Supreme Court of California Justia
Citation 45 Cal. 4th 743, 200 P.3d 837, 89 Cal. Rptr. 3d 213

People v. Scott

Filed 2/19/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE
Plaintiff and Respondent,
S136498
v.
Ct.App. 3 C044964
)
ANDRE RENE SCOTT et al.,
Sacramento County
Super. Ct. No. 01F03583
Defendants and Appellants.

We granted review to resolve a conflict in the Courts of Appeal concerning
whether, for purposes of the offense of robbery, all employees have constructive
possession of the employer’s property while on duty and thus may be separate
victims of a robbery of the employer’s business, assuming the other elements of
robbery are met as to each employee. In the present case, the Court of Appeal
concluded the trial court did not err in informing the jury, in response to its
question, that all employees on duty during a robbery have constructive possession
of their employer’s property, a conclusion in accord with the holding in People v.
Jones (2000) 82 Cal.App.4th 485 (Jones). This decision of the Court of Appeal
conflicts with People v. Frazer (2003) 106 Cal.App.4th 1105, 1115 (Frazer),
which requires the jury to examine all of the circumstances in order to determine
whether each “employee has sufficient representative capacity with respect to the
owner of the property, so as to have express or implied authority over the
1


property.” We agree with the Court of Appeal below that Jones correctly states
the law and, accordingly, we disapprove Frazer.
I.
Defendants Andre Rene Scott and Maurice Kenney were charged with three
counts of robbery based on a single incident, the early morning robbery of a
McDonald’s restaurant in Sacramento. (Pen. Code, § 211.) 1 An enhancement for
personal use of a firearm was alleged as to each robbery count, and each defendant
also was charged with being a felon in possession of a firearm. (§§ 12022.53,
subd. (b), 12021, subd. (a).) Defendant Kenney was charged with having one
prior conviction and defendant Scott with having two prior convictions. (§§ 667,
subds. (b)-(i), 1170.12.)
The three alleged victims were employees on duty at the restaurant that
morning — Jinel Guillebeau, Diana Salazar, and Serena Wong. Evidence
presented at trial established that defendants Scott and Kenney were two of the
three men who participated in the robbery.2 The three men entered the restaurant
at approximately 6:15 a.m., shortly after it opened. Each wore dark clothing and
ski masks; one had a gun, and another had a rifle.
Ms. Guillebeau was working at the restaurant’s drive-through window.
When she saw two masked men, one with a gun, she immediately hid under the
grill and remained there for the duration of the robbery. Ms. Salazar was working
in the kitchen area, preparing food, when she saw the men. She observed that one

1
All statutory references are to the Penal Code unless otherwise indicated.

2
A third defendant also was charged in connection with the robberies, but
the jury was unable to reach a verdict on the charges against him.

2


of the men stood in front of the counter, holding a rifle. She hid under a table and
remained there for the duration of the episode.
Ms. Wong, the manager, was working at the drive-through window. She
heard Ms. Guillebeau scream, turned around, and saw a man holding a handgun.
This individual directed Wong to the back of the store toward the safe. She
brought him to the office and opened the safe using the combination, which she
had memorized. She placed money in a bag, along with an electronic tracking
device that she had been trained to place with the money in case of a robbery.
Later, through the activation of the tracking device, the police located both
defendants at an apartment building where defendant Scott resided.
Ms. Wong was the only employee working at the restaurant during the
robbery who had access to the safe. As the shift manager, she was responsible for
directing the work of others, taking care of any customer complaints, and
generally overseeing the operation of the restaurant. Ms. Guillebeau’s
responsibilities included taking customers’ orders, presenting food to customers,
and working one of the cash registers. Ms. Salazar’s duties involved food
preparation. She did not handle money or work at a cash register.
During closing arguments, counsel for defendant Kenney argued that Ms.
Guillebeau was not a victim of the robbery, because she did not have constructive
possession of the money stolen. Counsel argued that unlike Ms. Wong, who was
responsible for everything in the restaurant, Ms. Guillebeau did not have access to
the safe. The district attorney objected to that argument. At a sidebar conference,
the court directed defense counsel to discontinue this line of argument. Thereafter,
defense counsel concluded this portion of his argument by simply telling the jury
that it would have to decide whether Ms. Guillebeau or Ms. Salazar had
constructive possession of the property in the safe. In rebuttal, the district attorney
argued that all three of the alleged victims were in constructive possession of the
3
property because at the time of the robbery they were engaged in performing the
responsibilities of their employment.
The jury was instructed that the crime of robbery requires, among other
things, proof that a person “had possession of property of some value” and that the
property was taken against the will of the person by force or fear. (See
CALJIC No. 9.40.) The jury also was instructed that “[t]here are two kinds of
possession: actual possession and constructive possession. Actual possession
requires that a person knowingly exercise direct physical control over a thing.
Constructive possession does not require actual possession but does require that a
person knowingly exercise control over or the right to control a thing, either
directly or through another person. One person may have possession alone, or two
or more persons together may share actual or constructive possession.” (See
CALJIC No. 1.24)
On the second day of deliberations, the jury returned a partial verdict,
finding defendants Scott and Kenney guilty of the robbery of Ms. Wong.3 After
the jurors resumed deliberations on the remaining charges, they sent a note to the
judge, asking for clarification of CALJIC No. 1.24; specifically, they inquired
whether all employees have constructive possession of the company’s property
while on duty.
During a discussion with counsel concerning how the trial court should
respond to the jury’s question, the court observed that two recent appellate
decisions were in conflict on this issue. The trial court noted that Jones, supra, 82

3
The jury also found true the allegation that both defendants personally had
used a firearm during the robbery (§ 12022.53, subd. (b)), and found each guilty of
being a felon in possession of a firearm (§ 12021, subd. (a)(1)).

