IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S140612
v.
Ct.App. 4/3 G034752
ALFONSO GOMEZ,
Orange County
Defendant and Appellant.
Super. Ct. No. 04NF0131
Here defendant seized property from the victim’s business while the victim
was not present. The victim arrived on the scene before defendant departed and
followed him as he was leaving. As the victim followed, defendant shot at him.
Did defendant commit a robbery? Yes.
I. FACTS AND PROCEDURAL HISTORY
Shortly before 5:00 a.m. on January 12, 2004, defendant broke into an
Anaheim restaurant. After covering two surveillance cameras with duct tape, he
pried open and took money from an ATM machine in the lobby. He then went to
the manager’s office on the second floor. He forced open the desk and file
drawers, but found no cash. As he went back downstairs, defendant heard the
manager, Ramon Baltazar, unlock the front door. Defendant took a handgun from
his backpack, placed it in his waistband, and walked to the restaurant kitchen.
Meanwhile, Baltazar noticed the alarm had been deactivated and the ATM
damaged. Hearing a noise in the kitchen and seeing the glow of a flashlight, he
went outside, got in his truck and called 911. While speaking to the police
1
dispatcher, Baltazar saw defendant leave by a side door and walk away. Baltazar
drove behind defendant, staying on the phone with the dispatcher. Baltazar did
not intend to apprehend defendant himself, but wanted to help the police find him.
Baltazar did not know what, if anything, defendant had taken from the restaurant.
As Baltazar followed from 100 to 150 feet away, defendant fired two shots
at him; he later said that he wanted to scare Baltazar. Baltazar quickly drove
away, and defendant was arrested a short time later with money from the ATM in
his backpack.
The jury convicted defendant of second degree robbery and commercial
burglary. (Pen. Code, §§ 211, 212.5, subd. (c), 459, 460, subd. (b).)1 The jury
also found that defendant was armed during the burglary and fired a gun during
the robbery. (§§ 12022, subd. (a)(1), 12022.53, subd. (c).) Defendant was
sentenced to three years in prison for the robbery with 20 years for the gun
enhancement. Sentencing on the burglary charge and the arming enhancement
were stayed under section 654.
On appeal, defendant claimed the evidence was insufficient as a matter of
law to support his robbery conviction because the victim was not present when
defendant initially took the money. The Court of Appeal rejected this argument.
Relying on People v. Estes (1983) 147 Cal.App.3d 23 (Estes), it held that
defendant’s use of force to retain the stolen property and remove it from
Baltazar’s immediate presence was sufficient to support the robbery conviction.
II. DISCUSSION
Section 211 defines robbery as “the felonious taking of personal property in
the possession of another, from his person or immediate presence, and against his
will, accomplished by means of force or fear.” Robbery is, therefore, “ ‘ “a
species of aggravated larceny.” ’ ” (People v. Ortega (1998) 19 Cal.4th 686, 694,
1
Further undesignated statutory references are to the Penal Code.
2
quoting Perkins & Boyce, Criminal Law (3d ed. 1982) p. 350 (Perkins).) Theft by
larceny may be committed without force or the threat of violence and may be
completed without the victim ever being present. (See § 484, subd. (a).) To
elevate larceny to robbery, the taking must be accomplished by force or fear and
the property must be taken from the victim or in his presence.2
In robbery, the elements of larceny are intertwined with the aggravating
elements to make up the more serious offense. The issue here is the temporal
point at which the elements must come together. The answer lies in the fact that
robbery, like larceny, is a continuing offense. All the elements must be satisfied
before the crime is completed.3 However, as we explain in greater detail below,
no artificial parsing is required as to the precise moment or order in which the
elements are satisfied. This conclusion is consistent with decades of California
jurisprudence.
We begin by considering the basic elements of theft by larceny. Larceny
requires the taking of another’s property, with the intent to steal and carry it away.
(People v. Davis (1998) 19 Cal.4th 301, 305.)4 “Taking,” in turn, has two aspects:
2
Section 211, enacted in 1872, incorporates common law robbery
requirements. (See People v. Tufunga (1999) 21 Cal.4th 935, 945-947.) Under
the common law, the crime of robbery consists of larceny plus two aggravating
circumstances: (1) the property is taken from the person or presence of another;
and (2) the taking is accomplished by the use of force or by putting the victim in
fear of injury. (4 Wharton, Criminal Law (15th ed. 1995) § 454, pp. 2-3
(Wharton); LaFave, Substantive Criminal Law (3d ed. 2003) § 20.3(a), pp. 996-
997.)
3
We assume without deciding that Baltazar had a possessory interest in the
cash taken from the ATM. The issue of possession was not challenged by
defendant, and is not before this court on appeal.
4
In 1927, the crimes of theft by larceny, embezzlement, and false pretenses
were consolidated in section 484. (People v. Davis, supra, 19 Cal.4th at p. 304.)
“Insofar as it defines theft by larceny, Penal Code section 484, subdivision (a),
provides simply that ‘Every person who shall feloniously steal, take, carry, lead,
(Footnote continued on next page.)
