IN RE: LESLIE H. (1985)

Defendant, Leslie H., a minor (hereafter appellant), appeals from the order of the juvenile court committing her to the California Youth Authority.

The pertinent facts reveal that at approximately 1 to 1:30 p.m. on April 3, 1982, appellant and her boyfriend, Joe Androw (aka Joe McCoy), were caught taking a purse from an elderly woman at the MacArthur Boulevard Lucky store in Oakland.   Since the victim, who was a customer at the store, created a commotion, appellant and Androw returned the purse and in the absence of a criminal complaint by the victim, they were allowed to leave.

Shortly thereafter, the couple showed up at the Fruitvale Lucky store.   Ronald Beshears, a security guard at the time, who kept them under surveillance through TV cameras, observed that appellant and Androw behaved suspiciously and attempted to commit either shoplifting and/or purse theft.   When Mr. Lawrence Washington, the manager of the MacArthur Lucky store who had just happened to visit the Fruitvale store, recognized the duo and advised Beshears that shortly before, they had taken a purse at the MacArthur store.   Beshears detained appellant and Androw and because of Androw's violent behavior, handcuffed both of them.

Beshears called the police after five to ten minutes and transferred the custody of the pair to the officers.   Officer Vierra, a police trainee, and Officer Aguirre arrived at the scene.   They both pat-searched appellant for weapons.   Thereafter, Officer Aguirre asked for and received consent from appellant to search her pocket for identification.   As a result of the search Officer Aguirre found an envelope in appellant's pocket.   The envelope contained three checks which ultimately were crucial in connecting appellant and Androw to the murder of Jose Capela, a senior Oakland resident.   Appellant and Androw remained in handcuffs throughout the investigation of the purse theft and shoplifting and were released after a 45-minute detention;  Capela's murder was not discovered until two days later.

After the discovery of Capela's murder, the police issued an all-point bulletin and a warrant for the arrest of appellant and Androw.   They fled first to Seattle, Oregon and later to Chicago.   Appellant was arrested in Chicago on May 20, 1982, and gave a full description of Capela's murder and admission of her participation therein.

Based upon the above facts a petition was filed in the Alameda Superior Court alleging that appellant came within Welfare and Institutions Code section 602 in that she violated Penal Code 1 sections 187 (murder), 211 (robbery) and 459 (burglary).   Appellant moved to suppress evidence (including the checks) which was denied.   Following hearing the allegations of the petitions were found to be true and the murder was determined to be of the first degree.   After dispositional hearing, appellant was committed to the California Youth Authority for the maximum period of physical confinement of life.

Appellant contends that the order of commitment cannot stand because the consent search leading to the incriminating evidence (i.e., the checks) was invalid inasmuch as it was preceded by an unlawful arrest and/or an unlawful detention and two instances of illegal pat-search.  (People v. Leib (1976) 16 Cal.3d 869, 877, 129 Cal.Rptr. 433, 548 P.2d 1105;  People v. Haydel (1974) 12 Cal.3d 190, 200–201, 115 Cal.Rptr. 394, 524 P.2d 866;  People v. Lawler (1973) 9 Cal.3d 156, 163, 107 Cal.Rptr. 13, 507 P.2d 621.)   For the reasons which follow we conclude that appellant's detention and arrest by the security guard of the store were valid and the ensuing search of her person by the police was justified as a search incident to a lawful arrest.   As a consequence, the order of the lower court must be affirmed.

 It is without dispute that appellant was lawfully detained by Beshears, the security guard of the store, for attempted shoplifting.   Section 490.5, subdivision (f)(1) provides that “A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchant's premises.”

The record at hand indicates that Beshears observed appellant and her companion through the store's TV cameras (photoscreens) for some 10 to 15 minutes.   They were going up and down in the store, picked up items off the shelf and moved down the aisle where there were no other people.   Beshears also noticed that appellant and Androw were watching the shopping carts of other customers, following them up and down the aisle.   This activity of appellant and Androw looked both unusual and suspicious and fit into the pattern in which purse thieves in the store generally operate.   After this 10 to 15 minutes of suspicious activity, appellant and her companion disappeared and went to the back room which was reserved for store employees only.   Based upon his personal observation Beshears suspected that appellant and her boyfriend had attempted to shoplift.   His initial suspicion ripened into probable cause when he learned from Washington that shortly before the duo had committed a purse theft in the MacArthur Lucky store.   In short, based upon these facts Beshears had probable cause to believe that appellant and Androw were attempting to unlawfully take merchandise from the store premises and their detention for further investigation was fully justified under the provisions of the special shoplifting statute.

