The crime of robbery involves the taking the victim’s money or other personal property in that victim’s presence and by force or threat of imminent harm.
In order to prove that a defendant is guilty of robbery, the prosecution must establish each of the following elements:
- That defendant took property that was not his own;
- The property was in the possession of another person;
- The property was taken from the other person or (his/her) immediate presence;
- The property was taken against that person’s will;
- The defendant used force or fear to take the property or to prevent person from resisting; and
- When the defendant used force or fear to take the property, he intended to deprive the owner of it permanently or to remove it from the owner’s possession for so extended a period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.
See, e.g., Cal. Penal Code § 211.
Analysis of Each Element of Robbery:
1. TAKING OF PROPERTY
People v. Martinez, 274 Cal. App. 2d 170, 174 (1969) (citations omitted).
“Defendant attacks the evidentiary basis for the robbery verdict. He points out that whatever the evidence of attempted robbery, there is no evidence of an asportation or taking, an essential element of a completed robbery. There was, it is true, no evidence that [defendant] and his companions ever had physical possession of the service station’s money. The evidence provided a reasonable inference that [the victim], at gunpoint, had been forced to take the money from the cash box and place it in a paper sack. Robbery does not necessarily entail the robber’s manual possession of the loot. It is sufficient if he acquired dominion over it, though the distance of movement is very small and the property is moved by a person acting under the robber’s control, including the victim. In this case the robbers’ dominion was short-lived but actual. The evidence supports the finding of a completed robbery.”
People v. Alexander, 17 Mich. App. 30, 31-33 (1969) (citations omitted).
“On this appeal the defendant contends that robbery is larceny committed by violence or putting the victim in fear and that a necessary element of larceny, an asportation, is lacking in this case because the defendant never touched the bag or the money the attendant put in the bag.
It is well established that the asportation need not be effectuated by the perpetrator of the crime. It may be accomplished by a confederate or an innocent agent. In the case of the innocent agent, the asportation is imputed to the defendant because the directed and controlled the innocent agent’s actions.
Any movement of the goods is sufficient to constitute an asportation. The question before us is whether a movement of the goods by the victim under the direction of the defendant should be imputed to the defendant so as to supply the necessary asportation.
Clearly the gas station attendant acted under compulsion when he put money in the bag. He was, like an agent, acting at the defendant’s direction.
The function of the asportation requirement is to demonstrate that the offense has passed the attempt stage and is now a completed larceny. The problem with which we are faced cannot ordinarily arise where the offense charged is larceny since larceny is rarely accomplished in the presence of the victim. Indeed, if the victim is present the offense is usually robbery. Since the function of the asportation element is to demonstrate that the crime being committed has passed the attempt stage — that the defendant has committed the requisite criminal act — we see no reason why a movement of the goods by the victim at the direction of the defendant should not be deemed an asportation. There is no need to defer until some later stage of the taking (e.g., until the defendant has physically assumed actual dominion of the property) the characterization of his conduct as larcenous. Accordingly, we hold that the gas station attendant’s action in placing the money in the bag supplied the necessary asportation even though the defendant never reduced the money to physical possession.”
2. PROPERTY IN THE POSSESSION OF ANOTHER PERSON (NOT THE DEFENDANT)
People v. Butler, 65 Cal. 2d 569, 573 (holding that a defendant’s honest belive that he had a right to the property is a defense to the charge of robbery, even if defendant’s belief was mistaken or unreasonable):
“Although an intent to steal may ordinarily be inferred when one person takes the property of another, particularly if he takes it by force, proof of the existence of a state of mind incompatible with an intent to steal precludes a finding of either theft or robbery. It has long been the rule in this state and generally throughout the country that a bona fide belief, even though mistakenly held, that one has a right or claim to the property negates felonious intent. (People v. Eastman, 77 Cal. 171, 172 [19 P. 266]. See also Note 46 A.L.R.2d 1227; People v. Gallegos, 130 Colo. 232 [274 P.2d 608, 46 A.L.R.2d 1224]; Barton v. State, 88 Tex. Crim. 368 [227 S.W. 317, 13 A.L.R. 147] and cases noted therein.) A belief that the property taken belongs to the taker (People v. Devine, 95 Cal. 227, 230-231 [30 P. 378]; People v. Vice, 21 Cal. 344), or that he had a right to retake goods sold (People v. Sheasbey, 82 Cal.App. 459 [255 P. 836]) is sufficient to preclude felonious intent. Felonious intent exists only if the actor intends to take the property of another without believing in good faith that he has a right or claim to it. (People v. Stone, 16 Cal. 369.)” However, compare to People v. Tufunga, 21 Cal. 4th 935, 945-50 (holding that the bona fide belief of ownership defense applies only when a specific piece of property is reclaimed and the defense is not available where robbery is perpetrated to settle a liquidated or unliquidated debt).
