State v. Garcia , 146 Wash. App. 821 ( 2008 )

Sweeney, J.

¶1 Store personnel may detain a suspected shoplifter if they have reasonable grounds to believe the person is committing or attempting to commit theft or shoplifting. State v. Miller, 103 Wn.2d 792, 795, 698 P.2d 554 (1985); State v. Johnston, 85 Wn. App. 549, 554, 933 P.2d 448 (1997). And a private citizen may detain a person for a misdemeanor if it (1) constitutes a breach of the peace and (2) is committed in the citizen’s presence. State v. Gonzales, 24 Wn. App. 437, 439, 604 P.2d 168 (1979). Here, Ranch and Home’s owner and employees suspected Gonzalo Garcia Jr. of shoplifting from their store. Mr. Garcia fled Ranch and Home and entered the neighboring store, Shopko. Antonio Moran worked for Shopko and attempted to detain Mr. Garcia for Ranch and Home when Mr. Garcia pushed him. Mr. Moran was not a Ranch and Home employee and did not observe the shoplifting. We therefore reverse Mr. Garcia’s conviction for third degree assault because he did not assault Mr. Moran in an attempt to resist lawful detention, as charged. And we remand for entry of judgment and sentencing for fourth degree assault.

FACTS

¶2 Ranch and Home’s “Sensormatic” (theft security alarm) sounded when Gonzalo Garcia Jr. left the store. Ranch and Home’s owner, Jeffrey Dress, followed Mr. Garcia to the parking lot, where he asked Mr. Garcia to stop. Mr. Garcia said no and ran. He escaped into an adjacent store, Shopko, after an unsuccessful attempt to flee in a car.

¶3 Mr. Dress sent Ranch and Home employee Jesus Sanchez to Shopko to tell Shopko personnel about Mr. Garcia and to ask for help. Shopko did not have a written or verbal contract to provide security for Ranch and Home.

¶4 Mr. Sanchez told Antonio Moran, Shopko’s loss prevention investigator, that a person shoplifted merchandise from Ranch and Home and then ran into Shopko. Mr. Moran alerted his supervisor, Debbie Stovall. Ms. Stovall ordered Mr. Moran to follow Mr. Garcia around Shopko. She directed him to detain Mr. Garcia when he left the store. Mr. Moran approached Mr. Garcia as Mr. Garcia left the store. He identified himself as store security, showed Mr. Garcia his badge, and told him to stop. Mr. Garcia then pushed Mr. Moran and left the store.

¶5 Shopko and Ranch and Home employees then wrestled Mr. Garcia to the ground and detained him until police arrived.

¶6 The trial court convicted Mr. Garcia of third degree assault for pushing Mr. Moran.

DISCUSSION

Findings of Fact and Conclusions of Law

¶7 Mr. Garcia first asks this court to remand his case to the trial court for entry of written findings of fact and conclusions of law. They have since been filed. Clerk’s Papers at 42-44.

¶8 He correctly points out that a trial court must enter findings of fact and conclusions of law in a case tried without a jury. CrR 6.1(d). Here, they were filed late, and that is a bad practice. State v. Cannon, 130 Wn.2d 313, 329, 922 P.2d 1293 (1996). The trial judge is put in a difficult position of trying to remember his or her essential findings and the reasons for a decision when findings and conclusions are presented many months after the trial. And late findings increase the potential for criticism that they are tailored to avoid reversal when, as here, they are presented after the initial appellate briefing.

¶9 Nonetheless, findings and conclusions may be entered even while an appeal is pending if the defendant is not prejudiced by their entry. Id. And there is no showing of prejudice here. Indeed, they mirror the court’s oral findings and conclusions. Report of Proceedings at 80-81, 107, 109.

Lawful Detention — Agency

¶10 Mr. Garcia argues that the trial court erred when it found him guilty of third degree assault because he resisted an unlawful detention when he pushed Mr. Moran, Shopko’s loss prevention investigator. He contends that the attempted detention was unlawful because Mr. Moran was not Ranch and Home’s agent.

¶11 Mr. Garcia committed third degree assault if, and only if, he assaulted Mr. Moran with intent to resist lawful detention. RCW 9A.36.031(1)(a). The question then is whether Mr. Moran’s attempt to detain Mr. Garcia was lawful. That is a question of law and so we review de novo. State v. Law, 110 Wn. App. 36, 39, 38 P.3d 374 (2002).

¶12 Mr. Garcia admits that he pushed Mr. Moran to resist detention. He argues that Mr. Moran did not have legal authority to detain him because he was not Ranch and Home’s agent — Ranch and Home did not control Mr. Moran’s actions. The State maintains that Mr. Moran had legal authority to detain Mr. Garcia because Ranch and Home asked for help and he helped. He alerted his supervisor, followed Mr. Garcia around Shopko, and tried to stop Mr. Garcia before he left the building.

