Victor F., In re
| Decision Date | 26 November 1980 |
| Docket Number | Cr. 37195 |
| Citation | 112 Cal.App.3d 673,169 Cal.Rptr. 455 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In the Matter of VICTOR F., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. VICTOR F., a minor, Defendant and Appellant. |
Katherine Lerner Lynn, Woodland Hills, under appointment by the Court of Appeal, for defendant and appellant.
George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., S. Clark Moore, Asst. Atty. Gen., William R. Weisman, Robert R. Anderson, Deputy Attys. Gen., for plaintiff and respondent.
On November 15, 1979, a petition was filed by the District Attorney of Los Angeles County, alleging in count I that the minor, Victor F., loitered around a school without lawful purpose in violation of Penal Code section 653g. Count II alleged that the minor attempted to take and carry away a ten-speed bicycle in violation of Penal Code sections 664/484(a); both offenses occurring on November 13, 1979.
On November 19, 1979, in a petition filed by the District Attorney of Los Angeles County, it was alleged that the minor, Victor F., stole personal property from K-Mart in violation of Penal Code section 484(a), occurring on October 14, 1979.
Deputy Public Defenders were appointed to represent the minor and he denied the allegations in the respective petitions.
On November 26, 1979, an adjudication hearing was held on the petition filed November 15, 1979. The court denied the minor's motion for judgment of acquittal pursuant to Penal Code section 1118. The court sustained the petition and found the minor to be a person described by Welfare and Institutions Code section 602.
On December 10, 1979, a disposition hearing was held on the November 15, petition. The court ordered that the minor remain a ward of the court pursuant to Welfare and Institutions Code section 602 and ordered the minor placed in the camp community placement program for a period not to exceed six months.
Later that day, December 10, 1979, an adjudication hearing was held on the petition filed November 19, 1979. The court denied the minor's motion for judgment of acquittal pursuant to Penal Code section 1118 and denied the minor's motion to dismiss the petition in the interest of justice. The court sustained the petition and found the minor to be a person described by Welfare and Institutions Code section 602. The minor waived time for disposition on this petition. The court ordered that the camp placement ordered for the November 15 petition remain in full force and effect, with the placement on the November 19 petition to run for a consecutive period not to exceed six months.
Appellant appeals from the juvenile court's order of commitment.
The Petition filed on November 15, 1979.
On November 13, 1979, Ronald Brown was a physical education teacher at Horace Mann School in Beverly Hills. The school's bicycle rack was in a 40-foot square area, enclosed by a chain link fence which was 30 feet high on the street side and 10 feet high on the school side. One gate, 8 feet high and 4 feet wide, led into the area, and it was locked at 8:00 each morning with a heavy chain. Early that afternoon Brown noted that the gate was locked.
Twenty minutes later, and after obtaining additional information, he saw a young man whom he identified as the appellant crouching between two bikes in the bike rack area. The appellant appeared to be holding something which Brown described as a blade. The gate was still locked. Brown told the appellant to stay there and he called to another teacher to bring a key to open the gate. The appellant began to climb the fence but as he reached the sidewalk, he was restrained by a school employee and taken to the school office. He did not have with him the object Brown described as a blade, nor was it found on him. Another teacher went out to secure appellant's bicycle, which was on the sidewalk, and brought back a hacksaw to the office.
Brown and the school principal, Mr. Fields, asked the appellant, who was not a student at the school, why he was out of school, and asked for his telephone number. Appellant responded he had no clean clothes to wear to school and he had no telephone. They asked the appellant what he was doing at the school. The appellant replied that he was looking at bikes. Fields asked why the appellant was in the bike rack area. The appellant answered that he was there to steal a bike. The court overruled counsel's objection that the prosecution did not lay an adequate foundation in that the appellant was not advised of his constitutional rights before being questioned by school personnel acting in a police capacity.
