Robbery/Carjacking
Category > Robbery/Carjacking
Updated 2/4/2024The trial court prejudicially erred by failing to instruct that robbery requires proof that the victim was in fear. Defendant was convicted of robbery. The trial court instructed with CALCRIM 1600, which does not specify whether the victim need actually subjectively be in fear or whether an objective reasonable person in the same circumstances would be in fear. The prosecutor argued the latter and said it didn’t matter if the victim was afraid. This was incorrect since robbery requires proof that the victim was in fear. The instructional error required reversal.id: 27351
Evidence supported the robbery conviction involving the defendant who possessed the marijuana but not the victim’s acquaintance who was present at the time.Defendant was convicted of two counts of robbery. However, the Evidence was insufficient to support the conviction for robbing Gault because the stolen marijuana belonged to the other victim (Young) who was merely an acquaintance of Gault and Gault did not have constructive possession of the marijuana.id: 23665
Theft by false pretenses cannot satisfy the “felonious taking” element of robbery. Defendant was caught using a re-encoded payment card to buy gift cards at a department store, and shoved a security guard on the way out. The facts did not support a robbery conviction because the “felonious taking” element cannot be satisfied through theft by false pretenses, the type of theft defendant committed.id: 23308
The trial court erred by instructing that theft by false pretense was a lesser included offense of robbery.Theft by false pretense was not a lesser included offense of robbery under the elements or accusatory pleading test as applied to the felony information. The trial court therefore erred by instructing on theft by false pretense and allowing the jury to return a verdict on that offense. The error was prejudicial because it allowed the jury to convict defendant of an offense of which he had no reasonable notice. id: 23105
Evidence of poverty is inadmissible to prove a motive for robbery.The trial court erred by allowing the prosecution to present evidence of defendant’s poverty to establish a motive for the robberies. However, the error was harmless in light of the strength of the other evidence.id: 22426
Claim-of-right defense applies where evidence shows the defendant in good faith believed the property taken from the victim belonged to his co-principal.A good faith belief by a defendant tried as an accomplice, that he was assisting his co-principal retake the principal’s property negated the “felonious intent” element of both larceny and robbery, and a claim-of-right defense instruction must be given where substantial evidence supports such a belief. However, the error in refusing the instruction was harmless in the burglary case where the record shows the jurors rejected the theft related offenses and found defendant entered the apartment to commit false imprisonment. id: 21084
Defendant may not be convicted of carjacking and receipt of stolen property. Under Penal Code section 496, subd.(a), a defendant may not be convicted of both carjacking and receiving the car stolen in the carjacking. id: 20893
Court erred in failing to instruct on attempted theft as an LIO of attempted robbery where defendant moved the property in the victim's house before he woke and assaulted her.Defendant was convicted of attempted robbery among other things. He moved some jewelry from one room to another, and then woke and assaulted the victim. The victim refused to stay quiet and struggled with defendant, who immediately fled upon hearing police sirens. Since he moved the jewelry before the assault and had the opportunity to leave prior to waking the victim, evidence supported the lesser included offense of attempted theft. The error in failing to instruct on attempted theft was prejudicial since the evidence of attempted robbery was weak.id: 16365
Carjacking is a lesser included offense of kidnapping to facilitate carjacking and convictions of both were improper.The crime of carjacking under Penal Code section 215 is a necessarily included offense within the crime of kidnapping to facilitate carjacking under Penal Code section 209. Since defendant was convicted of both crimes, the carjacking conviction was reversed.id: 9684
Evidence did not support the conviction of kidnapping during a carjacking since there was no completed carjacking so the conviction was reduced to attempted carjacking.Because the victim escaped from the passenger side of her parked car during the attempted carjacking, defendant did not move her from the vicinity as required by Penal Code section 209.5, subdivision (b). There can be no kidnapping during the commission of a carjacking because there was no completed carjacking. Defendant argued the conviction could not be reduced to the lesser included offense of attempted carjacking in light of the court's instructing the jurors with CALJIC 9.55. That instruction states a completed carjacking is not required if the carjacking is done for the purpose of kidnapping. However, under the instructions given, the jury found both required elements of attempted carjacking. Reduction of the conviction to attempted carjacking was proper.id: 15325
