People v. Brown

• Citation: 51 Cal.App.3d 284,124 Cal.Rptr. 130
• Decision Date: 11 September 1975
• Docket Number: Cr. 13074
• Court: California Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent. v. Charles BROWN, Defendant and Appellant.

Page 130

124 Cal.Rptr. 130

51 Cal.App.3d 284

PEOPLE of the State of California, Plaintiff and Respondent. v. Charles BROWN, Defendant and Appellant.

Cr. 13074.

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

Sept. 11, 1975.

Hearing Granted Nov. 6, 1975.

Richard H. Dwiggins, Sharon & Dwiggins, Redwood City (Under appointment by the Court of Appeal), for defendant appellant.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Charles R. B. Kirk, Peter Silten, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

COUGHLIN, Associate Justice. ^*

Defendant appeals his conviction by jury verdict of the offenses of using the credit card of another with intent to defraud and assault with force likely to produce great bodily harm, with a prior conviction of a felony, i. e., burglary.

On September 17, 1973, defendant, with two companions, entered a store carrying a black bag; went to the men's department; selected merchandise priced at $1,243.90; tried on some of the articles purchased but did not try on others; from the black bag produced a credit card in the name of Mr. and Mrs. Al W. Sirott; tendered the credit card, and a yellow temporary driver's license for identity, to the salesman; was told the salesman needed only the credit card; and signed two sales slips for the merchandise with the name Al W. Sirott. Defendant and his two companions went to the fourth floor where he purchased a woman's coat, jacket and mink hat; carried the black bag with him; and used the Sirott credit card to consummate the purchase.

In the meantime the head of the men's department contacted the security force employed by the store, as a result of which a security guard, Sanders, obtained information on Al Sirott and concluded defendant was not Sirott. Thereafter Sanders and three other security guards went to the fourth floor; met defendant and his two companions; asked them to come to the elevator area, where he arrested defendant; asked defendant what his occupation was and defendant replied he was a salesman for Palm Springs Lincoln Mercury. Thereupon Sanders, the three other guards, defendant and his two companions went to the store's security office, a room 12 feet by 12 feet with two desks and four chairs. One of the guards, Bacon, asked defendant for identification. Defendant gave him a yellow Minnesota driver's license in the name of Sirott. The license was written in red ink. Bacon told defendant the license was not sufficient identification whereupon defendant picked up a stapler; struck Bacon in the face, breaking his glasses, cutting his nose, lip and cheek, and cracking one of his teeth; ran from the office; and was subdued in the hallway after a struggle in which defendant was thrown to the floor and finally handcuffed. Defendant was returned to the security office, where his companions had remained during the episode. Sanders opened the black bag and took out the contents. Defendant told his companions: 'Watch while he is going through my bag.' The bag contained 12 credit cards in the name of Al Sirott, 13 credit cards in the name of Winston Marsh, a red pen, a temporary Minnesota driver's license, in red ink, in the name of Marsh, a number of other credit cards, and a number of other articles.

Defendant entered pleas of not guilty and not guilty by reason of insanity; later withdrew the plea of not guilty by reason of insanity; and was tried on the charges of which he was convicted.

The Sirott and Marsh items taken from the black bag were admitted in evidence, over objection by defendant. The remaining items in the black bag were not admitted.

The evidence established, in addition to the facts heretofore noted, Al Sirott owned Palm Springs Lincoln Mercury; did not employ defendant; did not authorize defendant to use his credit card; did not apply for a Minnesota driver's license; and had met Winston Marsh in a hotel in Minnesota.

After the prosecution's witnesses had testified, defendant, through his counsel, moved for a continuance to obtain the presence of defendant's two companions, whose whereabouts were unknown, and made an offer of proof they would testify defendant struck Bacon in self defense. The court denied the motion.

Before trial defendant moved to dismiss his attorney and to represent himself. His motion was denied upon the ground his waiver of counsel was not made knowingly, intelligently and understandingly; and his appointed counsel was able, vigorous and capable of giving defendant effective representation. During closing arguments defendant made an outburst claiming his counsel was railroading him. Thereafter defendant renewed his motion to remove his counsel. The court found he was receiving effective representation and denied the motion. The record supports denial of both motions.