3. PROPERTY TAKEN BY FEAR
People v. Renteria, 61 Cal. 2d 497, 498-499 (1964) (holding that the fear element of robbery may be established by circumstantial evidence, even when the victim testifies that he was no afraid).
“At the trial the clerk was asked if he was in fear that defendant would use the gun, and he said, ‘No, I didn’t have any fear of him.’
The prosecution attempted to secure a qualification of the clerk’s flat denial of fear, asking, ‘Would you have given him [defendant] the money had he not had the gun?’ A defense objection to this question, however, was sustained.
The People are not “bound” by the clerk’s testimony that he was not in fear, since there is other evidence which will support the conclusion that he acted in fear and would not have disgorged the contents of his employer’s till except in fear of the harm which might come to him or his employer if he failed to comply with defendant’s demands.
As was said in People v. Borra, 123 Cal.App. 482, 484 [11 P.2d 403]: ‘Prompt compliance with the commands of an armed person, who by words or demonstration threatens bodily harm for failure to do so, furnishes some evidence of fear. The very prompt relinquishing of the money in the cash register is also evidence of fear. Men do not ordinarily give up their hard-earned cash to a stranger who threatens them with a gun, except for fear of bodily injury in the event of a refusal to do so. In spite of the bravado of the merchant in declaring that he was not much afraid, we are inclined to believe he meant he was not afraid of receiving bodily harm so long as he complied with the demands of the robber.’
In the Borra case, the victim contradicted his denial of fear by testimony that he was motivated by the fact that a gun was pointed at him. In the present case, the prosecution sought to obtain a similar contradiction from the clerk, but was effectively prevented from doing so by defendant’s objection, which was sustained by the trial court.
The circumstances attending the transaction here involved fully support the trial court’s conclusion that the clerk would not have given his employer’s money to defendant unless he was in fear, in spite of his ‘bravado’ answer in court, and that the clerk said he was not in fear because he felt certain no harm would result to him or his employer if he complied with the demand, as he did.
It is not reasonable to suppose that, particularly with his employer in the store, the clerk would have given the employer’s money to an unauthorized stranger who demanded possession at the point of a gun, had the clerk not been in fear that injury to himself or his employer would result if he failed to comply with the demand.”
4. PROPERTY TAKEN BY FORCE
People v. Garcia, 45 Cal.App.1242, 1246 (1996) (citations omitted) (stating that to establish the “by force” element of the crime of robbery, there must be evidence of something more than incidental touch necessary to take the property):
“Defendant concedes he touched the cashier [victim] in the course of taking the money. He argues, however, the force required for robbery is more than an incidental touching. A pickpocket touches the victim in extracting a wallet from his pocket, but this does not make the pickpocket a robber.
The force required for robbery is more than ‘just the quantum of force which is necessary to accomplish the mere seizing of the property.’ In the present case, however, the touching was more than incidental and was not merely the force necessary to seize the money. The defendant did not simply brush against the cashier as he grabbed for the money. He intentionally pushed against her to move her out of the way so he could reach into the register. [The] pushing the cashier went beyond the ‘quantum of force which was necessary to grab the money out of the cash register. We agree defendant appears to have been rather polite in his use of force, giving the cashier a mere ‘tap.’ Nevertheless, for purposes of the crime of robbery, the degree of force is immaterial.”