Special force and fear instruction stating that aiming a gun at someone and demanding money amounted to force and fear was intrusive and erroneous.At defendant's robbery trial the court erred in instructing that the aiming of a gun at a victim accompanied by a demand for money or personal property amounts to force and inferably fear. However, the error was not prejudicial as only identity, and not force and fear was in issue. Moreover, the trial court left for the jury the determination as to whether a gun was aimed at the victim and whether a demand for money was made.id: 10129
Robbery conviction was reversed where the good samaritan attempting to stop the theft did not have sufficient interest in the property to be considered a robbery victim.Defendant walked out of a convenience store with beer, candy and cigarettes he did not pay for. Steadman was in the store at the time collecting money from video machines although he was not an employee of the store. He chased defendant outside and told him to stop. As he did so, defendant's companion struck Steadman from behind. The evidence was insufficient to support the robbery conviction because the instant good samaritan did not have a sufficient interest in the property to be a robbery victim.id: 10125
Outdated instruction regarding completion of a robbery was harmless where evidence showed the carrying away of the loot coincided with the escape.The trial court instructed with the 1988 version of CALJIC 9.44, which could have misled the jury into believing that commission of a robbery continues during the escape to a place of temporary safety even if the loot is not being carried away contemporaneously. However, any error was harmless where the defendant and his confederates simultaneously robbed three separate victims and drove off with the loot together. The jury undoubtedly found defendant formed the intent to encourage or facilitate the commission of the robberies prior to or during the act of carrying away the loot to a place of temporary safety.id: 17291
Grand theft auto was a lesser included offense of the robbery where there was but one continuous transaction.Defendant was convicted of robbery and grand theft auto. However, the grand theft of the auto was a lesser included offense of the robbery. It was therefore error to convict defendant of both offenses since robbery is a form of theft, and the taking of multiple items, including the car, in a continuous theft transaction constitutes only one offense.id: 10111
Erroneous instruction on immediate presence requirement did not require reversal of the robbery convictions.The trial court erred in instructing on the immediate presence required for robbery that the victim need perceive the overt act connected with the offense. However, the instructional error did not require reversal because the misunderstanding applied to one of two possible factual theories by which the element could be satisfied, i.e., the theory of taking from the victim's immediate presence, and evidence showing the victim's keys and automobile were taken from his person was overwhelming.id: 10100
Defendant could not be convicted of robbing goods from a security guard who worked at a store across the street.Defendant was convicted of the robbery of a security guard. He argued he did not rob the security guard because he did not take the saxophone from the guard's actual or constructive possession. He acknowledged a defendant may be convicted of watching a security guard but claimed this principle does not apply to a guard for the building across the street, who had no interest in the saxophone. Although the guard ordered defendant to drop the saxophone, he never actually possessed it or exercised dominion and control over it. Moreover, since he was not an employee of the owner of the store he did not constructively possess it. The court erred in denying the motion to dismiss the robbery charge.id: 10095
Carjacker may not be convicted of both robbery and grand theft of the victim's automobile.Evidence established that defendant approached the victim sitting in his vehicle. Defendant placed a gun at his head and ordered the victim out of the car. Defendant took the victim's wallet and keys and then drove off in the victim's car. His conviction of both robbery and grand theft of the automobile stolen during the robbery was improper. The car was part of the loot stolen in the robbery. Moreover, the pleadings alleged the auto theft as a lesser, necessarily included offense within the charged robbery because the offenses involved the same victim on the same date.id: 10089
