully. After having observed appellant behind the counter where customers were normally not allowed, and then being alerted by another customer that appellant had placed two radios in her purse, Mr. Ramos had a merchant’s privilege under Penal Code section 490.5, subdivision (e), to detain appellant for investigation of shoplifting. 2 When Mr. Ramos first approached appellant about this matter, she voluntarily handed or threw one of the radios to him, then fled with the other radio which he observed at that time. Evidence of the first radio was obviously not the product of any illegality.

When Mr. Ramos again caught up with appellant near the. checkstand, he advised appellant she was under citizen’s arrest. (Pen. Code, § 837.) The arrest was valid. A private person may arrest another “for a public offense committed or attempted in his presence.” (Pen. Code, § 837, subd. 1.) Appellant committed an offense in the presence of Mr. Ramos when she fled from him with the second radio which he had already seen. When he took her into custody he asked appellant for the other radio and she handed it to him. 3 Thus, evidence of the second radio was not the product of a search or of an unlawful arrest.

Appellant’s reliance on People v. Zelinski (1979) 24 Cal.3d 357 [155 Cal.Rptr. 575, 594 P.2d 1000], is therefore misplaced. In Zelinski store security officers arrested a customer for shoplifting, then searched her purse, and removed a.pill vial, removed a balloon from the vial, and discovered heroin. {Id., at p. 361.) That search far exceeded the narrow scope of a search for weapons which a private person may make incident to a citizen’s arrest. (Id., at p. 363, citing People v. Sandoval (1966) 65 Cal.2d 303, 311, fn. 5 [54 Cal.Rptr. 123, 419 P.2d 187].) Thus the search' in that case was unlawful, and only after resolving that first issue did the court reach the second issue, whether to make an exception, in the case of privately employed security police, to the general rule that the exclusionary rule does not apply to illegal searches by private citizens. (Id., at pp. 361-368.)

Here, on the other hand, Mr. Ramos did not exceed his lawful powers as a merchant and private citizen. According to his testimony, he did not search appellant or her purse. He did what Zelinski says he was authorized to do, he “demanded the return of the stolen merchandise.” {Id., at p. 367.) 4 The arrest was proper under Penal Code section 837. Since there was no illegal arrest, it also follows that appellant’s statements to Mr. Ramos were not fruits of an illegal arrest. The trial court properly denied appellant’s motion under Penal Code section 1538.5.

Finally, appellant contends that her statements to Mr. Ramos should have been suppressed as evidence on the ground he did not advise her of her Miranda rights. This objection was not raised in the trial court. This objection is quite distinct from the objection that the statements were a product of an illegal arrest, and may not be raised for the first time on appeal. (In re Willie T. (1977) 71 Cal.App.3d 345, 349 [39 Cal.Rptr. 439].) Furthermore, a private person ordinarily has no duty to advise a suspect of Miranda rights. A duty arises only when the citizen is acting as the agent of law enforcement officials, which is not the situation here. (People v. Mangiefico (1972) 25 Cal.App.3d 1041, 1049 [102 Cal.Rtpr. 449]; In re Eric J. (1979) 25 Cal.3d 522, 527 [159 Cal.Rptr. 317, 601 P.2d 549].)

In any event the existing record poses no Miranda violations. Appellant’s statement that she brought the radios into the store to exchange them was made spontaneously when Mr. Ramos requested her to come to the stockroom. Appellant’s name and address were routine pieces of information, and inquiry about them did not require a Miranda warning. They unexpectedly became incriminatory because appellant gave a false name and address. Finally, Mr. Ramos’ inquiry whether appellant had money to pay for the goods could well have been to further the store’s legitimate private purposes rather than to gather information for a criminal prosecution. (See People v. Zelinski, supra, 24 Cal.3d 357, 367.)

The judgment is affirmed.

Kaus, P. J., and Hastings, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied February 18, 1981.

1 There is also no merit to appellant’s suggestion that, because she did not leave the store with the merchandise, she was not guilty of theft. (See People v. Khoury (1980) 108 Cal.App.3d Supp. 1, 3-5 [166 Cal.Rptr. 705]; People v. Thompson, supra, 158 Cal.App.2d 320, 322-323 [166 Cal.Rptr. 705].)

2 Penal Code section 490.5, subdivision (e), provides in pertinent part: “(1) A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant’s premises. [11] (2) In making the detention a merchant ... may use a reasonable amount of nondeadly force necessary to protect himself and to prevent escape of the person detained or the loss of property. [11] (3) During the period of detention any items which a merchant ... has reasonable cause to believe are unlawfully taken from the premises of the merchant ... and which are in plain view may be examined by the merchant .:. for the purposes of ascertaining the ownership thereof.”

3 The conflicting evidence whether Mr. Ramos seized appellant’s purse or she handed the radios to him was resolved against appellant. (People v. West (1970) 3 Cal.3d 595, 602 [91 Cal.Rptr. 385, 477 P.2d 409].)

4 Since Mr. Ramos did not act unlawfully we need not discuss the People’s contention that for purposes of the exclusionary rule a store manager should be distinguished from a store security officer under Zelinski.