4


Cal.App.4th 485, 490-491, stands for the proposition that all employees on duty
during the robbery of a business establishment constructively possess the business
owner’s property. The trial court believed Jones was better reasoned than Frazer,
supra, 106 Cal.App.4th 1105, 1115, which requires a fact-based inquiry into the
express or implied authority of each employee. Over objections from defense
counsel, the trial court answered the jury’s question in accordance with Jones:
“The employees of a business constructively possess the business owner’s
property during a robbery.” Shortly thereafter, the jury found defendants Scott
and Kenney guilty on the remaining robbery charges. In a bifurcated hearing, the
jury also found true the allegations of defendants’ prior felony convictions,
making the defendants eligible for sentencing under the Three Strikes law. (§§
667, subds. (b)-(i), 1170.12.) Defendant Scott was sentenced to a term of 116
years eight months to life, and defendant Kenney was sentenced to a term of 30
years eight months. In an unpublished decision, the Court of Appeal affirmed the
judgment rendered by the trial court and held that the trial court properly
instructed the jury based upon the decision in Jones. We granted review to resolve
the conflict between Jones and Frazer.
II.
Robbery is defined in section 211 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 a crime of
violence committed against a person. (People v. Ramos (1982) 30 Cal.3d 553, 589
(Ramos).) Robbery of a particular person has not occurred unless property was
taken from the person’s immediate presence and the defendant used force or fear
to take the property or to prevent the person from resisting. (See CALCRIM
No. 1600.)
5
A person from whose immediate presence property was taken by force or
fear is not a robbery victim unless, additionally, he or she was in some sense in
possession of the property. “It has been settled law for nearly a century that an
essential element of the crime of robbery is that property be taken from the
possession of the victim.” (People v. Nguyen (2000) 24 Cal.4th 756, 762
(Nguyen).) We affirmed the continuing validity of that principle in Nguyen,
overruling an appellate court decision, People v. Mai (1994) 22 Cal.App.4th 117,
that had dispensed entirely with the requirement of possession. In Nguyen, we
concluded that the trial court erred in instructing the jury that a visitor to the
premises of a business where a robbery occurred could be the victim of the
robbery based upon the taking of the business’s property, even though the visitor
did not “ ‘own, possess, [have] control of or even have the right to possess or
control the property sought by the perpetrator.’ ” (Nguyen, supra, 24 Cal.4th at
p. 765.)
A person who owns property or who exercises direct physical control over
it has possession of it, but neither ownership nor physical possession is required to
establish the element of possession for the purposes of the robbery statute.
(Nguyen, supra, 24 Cal.4th at p. 762; People v. Miller (1977) 18 Cal.3d 873, 880
(Miller).) “[T]he theory of constructive possession has been used to expand the
concept of possession to include employees and others as robbery victims.”
(Nguyen, supra, 24 Cal.4th at p. 762.) Two or more persons may be in joint
constructive possession of a single item of personal property, and multiple
convictions of robbery are proper if force or fear is applied to multiple victims in
joint possession of the property taken. (Ramos, supra, 30 Cal.3d at p. 589.)4

4
Ramos overruled an older line of cases, including People v. Guerin (1972)
22 Cal.App.3d 775, which held that the forcible taking of a single item from

(footnote continued on next page)
6


As the jury was instructed in the present case, a person who has the right to
control property has constructive possession of it. (CALJIC No. 1.24; see also
CALCRIM No. 1600 [person possesses property “if the person has (control over
it/[or] has the right to control it)”].)5 For constructive possession, courts have
required that the alleged victim of a robbery have a “special relationship” with the
owner of the property such that the victim had authority or responsibility to protect
the stolen property on behalf of the owner. (E.g., Sykes v. Superior Court (1994)
30 Cal.App.4th 479 (Sykes); People v. Galoia (1994) 31 Cal.App.4th 595
(Galoia).) In Sykes, supra, 30 Cal.App.4th 479, the defendant burglarized a music
store and removed a saxophone from the premises. (Id., at pp. 480-481.) A
security guard from a neighboring business managed to retrieve the musical
instrument by chasing after the defendant. (Ibid.) The defendant was charged
with robbing the security guard. The appellate court, reversing the trial court’s
denial of the defendant’s motion to dismiss the robbery charge, rejected the
argument that the guard was in constructive possession of the saxophone.
“Constructive possession depends upon a special relationship with the owner of
the property, not upon the motives of a person seeking to recover possession from

(footnote continued from previous page)
multiple victims could result in only a single conviction of robbery. (Ramos,
supra
, 30 Cal.3d at p. 589.)