¶13 Both parties suggest that statutes authorize a shopkeeper’s agent to lawfully detain a thief whom the agent reasonably believes was shoplifting. See RCW 9A.16.080;¹ RCW 4.24.220 (civil equivalent to RCW 9A. 16.080).

¶14 But “an agency relationship results from the manifestation of consent by [the principal] that [the agent] shall act on his behalf and subject to his control, with a correlative manifestation of consent by the [agent] to act on his behalf and subject to his control.” Moss v. Vadman, 77 Wn.2d 396, 402-03, 463 P.2d 159 (1969). Both the principal and the agent must consent to the relationship. Hewson Constr., Inc. v. Reintree Corp., 101 Wn.2d 819, 823, 685 P.2d 1062 (1984). The right to control the manner of performance is essential to prove agency. Bloedel Timberlands Dev., Inc. v. Timber Indus., Inc., 28 Wn. App. 669, 674, 626 P.2d 30 (1981). “ ‘[T]he existence of the right of control, not its exercise, ... is decisive.’ ” Pagarigan v. Phillips Petroleum Co., 16 Wn. App. 34, 37, 552 P.2d 1065 (1976) (quoting Poutre v. Saunders, 19 Wn.2d 561, 565, 143 P.2d 554 (1943)). Mr. Moran was an agent of Ranch and Home only if Ranch and Home had the power to control (i.e., guide or manage) Mr. Moran’s actions at the time of the assault.

¶15 The findings of fact here do not support the conclusion that Ranch and Home had an agency relationship with Shopko. In fact, they make no mention of Ranch and Home’s right to control the manner of Mr. Moran’s performance.

¶16 And our review of the testimony suggests there is no evidence to support the conclusion of an agency relationship. Shopko did not have a duty to provide security for Ranch and Home. Neither Mr. Moran nor Ms. Stovall, Mr. Moran’s supervisor, asked Ranch and Home personnel how to go about detaining Mr. Garcia. Shopko’s Ms. Stovall orchestrated Mr. Garcia’s apprehension without directions from Ranch and Home. She told Mr. Moran to follow Mr. Garcia around the store and detain him as he left the store. Ranch and Home’s employee, Mr. Sanchez, was with Ms. Stovall when she gave Mr. Moran his orders. Mr. Sanchez wanted Shopko to handle the situation. Ranch and Home did not control his actions. Mr. Moran was not Ranch and Home’s agent when Mr. Garcia assaulted him. See Bloedel Timberlands, 28 Wn. App. at 674.

Lawful Detention — Citizen’s Arrest

¶17 Merchants may, however, detain a suspected shoplifter if they have reasonable grounds to believe the person is committing or attempting to commit theft or shoplifting. Miller, 103 Wn.2d at 795; Johnston, 85 Wn. App. at 554. The right derives from the common law right of citizen’s arrest. Miller, 103 Wn.2d at 795.

¶18 But the cases that establish the shopkeeper’s common law privilege are factually distinguishable from this case. In Miller and Johnston, an employee of the victimized store detained the suspected shoplifter. Miller, 103 Wn.2d at 793; Johnston, 85 Wn. App. at 552. Here, Mr. Moran, a Shopko employee and not a Ranch and Home employee, did not observe the shoplifting. He nevertheless attempted to detain Mr. Garcia. We find no authority, then, that would allow Mr. Moran to lawfully detain Mr. Garcia under the shopkeeper’s privilege.

¶19 Nor does the common law privilege of citizen’s arrest apply here. A private person may arrest another for a misdemeanor if it (1) constitutes a breach of the peace and (2) is committed in that person’s presence. Gonzales, 24 Wn. App. at 439. Again, Mr. Garcia did not commit the alleged misdemeanor (theft) in Mr. Moran’s presence. And, in any event, no Washington case says that theft constitutes a “breach of the peace.” See, e.g., City of Seattle v. Camby, 104 Wn.2d 49, 53, 701 P.2d 499 (1985) (words of degrading character addressed to another may breach the peace); Stone Mach. Co. v. Kessler, 1 Wn. App. 750, 754-57, 463 P.2d 651 (1970) (force, constructive force, or intimidation used to repossess property when the defaulting party offers physical resistance constitutes breach of the peace).