3
(1) achieving possession of the property, known as “caption,” and (2) carrying the
property away, or “asportation.” (People v. Lopez (2003) 31 Cal.4th 1051, 1056;
see 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against
Property, § 15, p. 35; 3 Wharton, supra, § 357, pp. 412-413.) Although the
slightest movement may constitute asportation (People v. Davis, at p. 305), the
theft continues until the perpetrator has reached a place of temporary safety with
the property. (People v. Flynn (2000) 77 Cal.App.4th 766, 772).
A number of cases have considered the interaction of the taking element of
larceny with the aggravating factors that elevate a theft to a robbery: the use of
force or fear and the taking from the victim’s presence.
A. Force or Fear
In
People v. Anderson (1966) 64 Cal.2d 633 (Anderson) we considered
when the element of force or fear must come into play to make a theft a robbery.
Anderson, posing as a customer, went to a pawnshop where he inspected a
shotgun. He agreed to buy the gun and ammunition. As the salesman totaled the
price, Anderson grabbed the gun, loaded it and pointed at the salesman,
threatening to kill him. When another employee told Anderson to take the gun
and leave, Anderson shot and killed him. (Id. at pp. 635-636.) On appeal,
Anderson complained that since he obtained possession of the gun without the use
of force or fear, there could be no robbery as a matter of law. We upheld the
robbery conviction: “In this state, it is settled that a robbery is not completed at
the moment the robber obtains possession of the stolen property and that the crime
of robbery includes the element of asportation, the robber’s escape with the loot
(Footnote continued from previous page.)
or drive away the personal property of another . . . is guilty of theft.’ ” (Id. at p.
304, fn. 1.)
4
being considered as important in the commission of the crime as gaining
possession of the property. [Citations.] [¶] Accordingly, if one who has stolen
property from the person of another uses force or fear in removing, or attempting
to remove, the property from the owner’s immediate presence, as defendant did
here, the crime of robbery has been committed.” (Id. at p. 638.)
Anderson, supra, 64 Cal.2d 633, stands for two points relevant here. First,
a taking is not over at the moment of caption; it continues through asportation.
Second, a robbery can be accomplished even if the property was peacefully or
duplicitously acquired, if force or fear was used to carry it away.
We discussed both points in People v. Cooper (1991) 53 Cal.3d 1158
(Cooper), which involved the liability of an aider and abettor for robbery.
Cooper’s codefendants knocked the victim to the ground, stole his wallet, then
jumped into Cooper’s car. Cooper drove them away. He argued that the robbery
was over by the time the codefendants jumped into the car because they had
already seized the wallet, so that arguably he could only be liable as an accessory
after the fact. We rejected this argument. “[T]he commission of a robbery for
purposes of determining aider and abettor liability continues until all acts
constituting the robbery have ceased.” (Id. at p. 1161.) “The taking element of
robbery” consists of both a caption and an asportation. (Id. at p. 1165.) Therefore,
to determine the duration of a robbery, the focus must be on its final element,
asportation. We emphasized that “[a]lthough, for purposes of establishing guilt,
the asportation requirement is initially satisfied by evidence of slight movement
[citation], asportation is not confined to a fixed point in time. The asportation
continues thereafter as long as the loot is being carried away to a place of
temporary safety.” (Ibid., fn. omitted.) Thus, for conviction of the offense of
aiding and abetting a robbery, a getaway driver must form the intent to facilitate or
5
encourage the commission of the robbery before or during the carrying away of
the loot. (Ibid.)5
In analyzing the continuing nature of robbery, Cooper cited People v.
Perhab (1949) 92 Cal.App.2d 430, an older case that itself referred to preceding
decisions: “We adopt the theory announced in the cited cases that the ‘taking’ of
the property in the possession of the complaining witness, from his immediate
presence and possession, is not necessarily completed the moment the thief places
his hands upon it. The crime of robbery also includes the element of asportation
and appropriation of another’s property. The escape of the thief with his ill-gotten
gains by means of arms is as important to the execution of the robbery as gaining
possession of it.” (Perhab, at p. 438; see Cooper, supra, 53 Cal.3d at p. 1165.)
Cooper also cited with approval Court of Appeal cases holding that theft
becomes robbery when the force or fear is used for the first time during
asportation. We explained that the asportation phase of robbery “is not confined
to a fixed point in time,” and added in a footnote: “This reasoning is consistent
with a long line of Court of Appeal cases, left undisturbed by this court, holding
that mere theft becomes robbery if the perpetrator, having gained possession of the
property without use of force or fear, resorts to force or fear while carrying away
the loot. (See, e.g., Estes, [supra,] 147 Cal.App.3d [at pp.] 27-28; People v. Kent
5
In Cooper, we distinguished the “escape rule,” which originated in the
landmark case of People v. Boss (1930) 210 Cal. 245. Under the escape rule, as
applied in the context of the felony-murder doctrine and certain other ancillary
consequences of robbery, “robbery is said to continue through the escape to a
place of temporary safety, whether or not the asportation of the loot coincides with
the escape . . . .” (Cooper, supra, 53 Cal.3d at p. 1166.) In Cooper, we declined
to extend the escape rule, reasoning that in determining aider and abettor liability
“the focus must be on the acts constituting the robbery, not the escape.” (Id. at p.
1168.) We observed in Cooper that escape is not an element of robbery, and that
in some circumstances the asportation will not coincide with the escape. (Id. at
pp. 1168-1169.)
6
(1981) 125 Cal.App.3d 207, 213; People v. Perhab, supra, 92 Cal.App.2d [at pp.]