Failure to instruct on elements of robbery in accessory case violated due process but was harmless beyond a reasonable doubt where there was no dispute as to whether a robbery occurred.Defendant was convicted of being an accessory to robbery. The jury was instructed that the prosecution was required to prove that a robbery occurred. However, the court, with the agreement of both trial counsel, did not instruct the jury with the elements of robbery, thus leaving the jury with no means of determining whether the prosecution proved all of the statutory elements of robbery. This failure violated defendant's right to have a jury find beyond a reasonable doubt every element of the crime as required by the due process clause. The error was harmless under the Chapman standard where no one disputed that the robbery occurred, and the only issue was defendant's knowledge of the perpetrator's actions.id: 17250
Defendant could not be convicted of carjacking a car that he could not move.The evidence was insufficient to support defendant's carjacking conviction since he was unable to make the car move after gaining possession of it. The conviction was reduced to that of attempted carjacking.id: 16706
Robbery committed in a camper was second degree.Defendant was convicted of first degree robbery after taking $20 from the victim in the back of a camper that was attached to a car. However, a camper is not a building or trailer coach as defined in Penal Code section 212.5. The conviction was therefore reduced to second degree robbery.id: 10122
Robbery in a camper is not first degree.Defendant was convicted of first degree robbery after taking $20 from the victim in a camper that fits on a car. However, a camper is not a building or trailer coach as defined in section 212.5. The first degree robbery conviction was therefore reduced to second degree.id: 10126
Robbery is not a lesser included offense of kidnapping to commit robbery but because the offenses arose out of a the single incident the robbery sentences were stayed.Simple kidnapping is a lesser included offense of kidnapping to commit robbery. However, robbery is not a lesser included offense of that crime. The simple kidnapping convictions were reversed. While the robbery convictions were proper, the sentences were stayed under Penal Code section 654 because the crimes were committed pursuant to a single objective.id: 20363
Defendant cannot separately rob a store and the clerk during a single incident.Defendant was convicted of 14 counts of robbery for seven incidents where he took property belonging to the store and personal property belonging to the store clerk. The distinction between store property and personal property is irrelevant. Defendant should have only been charged with and convicted of seven counts.id: 19272
Evidence did not support carjacking conviction where defendant demanded the car keys to the victim's employer's truck which were located in the back closet. Defendant entered the victim's workplace and, at gunpoint, ordered that she give him the keys to her employer's truck which were within her reach. Evidence was insufficient to support
defendant's conviction of carjacking under Penal Code section 215 because the victim did not have actual or constructive possession of the vehicle. The purpose of the statute is not served by applying it under these circumstances where the victim's only connection to her employer's stolen vehicle was her ability to access the keys left in the office.id: 19424
Petty theft with a prior is a lesser included offense of robbery so defendant could not be convicted of both offenses arising from the same incident.A defendant cannot be convicted of both robbery and petty theft with a prior arising from the same incident, because the prior conviction is a sentencing factor, rather an element, so petty theft with a prior is a lesser included offense of robbery.id: 20014
Defendant was not prejudiced by counsel's failure to object to the prosecutor's misstatement that fear by someone other than the victim would satisfy the force or fear element of robbery.The prosecutor misstated the law during closing argument by suggesting the fear of the victim's girlfriend was sufficient to satisfy the force or fear element of the robbery of the victim. However, defendant was not prejudiced by defense counsel's failure to object to the misstatement, where the prosecutor later urged the jury find the felony-murder special circumstance because defendant formed the intent to rob the victim before entering the bedroom, and defense counsel argued that the jury must find a robbery of the victim, not his girlfriend, in order to find the robbery-murder special circumstance.id: 16915
The court erred in failing to instruct on theft as a lesser included offense of robbery where defendant may have decided to steal after the victim was dead.The trial court erred in failing to instruct on the lesser offense of theft regarding the charged robbery where there
was evidence that the intent to steal did not arise until after the murder. However, reversal of the murder conviction was not required where the jury's other finding showed they found the murder to be deliberate and premeditated.id: 19215