5
Both the CALJIC instruction given in this case and the current CALCRIM
instruction concerning robbery define constructive possession generally in terms
of control, but the CALCRIM version also includes a specific instruction
pertaining to constructive possession by employees. The latter instruction is
consistent with Frazer, supra, 106 Cal.App.4th 1105, and states: “If the facts
show that the employee was a representative of the owner of the property and the
employee expressly or implicitly had authority over the property, then that
employee may be robbed if property of the store or business is taken by force or
fear.” (CALCRIM No. 1600 [optional punctuation omitted].)
7


a thief or burglar.” (Id., at p. 484.) The security guard employed by a neighboring
business could not be a victim of robbery, because he was not an employee of the
owner, never actually possessed the saxophone, and had no special obligation to
protect the stolen property on behalf of the owner. (Ibid.) Rather, the security
guard’s relationship to the music store owner “was that of a neighbor and good
citizen seeking to catch a criminal.” (Ibid.) “[G]ood motives alone cannot
substitute for the special relationship needed to create a possessory interest in the
goods.” (Galoia, supra, 31 Cal.App.4th. at p. 599.)
We have recognized that, based upon a theory of constructive possession,
“ ‘a store employee may be the victim of a robbery even though he is not its owner
and not at the moment in immediate control of the stolen property.’ ” (Miller,
supra, 18 Cal.3d at p. 880, quoting People v. Johnson (1974) 38 Cal.App.3d 1, 9.)
“Robbery convictions have been upheld against contentions that janitors and night
watchmen did not have a sufficient possessory interest in their employer’s
personal property to qualify as victims.” (Miller, supra, 18 Cal.3d at p. 880, citing
People v. Downs (1952) 114 Cal.App.2d 758, 765-766 (Downs); People v. Dean
(1924) 66 Cal.App. 602, 607 (Dean).) In Miller, the defendant held up a jewelry
store and shot the store’s security guard twice. Thereafter, the defendant and an
accomplice threatened two other employees with a gun and took jewelry from
several display cases. We stated that the security guard, as well as the other
employees, had “constructive possession of the property taken and could properly
have been alleged to be a victim.” (Miller, supra, at pp. 877-879, 881.)6

6
See also People v. Estes (1983) 147 Cal.App.3d 23, 27 (security guard,
“[a]s the agent of the owner and a person directly responsible for the security of
the items, . . . was in constructive possession of the merchandise to the same
degree as a salesperson”).

8


Although we have recognized instances in which a victim’s status as an
employee may establish the element of possession, our cases have not addressed
the question whether each employee subjected to force during a robbery is in
constructive possession of the owner’s property solely by virtue of his or her status
as an employee. As noted above, in responding to the jury’s inquiry the trial court
relied upon Jones, which concluded that “business employees — whatever their
function — have sufficient representative capacity to their employer so as to be in
possession of property stolen from the business owner.” (Jones, supra, 82
Cal.App.4th at p. 491.)
In support of the argument that constructive possession analysis depends
upon the particular responsibilities of the employee in question, defendants rely
upon Frazer, supra, 106 Cal.App.4th 1105. Addressing a claim that the evidence
was insufficient to establish that the nonmanagerial employees constructively
possessed property taken during the robberies of two stores, the appellate court in
Frazer concluded that a fact-based inquiry must determine “whether the
circumstances indicate the employee has sufficient representative capacity with
respect to the owner of the property, so as to have express or implied authority
over the property.” (Id., at p. 1115.) Under this “standard, employee status does
not alone as a matter of law establish constructive possession. Rather, the record
must show indicia of express or implied authority under the particular
circumstances of the case.” (Ibid.) To illustrate application of this standard, the
court in Frazer suggested that, for example, a janitor might have such implied
authority only if no employees with express authority over the property were
present. On the other hand, a security guard might be deemed to have such
9
implied authority, even if other employees with express authority over the
property were present, because the guard is charged with protecting the premises.7
We conclude that the trial court’s response to the jury, based upon the legal
principle set out in Jones, supra, 82 Cal.App.4th 485, was correct. Jones is
supported by a long line of California cases that have found evidence sufficient to
establish that employees working at a business premises were in constructive
possession of the employer’s property during a robbery, based upon their status as
employees and without examining whether their particular duties involved access
to or control over the property stolen. Although some of these cases may stop
short of declaring an unequivocal rule, they support the proposition, stated
explicitly in Jones, that “California follows the long-standing rule that the
employees of a business constructively possess the business owner’s property
during a robbery. . . . ” (Id. at p. 490.)
For example, in an early case, Dean, supra, 66 Cal.App. 602, the defendant
and his accomplices broke into a theater safe and took the money inside. In the
course of this incident, they tied up two employees who worked on the premises
both as janitors and watchmen. (Id., at pp. 604-605.) Rejecting the defendant’s
argument that there was insufficient proof that the two workers were in possession
of the theater’s cash, the court stated that “[w]hile these men did not own the

7
Applying that standard, the court in Frazer found the evidence sufficient to
support the defendant’s convictions for the robberies of the nonmanagerial
employees. Although those employees did not have access to a safe containing
money, they did have access to cash registers and products. The decision in
Frazer concluded that “the entire retail team could reasonably be viewed as having
implied authority over whatever property was necessary to handle the sales,
including the money in the safe through the manager.” (Frazer, supra, 106
Cal.App.4th at p. 1119.)

