People v. Brown (10 Cal. App. 3d 169, 1970)

Opinion

AULT, J.

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 Appellant’s motion for a new trial was denied, and her application for probation was eventually withdrawn.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. 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 [■?/