Court erred in ordering defendant to submit blood and saliva samples following robbery conviction.Defendant was convicted of robbery. The trial court lacked jurisdiction to order defendant at sentencing to submit blood and saliva samples under Penal Code section 296 because that provision did not include robbery as an enumerated offense. Moreover, the failure to object did not waive the issue because an unauthorized sentence may be attacked for the first time on appeal.id: 14854
A robbery cannot be committed if the victim did not possess the property that was taken by force or fear.During a birthday party at a business, armed defendants entered, ordered the victims to the floor and proceeded to take merchandise from the business. Jiminez was a visitor to the business and was not in actual or constructive possession of the property taken. A robbery cannot be committed if the victim did not possess the property that was taken by force or fear. Therefore, the convictions for robbery of Jiminez were reversed.id: 14853
Instruction on intimidation was erroneous where it left unclear whether the jury had to find the victim was in fact afraid.During deliberations in defendant's robbery trial the jury requested further instruction on the meaning of the word intimidation. The court instructed that intimidation requires conduct that is reasonably calculated to produce fear. The instruction was erroneous because it left unclear whether the jury had to find the victim was, in fact, afraid. However, the error was harmless where the record established that the victim stepped back from the ATM because defendant's conduct induced fear in her.id: 10114
Grand theft auto is a lesser included offense of robbery when the car is stolen as part of the property taken at a robbery and no other intent is shown.Defendant was convicted of several offenses including grand theft auto and robbery. However, the convictions were improper because when, as here, an automobile is stolen as part of the property taken in a robbery, and no other intent is shown the defendant may not be convicted of both robbery and grand theft of the same property.id: 10110
Attempted carjacking and attempted kidnapping are lesser included offenses of an attempt to violate section 209.5, subd.(a).Attempted carjacking and attempted kidnapping are lesser included offenses of attempted kidnapping during a carjacking under Penal Code section 209.5, subd.(a). Therefore, because defendant was convicted of violating section 209.5, subd.(a), his conviction for attempted carjacking must be reversed.id: 19743
Evidence of defendant's poverty is inadmissible to establish a motive to commit robbery.Defendant was convicted of robbery as an aider and abettor. However, the introduction of substantial evidence of her poverty, which produced a motive for the robbery, deprived her of a fair trial. The error was prejudicial where the evidence was not overwhelming, and the jurors may well have viewed the defendant as a poor person with a motive to steal.id: 17902
Defendant committed one robbery when he stole from a single victim property that belonged to two people.When a defendant steals by force or fear more than one item during the course of an indivisible transaction involving a single victim, he commits only one robbery notwithstanding the number and ownership of the items he steals.id: 15414
Robbery conviction was reversed where defendant may not have formed the intent to steal until after the victim was dead and the court failed to instruct on theft as an L.I.O.There was evidence that defendant (who was convicted of capital murder) did not form the intent to steal until after the victim was dead. The trial court erred in failing to instruct on the lesser included offense of theft, and the robbery conviction was therefore reversed.id: 10123
An agreement to get the victim drunk was insufficient to establish force or fear for robbery.Since the facts support a finding that defendant's plan was to get the victim so drunk that he would pass out and thus he and his coconspirators would not need to use any force or fear to take his money and that a charged overt act occurred making a culpable conspiracy complete, the jury should have been instructed on conspiracy to commit theft as a lesser included offense of conspiracy to commit robbery. The judgment was modified by reducing defendant's conviction from conspiracy to commit robbery to conspiracy to commit theft.id: 10086
Robbery conviction was reversed where it may have rested on a legally incorrect theory after reversal of the conspiracy conviction.Appellant was convicted of conspiracy to commit robbery and robbery. The conspiracy conviction was reversed on appeal. There were two possible bases for the jury's verdict finding appellant guilty of robbery. One of the theories was his membership in the conspiracy. Because it was impossible to tell under which theory the jury reached its verdict, the robbery conviction was suspect and was reversed.id: 10124
Carjacking, like robbery, requires asportation of the vehicle. The felonious taking element of the crime of carjacking, like robbery, requires asportation of the motor vehicle.id: 17636