434-436.) In order to support a robbery conviction, the taking, either the gaining
possession or the carrying away, must be accomplished by force or fear. (See §
211.) Thus, these cases implicitly hold that the asportation component of the
taking continues while the loot is carried away, and does not end on slight
movement.” (Cooper, supra, 53 Cal.3d at p. 1165, fn. 8, italics added.)
B. Immediate Presence
The other aggravating factor required to elevate theft to robbery is that
property must be taken from the victim or his immediate presence. As with the
duration of robbery from caption through asportation, the spacial concept of
immediate presence has been broadly applied.
We explained in People v. Hayes (1990) 52 Cal.3d 577 (Hayes): “ ‘ “[a]
thing is in the [immediate] presence of a person, in respect to robbery, which is so
within his reach, inspection, observation or control, that he could, if not overcome
by violence or prevented by fear, retain his possession of it.” ’ [Citations.]” (Id. at
pp. 626-627.) Thus, “immediate presence” is “an area over which the victim, at
the time force or fear was employed, could be said to exercise some physical
control” over his property. (Id. at p. 627.) “Under this definition, property may be
found to be in the victim’s immediate presence ‘even though it is located in
another room of the house, or in another building on [the] premises.’ [Citations.]”
(Ibid.)
In
People v. Frye (1998) 18 Cal.4th 894, we noted that the “person or
immediate presence” requirement of section 211 “describes a spatial relationship
between the victim and the victim’s property, and refers to the area from which the
property is taken.” (Frye, at pp. 955-956, citing Cooper, supra, 53 Cal.3d at p.
1166.) “Thus, the decisions addressing the ‘immediate presence’ element of
robbery have focused on whether the taken property was located in an area in
which the victim could have expected to take effective steps to retain control over
7
his property. (See, e.g., People v. Harris (1994) 9 Cal.4th 407, 422-424 [victim
forcibly restrained in car outside office and home while robbers looted each
location]; People v. Webster (1991) 54 Cal.3d 411, 439-442 [defendants induced
victim to walk a quarter-mile away from his car, then killed him and took his car];
Hayes, supra, 52 Cal.3d at pp. 626-629 [victim assaulted and killed 107 feet from
motel office where property was taken]; People v. Bauer (1966) 241 Cal.App.2d
632, 641-642 [defendant killed victim inside her apartment, then stole victim’s
keys and took her car parked outside].)” (Frye, at p. 956.)
C. Immediate Presence During Asportation
As
Cooper, supra, 53 Cal.3d 1158, and Anderson, supra, 64 Cal.2d 633,
affirm, if the “force or fear” element comes into play not during caption but during
asportation, the crime is still a robbery. The question raised by the facts of this
case is a related one: If the “immediate presence” element arises not at caption but
during asportation, is there a robbery? The answer is yes and for the same reason
articulated in Cooper and Anderson: robbery is a continuing offense. If the
aggravating factors are in play at any time during the period from caption through
asportation, the defendant has engaged in conduct that elevates the crime from
simple larceny to robbery.
In reaching that conclusion here the Court of Appeal relied on Estes, supra,
147 Cal.App.3d 23, for the proposition that the use of force or fear to retain
property in the victim’s presence constitutes robbery. In Estes, a security guard at
a Sears store saw Estes remove clothing from a rack, put it on, and leave the store
without paying. The guard followed Estes outside to the parking lot. About five
feet from the door, the guard identified himself and confronted Estes about the
items taken. Estes refused to return to the store and began walking away. When
the guard tried to detain him, Estes pulled out a knife, swung it at the guard, and
threatened to kill him. (Id. at p. 26.)
8
On appeal, Estes argued, inter alia, that he could not be guilty of robbery
because the assault was not contemporaneous with the taking of the merchandise
from the store. The Court of Appeal disagreed: “The crime of robbery is a
continuing offense that begins from the time of the original taking until the robber
reaches a place of relative safety. It is sufficient to support the conviction that
appellant used force to prevent the guard from retaking the property and to
facilitate his escape. The crime is not divisible into a series of separate acts.
Defendant’s guilt is not to be weighed at each step of the robbery as it unfolds.
The events constituting the crime of robbery, although they may extend over large
distances and take some time to complete, are linked by a single-mindedness of
purpose. [Citation.] Whether defendant used force to gain original possession of
the property or to resist attempts to retake the stolen property, force was applied
against the guard in furtherance of the robbery and can properly be used to sustain
the conviction.” (Estes, supra, 147 Cal.App.3d at p. 28.)
Like defendant here, Estes argued that no robbery occurred because the
merchandise was not taken from the security guard’s immediate presence. The
Estes Court of Appeal rejected this argument as well: “The evidence establishes
that appellant forceably [sic] resisted the security guard’s efforts to retake the
property and used that force to remove the items from the guard’s immediate
presence. By preventing the guard from regaining control over the merchandise,
defendant is held to have taken the property as if the guard had actual possession
of the goods in the first instance. (See [Anderson, supra,] 64 Cal.2d 633.) [¶]
. . . A robbery is not completed at the moment the robber obtains possession of
the stolen property. The crime of robbery includes the element of asportation, the
robber’s escape with the loot being considered as important in the commission of
the crime as gaining possession of the property. Here, as in Anderson, a robbery
occurs when defendant uses force or fear in resisting attempts to regain the
property or in attempting to remove the property from the owner’s immediate
9
presence regardless of the means by which defendant originally acquired the
property.” (Estes, supra, 147 Cal.App.3d at pp. 27-28, italics added.)
