PEOPLE v. SCHIERING (1979)

The People appeal from an order of the appellate department of superior court granting the petition of Mary Loretta Schiering for habeas corpus. Defendant Schiering was originally convicted in municipal court, pursuant to jury verdict, on charges of petty theft (Pen.Code, s 484) and sentenced to 30 days in the county jail. Execution of sentence was stayed and she was placed upon one-year summary probation upon condition that she pay a total fine and penalty of $125. Defendant Schiering filed an appeal and concurrently filed a petition for habeas corpus with the appellate department of superior court. The appellate department granted her petition directing the trial court to set aside the judgment of conviction and dismissed as moot her appeal. From this order the People have appealed.

FACTS

Sheryl Hufstedler testified that on November 16, 1976, she was an employee of Shaw Investigation and Security and was assigned to apprehend shoplifters at a Sav-On Drug Store in Santa Monica.

At approximately 6 p. m. on that date Ms. Hufstedler's attention was directed to defendant Schiering who had a very large basketpurse inside her shopping cart. Ms. Hufstedler noticed that the defendant seemed to be segregating the items in her shopping cart placing some items toward the back and other items on the side. She saw the defendant take two cartons of cigarettes and place them inside her basketpurse. She later observed the defendant place a mechanical pencil, thesaurus, wallet inserts, and approximately five to ten paperback books inside her basketpurse.

When defendant Schiering approached the checkstand, Ms. Hufstedler stood in line behind her. Since there was only one customer in line between the defendant and Ms. Hufstedler, the witness was able to clearly observe the transaction that occurred between the defendant and the cashier. The defendant paid for the items that remained in the shopping cart. After the defendant received her change, she made a second purchase. The defendant then left the store without receiving her change from the second purchase and without making an attempt to pay for the items in her basketpurse.

Ms. Hufstedler approached defendant Schiering outside the store and told her that she was under citizen's arrest for shoplifting. The defendant responded that she had intended to return to the store to pay for the items in her basketpurse as soon as she obtained her checkbook from her car. Ms. Hufstedler testified that defendant did not mention anything concerning a checkbook to the cashier. She then examined defendant Schiering's purse and found the items that she had observed the defendant place inside together with additional items.

Defendant Schiering testified in her own behalf. She stated that at the time of the incident she was tired since she had run several errands and had taken a driver's license test. Also on the day of the incident she was unable to close the window on the driver's side of her car. Because her car was open and she had to make several stops, she placed her checkbook underneath the driver's seat. When she entered Sav-On, she forgot that her checkbook was in the car. Defendant further testified that the object referred to by Ms. Hufstedler was her shopping basket. She used the basket to do her shopping and segregate items which were hers from those she purchased for her husband. She normally paid for her items by cash and her husband's items by check since her son, an accountant, had advised her that all purchases for her husband were tax deductible because he was disabled.

Defendant testified that during the course of her shopping she pushed her shopping cart to the checkstand and told the cashier that she wished to speak with the manager. When the manager appeared, she held a conversation with him concerning some color forms that she wished to order. While the defendant was talking with the manager, she noticed that the cashier had started to check out her items. She testified that she stated to the cashier that she had to get her checkbook. Defendant Schiering said that while she was talking to the manager about the color forms, she retrieved her shopping basket from the shopping cart and placed it at her feet.

Defendant Schiering stated that she gave the manager her maiden name and telephone number and asked him to order the color forms; she then paid for the items in her shopping cart. After receiving her change, she made a second purchase. At this point she remembered that she needed her checkbook. She testified that she was upset because the cashier had checked out her purchases before she was ready. She further declared that when she left the store to obtain her checkbook, she was approached by Ms. Hufstedler who told her that she was under citizen's arrest for shoplifting.

ISSUES

The People on appeal contend (1) that defense counsel's conduct did not withdraw a crucial defense from defendant Schiering; and (2) that the reviewing court erred in finding that the defendant was not effectively assisted by defense counsel. Defendant Schiering, however, points out that this court lacks jurisdiction of this appeal.

DISCUSSION

In Whittaker v. Superior Court (1968) 68 Cal.2d 357, 66 Cal.Rptr. 710, 438 P.2d 358, the California Supreme Court declared the rules applicable to appeals from decisions of the appellate department of superior court as follows: “No further remedy by way of appeal is available after decision of the superior court or appellate department (whether or not a trial de novo is had) unless, in accordance with rules promulgated by the Judicial Council, the Court of Appeal orders the case transferred to itself upon certification by the superior court, or determination by the Court of Appeal itself, that such transfer ‘appears necessary to secure uniformity of decision or to settle important questions of law.’ (Citations.)” (Id., at p. 365, 66 Cal.Rptr. at p. 717, 438 P.2d at p. 365.)

Rule 62(a) of the California Rules of Court provides for the transfer of appellate department decisions as follows: “A Court of Appeal may order a case transferred to it for hearing and decision when the superior court certifies or the Court of Appeal on its own motion determines from an opinion of the appellate department published or to be published in Advance California Appellate Reports that such transfer appears necessary to secure uniformity of decision or to settle important questions of law.”

In the present case the appeal was not certified to the Court of Appeal by the appellate department. Furthermore, the opinion of the appellate department was not published. Accordingly, we dismiss this appeal for lack of jurisdiction.

DISPOSITION

The appeal is dismissed.

HANSON, Associate Justice.

LILLIE, Acting P. J., and THOMPSON, J., concur.