Court misinstructed that immediate presence requirement for robbery is satisfied if the victim perceived any overt act connected with the commission of the offense.During deliberations, the jury sent the court a note requesting clarification of the immediate presence requirement for robbery. The court erroneously responded that the crime occurs in the victim's immediate presence if the victim perceived any overt act connected with the commission of the offense. Immediate presence has properly been defined as the area within which the victim can reasonably be expected to exercise some control over the property. The misinstruction required reversal of the robbery conviction and the robbery<197>murder special circumstances.id: 10092
Updated 7/12/2024Force or fear was established in the robbery of a bank where defendant calmly handed the teller a note demanding $5,000.Defendant was convicted of robbery of two banks. Each time, he calmly handed the teller a note demanding $5,000 and stating “Don’t play.” The trial court did not err in failing to instruct on grand theft as a lesser included offense due to defendant’s relatively calm demeanor and the bank’s policy of giving the money to people who demand it.id: 28321
Updated 3/6/2024A defendant can be convicted of an attempted Estes robbery.An Estes robbery occurs where the defendant takes something from a store and uses force in the getaway. Defendant was convicted of an attempted Estes robbery but argues there can be no such crime because once the instant force is used, the Estes robbery is complete and if the thief abandons the property before using force then there is no robbery at all - the crime is theft plus an assault. However, defendant’s argument fails as commission of the completed robbery does not preclude conviction of the attempted robbery with which he was charged.id: 26623
Updated 2/26/2024Evidence showed force sufficient to support the robbery convictions as the defendant posing like a police officer physically grabbed or moved the victims. Defendant and a female associate committed two robberies posing as undercover police officers. Defendant argued there was insufficient evidence of force or fear to sustain the convictions because the victims merely complied with his demands because they believed he was a police officer. However, there was evidence of force as one victim testified that defendant grabbed him by the neck and threw him against the wall, and the other victim testified that defendant kicked him and “put” him on the hood of the car.id: 26241
Updated 2/4/2024Absent evidence the intent to steal arose after the shooting, the court did not err in failing to instruct on theft as a lesser included offense of robbery.The trial court did not err in failing to instruct on theft as a lesser included offense of robbery absent substantial evidence that defendant formed the intent to steal after shooting the victims. id: 27285
Updated 2/4/2024The single larceny doctrine did not preclude two robbery convictions where the two acts were separated by defendant’s decision to force the victim to orally copulate him.Defendant argued the “single larceny doctrine” precluded him from being convicted of two robberies because both acts were part of a single transaction. He took the victim’s cell phone in the parking lot so she could not call the police. He then forced her to drive him to several locations and at one point forced her to orally copulate him. He then drove her to another location where he robbed her of her money and allowed her to leave. The two robberies were separated by defendant’s decision to force the victim to orally copulate him.id: 27344
Force for robbery was established where defendant took the cell phone from the resisting victim.There was sufficient evidence of force to support the robbery conviction where defendant reached into a car and grabbed the cell phone of the victim who was holding the phone and resisting.id: 26100
Evidence supported the modification to CALCRIM No. 1203, where moving the kidnap victim to the trunk could be considered an act intended to aid in the escape from the robbery.Defendant was convicted of kidnapping to commit robbery and other offenses. He argued the trial court erred by modifying CALCRIM No. 1203 to specify that the intent to commit robbery included the intent to aid in the escape from the robbery. He claimed there was no evidence to support a theory that asportation of the victim was done to effectuate the escape. However, evidence supported the theory that the robbers’ intent in moving the victim to the trunk, was at least in part, to aid in their escape.id: 26049
Defendant was properly convicted of an Estes robbery, where he left a store after switching UPC stickers on merchandise.Defendant entered a store, placed a universal product code sticker for a $4.47 bottle of roach killer on a $39.98 bottle of weed killer, and went through the self-checkout station. He was properly convicted of theft by larceny (as opposed to theft by false pretenses) and the evidence therefore supported an Estes robbery conviction as well, where he resisted the efforts of the theft prevention officer.id: 25557