10


money, nor even [know] the amount in the safe, yet they were rightfully in
possession of the theater and its contents at the time of the robbery and were
entitled to this possession as against the defendant.” (Id., at p. 607.)
Similarly, in Downs, supra, 114 Cal.App.2d 758, 760, the Court of Appeal
upheld convictions for the robbery of two janitors. The defendant entered a
telephone company building and took money from a safe. When two janitors
employed by the company entered the room, the robbers forced them to lie on the
floor and bound them. (Ibid.) The defendant argued on appeal that his robbery
convictions should be overturned, because the janitors did not possess the money
in the safe. (Id., at p. 765.) After citing Dean, supra, 66 Cal.App. 602, and
several cases from other jurisdictions, the Court of Appeal concluded it was “no
undue extension of the robbery statute to hold it applicable to any servant or
servants left in sole occupation of the premises or particular part thereof by the
employer.” (Downs, 114 Cal.App.2d at p. 766, citing Brooks v. People (1872) 49
N.Y. 436 [11-year-old girl left alone in her parent’s apartment had sufficient
possession of their property to support robbery conviction], Reese v. State (Tex.
Crim. App. 1922) 239 S.W. 619 [upholding conviction for robbery of a night clerk
and a telegraph operator at a railway station, even though they did not have access
to the safe from which money was taken], and State v. Adams (Kan. 1897) 49
P. 81 [“As against the robber, a servant has the same rights, and rests under the
same duty, to preserve and defend his possession of the property, that the owner
has”].)
A similar result was reached in People v. Arline (1970) 13 Cal.App.3d 200
(disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834), in
which the defendant threatened two service station attendants with a gun and
forced them to relinquish money from a cash box. (Arline, supra, 13 Cal.App.3d
at p. 202.) The defendant argued he was not properly charged with the robbery of
11
one of the attendants, because only the other one had the key to the cash box at the
time of the robbery. (Ibid.) The appellate court concluded that because both were
“employees of the station, and both were threatened by the robbers,” both
attendants were in constructive possession of the property taken. (Ibid.) “It is
established that an attendant or employee may be the victim of a robbery even
though he is not in charge or in immediate control of the items stolen at the
moment.” (Ibid., citing Downs, supra, 114 Cal.App.2d 758; see also People v.
Masters (1982) 134 Cal.App.3d 509, 519 [citing Downs, at p. 766, in support of
the conclusion that a cook and a waitress both were in constructive possession of
the owner’s property during the robbery of a restaurant]; People v. Jones (1996)
42 Cal.App.4th 1047, 1054 [“employees such as the store truck driver . . . have
sufficient representative capacity with respect to the owner of the property to be
the victim of robbery”].)
The conclusion that employees have constructive possession of their
employer’s property when they are present during a robbery is consistent not only
with this long line of cases addressing constructive possession by employee
victims, but also with cases addressing constructive possession by nonemployees.
As discussed above, those cases require only that there be some type of “special
relationship” with the owner of the property sufficient to demonstrate that the
victim had authority or responsibility to protect the stolen property on behalf of
the owner. (E.g., Galoia, supra, 31 Cal.App.4th 595; Sykes, supra, 30
Cal.App.4th 479; People v. Gordon (1982) 136 Cal.App.3d 519.) These cases do
not require that the victim have general authority to control the owner’s property
in other circumstances. For example, in Gordon, supra, 136 Cal.App.3d at
page 529, the defendant pointed a pistol at the two victims in their own house,
entered their adult son’s bedroom, and took the son’s personal property. (Id., at
pp. 523-524.) The Court of Appeal affirmed two robbery convictions, rejecting
12
the defendant’s argument that there was insufficient evidence to establish that the
victims were in possession of their son’s property. Reviewing prior cases in which
various individuals were found to be robbery victims, the court in Gordon stated
that “[i]n these cases, the courts have found the victims were responsible for
protecting and preserving the property taken.” (Id., at p. 529.) Applying that
principle, the court determined that the parents constructively possessed their adult
son’s personal items for the purposes of the robbery statute, because they had the
“responsibility to protect goods belonging to their son who resides with them in
their home.” (Ibid.)
People v. Gilbeaux (2003) 111 Cal.App.4th 515, 523, concluded that
sufficient evidence supported the defendant’s convictions for the robbery of two
janitors who were independent contractors — not employees — of a grocery store
owner. The appellate court held that the janitors were in constructive possession
of the store property because “[t]hey were part of the group of workers in charge
of the premises at the time of the robbery.” (Id., at p. 523.) Although they were
contract workers and had no responsibility for handling the cash, the court found
that the two janitors had a special relationship with the grocery store and thus had
representative capacity with respect to the grocery store sufficient for them to be
in constructive possession of the property stolen. (Ibid.)
Although not every employee has the authority to exercise control over the
employer’s funds or other property during everyday operations of the business,
any employee has, by virtue of his or her employment relationship with the
employer, some implied authority, when on duty, to act on the employer’s behalf
to protect the employer’s property when it is threatened during a robbery.
“[E]mployees are custodians of the property on the business premises for the
benefit of the owner/employer,” (State v. Behrens (Idaho Ct. App. 2003)
61 P.3d 636, 638 [citing with approval Jones, supra, 82 Cal.App.4th 485].) They
13
are “therefore in ‘possession’ of the property as against anyone who might attempt
to steal it.” (State v. Behrens, supra, 61 P.3d at p. 639.) An employee’s authority
to protect the employer’s property is recognized in Civil Code section 50, which
establishes the right to use “necessary force” to protect the “property of oneself, or
of a wife, husband, child, parent, or other relative, or member of one’s family, or
of a ward, servant, master, or guest.” (Italics added.) In other words, the
employee’s relationship with his or her employer constitutes a “special
relationship” sufficient to establish the employee’s constructive possession of the
employer’s property during a robbery.
Furthermore, it is reasonable to infer that the Legislature intended that all
on-duty employees have constructive possession of the employer’s property
during a robbery, because such a rule is consistent with the culpability level of the
offender and the harm done by his or her criminal conduct. As a matter of
common knowledge and experience, those who commit robberies are likely to
regard all employees as potential sources of resistance, and their use of threats and
force against those employees is not likely to turn on fine distinctions regarding a
particular employee’s actual or implied authority. On-duty employees generally
feel an implicit obligation to protect their employer’s property, and their sense of
loss and victimization when force is used against them to obtain the employer’s
property is unlikely to be affected by their particular responsibilities regarding the
property in question.
In reaching a different conclusion, the court in Frazer, supra, 106
Cal.App.4th 1105, cited People v. Guerin (1972) 22 Cal.App.3d 775, 782 (Guerin)
(disapproved on other grounds in Ramos, supra, 30 Cal.3d at p. 589), as
“stand[ing] for the proposition that employee status alone is not enough to give an
employee constructive possession of his employer’s property for purposes of
supporting a separate robbery conviction.” (Frazer, supra, 106 Cal.App.4th at
14
p. 1114.) Guerin is the only published California case that reversed a robbery