Defendant criticizes the Estes court’s reliance on Anderson, supra, 64
Cal.2d 633, to support the proposition that the immediate presence element of
robbery can be satisfied when the victim is not present at the time of taking. He
points out that in Anderson the clerk was present when the defendant laid hands on
the gun. We note, however, that Estes did not cite Anderson for direct support, but
rather extended its analysis. The Estes court observed that a robbery occurred in
Anderson because the defendant used “force or fear in resisting attempts to regain
the property or in attempting to remove the property from the owner’s immediate
presence.” (Estes, supra, 147 Cal.App.3d at pp. 27-28, italics added.) Likewise,
in Estes, force was used to defeat the victim’s efforts to regain the property as the
defendant attempted to carry it away. For the Estes court, whether the property
was acquired peacefully from the owner or outside his presence was not
determinative. The court reasoned that because robbery is a continuing offense,
the later use of force to retain the property in the victim’s presence renders the
actions a robbery, “regardless of the means by which defendant originally
acquired the property.” (Id. at p. 28)
Defendant nevertheless asserts that Estes’s immediate presence analysis,
based on events in the parking lot, is dicta because the security guard watched
Estes take the clothing in the store. (See Hayes, supra, 52 Cal.3d at pp. 626-627.)
Although the Court of Appeal might have reasoned that the immediate presence
element was satisfied by the security guard’s observations in the store, it did not.
As the Court of Appeal here stated, “[T]he [Estes] court squarely pegged its
holding to the fact the defendant forcibly ‘resisted the security guard’s efforts to
retake the property and used that force to remove the items from the guard’s
immediate presence.’ ([Estes, supra,] at p. 27.)” The robbery conviction was
10
upheld based on defendant’s forceful retention of property in the guard’s presence
while in the parking lot.
Estes’s analysis of immediate presence was followed 20 years later in
Miller v. Superior Court (2004) 115 Cal.App.4th 216 (Miller). In Miller, the
victim changed into his swimming trunks in a public restroom at the beach. After
taking a few steps outside, he realized he had left his pants in the restroom stall.
His wallet, with a Velcro fastener, was inside his pants. The victim returned to the
stall, but the pants were gone. He then heard the sound of Velcro being opened in
another stall. The victim peered over the door to see Miller shielding something
from his view. The victim waited 15 to 20 minutes for Miller to come out of the
stall. When the victim’s friend came into the restroom, the victim explained what
happened. The friend knocked on the door of Miller’s stall and demanded that he
return the wallet. Miller tried to force his way out of the restroom but was blocked
by the victim and his friend. The three of them struggled and Miller eventually
returned the wallet. (Id. at pp. 219-220.)
The trial court denied Miller’s section 995 motion to dismiss the robbery
charge. In a petition for a writ of prohibition, Miller challenged the denial,
arguing there was no evidence that property was taken from the victim’s
immediate presence. (Miller, supra, 115 Cal.App.4th at p. 220.) The Court of
Appeal majority rejected his argument: “Pursuant to the long-standing principles
announced in Estes, Miller’s use of force to retain the property after [the victim]
confronted him while he was attempting to get away with [the victim’s] money
was sufficient to support the assertion of a robbery charge against him. In such
circumstances, [the victim] could reasonably ‘have expected to take effective steps
to retain control over his property’ and thus the immediate presence requirement is
satisfied. [Citations.]” (Id. at p. 224.) Relying on Estes, the majority concluded
that the immediate presence element of robbery may “be supplied after the
11
defendant has initially gained possession of the victim’s property.” (Miller, at p.
224.)
As noted, we cited Estes with approval in Cooper for its discussion
regarding the temporal aspect of the force and fear element of robbery. (Cooper,
supra, 53 Cal.3d at p. 1165, fn. 8.) We did not address Estes’s analysis of
“immediate presence.” We do so here and find it consistent with California’s
approach to the law of robbery.
Defendant argues that any expansion of the definition of robbery is within
the exclusive purview of the Legislature, not the courts. No expansion is
involved. California has described robbery as a continuing offense for decades.
While some jurisdictions have enacted statutes specifically adopting this
continuous offense theory of robbery,6 California and other states have construed
their existing robbery statutes as establishing a continuing offense.7
Under the language of section 211, the phrases “person or immediate
presence” and “force or fear” both refer to the “taking” of personal property. The
force or fear element of robbery can be satisfied during either the caption or the
6
See State v. Moore (S.C.Ct.App. 2007) 649 S.E.2d 84, 90, for an
“exhaustive review” therein of jurisdictions adopting the “continuous offense
theory” of robbery by statute.
7
See, e.g., Ball v. State (Md. 1997) 699 A.2d 1170, 1185 (“The mere fact
that some asportation has occurred before the use of force does not mean that the
perpetrator is thereafter not guilty of the offense of robbery. . . . [When] . . . the
use of force enables the accused to retain possession of the property in the face of
immediate resistance from the victim, then the taking is properly considered a
robbery”); People v. Bartowsheski (Colo. 1983) 661 P.2d 235, 244 (“The
gravamen of robbery is the application of physical force or intimidation against
the victim at any time during the course of a transaction culminating in the taking
of property from the victim’s person or presence. [Citations.] There is no
requirement that the application of force or intimidation must be virtually
contemporaneous with the taking”); People v. Kennedy (Ill.App.Ct. 1973) 294
N.E.2d 788, 790] (“while the taking may be without force, the offense is robbery
if the departure with the property is accomplished by the use of force”).
