People v. Brown

• Decision Date: 31 July 1970
• Docket Number: Cr. 3736
• Citation: 10 Cal.App.3d 169,88 Cal.Rptr. 801
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Ruby Frances BROWN, Defendant and Appellant.

Page 801

88 Cal.Rptr. 801

10 Cal.App.3d 169

The PEOPLE of the State of California, Plaintiff and Respondent, v. Ruby Frances BROWN, Defendant and Appellant.

Cr. 3736.

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

July 31, 1970.

Hearing Denied Sept. 24, 1970.

[10 Cal.App.3d 171] Langford, Langford & Lane, and J. Perry Langford, San Diego, for defendant and appellant.

Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Frederick R. Millar, Jr., Deputy Atty. Gen., for plaintiff and respondent.

OPINION

AULT, Associate Justice.

In the first count of an information, filed by the District Attorney of San Diego County, Appellant Ruby Frances Brown was charged with a felony, the burglary of a Big Bear Market on January 15, 1968 (Pen.Code, § 459). The second count charged her with a misdemeanor, contributing to the delinquency of her two minor daughters, Frances Ruby Goldberg, age 16 years, and Patricia Ann Goldberg, age 15 years, on the same date (Pen.Code, § 272). After a superior court trial, a jury was unable to agree on the burglary charge, but found appellant guilty of contributing to the delinquency of her minor daughters. Appellant's motion for a new trial was denied, and her application for probation was eventually withdrawn. The trial court sentenced her to serve 90 days in the county jail and ordered her to pay a fine of $250.00. She appeals from the judgment of conviction.

STATEMENT OF FACTS

On January 15, 1968, Michael G. Melton, the manager of the Big Bear Market in La Mesa, California, was observing the activities in his store from the back storeroom through a one-way mirror, using a pair of binoculars. He saw appellant and her two daughters remove various items from the shelves and appear to secret them on their persons or in their purses. On several occasions he watched one of them remove an item from the shelves; the three would then huddle together, and the item would disappear. On one occasion, he observed appellant remove a gallon can of Wesson oil from a shelf and appear to place it under her dress. When appellant and her two daughters left the store without going through a check stand, Melton followed them to the parking lot where he placed all three under citizen's arrest and escorted them back to the store. While still in the parking area, appellant said, 'Please, can't we make an adjustment?'

When Melton attempted to get appellant and her daughters into the back of the store before discussing the incident, appellant became belligerent. Melton asked an employee to telephone the sheriff's office. Appellant then threw her purse to one of her daughters and told her to run, which she did, leaving the store by the front exit. Appellant removed the gallon can of Wesson oil and a box of 100 teabags from under her clothing and threw them on a counter; the other daughter took an item from her purse and threw it. Appellant forced her way to the front of the store where she was restrained from leaving by Melton and an unidentified customer until the sheriff arrived.

After Deputy Sheriff Heil arrived, he spoke briefly with Melton, and then advised appellant and the daughter who had remained in the store they were under arrest. He and another deputy went to the parking lot to find the other daughter. They found her locked in an automobile which contained several boxes of groceries and three empty purses. No receipts or trading stamps were found with the groceries, which were identified as coming from three other supermarkets, Food Basket, Mayfair and Alpha Beta. Heil advised all three women of their constitutional rights and each indicated she did not wish to talk with him. However, he continued to question appellant who stated, 'She had stole (sic) the items, * * * please let her pay for them, and please let me and my daughters go.' Heil testified to these admissions at the trial without objection.

In the defense, appellant testified she was shopping for groceries for her restaurant and for her eight children, did not steal any items from the Big Bear Market or from any other market; she denied engaging in any of the activities which had been described by Melton and making the admissions to Deputy Heil. The two daughters also disclaimed any wrongdoing.

CONTENTIONS ON APPEAL

1. The superior court was without jurisdiction to convict appellant of the misdemeanor offense of contributing to the delinquency of a minor, because its jurisdiction depended upon that offense being connected in its commission with a burglary which the jury did not find had occurred.

2. The trial court erred in instructing the jury that each of the charges against appellant should be considered separately, since the superior court had jurisdiction to try the offense of contributing to the delinquency of a minor, only if that offense was connected in its commission with a burglary.