conviction on the ground that a particular employee was not shown to have
constructive possession of the employer’s property during the robbery. In Guerin,
supra, 22 Cal.App.3d 775, the defendant was convicted of robbing four employees
of a supermarket — the manager, a liquor clerk in charge of one cash register, a
checker in charge of another register, and a box boy. The court concluded that the
box boy did not have constructive possession of the money in the cash registers,
because there was nothing “to suggest that he had any dominion or control
whatsoever over any money. As to him there was no taking and, thus, no
robbery.” (Id., at p. 782.)
Because Guerin’s analysis is limited to the conclusory statement just
quoted and did not cite or attempt to distinguish prior cases holding that
employees constructively possess their employer’s property, it carries little
persuasive weight. (See also Jones, supra, 82 Cal.App.4th at p. 491 [“Guerin is an
anomaly in light of evolving case authority broadening the permissible range of
robbery victims”]; People v. Jones, supra, 42 Cal.App.4th at p. 1055 [“Guerin is
wrong and even a market box boy has sufficient representative capacity vis-à-vis
the owner so as to be in ‘possession’ of the property stolen from the store
owner”].)
The decision in Frazer, supra, 106 Cal.App.4th 1105, acknowledged the
holdings in cases such as those discussed above, which “found employees
possessed their employer’s property even when the particular employees could not
personally access the stolen property because of their job functions.” (Id., at
p. 1112.) The court in Frazer, however, determined that the approach to
constructive possession should be reevaluated in light of two later developments in
the law regarding robbery. The first development was our decision in Nguyen,
supra, 24 Cal.4th 756, in which we concluded that possession remains an element
15
of the crime of robbery. As observed earlier, in Nguyen, we overruled People v.
Mai, supra, 22 Cal.App.4th 117, which held that a visitor to a business could be a
robbery victim even if he or she was not in possession of the business’s property.
Frazer noted that Mai was one of the cases cited in Jones in support of the latter
opinion’s conclusion that every employee has constructive possession of his or her
employer’s property for purposes of the robbery statute. Nevertheless, our
overruling of Mai does not undermine the holding in Jones. Mai’s conclusion
that, as a matter of law, each employee is in constructive possession of the
employer’s property does not, as Frazer appears to suggest, conflict with our
holding in Nguyen that possession — actual or constructive — remains an element
of the offense of robbery. That conclusion simply signifies that the prosecution
may meet its burden of proving the element of possession by establishing that the
alleged victim, from whose immediate presence the property was taken by force or
fear, was an employee of the property owner and was on duty when the robbery
took place.
The second development cited by Frazer, supra, 106 Cal.App.4th 1105, in
support of its conclusion, was our 1982 decision in Ramos, supra, 30 Cal.3d 553,
which held that a single taking of property from the joint possession of two
victims could support two convictions of robbery. The decision in Frazer notes
that the earlier cases concerning constructive possession “usually involved only
one robbery count and conviction, even if there were multiple employee victims,”
because “[m]ultiple robbery convictions were typically sustained only if there
were distinct takings from different employees.” (Frazer, supra, 106 Cal.App.4th
at p. 1112.)
The decision in Frazer appears to suggest that a narrower view of
constructive possession became warranted after we held in Ramos, supra, 30
Cal.3d 553, that multiple counts of robbery could be supported by a single taking.
16
We disagree. No policy justifies narrowing the meaning of possession merely
because our decision in Ramos permits multiple convictions for multiple victims.
As we explained in Ramos, “[w]hen two or more persons are in joint possession of
a single item of personal property, the person attempting to unlawfully take such
property must deal with all such individuals. All must be placed in fear or forced
to unwillingly give up possession. To the extent that any threat may provoke
resistance, and thus increase the possibility of actual physical injury, a threat
accompanied by a taking of property from two victims’ possession is even more
likely to provoke resistance. [¶] We view the central element of the crime of
robbery as the force or fear applied to the individual victim in order to deprive him
of his property. Accordingly, if force or fear is applied to two victims in joint
possession of property, two convictions of robbery are proper.” (Ramos, supra, 30
Cal.3d at p. 589.) Because robbery is an offense of violence against the person,
the number of counts is limited by the number of persons against whom force or
fear is used to remove the property. We see no justification for further limiting the
offense by adopting a restrictive interpretation of the element of possession.
Defendants contend that the meaning of constructive possession adopted by
the Court of Appeal below and in Jones would accord the word “possession” a
broader meaning in the context of robbery than it has in the context of other
offenses, such as possession of controlled substances or the illegal possession of
weapons. Defendants argue that “[t]he concept of constructive possession should
not turn upon whether the property in question is an illegal drug or the lawful
earnings of a business.” We disagree.
In construing a statute, we consider the words in context and interpret them
in a manner that effectuates the intent of the Legislature. (Cummins, Inc. v.
Superior Court (2005) 36 Cal.4th 478, 487.) In the context of possession of
contraband, constructive possession may be shown by establishing that the
17
accused “maintained some control or right to control over contraband in the
physical possession of another.” (People v. Rogers (1971) 5 Cal.3d 129, 134.)
The definition and application of the concept of possession in this context involves
an “inquiry into when the law may punish an individual who is exercising such a
degree of intentional direction over contraband that he can be justifiably and fairly
punished in the same manner as if he were indeed in actual physical possession of
a controlled substance. Implementation of this policy necessarily encompasses a
potentially wide variety of conduct in a wide variety of settings, all directed by
such factors as the alleged offender’s capacity to direct the illicit goods, the
manifestation of circumstances wherein it is reasonable to infer such capacity
exists and the degree of direction being exercised by the accused over the
contraband.” (Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 539.)
In the context of the crime of robbery, the policies served by the element of
possession are obviously quite different, because possession itself is not the
unlawful act. As we explained in Ramos, the crime of robbery may be committed
against any person who is in possession of the property taken, because such a
person may be expected to resist the taking, and — in order to achieve the
taking — the robber must place all such possessors in fear, or force them to give
up possession. (Ramos, supra, 30 Cal.3d at p. 589.) By requiring that the victim
of a robbery have possession of the property taken, the Legislature has included as
victims those persons who, because of their relationship to the property or its
owner, have the right to resist the taking, and has excluded as victims those
bystanders who have no greater interest in the property than any other member of
the general population. It would not further the purposes of the robbery statute to
require that the robbery victim have the same level of custody or control over the
property that is required in order to establish that the perpetrator is guilty of
possessing contraband.
18
III.
For the reasons stated above, the decision rendered by the Court of Appeal,
upholding the judgment of the trial court, is affirmed.
GEORGE,
C.
J.
WE CONCUR:

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
19


See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Scott
__________________________________________________________________________________

Unpublished Opinion

NP opn. filed 7/19/05 – 3d Dist.
Original Appeal
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S136498
Date Filed: February 19, 2009
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: Patricia C. Esgro

__________________________________________________________________________________

Attorneys for Appellant:

John Steinberg, under appointment by the Supreme Court, for Defendant and Appellant Maurice Kenney.

Cara DeVito, under appointment by the Supreme Court, for Defendant and Appellant Andre Rene Scott.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General,
Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael
P. Farrell, Assistant Attorneys General, Janet E. Neeley, J. Robert Jibson, and Raymond L. Brosterhous II,
Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

John Steinberg
P.O. Box 8148
Berkeley, CA 94707-8148
(510) 559-8051

Cara DeVito
PMB 834
6520 Platt Avenue
West Hills, CA 91307-3218
(818) 999-0456

Raymond L. Brosterhous II
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
9916) 324-5246


Petition for review after the Court of Appeal affirmed and modified and affirmed judgments of conviction of criminal offenses. The court limited review to the following issue: Did the trial court err in instructing the jury that all employees have constructive possession of their employer's property during a robbery, and, if so, what is the proper standard for determining whether an employee has constructive possession of the employer's property during a robbery?

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 02/19/200945 Cal. 4th 743, 200 P.3d 837, 89 Cal. Rptr. 3d 213S136498Review - Criminal Appealclosed; remittitur issued

PEOPLE v. HUGHES (S142819)
PEOPLE v. DUNN (S149332)
PEOPLE v. THOMAS (S155883)
PEOPLE v. PINKS (S163214)


Parties
1Scott, Andre Rene (Defendant and Appellant)
Represented by Cara Devito
Attorney at Law
6520 Platt Avenue, PMB 834
West Hills, CA

2Scott, Andre Rene (Defendant and Appellant)
Represented by Central California Appellate Program
2407 "J" Street, Suite 301
2407 "J" Street, Suite 301
Sacramento, CA

3The People (Plaintiff and Respondent)
Represented by Michael Patrick Farrell
Office of the Attorney General
P.O. Box 944255
Sacramento, CA

4The People (Plaintiff and Respondent)
Represented by Raymond L. Brosterhous
Office of the Attorney General
P.O. Box 944255
Sacramento, CA

5Kenney, Maurice Dontreal (Defendant and Appellant)
Represented by John Steinberg
Attorney at Law
P.O. Box 8148
Berkeley, CA


Opinion Authors
OpinionChief Justice Ronald M. George

Disposition
Feb 19 2009Opinion: Affirmed

Dockets
Aug 18 2005Received premature petition for review
  Appellant (Kenney) by counsel.
Aug 19 2005Case start: Petition for review filed
 
Aug 19 2005Record requested
 
Aug 22 20052nd petition for review filed
  counsel for appellant [SCOTT]
Aug 22 2005Received Court of Appeal record
 