Beverly Hills Police Detective Michael Haigwood arrested the appellant at the school. He advised him of his constitutional rights. The appellant waived his rights and stated that he was at the school to steal a yellow ten-speed bike; he also dictated and signed a statement. Haigwood noticed that the hacksaw which the teacher had found appeared new, and he went to a nearby Thrifty Drug store where he saw similar items. He did not attempt to take any fingerprints from the hacksaw.
John Bayless, a staff psychologist in the Central Juvenile Hall psychiatric clinic, examined the appellant and concluded that he suffered from borderline mental retardation and as a result tended to speak in stereotypes and to give socially-approved answers, although he behaved as though these things were not truly known by him. He acknowledged that, based on the facts presented at the hearing, it appeared that the appellant knew what he was doing "step by step."
Sylvia Warren, appellant's mother, had attempted to teach appellant the difference between right and wrong. She told appellant it was wrong to steal.
The Petition filed November 19, 1979.
At approximately 5:00 p. m. on October 14, 1979, Lawrence Smiley, a store security guard, was on duty in the security department of K-Mart Store at 631 West 3rd Street in Los Angeles. He saw two boys in an area of the radio department which was limited to sales personnel. The taller of the two boys, whom he identified as the appellant, he saw lean into an appliance display case and take out a portable radio cassette player. The appellant set the radio down on the floor in the drug aisle, and while the other boy stayed with the radio, the appellant walked up to the center aisle, looked around, and returned to carry the radio to the elevator. Smiley ran upstairs and saw the appellant get out of the elevator, wait until the cashier's back was turned, and carry the radio through the cafeteria out the door to the street.
The security guard stopped the appellant as the other boy went off down the sidewalk. The guard showed his badge and identified himself. He then asked the appellant, "Why did you do it." The court overruled an objection by defense counsel that the appellant's statements were obtained in violation of his constitutional rights in that the security guard did not warn appellant of his constitutional rights, and the guard testified that appellant said he got the radio for the boy he was with so he could swap it for the boy's bicycle. Smiley took the appellant to the security office inside the store and called the police to come and pick him up.
During his testimony, Smiley referred to the apprehension report he had filled out. Although the report was the only report he had filled out concerning the incident, he acknowledged that he had not entered all the important information about the incident in that report. In fact, the report did not include any notes about his questioning or about the appellant intending to trade the radio for a bicycle. On a relevancy basis, the court sustained each of the district attorney's objections to defense counsel's questions concerning Smiley's ability to recall statements made and other facts concerning others of the approximately 45 individuals he had apprehended since the date of the incident.
The appellant's mother, Sylvia Warren, testified that appellant was 5 feet 1 inch tall; that she had taught him the difference between right and wrong and he knew it was wrong to steal things from stores.
Appellant makes the following contentions and raises the following issues.
1. The rationale of People v. Zelinski and that of Miranda v. Arizona require that the appellant's confession to the security guard, obtained in the absence of the Miranda warnings, be suppressed.
2. The court erred in sustaining the allegation that appellant had committed attempted theft because there is no statute creating such a crime and, in any event, the evidence was insufficient to establish that appellant committed that crime.
3. The appellant's confession to the school principal and the teacher, obtained in the absence of Miranda advisements, were unlawfully procured and must be suppressed, and his subsequent confession to the police officer was tainted by the first confession and must also be suppressed.
4. The court's restriction of the appellant's cross-examination of Smiley, which was aimed at Smiley's ability to recall facts surrounding the appellant's confession was an abuse of discretion and a denial of the appellant's constitutional rights to due process and cross-examination.
Appellant contends the statements made to the security guard, and the school principal and teacher, obtained in the absence of Miranda warnings, must be suppressed. We do not agree with these contentions. 1
Appellant argues the security guard, and the school officials were acting under color of law as defined in People v. Zelinski (1979) 24 Cal.3d 357, 368, 155 Cal.Rptr. 575, 594 P.2d 1000, in that they continued the detention of the appellant in order to deliver him to a police officer for arrest. Further, that their function in this regard was to aid law enforcement, and by...
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