People v. Dreas, 153 Cal. App. 3d 623, 628-29 (1984) (holding that the defendant administering an intoxicating substance or poison to the victim in order to take the victim’s property was sufficient to meet the “force” element of the crime of robbery):
“Thus, Professor Perkins addressing this issue in his treatise concluded that: ‘Just as battery may be committed by the administration of poison, so the force used to obtain property from a person against his will may be applied internally.’ (Perkins & Boyce, Criminal Law (3d ed. 1982) p. 348.) Other scholars have reached identical conclusions. LeFave and Scott write: ‘One may commit robbery by striking his victim with fist or weapon and then, having thus rendered the victim unconscious or dazed or unwilling to risk another blow, taking property away from him. One may also render one’s victim helpless by more subtle means, as by administering intoxicating liquors or drugs in order to produce a state of unconsciousness or stupefaction; to act in this way is to use force for purposes of robbery.’ (LeFave & Scott, Criminal Law (1972) pp. 697-698; accord, 4 Wharton’s Criminal Law (14th ed. 1981) § 479, p. 67.)
A case in point is State v. Snyder (1918) 41 Nev. 453 [172 P. 364]. In Snyder, appellant administered chloralhydrate to one Cooper, who was in charge of a saloon. After Cooper became unconscious, appellant took money from the cash register. The Nevada Supreme Court held that the administering of the drug constituted so-called ‘constructive force’ which was sufficient to sustain the robbery conviction. In his concurring opinion, Chief Justice McCarran explained the matter as follows: “`Force’ is the power or energy by which resistance is overcome…. When, to take the personal effects of another, a blow is struck with a bludgeon, thereby paralyzing the victim’s power of resistance, the taking will constitute robbery. The same effect might be produced on the victim by the physical act of administering a deadly potion. In either case resistance is involuntarily overcome. Great physical strength might be required to accomplish the result in the first instance, while a mere turning of the hand might effect the consequence in the second; force, however, is present in both. The agency through which the force operates is immaterial. The result in either case is the overcoming of resistance without the voluntary co-operation of the subject whose resistance is repressed; this is the test.” (State v. Snyder, supra, 172 P. at pp. 366-367.)”
People v. Pham, 15 Cal. App. 4th 61, 65-67 (1993) (holding that the application of force or fear for robbery may be used at the time of taking the property or at the time of carrying away the property):
“Robbery is ‘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.’ (§ 211.) As recently stated by our Supreme Court, ‘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. [Citations.] 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.)’ (People v. Cooper (1991) 53 Cal.3d. 1158, 1165, fn. 8 [282 Cal. Rptr. 450, 811 P.2d 742]; People v. Estes (1983) 147 Cal. App.3d 23, 27-28 [194 Cal. Rptr. 909].) (3a) A very slight movement is sufficient for asportation (Cooper, supra, at p. 1165), and there is no requirement that the robber have manual possession of the property. (People v. Quinn (1947) 77 Cal. App.2d 734, 736-737 [176 P.2d 404] [asportation was satisfied when robber ordered victim at gunpoint to throw down his wallet, although robber allowed victim to leave with wallet after victim showed robber it contained no money]; also People v. Martinez (1969) 274 Cal. App.2d 170, 174 [79 Cal. Rptr. 18].) The robber’s escape with the loot is not necessary to commit the crime. (See People v. Clark (1945) 70 Cal. App.2d 132, 133 [160 P.2d 553] [stating general rule].)
Under the facts of this case, we conclude the asportation or carrying away of the property occurred when defendant removed the victims’ property from Guevara’s car and began to flee. The asportation continued while defendant struggled with the victims and prevented them from immediately recovering their goods. Contrary to defendant’s contention, robbery does not require that the loot be carried away after the use of force or fear.