In the second place, the detention and arrest of the two suspects were warranted also under the theory of citizen's arrest.   The pertinent statute, section 837, provides:  “A private person may arrest another:  [¶] 1. For a public offense committed or attempted in his presence.   [¶] 2. When the person arrested has committed a felony, although not in his presence.  [¶] 3. When a felony has been in fact committed, and he has reasonable cause for believing the person arrested to have committed it.”

Appellant's arrest was authorized under each of the three subdivisions of the section.   Shoplifting is a misdemeanor which constitutes a public offense within the meaning of the statute.  (People v. Wilkins (1972) 27 Cal.App.3d 763, 768, 104 Cal.Rptr. 89.)   Also, it was committed in the presence of Mr. Beshears.   The two other subdivisions are likewise applicable to the instant case.   The record shows that, shortly prior to the attempted shoplifting, appellant and her companion had been caught committing a purse theft at the MacArthur Lucky store.   Although the purse was returned to the elderly female victim when she screamed and pointed her fingers at appellant and her boyfriend, this circumstance does not alter the fact that there was reasonable cause to believe appellant had committed grand theft,² a felony offense.

Finally the record reveals that prior to appellant's detention and arrest Beshears had been advised by Washington, the manager of the MacArthur Lucky store, about the purse theft incident and appellant's participation therein.³  These facts clearly establish that, in fact, a felony had been committed and that Beshears, the arresting citizen, had reasonable cause for believing that appellant and her companion had committed it.   As a consequence, appellant's arrest was justified on the two latter bases as well.

 The circumstance that Beshears did not formally inform appellant and Androw that they were arrested and did not impart to them the cause of arrest (§ 841) does not affect the validity of the arrest.   The essential elements of an arrest are:  (1) taking a person into custody;  and (2) actual restraint of the person or his or her submission to authority.  (§ 835;  People v. Hatcher (1969) 2 Cal.App.3d 71, 75, 82 Cal.Rptr. 323.)   Custody occurs if the suspect is physically deprived of his freedom of action in any significant way or is led to believe that he is so deprived.  (People v. Arnold (1967) 66 Cal.2d 438, 448, 58 Cal.Rptr. 115, 426 P.2d 515.)   As appellant ably argues, custody is an objective condition and is not solely dependent upon the subjective intent of the person effecting the arrest.   (People v. Parker (1978) 85 Cal.App.3d 439, 443, 148 Cal.Rptr. 513.)   As a consequence, where, as here, the defendant is handcuffed, the restraint and custody amounting to arrest are manifest and the existence of the arrest is not negated by the fact that the private citizen expressed his intent to detain the suspect only.   As the court stated in a comparable situation:  “ ‘That the officers testified that they detained defendant did not negate the existence of probable cause and the objective indicia of arrest, or the fact of arrest.’  [Citation.]”  (People v. Campbell (1981) 118 Cal.App.3d 588, 597, 173 Cal.Rptr. 442.)   Nor does an alleged failure to comply with section 841 affect the validity of appellant's arrest here.   Section 841 provides in pertinent part that “The person making the arrest must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense.”  (Emphasis added.)   The record here leaves no doubt that the arrest effected by Beshears falls within the latter stated exception.  (See discussion, supra.)

 We finally note that the fact the police ultimately released appellant and her companion without taking them to the police station and without booking them, does not refute the validity of the citizen's arrest.   While there is a statutory duty upon the police to take a person arrested by a private citizen to the nearest magistrate, section 849 carves out an exception by providing in part that “(b) Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever:  [¶] (1) He or she is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested.”

