Untitled California Attorney General Opinion ( 1991 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
DANIEL E. LUNGREN
Attorney General
______________________________________
OPINION :
: No. 90-806
of :
: MARCH 26, 1991
DANIEL E. LUNGREN :
Attorney General :
:
ANTHONY S. DaVIGO :
Deputy Attorney General :
:
______________________________________________________________________________
THE HONORABLE STEVE WHITE, DISTRICT ATTORNEY, COUNTY OF
SACRAMENTO, has requested an opinion on the following question:
Assuming that a suspect under citizen's arrest by a private security guard for
shoplifting waives the right to be brought before a magistrate or delivered to a peace officer, may
the security guard issue a citation to the suspect pursuant to a peace officer's telephonic directive or
summons for aid and assistance?
CONCLUSION
A private security guard is not authorized to issue a citation to a suspect under
citizen's arrest for shoplifting.
ANALYSIS
The first conviction for petty theft involving merchandise taken from a merchant's
premises ("shoplifting") is punishable as a misdemeanor.1 (Pen. Code, §§ 490, 490.5.)2 The
question presented concerns the procedures to be followed after a valid citizen's arrest by a private
security guard for shoplifting. (See generally § 837; People v. Carter (1981) 117 Cal. App. 3d 735,
738-739; 73 Ops.Cal.Atty.Gen. 291, 292-295 (1990).) Specifically, we are asked whether a private
1
Both the inquiry and this analysis assume and are limited to a misdemeanor arrest.
2
All section references are to the Penal Code unless otherwise specified.
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security guard may, pursuant to a telephonic delegation of authority by a peace officer, issue a
"citation" and release the person arrested.3
Section 853.6 sets forth the procedures for issuing citations in misdemeanor cases.
For our purposes, the procedures are essentially that "the officer or superior" prepares a written
notice to appear in court, "[t]he officer" delivers one copy of the notice to the arrested person, the
duplicate notice is retained by "the officer," the duplicate notice is signed by the person arrested,
"the arresting officer" releases the person from custody, and "[t]he officer" files the duplicate notice.
(§ 853.6, subds. (a) - (e).) Subdivisions (g), (h), and (i) of section 853.6 provide respectively as
follows:
"(g) The officer may either book the arrested person prior to release or
indicate on the citation that the arrested person shall be booked. If it is indicated on
the citation that the arrested person shall be booked, the magistrate shall, before the
proceedings are finally concluded, order the defendant to be booked by the arresting
agency.
"(h) A peace officer shall use the written notice to appear procedure set forth
in this section for any misdemeanor offense in which the officer has arrested a person
without a warrant pursuant to Section 836 or in which he or she has taken custody
of a person pursuant to Section 847.
"(i) Whenever any person is arrested by a peace officer for a misdemeanor,
that person shall be released according to the procedures set forth by this chapter
unless one of the following is a reason for nonrelease, in which case the arresting
officer may release the person, or the arresting officer shall indicate, on a form to be
established by his or her employing law enforcement agency, which of the following
was a reason for the nonrelease:
"(1) The person arrested was so intoxicated that he or she could have been
a danger to himself or herself or to others.
"(2) The person arrested required medical examination or medical care or was
otherwise unable to care for his or her own safety.
"(3) The person was arrested under one or more of the circumstances listed
in Sections 40302 and 40303 of the Vehicle Code.
"(4) There were one or more outstanding arrest warrants for the person.
"(5) The person could not provide satisfactory evidence of personal
identification.
"(6) The prosecution of the offense or offenses for which the person was
arrested, or the prosecution of any other offense or offenses, would be jeopardized
by immediate release of the person arrested.
3
A "citation," sometimes called a "ticket," is a written notice to appear in court that is issued to a person for certain
violations of law (infractions and misdemeanors), with the violator being released upon giving his or her written promise to
appear. (See, e.g., People v. Superior Court (1972) 7 Cal. 3d 186, 199-200.)
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"(7) There was a reasonable likelihood that the offense or offenses would
continue or resume, or that the safety of persons or property would be imminently
endangered by release of the person arrested.
"(8) The person arrested demanded to be taken before a magistrate or refused
to sign the notice to appear.
"(9) There is reason to believe that the person would not appear at the time
and place specified in the notice. The basis for this determination shall be
specifically stated."4
Finally, it should be noted that section 853.6 also provides:
"If, after an arrested person has signed and received a copy of a notice to
appear, the arresting officer determines that, in the interest of justice, the citation or
notice should be dismissed, the arresting agency may recommend, in writing, to the
magistrate that the charges be dismissed. The recommendation shall cite the reasons
for the recommendation and shall be filed with the court."
This statutory scheme providing for the citation and release from custody of persons
arrested for a misdemeanor uses the term "officer." Section 853.6 refers to four separate officials --
the arresting officer, his or her superior, the booking officer, and his or her superior. (People v.