In Estes, supra, a security guard watched defendant as he took clothing from a Sears store. When the guard attempted to detain defendant outside the store, the defendant pulled out a knife, swung it at the guard and threatened to kill him. The guard returned to the store and summoned the security manager. The two men returned to where defendant was standing and escorted him back into the store. (147 Cal. App.3d at p. 26.) Division Five of this court affirmed defendant’s conviction of robbery of the security guard. The court held, ‘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…. 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 presence regardless of the means by which defendant originally acquired the property.’ (Id. at pp. 27-28.)
In Estes, as here, the defendant successfully prevented the victim (i.e., security guard) from regaining the property, albeit temporarily, by force or fear. It is of no legal significance that the security guard went back into the store after the defendant pulled his knife, only to return with the security manager moments later. The crime was committed the moment Estes threatened the guard at knifepoint. The robbery conviction was affirmed although the defendant did not escape with the loot.”
5. PROPERTY TAKEN IN IMMEDIATE PRESENCE OF THE VICTIM
People v. Harris, 9 Cal. 4th 407, 415-19 (1994) (holding that property that was 80 feet away or around the corner of the same block from a forcibly held victim was not too far away, as a matter of law, to be outside the robbery victim’s immediate presence):
“As defined in Penal Code section 211, and as essentially incorporated in CALJIC No. 9.40 (the key robbery instruction given below), ‘[r]obbery is 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.’ Relying on the holdings in People v. Miramon (1983) 140 Cal. App.3d 118, 124 [189 Cal. Rptr. 432], and People v. Brown (1989) 212 Cal. App.3d 1409, 1419 [261 Cal. Rptr. 262] (hereafter Miramon-Brown), the trial court below further defined the element of ‘immediate presence’ for the jury as follows: ‘The act of robbery is deemed to have occurred within the immediate presence of the victim as long as the victim perceived any overt act connected with the commission of the offense. Any and all sensory perceptions of the victim are to [be] considered in determining presence.’ (Italics added.)
In Hayes, supra, 52 Cal.3d 577, we rejected the Miramon-Brown definition of immediate presence. We observed that, in contrast to that instruction which required that the victim “`perceive any overt act connected with the commission of the offense,'” “[t]he generally accepted definition of immediate presence … is that `”[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.] Thus, the Court of Appeal stated in People v. Bauer (1966) 241 Cal. App.2d 632, 642 [50 Cal. Rptr. 687], that “immediate presence”`”must mean at least an area within which the victim could reasonably be expected to exercise some physical control over [her] property.”‘ (Quoting from Spencer v. United States [(D.C. Cir.1940) 116 F.2d 801 (73 App.D.C. 98)], at p. 802.)” (Hayes, supra, 52 Cal.3d at pp. 626-627.)
We reasoned in Hayes that a jury charged with the “perception of any overt act” definition of “immediate presence” might improperly view the 416*416 forcible acts themselves as “overt acts” satisfying the “immediate presence” requirement. We concluded that instructing a jury with the Miramon-Brown definition effectively rendered the “immediate presence” element “devoid of all independent meaning, making it redundant with the `force or fear’ element.” (Hayes, supra, 52 Cal.3d at p. 628.) Because the robber in Hayes had assaulted and killed his victim, the jury could reasonably have concluded under the erroneous instruction that the “immediate presence” requirement was satisfied by the fatal assault, itself an “overt act connected with the commission of the offense” that unquestionably occurred in the victim’s immediate presence. We expressly disapproved the Miramon-Brown instruction, adopting in its stead the “prevailing American rule” definition of “immediate presence” described above. (Hayes, supra, 52 Cal.3d at p. 628, fn. 10; see also People v. Webster (1991) 54 Cal.3d 411, 440 [285 Cal. Rptr. 31, 814 P.2d 1273] (Webster).)
The Court of Appeal in the present case correctly concluded that the trial court’s special instruction defining “immediate presence” was the functional equivalent of the Miramon-Brown instruction we disapproved in Hayes. The trial court below can hardly be faulted for applying the expansive definition of “immediate presence” set forth in People v. Miramon, supra, 140 Cal. App.3d at page 124, and People v. Brown, supra, 212 Cal. App.3d at page 1419, cases that were “good law” when defendant was tried in the summer of 1990. Nonetheless, because the faulty instruction, which failed to give appropriate effect to the legislative definition of the “immediate presence” element of robbery, was specifically disapproved in Hayes while defendant’s appeal was pending, he is entitled to the benefit of our holding in that case. (See, e.g., People v. Ballard (1969) 1 Cal. App.3d 602, 606 [81 Cal. Rptr. 742].) Accordingly, we affirm that portion of the decision of the Court of Appeal finding the trial court erred in specially defining “immediate presence” for the jury.”