12
asportation phase of the taking. (Anderson, supra, 64 Cal.2d at p. 638; Estes,
supra, 147 Cal.App.3d at p. 28.) By the same logic, the immediate presence
element can be satisfied at any point during the taking. No legislative amendment
to section 211 is necessary to support this conclusion.
People v. Nguyen (2000) 24 Cal.4th 756 (Nguyen), on which defendant
relies, is not to the contrary. In Nguyen, four codefendants brandishing guns
entered a business while employees were celebrating a birthday in the lunchroom.
The husband of one employee attended the celebration as a visitor to the business.
The defendants took computer equipment belonging to the business, along with
money and identification from the employees. At trial, the visitor did not testify.
Defendants challenged their convictions for robbing the visitor, arguing there was
insufficient evidence that any property had been taken from him. The Court of
Appeal affirmed, holding that a person need not have been in possession of the
property taken to be the victim of a robbery. It concluded that taking the business
computers from the presence of the visitor was sufficient to establish a robbery of
him. (Id. at pp. 758-759.)
We reversed the judgment of the Court of Appeal to the extent it affirmed
convictions for robbery of the visitor. We stated that despite section 211’s express
language requiring that property be taken “from the possession of another,” “the
Court of Appeal [erroneously] concluded that defendant could be convicted of
robbing [the visitor] based upon the taking of property from the business, whether
or not [the visitor] had a possessory interest over the merchandise taken from the
business.” (Nguyen, supra, 24 Cal.4th at pp. 759-760.)
In
Nguyen, we observed that section 222.1 of the Model Penal Code avoids
the problem of possessory interest “by defining robbery to include the use of force
or fear against any person during the commission of a theft.” (Nguyen, supra, 24
13
Cal.4th at p. 763.)8 We emphasized that the language of California’s section 211
is different: “Section 211 reflects, instead, the traditional approach that limits
victims of robbery to those persons in either actual or constructive possession of
the property taken. We take no position on which of these differing approaches is
preferable. Our Legislature has adopted the traditional approach, as reflected in
the language of section 211. It is up to the Legislature to implement any change
that may be desirable.” (Nguyen, at p. 764.) Accordingly we declined to extend
the definition of robbery to include a forceful taking from the presence of a
person, like the visitor, who had no possessory interest in the property taken.
Here, by concluding that the “immediate presence” element of robbery may
be satisfied during the asportation phase, even when the victim is not present at the
time the defendant gains possession of the property, we do not extend the statutory
language. Decades of case law have made clear that robbery in California is a
continuing offense, the “taking” comprising asportation as well as caption.
Defendant nevertheless contends that this interpretation of section 211
conflicts with the following passage in Cooper: “In determining the duration of
the asportation, we reject the argument that commission of the robbery necessarily
ends once the loot is removed from the ‘immediate presence’ of the victim.
Although the ‘immediate presence’ language comes directly from section 211, this
language does not pertain to the duration of robbery. Section 211 defines robbery
as ‘the felonious taking of personal property in the possession of another, from his
person or immediate presence . . . .’ (Italics added.) Taking from the ‘person’ and
8
Section 222.1 of the Model Penal Code provides: “(1) . . . A person is
guilty of robbery if, in the course of committing a theft, he: [¶] (a) inflicts serious
bodily injury upon another; or [¶] (b) threatens another with or purposely puts him
in fear of immediate serious bodily injury; or [¶] (c) commits or threatens
immediately to commit any felony of the first or second degree. [¶] An act shall be
deemed ‘in the course of committing a theft’ if it occurs in an attempt to commit
theft or in flight after the attempt or commission.”
14
from the ‘immediate presence’ are alternatives. These terms are spatially, rather
than temporally, descriptive. They refer to the area from which the property is
taken, not how far it is taken. [Citations.] Put another way, these limitations on
the scope of the robbery statute relate to the ‘gaining possession’ component of the
taking as distinct from the ‘carrying away’ component.” (Cooper, supra, 53
Cal.3d at p. 1166.)
According to defendant, Cooper demonstrates that the “immediate
presence” element of robbery relates only to the space from which the perpetrator
initially gains possession of the victim’s property. Defendant reads this passage
too broadly. Its final sentence is simply a restatement of the preceding sentence,
about which, under the facts of Cooper, there is no dispute. Cooper does not
purport to limit the time during which the property must be in the victim’s
presence. That requirement may be satisfied, as in Cooper, at the moment of
caption. It may also be satisfied, as in Estes, supra, 147 Cal.App.3d 23, during
asportation.
Finally, defendant relies on Hayes, supra, 52 Cal.3d 577, to argue that
permitting the “immediate presence” element to be satisfied during the asportation
phase renders the element devoid of meaning and redundant of the “force or fear”
element. Hayes does not support this proposition. Hayes killed the manager of a
residential hotel in one of the guest rooms and left him there, bound with coat
hangers. He then went to the manager’s office and living quarters, located 107
feet away, and ransacked them, taking several cartons of cigarettes and some cash.