The homeowner’s young daughter was a residential robbery victim because she constructively possessed the stolen property under the special relationship doctrine.Defendant was convicted of several counts of residential robbery. He argued the evidence didn’t support the convictions because the 15 year-old girl inside the residence at the time of the robbery - the homeowner’s daughter - could not be deemed a robbery victim because she did not actually or constructively possess the stolen property. However, the girl constructively possessed the stolen property under the special relationship doctrine.id: 25521
The trial court did not err by imposing the “in concert” enhancement in defendant’s attempted robbery case. Penal Code section 213, subd.(a)(1)(A) establishes an increased sentencing range for first degree robbery when committed inside an inhabited dwelling with two or more other people. Defendant argued the enhancement only applies to completed robberies. However the in-concert allegation also applies to attempted first degree robbery and the trial court did not err by imposing it in defendant’s case.id: 25052
The momentum from the stolen car was sufficient force to support the carjacking conviction where someone was trying to remove defendant from the car at the time.Defendant was convicted of carjacking after he stole a car from the dealer’s service garage, and an employee unsuccessfully tried to pull him out of the moving vehicle. He argued the trial court’s instruction on the definition of “force” impermissibly allowed the jury to find the momentum from the car as he was leaving the premises satisfied the requirement. However, the momentum of the car was sufficient force to support the conviction. id: 25253
Defendant used sufficient force to commit carjacking where she drove off while the victim was still clinging to the vehicle. Defendant argued there was insufficient evidence of force to support her carjacking conviction as she didn’t use a weapon, or touch or threaten the victim. However, she drove faster than necessary to seize the vehicle. Moreover, the victim tried to hold onto the vehicle as defendant backed it up, and defendant continued until the victim had to let go. The evidence showed defendant used force to take the vehicle.id: 25133
The claim of right defense did not apply to defendant who was attempting to regain possession of drugs he believed were his.Defendants argued the court erred by instructing on the claim-of-right defense regarding attempted robbery because that defense did not apply where the drugs indisputably belonged to them. However, the defense applies to property the perpetrator owns or reasonably believes he owns. But the instruction should not be given, where as here, defendant’s claim to the drugs arose from an illegal activity, drug dealing. There was no prejudice though, where the instruction correctly stated the defense did not apply. id: 24627
One spouse can be convicted of robbing the other of community property on a temporary taking theory.Defendant was convicted of robbing his wife after taking her cellphone. He argued the phone was community property and there was no showing that he intended to permanently deprive his wife of the phone. However, one spouse can be convicted of robbing the other of community property on a temporary taking theory, and principles of separate and community property are immaterial to a robbery prosecution.id: 24498
Evidence supported the carjacking conviction and felony-murder special circumstance where defendant killed the victim in her kitchen and then took her car from the garage. Defendant killed the victim and took her car during a home invasion robbery. When he entered the home the victim was in the kitchen and the car was parked in the garage. The evidence supported the carjacking conviction, and the felony murder special circumstance based on carjacking. The jury could reasonably find defendant took the car from the victim’s “person or immediate presence” where the car keys were within the victim’s reach at the time he entered the house.id: 24015
A robbery was committed where defendant shot at the victim who arrived after defendant had taken the property in the victim's absence.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. Relying on the analysis in People v. Estes (1983) 147 Cal.App.3d, 23, which found the immediate presence requirement may be satisfied during the asportation, the court found a robbery was committed.id: 20279
The claim-of-right defense to robbery does not apply to a defendant who acts to recover property on behalf of another person. The trial court properly refused to instruct on the claim of right defense where the defendant acted to retrieve the electronic benefit card that belonged to his cousin. The defense only applies to a defendant seeking to retrieve his or her own property.id: 24026
