Givans

*796 Opinion

The main issue in this case is whether the rule of Doyle v. Ohio (1976) 426 U.S. 610 [ 49 L.Ed.2d 91 , 96 S.Ct. 2240 ], that silence following arrest and a Miranda 1 warning cannot be used to impeach the defendant’s exculpatory testimony at trial, applies where the Miranda warning actually is given by a private security guard who has no duty to give such a warning. 2 (See In re Deborah C. (1981) 30 Cal.3d 125 , 134 [ 177 Cal.Rptr. 852 , 635 P.2d 446 ].) We hold the rule is applicable in such a case. 3 As an independent ground for reversal, we agree with the decision in People v. Jacobs (1984) 158 Cal.App.3d 740 [ 204 Cal.Rptr. 849 ] that impeaching the defendant with his postarrest, post -Miranda warning silence violates his privilege against self-incrimination under article I, section 15 of the California Constitution.

Other contentions of the defendant are discussed in the unreported portion of this opinion because their resolution does not meet the standards for publication of rule 976 of the California Rules of Court.

Facts and Proceedings Below

Defendant was convicted by a jury of one count of robbery.

The victim, Ms. Zumba, was shopping in a Los Angeles…

I would affirm the judgment. I respectfully dissent from those portions of the majority opinion holding that Doyle v. Ohio (1976) 426 U.S. 610 [ 49 L.Ed.2d 91 , 96 S.Ct. 2240 ] governs here, and thus the *803 trial court committed reversible error in allowing defendant’s silence to be used for impeachment; and that error was committed in prohibiting defense counsel from comparing the identification procedure with live and photo lineups ordinarily conducted by police. In all other respects I concur.

I agree that had Kenneth Bailey in his capacity as a police officer given the Miranda (Miranda v. Arizona (1966) 384 U.S. 436 [ 16 L.Ed.2d 694 , 86 S.Ct. 1602 , 10 A.L.R.3d 974 ]) warnings to defendant, Doyle would control. But it is undisputed that David Johnson, who detained defendant, and Bailey, who arrested him and read the Miranda rights, acted solely in the capacity of private security personnel for Safeway without police cooperation; thus it is my view that the use of evidence of defendant’s silence for impeachment was proper.

The evidence falls into two categories. The first relates to defendant’s prearrest silence—his failure to tell Johnson, a private security officer for…

[Opinion certified for partial publication. [*] ]

OPINION

JOHNSON, J.

The main issue in this case is whether the rule of Doyle v. Ohio (1976) 426 U.S. 610 [ 49 L.Ed.2d 91 , 96 S.Ct. 2240 ], that silence following arrest and a Miranda [1] warning cannot be used to impeach the defendant's exculpatory testimony at trial, applies where the Miranda warning actually is given by a private security guard who has no duty to give such a warning. [2] (See In re Deborah C. (1981) 30 Cal.3d 125 , 134 [ 177 Cal. Rptr. 852 , 635 P.2d 446 ].) We hold the rule is applicable in such a case. [3] As an independent ground for reversal, we agree with the decision in People v. Jacobs (1984) 158 Cal. App.3d 740 [ 204 Cal. Rptr. 849 ] that impeaching the defendant with his postarrest, post- Miranda warning silence violates his privilege against self-incrimination under article I, section 15 of the California Constitution.

Other contentions of the defendant are discussed in the unreported portion of this opinion because their resolution does not meet the standards for publication of rule 976 of the California Rules of Court.

Defendant was convicted by a jury of one count of robbery.

The victim, Ms.…