Oct 13 2005Received additional record
  one box and one doghouse
Oct 13 2005Time extended to grant or deny review
  To November 18, 2005.
Nov 16 2005Petition for review granted; issues limited (criminal case)
  The issue to be briefed and argued is limited to the following: Did the trial court err in instructing the jury that all employees have constructive possession of their employer's property during a robbery, and, if so, what is the proper standard for determining whether an employee has constructive possession of the employer's property during a robbery? Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Nov 18 2005Received:
 
Nov 30 2005Order filed
  Petitioner Scott's application for relief from default is granted. Petitioner may brief the issue specified in this court's November 16, 2005, order granting review. (Cal. Rules of Court, rule 29.1.)
Dec 9 2005Counsel appointment order filed
  Upon request of appellant Andre R. Scott for appointment of counsel, Cara DeVito is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief 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.
Dec 9 2005Counsel appointment order filed
  Upon request of appellant Maurice Keney for appointment of counsel, John Steinberg is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be sdrved and filed on or before thirty (30) days from the date of this order.
Dec 28 2005Request for extension of time filed
  Appellant, Maurice Kenney, asking to Feb. 7, 2006 to file the opening brief on the merits.
Dec 30 2005Extension of time granted
  To February 7, 2006 to file appellant's (Maurice Kenney) opening brief on the merits.
Jan 10 2006Opening brief on the merits filed
  Andre Rene Scott, appellant (40.1)
Jan 17 2006Filed:
  Attorney General's request to file one consolidated answer to both appellant's, petitions for review
Jan 25 2006Order filed
  The application of respondent to file a consolidated answer brief on the merits is hereby granted. Respondents answer brief on the merits must be filed on or before March 9, 2006.
Jan 31 2006Opening brief on the merits filed
  Maurice Kenny, Appellant John Steinberg, Counsel
Feb 8 2006Compensation awarded counsel
  Atty DeVito
Mar 2 2006Request for extension of time filed
  by respondent requesting to April 8, 2006 to file Respondent's Answer Brief on the Merits.
Mar 9 2006Extension of time granted
  to April 8, 2006 to file responden'ts answer brief on the merits.
Mar 24 2006Answer brief on the merits filed
  The People of the State of California, respondent by Raymond L. Brosterhous II, counsel
Apr 6 2006Request for extension of time filed
  to May 12, 2006 to file appellant's (Andre Rene Scott) reply brief on the merits.
Apr 10 2006Request for extension of time filed
  to May 12, 2006 to file appellant's (Maurice Kenney) reply brief on the merits.
Apr 12 2006Extension of time granted
  to May 12, 2006 to file appellant's reply brief on the merits.
Apr 12 2006Extension of time granted
  to May 12, 2006 to file appellant's (Andre R. Scott) reply brief on the merits.
May 10 2006Reply brief filed (case not yet fully briefed)
  Maurice Kenney, appellant John Steinberg, counsel
May 12 2006Reply brief filed (case fully briefed)
  Appellant Andre Rene Scott Attorney Cara DeVito
Mar 27 2007Received:
  Letter from John Steinberg, counsel for appellant Kenney, advising his unavailability from September 13 through October 7, and requesting the court to consider this when scheduling oral argument.
Mar 29 2007Received:
  Letter from Raymond L. Brosterhous, deputy attorney general and counsel for The People, requesting argument before July 2007.
Oct 15 2007Received:
  Letter from Cara DeVito, counsel for Andre Scott, advising the court that counsel will be out of state during a portion of January 2008.
Oct 17 2007Received:
  Letter from John Steinberg, counsel for Maurice Kenney, advising the court of counsel's unavailability during a portion of May 2008.
Jan 29 2008Notice of substitution of counsel
  Michael P. Farrell, Senior Assistant Attorney General will be appearing as counsel of record in place and instead of Raymond L. Brosterhous.
Jan 31 2008Received:
  letter dated January 30, 2008 from Michael P. Farrell, Senior Assistant Attorney General.
Jul 8 2008Received:
  Letter from John Steinberg, counsel for Maurice Dontreal Kenney, advising the court of counsel's unavailability during a portion of October 13 thru 20, 2008.
Oct 22 2008Case ordered on calendar
  to be argued on Tuesday, December 2, 2008, at 2:00 p.m., in Los Angeles.
Nov 3 2008Filed:
  Letter from Cara DeVito, counsel for appellant Scott. Requesting to share 15 minutes of oral argument time with co-appellant Kinney.
Nov 7 2008Order filed
  The request of counsel for appellants in the above-referenced cause to allow two counsel to argue on behalf of appellants at oral argument is hereby granted. The request of appellants to allocate to appellant Maurice Contreal Kenney 15 minutes and appellant Andre Rene Scott 15 minutes of appellants' 30-minute allotted time for oral argument is granted.
Dec 2 2008Cause argued and submitted
 
Feb 18 2009Notice of forthcoming opinion posted
 
Feb 19 2009Opinion filed: Judgment affirmed in full
  The decision rendered by the Court of Appeal, upholding the judgment of the trial court, is affirmed. Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno & Corrigan, JJ.
Mar 23 2009Remittitur issued (criminal case)
 
Mar 25 2009Compensation awarded counsel
  Atty Steinberg
Mar 30 2009Received:
  receipt for remittitur from CA/3
Mar 30 2009Counsel fee request received
  Atty DeVito
Apr 23 2009Compensation awarded counsel
  Atty DeVito

Briefs
Jan 10 2006Opening brief on the merits filed
 
Jan 31 2006Opening brief on the merits filed
 
Mar 24 2006Answer brief on the merits filed
 
May 10 2006Reply brief filed (case not yet fully briefed)
 
May 12 2006Reply brief filed (case fully briefed)
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 27, 2010
Annotated by samgray

Tags:

Property, agency law, constructive possession, robbery, employee-employer relationship, business

Facts & Procedural Background:

Early in the morning on April 21, 2001, the defendants Andre Rene Scott and Maurice Kenney, armed with guns and wearing black clothes and ski masks, robbed a McDonald’s restaurant in Sacramento. The only employees at the restaurant that morning were Jinel Guillebeau, who was working at the drive-through window, Diana Salazar, who was working in the kitchen, and Serena Wong, the manager.