Evidence supported the carjacking conviction where the attackers beat the victim, took his keys, and returned 10 minutes later while he was inside of his apartment nearby.Evidence was sufficient to support defendant’s carjacking conviction. While the evidence did not show the intent to deprive the victim of his truck at the time defendants used force or fear, the intent was shown when the attackers returned and walked towards defendant’s and his vehicle. The jurors could conclude defendant and the others used fear of further attack to take the truck. Moreover, the evidence showed the vehicle was taken from victim's immediate presence even though he was inside his apartment, 10 feet away when the attackers returned to take the vehicle. id: 22043
The trial court had no sua sponte duty to instruct that for robbery purposes, fear had to be reasonable.The trial court had no sua sponte duty to instruct the jurors that a robbery victim’s fear had to be reasonable. Even if the court erred by failing to so instruct, the error was harmless in light of the evidence of fear when defendant demanded money from the various bank tellers.id: 21982
Robbery may be predicated on theft by false pretenses. Defendant argued that the use of force when fleeing a store following the successful acquisition of personal property through a theft by false pretenses, as opposed to theft by larceny or theft by trick, does not constitute robbery. However, defendant’s theft of the gift cards (by false pretenses) was essentially an Estes robbery and the conviction was proper.id: 22281
The trial court did not err by failing to instruct on theft as an LIO of robbery where the evidence showed defendant formed the intent to steal before the killing.The trial court did not err by failing to instruct on theft as a lesser included offense of robbery as there was evidence that showed defendant formed the intent to steal the victim’s watch and ring before he confronted and sexually assaulted her. id: 22276
The prostitute robbery victim inhabited the motel room for purposes of first degree robbery where she socialized with a friend and ate meals in the room.Defendant was convicted of first degree robbery of a prostitute who was working out of a motel room. He argued the prosecution failed to prove the room the victim used to transact her business was “inhabited” for purposes of Penal Code section 211.5. However, a business traveler’s room is inhabited while he or she is doing business and resting. Here, there was evidence that the victim, by socializing with a friend and eating meals, used the room as living quarters, thereby inhabiting the room at the time defendant robbed her. id: 21848
Mall security guards with the duty and authority to retrieve goods stolen from a store can be robbery victims. Defendant shoplifted property from a store in a shopping mall and forcibly resisted the mall security guards who apprehended him and recovered the property. The guards can be robbery victims even though they are not directly employed by the store that owed the property, where they had a special relationship with the store and had the duty and authority to retrieve its stolen property. Moreover, the instruction given to the jury which omitted the term “special relationship” when defining when security guards can be robbery victims was not prejudicial.id: 21794
Evidence supported the conviction of robbing Armondo who had constructive possession of his brother’s money.Defendant argued the evidence was insufficient to prove that Armondo was a victim of robbery since he had no interest in or possession of the $1500 that his brother Alex kept hidden in his bedroom. However, the evidence supported the conviction for the robbery of Armondo, who was forced at gunpoint to turn over to the robbers the money that belonged to Alex.id: 21583
Defendants commit robbery when taking store property from employees even if the store owner had conspired with the robbers to commit the offense.Defendants argued the elements of robbery have not been established if the store owner conspired with the robbers and gave them his permission to rob the jewelry store. However, even if the owner of a retail store consents to the taking of store property by third persons, those persons still commit a robbery if they take store property by means of force or fear, from the custody of other employees who are unaware of the consent given to the robbers by their employer. id: 21108
King, who was not a regular employee of the cellular phone store but knew the owner and performed services in the store, constructively possessed the store’s property for the purposes of the robbery statute.Defendant argued there was insufficient evidence to support his conviction for attempted robbery of Johnny King because King was not a store employee and did not have constructive possession of the property in the store. However, King was not merely a visitor in the cellular phone store but was something of an apprentice. His presence in the store performing services for the store, coupled with his relationship to the store owner, provided substantial evidence that he constructively possessed the store’s property for purposes of the robbery statute.id: 21085