¶20 Mr. Garcia therefore was not resisting a lawful arrest when he assaulted Mr. Moran. And that is clearly a requirement of the statute under which he was prosecuted. RCW 9A.36.031(1)(a) (“A person is guilty of assault in the third degree if he . . . [w]ith intent to prevent or resist. . . the lawful apprehension or detention of himself assaults another.” (emphasis added)). Mr. Moran did not have the shopkeeper’s privilege or the citizen’s right to arrest Mr. Garcia. The State did not, therefore, prove that Mr. Garcia committed third degree assault with intent to prevent or resist lawful apprehension on this evidence and these findings. Id. We vacate the third degree assault conviction.

¶21 A criminal defendant may be convicted at trial on the charged offense or “any degree inferior thereto.” RCW 10.61.003. This statute gives a defendant sufficient notice that he must also defend himself against lesser degrees of the offense charged. State v. Foster, 91 Wn.2d 466, 471-72, 589 P.2d 789 (1979). Consequently, when an appellate court finds the evidence insufficient to support a conviction for the charged offense, it will direct a trial court to enter judgment on a lesser degree of the offense charged when the lesser degree was necessarily proved at trial. E.g., State v. Gilbert, 68 Wn. App. 379, 384-87, 842 P.2d 1029 (1993) (extensive citation of cases); State v. Miles, 77 Wn.2d 593, 601-04, 464 P.2d 723 (1970); State v. Bucknell, 144 Wn. App. 524, 530, 183 P.3d 1078 (2008); State v. Maganai, 83 Wn. App. 735, 740, 923 P.2d 718 (1996); State v. Atterton, 81 Wn. App. 470, 473, 915 P.2d 535 (1996); State v. Robbins, 68 Wn. App. 873, 877, 846 P.2d 585 (1993); State v. Cobelli, 56 Wn. App. 921, 925-26, 788 P.2d 1081 (1989); State v. Brown, 50 Wn. App. 873, 878-79, 751 P.2d 331 (1988); State v. Kovac, 50 Wn. App. 117, 121, 747 P.2d 484 (1987); State v. Liles, 11 Wn. App. 166, 173, 521 P.2d 973 (1974).

¶22 Fourth degree assault is an assault that does not amount to custodial assault or first, second, or third degree assault. RCW 9A.36.041. It is a lesser degree offense of third degree assault. Compare RCW 9A.36.041 with RCW 9A.36.031. Here, the trial court found that Mr. Garcia assaulted Mr. Moran — that he pushed him. These findings necessarily constitute a finding of every element of fourth degree assault. We, therefore, remand to the trial court to enter judgment and sentence for fourth degree assault.

Supplemental Assignment of Error

¶23 Mr. Garcia argues in his supplemental brief that the court erred when it imposed a sentence that exceeds the statutory maximum sentence for third degree assault. We do not address this assignment of error because we reverse Mr. Garcia’s conviction for third degree assault.

Statement of Additional Grounds

¶24 Mr. Garcia also filed a statement of additional grounds for relief. He first argues that Mr. Moran was not Ranch and Home’s agent and therefore did not have authority to detain him. We have addressed this argument.

¶25 Mr. Garcia next argues, on authority of RCW 4.24.220, that he was not detained in the vicinity of Ranch and Home. That statute does not apply here. It is an immunity statute for civil actions against mercantile establishments. And this is a criminal prosecution.

¶26 Mr. Garcia also argues that the State did not prove all elements of the federal assault statute. Mr. Garcia was charged under Washington’s assault statute. It is not analogous to the statute that Mr. Garcia refers to. The State was not required to prove the elements of the federal assault statute.

¶27 Mr. Garcia further contends that the State failed to prove that Mr. Moran was acting in his official capacity at the time of the assault. The State need prove this element only if the assault victim is a police officer. See RCW 9A.36.031(1)(g). Mr. Garcia was charged under RCW 9A.36.031(1)(a). That section does not require the State to show that Mr. Moran was performing his official duties at the time of the assault.

¶28 Finally, Mr. Garcia claims that the assault was excusable because he did not know that Mr. Moran was an agent. The argument is moot given our disposition here.

¶29 We reverse Mr. Garcia’s conviction for third degree assault and remand for entry of judgment and sentencing for fourth degree assault.

Korsmo, J., concurs.

1 RCW 9A.16.080 states, in part: “In any criminal action brought by reason of any person having been detained on or in the immediate vicinity of the premises of a mercantile establishment for the purpose of investigation or questioning as to the ownership of any merchandise, it shall be a defense of such action that the person was detained in a reasonable manner and for not more than a reasonable time to permit such investigation or questioning by a peace officer, by the owner of the mercantile establishment, or by the owner’s authorized employee or agent, and that such peace officer, owner, employee, or agent had reasonable grounds to believe that the person so detained was committing or attempting to commit theft or shoplifting on such premises of such merchandise.”