When Mr. Scott and Mr. Kenney entered the restaurant, Ms. Guillebeau and Ms. Salazar hid under tables and kitchen appliances, where they remained until after the robbery was over. Ms. Wong was forced to open the restaurant’s safe and give the money inside to Mr. Scott and Mr. Kenney. Ms. Wong also inserted an electronic tracking device into the bag with the money, which allowed police to later locate and apprehend Mr. Scott and Mr. Kenney.

During the trial, the court instructed the jury that robbery requires proof that the victim had possession of some property that was taken against his or her will by force or threat of force. The court also explained that “possession” could mean either “actual possession,” which involves knowingly exercising direct physical control over a thing, or “constructive possession,” which includes situations where a person has a right to exercise control over a thing.

Counsel for Mr. Kenney argued that Ms. Wong was the only person who could have been a victim of robbery since she was the only employee present who had access to the safe from which the money was taken. The district attorney objected to that argument and asserted that all three employees had constructive possession of the money because they were engaged in their usual duties when the McDonald’s was robbed.

The jury first found the defendants Mr. Scott and Mr. Kenney guilty of robbing Ms. Wong. The jury then sent a note to the judge asking whether all employees have constructive possession of their employer’s property while on duty. While the prosecution and defense relied on conflicting cases from the California Courts of Appeal, the trial court agreed with the prosecution and instructed the jury that the law in California is that employees on duty during a robbery necessarily exercise constructive possession over their employer’s stolen property. Shortly after the court gave this instruction, the jury convicted both Mr. Scott and Mr. Kenney of robbing Ms. Guillebeau and Ms. Salazar.

The Court of Appeal affirmed the judgment and held that the trial court’s instructions to the jury were correct.

Issue:

When a business establishment is robbed, do employees who are present during the robbery always have constructive possession of their employer’s property for the purpose of determining whether they were victims of robbery?

Holding:

1. An alleged victim of robbery exercises constructive possession of property when he or she has authority or responsibility to protect the property on behalf of the owner.

2. Any on duty employee has, by virtue of his or her status as employee, implied authority to act on the employer's behalf to protect the employer’s property when it's threatened during a robbery, and therefore has constructive possession of the employer’s property.

Disposition:

The judgment of the Court of Appeals is affirmed.

Analysis:

While it is true that a critical element of robbery is that the victim possesses the property before a robber takes it, neither ownership nor physical possession of the property is essential. \In situations where a victim did not own or physically possess the stolen property, the victim must have had a special relationship with the owner such that the victim would have been expected to protect the stolen property on the owner’s behalf. Where such a relationship is present, a court may find that the victim constructively possessed the stolen property.

This principle was illustrated in a case where a burglar stole a saxophone from a music store before a security guard from a neighboring business chased him down. The defendant was charged with robbing the security guard. The charge was dismissed, and the court noted that the security guard did not have constructive possession of the saxophone because he had no relationship with the proprietors of the music store, never actually possessed the saxophone, and had no obligation to protect the music store from intruders. Other cases involving actual employees, such as janitors and night watchmen, have resulted in valid convictions for robbery, even when those employees never exercised control over their employer’s property in the normal course of business.

While many cases have recognized instances when on duty employees have constructive possession of their employer’s property during a robbery, the California Supreme Court has never established that this is always the case as a matter of law.

The only case suggesting that employees may not have constructive possession of their employer’s property is People v. Frazer, 106 Cal.App.4th 1105, 1115(2003). Frazer states that the jury must examine all the circumstances of a case to determine whether “each employee has sufficient representative capacity with respect to the owner of the property, so as to have express or implied authority over the property.” However, a conflicting case, People v. Jones 82 Cal.App.4th 485 (2000), states that “business employees — whatever their function — have sufficient representative capacity to their employer so as to be in possession of property stolen from the business owner.”

Jones states the correct rule, and as such, the California Supreme Court now disapproves Frazer. A long line of CA cases establish the principle that employees working at a business during a robbery constructively possess their employer's property regardless of their normal duties or access to the stolen property. Any employee has, by virtue of his or her employment relationship with the employer, some implied authority, when on duty, to act on the employer's behalf to protect the employer’s property when it's threatened during a robbery. This rule also extends to independent contractors when they are part of the group of workers in charge of the premises at the time of the robbery.

This rule is consistent with the intent of the legislature when it enacted the robbery statute. When the legislature decided to include possession as an element of the crime of robbery, it created a distinction between victims who, because of their interest in the property or relationship with the owner, have a right to resist the robbery, and those bystanders who lack any such interest or relationship. This legislative intent is not violated by treating all employees as exercising constructive possession over employer property during a robbery.