Defendant's contentions on appeal are stated in two briefs; one by appellant counsel; and the other by defendant personally. The contentions are: (1) The trial court error in admitting some of the contents of the black bag; (2) defendant's statements to the security guards were inadmissible because he had not been given a Miranda warning; (3) defendant's statement to his companions to watch while one of the guards was going through his bag was an involuntary confession which should not have been admitted in evidence; (4) remarks by the district attorney in his closing argument constituted prejudicial misconduct; (5) denial of defendant's request for a continuance was an abuse of discretion; and (6) defendant was denied effective representation by counsel, and denial of his motions to remove his counsel and permit him to proceed without counsel was error.

Defendant's claim of error in admitting in evidence the Sirott and Marsh items taken from the black bag, is premised on the claim they constituted evidence of other offenses; were not relevant to the case; and in any event, the prejudicial character of the evidence outweighed its probative value. Inferentially, possession of the items would support the conclusion they were the products of thefts committed by defendant and of attempted forgeries by him. However, they were relevant to the issue of intent to defraud. Whether the evidence supports the foundational admissibility requirements prescribed by People v. Schader, 71 Cal.2d 761, 775, 80 Cal.Rptr. 1, 457 P.2d 841; People v. Haston, 69 Cal.2d 233, 244, 70 Cal.Rptr. 419, 444 P.2d 91 and People v. Antick, 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, we need not decide, because any claimed error in their admission was harmless beyond a reasonable doubt measured by the rule stated in Chapman v. State of California, 386 U.S. 18, 21-24, 87 S. Ct. 824, 826-828, 17 L.Ed.2d 705 and was not prejudicial measured by the rule stated in People v. Watson, 46 Cal.2d 818, 836, 299 P.2d 243. Defendant did not testify or present any defense. The facts heretofore stated, without reference to the fact defendant had in his possession the items in the black bag, establish all of the elements of the offense. He forged the name of a credit card holder and used the card to obtain valuable merchandise from the store; he did not have permission to use the card; he presented a false driver's license to show he was the person to whom the credit card had been issued; and he attempted to flee when questioned about the incident. These facts were established by uncontroverted evidence. The case was not a close one. The rationale in People v. Antick, supra, 15 Cal.3d 79, 123 Cal.Rptr. 475, 539 P.2d 43, on the issue of prejudice is not applicable to the circumstances at bench.

Although the court gave a limiting instruction respecting the use of the evidence admitted over defendant's objection when it instructed the jury generally, it did not give the limiting instruction at the time the objection was made and the items from the black bag were admitted in evidence. Defendant contends the failure to give the instruction at the time the items were admitted in evidence was error. In the light of the circumstances heretofore stated, we have concluded the claimed error in failing to give the limiting instruction promptly was harmless beyond a reasonable doubt and was not prejudicial.

Defendant's objection to admission of his statements in response to questions by the security guards, and the yellow driver's license bearing Sirott's name, is premised on the lack of a Miranda warning. The objection is without merit for the following reasons: (1) The security guards were employees of the store; they were not employed by an agency of government; and the products of an interrogation by them without a Miranda warning are not within the Miranda rule (People v. Wright, 249 Cal.App.2d 692, 694-695, 57 Cal.Rptr. 781; People v. Crabtree, 239 Cal.App.2d 789, 49 Cal.Rptr. 285); (2) defendant's statements respecting his employment were the products of questions respecting his identity which, under the circumstances of the case, were not designed to elicit incriminating statements and are admissible even though not preceded by a Miranda warning (People v. Cotter, 63 Cal.2d 386, 393, 46 Cal.Rptr. 622, 405 P.2d 862; People v. Hernandez, 263 Cal.App.2d 242, 69 Cal.Rptr. 448; People v. Walters, 252 Cal.App.2d 336, 60 Cal.Rptr. 374); and (3) the statement to defendant's companions supporting an inference the black bag belonged to him was voluntary, was not the product of an interrogation, and, as such, was admissible without proof of a Miranda warning (People v. Johnson, 20 Cal.App.3d 168, 97 Cal.Rptr. 332).

Defendant's objection to the statement respecting ownership of the black bag is also premised on the ground it constituted an involuntary confession elicited by coercion. It was not a confession but an admission of an incriminating fact. In any event, the basis for the objection is without factual support. Defendant claims the fact he and his companions were in a small room,...