 It is well settled that an arrest by a private citizen continues even though he transfers the custody of the accused to a peace officer.  (In re Roland (1978) 82 Cal.App.3d 295, 298, 147 Cal.Rptr. 96;  People v. Campbell (1972) 27 Cal.App.3d 849, 853–854, 104 Cal.Rptr. 118;  People v. Harris (1967) 256 Cal.App.2d 455, 459–460, 63 Cal.Rptr. 849.)   It is likewise recognized that the peace officer does not have the duty to determine reasonable or probable cause before accepting custody of a citizen arrested by another.   As stated in Kinney v. County of Contra Costa (1970) 8 Cal.App.3d 761, 768–769, 87 Cal.Rptr. 638;  “[W]e are presented with no authority, and we find none, holding that a peace officer, required to take custody of a person arrested by a private citizen, must at his peril correctly adjudge whether the citizen had probable cause.   The means of information would ordinarily be scant and any error on the officer's part would be costly;  should he incorrectly find no probable cause and refuse custody he would face criminal sanctions (§ 142, see fn. 2 ante ), while a faulty contrary decision would subject him to civil liability to the person arrested.   Such an application of the Fourth Amendment would be unreasonable.”  (Original emphasis).⁴  Lastly, it is axiomatic that the warrantless search of the person incident to a lawful arrest is valid (People v. Ross (1967) 67 Cal.2d 64, 69, 60 Cal.Rptr. 254, 429 P.2d 606;  Morel v. Superior Court (1970) 10 Cal.App.3d 913, 916, 89 Cal.Rptr. 297) and that such search may be made (1) for instrumentalities used to commit the crime, the fruits of the crime and other evidence thereof which will aid in the apprehension or conviction of the criminal;  (2) for articles, the possession of which is itself unlawful, such as contraband and stolen goods;  and (3) for weapons which can be used to assault the arresting officer or to effect an escape.  (People v. Superior Court (Kiefer) 3 Cal.3d 807, 812–813, 91 Cal.Rptr. 729, 478 P.2d 449;  see also Warden v. Hayden (1967) 387 U.S. 294, 300–310, 87 S.Ct. 1642, 1646–1652, 18 L.Ed.2d 782.)   The searches here conducted by the police officers, including the pat-searches and the seizure of the stolen checks, were abundantly justified and valid as incident to a lawful arrest;  the attainment of appellant's consent to the search constituted only an extra (but unnecessary) precaution on the part of Officer Aguirre.

 Finally, we briefly note that Officer Aguirre's personal belief that he had no probable cause to arrest and conduct a full-fledged search of appellant's person is immaterial.   The question whether probable cause for arrest exists is a judicial determination and does not depend on the characterization or label attributed to the defendant's conduct by the police officer.  (Agar v. Superior Court (1971) 21 Cal.App.3d 24, 31, fn. 3, 98 Cal.Rptr. 148;  People v. Superior Court (1971) 15 Cal.App.3d 146, 152, 92 Cal.Rptr. 916.)   It bears emphasis that in the case at bench the probable cause to arrest derived from the preceding valid citizen's arrest which continued and remained in full effect upon appellant's transfer to police custody.

In light of our conclusion, the other issues raised by the parties need not be decided.

The order is affirmed.

We concur:

FOOTNOTES

FN1. Unless otherwise indicated, all further references are to the Penal Code..  FN1. Unless otherwise indicated, all further references are to the Penal Code.

2.   Section 487 provides in part:  “Grand theft is theft committed in any of the following cases:“․“2. When the property is taken from the person of another.”

3.   The pertinent portions of Beshears' testimony read as follows:“A. He [Washington] told me the lady complained that someone was trying to snatch her purse and she ID'd these two people but she didn't want to file a complaint;  that she got her purse back.”“․“A. ․ This time Mr. Washington came in the store.   Mr. Washington had came [sic ] in the store and he had stopped me.   He had approached me because he had noticed the lady who was walking when she was walking out and I was walking out with her and everything.   And he stated to me, they was [sic ] was just in my store trying to rip off a purse.“Q. Did he indicate to you the circumstances of that?“A. Yeah.   He told me what happened.   That a lady complained that these two people tried to snatch her purse out of a shopping cart.   And when she had hollered they gave—she got her purse back.   And she went up there to the manager and told them.   She pointed two people out and he had some kind of verbal conversation with them and they took off.   They left.”.

4.   Section 142, cited in Kinney, reads in part:  “(a) Any peace officer who has the authority to receive or arrest a person charged with a criminal offense and willfully refuses to receive or arrest such person shall be punished by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.

ANDERSON, Presiding Justice.

CHANNELL and SABRAW, JJ., concur.