Mosqueda (1982) 128 Cal. App. 3d 918, 923.) No authority for the issuance of citations is conferred
upon a private citizen. Moreover, section 853.6 confers no authority upon a peace officer to delegate
to private citizens his or her duties in issuing citations.
The sole authority of a private citizen who has arrested another is to take the person
arrested before a magistrate or deliver him or her to a peace officer. Section 847 states in part:
"A private person who has arrested another for the commission of a public
offense must, without unnecessary delay, take the person arrested before a
magistrate, or deliver him to a peace officer."
A private security guard is a private person and not a peace officer. (Cf., § 830 et seq.)
Looking at sections 847 and 853.6, we apply the rule that "[s]tatutes in pari materia
should be construed together" (Long Beach Police Officers Assn. v. City of Long Beach (1988) 46
Cal. 3d 736, 744; see also Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d
1379, 1387.) Section 853.6 refers to section 847, directing "[a] peace officer" to use the citation
procedure when "he or she has taken custody of a person pursuant to Section 847." (§ 853.6, subd.
(h).) In turn, section 847 directs "[a] private person" to "take the person arrested before a magistrate,
or deliver him to a peace officer." (See 73 Ops.Cal.Atty.Gen. 291, 292-295 (1990).)
The language of these two statutes is clear and easily harmonized. We find no
discretion on the part of a private citizen, here the security guard, or a peace officer to disregard the
statutory directives. The one cannot "authorize" the other to ignore the prescribed procedures. In
particular, the peace officer in determining whether to release the person (§ 853.6, subd. (i)) has
4
"To `book' signifies the recordation of an arrest in official police records, and the taking by the police of fingerprints and
photographs of the person arrested, or any of these acts following an arrest." (§ 7, subd. 21; See People v. Superior Court,
supra, 7 Cal. 3d 186, 208; Carpio v. Superior Court (1971) 19 Cal. App. 3d 790, 793.)
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several factors to consider that are based upon the physical state of the arrested person. Physical
custody allows the officer to exercise his or her judgment and discretion.
Regardless of the express directives of sections 847 and 853.6, it has been suggested
that section 830.6 would provide the requisite authority for delegating the duty of issuing citations
by a peace officer. Section 830.6, subdivision (b), provides:
"Whenever any person is summoned to the aid of any uniformed peace
officer, such person shall be vested with such powers of a peace officer as are
expressly delegated him by the summoning officer or as are otherwise reasonably
necessary to properly assist such officer."
This section has been described as "an expansion of the common law power of posse comitatus" (56
Ops.Cal.Atty.Gen. 390, 393 (1973)), originally reserved to the county sheriff (see Gov. Code, §
26604). Section 839 additionally provides that "[a]ny person making an arrest may orally summon
as many persons as he deems necessary to aid him therein." Any able adult who refuses to aid and
assist in an arrest when required to do so by any uniformed officer is punishable by a fine not
exceeding $1,000. (§ 150.)5
We do not deem the authority of a peace officer to summon the aid and assistance of
a citizen in making an arrest pursuant to section 839 or to delegate such powers of a peace officer
as may be necessary to do so pursuant to section 830.6, subdivision (b), as extending to a telephonic
directive by a peace officer to a security guard to cite and release a person already arrested by the
security guard. In our view, a private security guard under the circumstances presented would be
neither summoned to the aid of an uniformed officer (§ 830.6, subd. (b)) nor assisting an arrest (§
839) or any other act described in section 150. Indeed, we may adopt in these circumstances the
language in City of Long Beach v. Industrial Acc. Com. (1935) 4 Cal. 2d 624, 630, regarding the
suggested application of section 150: "[n]o such extraordinary situation which justifies action under
the provision of the Penal Code confronted the constabulary."
Not only is section 830.6 inapplicable in the described circumstances, we must
construe it in harmony with the provisions of section 847. It does not contradict or render
meaningless the latter statute's directive.
5
Section 150 provides as follows:
"Every able-bodied person above 18 years of age who neglects or refuses to
join the posse comitatus or power of the county, by neglecting or refusing to aid and
assist in taking or arresting any person against whom there may be issued any
process, or by neglecting to aid and assist in retaking any person who, after being
arrested or confined, may have escaped from arrest or imprisonment, or by
neglecting or refusing to aid and assist in preventing any breach of the peace, or the
commission of any criminal offense, being thereto lawfully required by any
uniformed peace officer, or by any peace officer described in Section 830.1 or in
subdivision (a), (b), (d), (e), or (f) of Section 830.2 of the Penal Code who identifies
himself or herself with a badge or identification card issued by the officer's
employing agency, or by any judge, is punishable by fine of not less than fifty dollars
($50) nor more than one thousand dollars ($1,000)."
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Since no powers of a peace officer, as contemplated in section 830.6, subdivision (b),
may be conferred in the premises, and we know of no other statutory authorization that does so, it
follows that a private security guard is not authorized to issue a citation to a suspect under citizen's
arrest for shoplifting.
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