We reversed the robbery conviction and special circumstances finding because the
jury was misinstructed. During deliberations the jury had asked for clarification of
the meaning of “immediate presence” as used in the robbery instruction. In
response, the court gave a special instruction: “ ‘An act of robbery can be said to
have occurred in the victim’s immediate presence as long as the victim perceived
15
any overt act connected with the commission of the offense.’ ” (Id. at pp. 627-
628, italics added.)
This instruction was erroneous because it “permitted the jury to find the
‘immediate presence’ element of robbery if any of the acts mentioned in the
general definition of robbery occurred in the victim’s presence.” (Hayes, supra,
52 Cal.3d at p. 628.) While the distance of 107 feet from the victim’s bound body
may or may not have been found by the jury to have been sufficiently within the
victim’s immediate presence, the jury was relieved of making such a finding
because the special instruction allowed them to conclude that the “overt act” of
assault was all that was necessary to support the robbery count. Under the
particular facts of Hayes, we concluded: “The special instruction thus rendered
the ‘immediate presence’ element devoid of all independent meaning, making it
redundant with the ‘force or fear’ element.” (Id. at p. 628.) Hayes makes clear, as
we affirm here, that “force or fear” and “immediate presence” are separate
elements, both of which must be established to prove a robbery. Hayes does not
stand for the proposition that the immediate presence element may not be satisfied
during asportation. A victim who tries to stop a thief from getting away with his
property is in the presence of the property.9
9
Even viewed more broadly, defendant’s argument is without merit. Our
holding today does not render the “immediate presence” element duplicative of the
“force or fear” requirement. There are circumstances in which a victim could be
placed in fear or subjected to force while his property is stolen from a location
beyond his immediate presence. In Hayes, for example, we described a scenario
in which culprits enter the victim’s home and compel him to reveal the
combination of a safe located in his office miles away. The culprits then convey
the combination to a confederate in the office who opens the safe while the victim
remains at a distant location. (Hayes, supra, 52 Cal.3d at p. 627.) Conversely, a
thief could certainly seize property from the victim’s immediate presence and
carry it away without ever resorting to force or fear. Thus, our holding today does
not run afoul of the rule that “interpretations that render statutory terms
(Footnote continued on next page.)
16
Our holding that the crime of robbery occurs when property is forcefully
retained in the victim’s presence, even when the victim was not present at its
initial caption, is completely consistent with the Legislature’s decision to treat
robbery as an aggravated larceny. Although classified in the Penal Code as a
crime against the person, robbery is actually a crime against both the person and
property. (People v. Tufunga, supra, 21 Cal.4th at p. 948.) “Robbery violates the
social interest in the safety and security of the person as well as the social interest
in the protection of property rights.” (Perkins, supra, at p. 350.) Both interests are
implicated when a victim attempts to regain property from a perpetrator who is
carrying it away, even if the victim was absent at the time of the initial theft.
Defendant argues that “the law does not encourage vigilantism and citizens
are ill equipped to engage in law enforcement.” Neither does the law encourage
theft, or require that a citizen sit meekly by while a violent felon makes off with
the victim’s property. “When the perpetrator and victim remain in close
proximity, a reasonable assumption is that, if not prevented from doing so, the
victim will attempt to reclaim his or her property.” (People v. Flynn, supra, 77
Cal.App.4th at p. 772.) We reject any effort by defendant to shift the blame to the
victim. It is the conduct of the perpetrator who resorts to violence to further his
theft, and not the decision of the victim to confront the perpetrator, that should be
analyzed in considering whether a robbery has occurred. As we observed in
People v. Ramos (1982) 30 Cal.3d 553, 589, “the central element of the crime of
robbery [is] the force or fear applied to the individual victim in order to deprive
him of his property.” That deprivation of property occurs whether a perpetrator
(Footnote continued from previous page.)
meaningless as surplusage are to be avoided.” (People v. Hudson (2006) 38
Cal.4th 1002, 1010.)
17
relies on force or fear to gain possession or to maintain possession against a victim
who encounters him for the first time as he carries away the loot.
D. Sufficiency of the Evidence of Robbery
Here, there is sufficient evidence from which the jury could find that
defendant used force to retain the stolen money that was in Baltazar’s immediate
presence when the force was used. In resolving sufficiency of the evidence
claims, “an appellate court reviews the entire record in the light most favorable to
the prosecution to determine whether it contains evidence that is reasonable,
credible, and of solid value, from which a rational trier of fact could find the
defendant guilty beyond a reasonable doubt.” (People v. Kipp (2001) 26 Cal.4th
1100, 1128.)
The evidence supports the jury’s determination that defendant used force to
retain the property, and sufficiently satisfies the immediate presence element.
While Baltazar did not confront defendant inside the restaurant, he followed in his
truck after defendant left carrying the money in his backpack. When defendant
realized he was being followed, he fired two shots at Baltazar from a distance of
100 to 150 feet. As the Court of Appeal stated, “[I]f not overcome by
[defendant’s] resistance, Baltazar could have caught up to him . . . . The only
reason this didn’t happen is that [defendant]—and his pistol—didn’t let it.