6. VALUE OF THE PROPERTY
People v. Simmons, 28 Cal. 2d 699, 705 (1946) (holding that the property taken can be of small or minimal value to establish the crime of robbery):
“On his appeal defendant does not question the sufficiency of the evidence to sustain his conviction under count 1 for robbery of Mrs. Ellingson, but with respect to the conviction under count 2 for robbery of Mr. Byrnes, he asserts that there was no proof that the package of cigarettes taken from the person of the victim had any value whatsoever, and that the court may not take judicial notice of value. Judicial notice may be taken, however, of the fact that an item of personal property has some value. The amount is immaterial for, as said in People v. Thomas, 45 Cal.App.2d 128, 135 [113 P.2d 706], ‘… robbery does not depend upon the value of the property taken. The other elements being present, the crime is made out even though the property taken be of slight value (citing authorities); …'”
Encyclopedia Britannica, 11th Edition (1910-1911) *historical*
ROBBERY (from O. Fr. rober, to steal), the unlawful and forcible taking of goods or money from the person of another by violence or threatened violence. Robbery is larceny (q.v.) with violence. It is a specific offence under the Larceny Act 1861, and is punishable by penal servitude for any term not exceeding fourteen years and not less than three years, or imprisonment for any term not exceeding two years, with or without hard labour. Under the Garrotters Act 1863, whipping may be added as part of the sentence for robbery. In Scots law robbery is termed stouthrief.
United States. — The nature of the offence is practically the same in America as in England, but what constitutes robbery is provided by statute in each state, as is also the punishment. The chief difference between English and American law is that the latter often divides the offences into grades and takes a liberal view of what constitutes force or fear. Train robbery is specially dealt with in some states owing to the prevalence of that species of crime.
Federal Statute. — Congress has made it piracy punishable with death to commit robbery on the high seas or on shore or in any harbour out of the jurisdiction of any state by landing from a piratical vessel (U.S. Rev. St. § 1047).
In Alabama it is train robbery to “enter upon or go near to any locomotive, engine, or car, on any railroad and by threats or exhibition of a deadly weapon or discharging a pistol or gun on or near such engine or car induce or compel any one to deliver up anything of value. It is punishable at the discretion of the jury by death or imprisonment for not less than ten years. Any one who stops, impedes or detains any locomotive or car with intent to commit train robbery must be punished by imprisonment for not less than ten nor more than thirty years. Conspiring to commit train robbery is, punishable to the same extent (Crim. Code, §§ 5430–5482)
In Arizona, California and Missouri the “fear” may be that of the person robbed or of any relative of his or member of his family or of any one in his company. The punishment is imprisonment for not less than five years.
In Arkansas and Missouri extorting money or property by blackmail is an “attempt to rob”; it is punishable by not less than one nor more than five years’ imprisonment. In Georgia larceny from the person is statutory robbery (Hickey v. Slate (1906), 125, Ga. 145).
Louisiana. — Train robbery is punishable by imprisonment for not less than live nor more than ten years.
Missouri. — Train robbery is punishable by death or imprisonment for not less than ten years. It may consist in placing an obstruction on the line with intent to rob.
Massachusetts. — Robbery, committed when armed with a dangerous weapon, is punishable by imprisonment for life (Rev. L., 1902, ch. 207, § 17).
Minnesota. — The extreme penalty for robbery is forty years’ imprisonment (L. 1905, ch. 114).
New Jersey. — The extreme penalty is $3000 fine or twelve years’ imprisonment.
Texas. — Falsely personating an officer and by means of arrest extorting money is robbery (Burnside v. State (1907), 102, S.W. Rep. 178).