3. Appellant's rights under the Fifth and Sixth Amendments to the United States Constitution, made applicable to the states by the Fourteenth Amendment, were violated, because the trial court permitted the improper use by the jury of a statement obtained in violation of the rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

DISCUSSION

Apparently appellant concedes it is proper, under Penal Code, section 954, to join felony and misdemeanor counts in an information for prosecution in the superior court where the felony and misdemeanor are connected in their commission, or if there is a common element of substantial importance in the commission of both offenses. She specifically concedes her misdemeanor conviction of contributing to the delinquency of her minor daughters would have been proper, had the jury also convicted her of the felony charge (burglary). In essence, she contends the superior court lacked jurisdiction to hear, determine and sentence on the misdemeanor charge, because the jury failed to arrive at a verdict on the felony charge. While conceding related felony and misdemeanor counts may be alleged in the same information, she maintains the superior court's jurisdiction to hear and determine the misdemeanor charge is dependent upon, and lacking without, a conviction of the felony charge. She cites no authority which supports the contention, and we are convinced the conclusion reached is based upon faulty reasoning.

Before Kellett v. Superior Court, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206, the law was generally understood to prohibit joinder of misdemeanor and felony counts in an accusatory pleading for prosecution in the superior court. ¹ In Kellett, the court pointed out Penal Code, section 954, providing for joinder of offenses, makes no distinction between felony and misdemeanor charges. Where misdemeanor and felony offenses are connected in their commission, or by a common element of substantial importance in their commission, the court interpreted section 954 as not only permitting joinder but, in effect, requiring it. It held separate prosecution of one such offense, resulting in either acquittal or conviction and sentence, would bar subsequent prosecution of the other offense. (Kellett v. Superior Court, Supra, 63 Cal.2d 822, 827--828, 48 Cal.Rptr. 366, 409 P.2d 206; People v. McKerney, 257 Cal.App.2d 64, 69--70, 64 Cal.Rptr. 614.)

The Supreme Court again considered the question of the superior court's jurisdiction over misdemeanors in In re McKinney, 70 Cal.2d 8, 73 Cal.Rptr. 580, 447 P.2d 972, and reiterated the exception to the general rule established in Kellett. At page 13, 73 Cal.Rptr. at page 583, 447 P.2d at page 975, the court stated:

'Authority both venerable and recent supports the general rule that a superior court has no jurisdiction over misdemeanor offenses. (citations)

'An exception to the general rule has been made by statute where the jurisdictional provisions relating to the superior court clash with a legislative requirement that all offenses 'connected together in their commission' be joined. Where a defendant is charged with both a felony and a misdemeanor, the superior court has jurisdiction to hear the misdemeanor case. (Pen.Code, § 954; Kellett v. Superior Court, 63 Cal.2d 822, 826, 827--828, 48 Cal.Rptr. 366, 409 P.2d 206; see also People v. Hardin, 256 Cal.App.2d Supp. 954, 961, 64 Cal.Rptr. 407.)'

By requiring the misdemeanor and felony charges to be 'connected in their commission,' or by 'a common element of substantial importance in their commission,' as a prerequisite to joinder, the court in Kellett, added no new or different requirement. Penal Code, section 954 itself uses the words 'two or more different offenses connected together in their commission,' and the same requirement, expressed in the same or similar language, existed as the basis for joinder of felony counts in an accusatory pleading long before Kellett. (People v. Scott, 24 Cal.2d 774, 778--779, 151 P.2d 517; People v. Walker, 112 Cal.App.2d 462, 471, 246 P.2d 1009; People v. Pike, 58 Cal.2d 70, 84, 22 Cal.Rptr. 664, 372 P.2d 656.) Conviction of one or the other of the offenses charged has never been the test of whether the requirements of joinder have been met.

In People v. Winchell, 248 Cal.App.2d 580, at page 589, 56 Cal.Rptr. 782, at page 789, the court states:

'Kellett also establishes that the provisions of section 954 of the Penal Code, confer jurisdiction of a misdemeanor offense on the superior court where such an offense otherwise satisfies the...