[Defendant] should not be rewarded for taking violent actions that prevented
Baltazar from getting any closer to him. It would certainly be anomalous to say a
robbery occurs if you allow the victim to catch up with you and then hit him, but
not if you keep him away by shooting at him.”
In
Hayes, supra, 52 Cal.3d 577, the room in which the victim was killed
was 107 feet from the location of the stolen property. We observed that a
reasonable trier of fact, properly instructed, could conclude the immediate
presence element was met. (Id. at pp. 628-629.) In People v. Webster (1991) 54
Cal.3d 411, we concluded that a reasonable trier of fact could find the immediate
18
presence requirement satisfied when the distance between the stolen property and
the murder scene was a quarter of a mile. (Id. at p. 440.) The parties’ distance
from each other at the time of this shooting was not so great as to preclude
defendant’s conviction for robbery.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
CORRIGAN,
J.
WE CONCUR:
GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
19
CONCURRING OPINION BY KENNARD, J.
I concur fully in the majority opinion. I write separately to reiterate my
continuing disagreement with the holding of People v. Cooper (1991) 53 Cal.3d
1158 (Cooper), a decision cited and discussed by the majority, and to explain how
the issue presented here differs from the issue decided in Cooper.
Cooper addressed the scope of accomplice liability for the crime of robbery
and, more specifically, the “late joiner” problem. There, defendant Cooper drove
his two codefendants to a shopping center parking lot. (Cooper, supra, 53 Cal.3d
at p. 1161.) The codefendants ran across the parking lot, knocked down an 89-
year-old shopper, stole his wallet, and returned to Cooper’s car. (Ibid.) Cooper
“hurriedly drove away.” (Ibid.) At Cooper’s ensuing trial, the prosecution
presented evidence supporting an inference that Cooper had participated in the
planning of the robbery and had agreed in advance to act as the “getaway” driver.
(Id. at p. 1179 (dis. opn. of Kennard, J.).) During argument to the jury, however,
the prosecutor said that defendant was guilty of robbery if he knowingly helped
his codefendants escape with the victim’s property, regardless of whether
defendant knew beforehand that his codefendants were planning a robbery. (Id. at
p. 1178 (dis. opn. of Kennard, J.).) The trial court’s instructions reinforced the
prosecutor’s argument. (Id. at pp. 1162-1163.) The jury convicted defendant, and
he appealed. (Id. at p. 1163.) The Court of Appeal reversed the conviction, and
this court granted review. (Ibid.)
1
The majority in Cooper concluded that defendant had been properly
convicted because “a getaway driver who has no prior knowledge of a robbery,
but who forms the intent to aid in carrying away the loot during [its] asportation,
may properly be found liable as an aider and abettor of the robbery.” (Cooper,
supra, 53 Cal.3d at p. 1161.) Disagreeing with that holding, I pointed out that it
“finds no support either in the statutory language or in the previous decisions of
this court,” that it “is inconsistent with the rule that a person who aids an escaping
felon is an accessory after the fact” rather than a principal, and that it would “lead
to absurd results because criminal liability will bear little or no relationship to the
culpability of the offender.” (Id. at p. 1178 (dis. opn. of Kennard, J.).) My views
on that issue have not changed.
Here, however, the issue is not accomplice liability but the definition of
robbery. More specifically, the issue is whether a robbery has been committed
when, after wrongfully taking another’s property, before reaching a place of
temporary safety, and while in the immediate presence of a person legally entitled
to possession of that property, the thief uses force against that person. The
majority’s decision that the described offense is robbery is properly grounded in
the statutory definition of robbery and in the prior decisions of this court and the
Courts of Appeal, and the holding here will produce results that are rationally
related to the offender’s culpability. Accordingly, I concur.
KENNARD,
J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court. Name of Opinion People v. Gomez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 134 Cal.App.4th 1241
Rehearing Granted
__________________________________________________________________________________
Opinion No.
S140612Date Filed: April 10, 2008
__________________________________________________________________________________
Court:
SuperiorCounty: Orange
Judge: Richard W. Stanford, Jr.
__________________________________________________________________________________
Attorneys for Appellant:
Michael Bacall, under appointment by the Supreme Court, for Defendant and Appellant.__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Mary Jo Graves andDane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Steve
Oetting and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Michael Bacall4655 Cass street, Suite 300
San Diego, CA 92109
(858) 274-8318
Lise S. Jacobson
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2293
Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. This case presents the following issue: Can a defendant be convicted of robbery for using force or fear in the victim's immediate presence while carrying away stolen property, or does such a conviction require that the defendant use force or fear in the victim's immediate presence while taking the property or preventing the victim from regaining it?
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 04/10/2008 | 43 Cal. 4th 249, 179 P.3d 917, 74 Cal. Rptr. 3d 123 | S140612 | Review - Criminal Appeal | closed; remittitur issued | PEOPLE v. JOHNSON (S146207) |
| 1 | Gomez, Alfonso (Defendant and Appellant) Calipatria State Prison P. O. Box 5001 Calipatria, CA 92233 Represented by Michael Bacall Attorney at Law 4655 Cass Street, Suite 300 San Diego, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Lise Simons Jacobson Office of the Attorney General P.O. Box 85266 111 West "A" Street, Suite 1100 San Diego, CA |
| 3 | The People (Plaintiff and Respondent) Represented by Gary W. Schons Office of the Attorney General P.O. Box 85266 111 West "A" Street, Suite 1100 San Diego, CA |
| Disposition | |
| Apr 10 2008 | Opinion: Affirmed |
| Dockets | |
| Jan 23 2006 | Petition for review filed Alfonso Gomez, appellant. Michael Bacall, CA-appointed (ADI) (Filed in San Diego) |
| Jan 24 2006 | Record requested |
| Jan 26 2006 | Received Court of Appeal record file jacket/briefs/transcripts |
| Mar 22 2006 | Petition for review granted (criminal case) George, C.J., was absent and did not participate. Votes: Moreno, ACJ., Kennard, Baxter, Werdegar, Chin and Corrigan, JJ. |
| Apr 5 2006 | Received: Letter from Jennifer A. Jadovitz, Deputy Attorney General, dated 4-5-2006, is currently assigned the case. |
| Apr 19 2006 | Counsel appointment order filed Upon request of appellant for appointment of counsel, Michael Bacall is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served and filed on or before thirty (30) days from the date of this order. |
| May 18 2006 | Request for extension of time filed to June 18,2006 for appellant to file the opening brief on the merits. |
| May 22 2006 | Extension of time granted to June 18, 2006 to file appellant's opening brief on the merits. |
| Jun 16 2006 | Request for extension of time filed to July 18, 2006, to file appellant's opening brief on the merits. |
| Jun 22 2006 | Extension of time granted On application of appellant and good cause appeaering, it is ordered that the time to serve and file Appellant's Opening Brief on the Merits is extended to and including July 18, 2006. |
| Jul 18 2006 | Request for extension of time filed to August 18, 2006 to file Appellant's Opening Brief on the Merits. [ Third Request ] |
| Jul 24 2006 | Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file Appellant's Opening Brief on the Merits is extended to and including August 18, 2006. |
| Aug 14 2006 | Request for extension of time filed to September 18, 2006, to file Appellant's Opening Brief on the Merits |
| Aug 17 2006 | Order filed Appellant's application for an extension of time to September 18, 2006, to file Appellant's Opening Brief on the Merits is DENIED. |
| Aug 18 2006 | Filed: Appellant's motion for reconsideration of application for extension of time to September 19, 2006. |
| Aug 22 2006 | Extension of time granted On application of appellant for reconsideration of application for an extension of time, the time to file Appellant's Opening Brief on the Merits is hereby granted ONLY to September 5, 2006. |
| Sep 5 2006 | Opening brief on the merits filed Alfonso Gomez, defendant and appellant by Michael Bacall, Supreme Court appointed counsel. (Filed in San Diego) |
| Sep 29 2006 | Request for extension of time filed to and including November 4, 2006, to file Respondent People's Answer Brief on the Merits |
| Oct 5 2006 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including November 4, 2006. |
| Oct 27 2006 | Request for extension of time filed by respondent requesting a 30-day extension to and including December 4, 2006, to file respondent's answer brief on the merits. |
| Nov 8 2006 | Extension of time granted On appilcatioin of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is hereby extended to and including December 4, 2006. |
| Nov 21 2006 | Request for extension of time filed for respondent to file the answer brief on the merits, to 1-3-07. |
| Dec 8 2006 | Extension of time granted On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including January 3, 2007. |
| Dec 20 2006 | Answer brief on the merits filed The People, plaintiff and respondent, by Lise S. Jacobson, Deputy Attorney General - San Diego (Filed in San Diego) |
| Jan 8 2007 | Received: Oversized (5,191 words) appellant's reply brief on the meirts over the 4200-word limit. CRC 8.520(c) |
| Jan 17 2007 | Reply brief filed (case fully briefed) On application of appellant for permission to file reply brief on the merits containing 5191 words, that exceeds the 4200-word limit prescribed by California Rules of Court rule 8.520(c) by 991 words is hereby granted. |
| Jan 17 2007 | Reply brief filed (case fully briefed) Alfonso Gomez, defendant and appellant by Michael Bacall, Supreme Court appointed counsel |
| Jan 3 2008 | Case ordered on calendar to be argued on Wednesday, February 6, 2008, at 1:30 p.m., in Sacramento |
| Jan 25 2008 | Supplemental brief filed Respondent People's by Lise J. Jacobson, Deputy Attorney General - San Diego (Filed in San Diego) |
| Feb 6 2008 | Cause argued and submitted |
| Apr 9 2008 | Notice of forthcoming opinion posted |
| Apr 10 2008 | Opinion filed: Judgment affirmed in full Judgment of the Court of Appeal. Opinion by Corrigan, J. -- Joined by George, C.J., Baxter, Werdegar, Chin, Moreno, JJ. Concurring Opinion by Kennard, J. |
| May 12 2008 | Remittitur issued (criminal case) |
| May 14 2008 | Compensation awarded counsel Atty Bacall |
| May 19 2008 | Received: Acknowledgment of receipt for remittitur, signed for by Bonnie LeSage, Deputy Clerk, Fourth Appellate District, Division Three. |
| Briefs | |
| Sep 5 2006 | Opening brief on the merits filed |
| Dec 20 2006 | Answer brief on the merits filed |
| Jan 17 2007 | Reply brief filed (case fully briefed) |
| Jan 17 2007 | Reply brief filed (case fully briefed) |