Evidence supported the robbery conviction even if the intent to steal arose after he bound the girls, and the robbery-murder special circumstance where it did not show he took the items to facilitate the murder. Even if defendant’s intent to steal the leggings and nightgown arose only after he bound the girls, sufficient evidence supported the robbery conviction. Moreover, there was no evidence that he took the items only to facilitate the murder, and therefore, the evidence supported the robbery-murder special circumstance finding.id: 21012
Where defendant attempted to steal Johnson’s marijuana, the evidence did not support the conviction of attempted robbery of Johnson’s new roommate who was also present.Defendant was convicted of the attempted robbery of Johnson and Rider, who was Johnson’s roommate. However, the evidence did not support the conviction of attempted robbery of Rider where the marijuana defendant attempted to steal belonged to Johnson, Rider did not have possession of it or access to the safe where Johnson stored it. Moreover, Rider had no obligation to protect Johnson’s belongings especially where Johnson was present to protect his own property. id: 21017
The purse snatch could only be a robbery and the trial court did not err in failing to instruct on grand theft person as a lesser included offense.Defendant approached the victim and grabbed the purse she was carrying. She tried to hold onto it but his strength and his act of stepping on her foot overcame her resistance, and he got away with the purse. That was robbery and there was no basis for finding grand theft from the person. The trial court did not err in failing to instruct on grand theft from the person as a lesser included offense of robbery.id: 20894
There was sufficient evidence of fear for carjacking purposes where the victim pulled her son from the car after defendant entered and began to drive away.Evidence supported the jury’s finding that defendant committed a carjacking by use of force or fear. Defendant’s action of entering and attempting to drive away in the car as the victim was placing her son in his car seat in a relatively deserted area in the dark was sufficient to cause the required fear as she pulled her son from the car. That the victim expressed anger by yelling at the victim did not negate the fear. The trial court did not err in denying the Penal Code section 11181.1 motion for acquittal.id: 20895
Evidence supported the robbery conviction where the taking began in the victim's immediate presence.Defendant argued the evidence was insufficient to support a conviction for robbery on the theory that the property was not taken from the victim's immediate presence because he managed to escape from the apartment before defendant succeeded in carrying away his property. However, the taking was begun in the victim's immediate presence when he was separated from his property by force or fear. Defendant should not be heard to complain that he so effectively terrorized the victim that he abandoned the property before defendant could carry it away.id: 10107
The trial court did not err in informing the jury, in response to a question, that all employees on duty during a robbery have constructive possession of their employer’s property. For purposes 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 business, assuming the other elements of the robbery are met as to each employee. id: 20837
Evidence showed defendant aided and abetted the robbery (for felony-murder purposes) where he was close to his fellow gang member who robbed and shot the victim and defendant hid the gun.Defendant was convicted of murder under the felony-murder doctrine. The evidence was sufficient to prove that he aided and abetted the commission of the robbery where his fellow gang member fired the fatal shot. Before he died, the victim told police he was shot by two “Asian guys” wearing bandanas, defendant hid the gun after the shooting, and when questioned by the police, he initially attempted to distance himself from the crime. Defendant was an integral part of the robbery and was guilty of murder under the felony-murder doctrine.id: 20834
The mother-son relationship was sufficient to establish the right of control necessary for robbery of the son’s car.Evidence supported a finding that Brophy was a victim of a robbery where defendant tried to steal her son’s car from a parking lot in the parking space designated for the condominium. She had sufficient custody over the car to be a victim where she lived with her son, helped him buy the car, was listed on the insurance and had keys. id: 20616
Because defendant’s intimidation of the robbery victims established fear, no instruction on grand theft was required.The trial court did not err in refusing to instruct on grand theft as a lesser included offense of robbery. While there was no evidence that defendant used a weapon, his pushing a customer aside along with the escalating demands for money were reasonably calculated to intimidate the clerk, and she testified she was traumatized. The element of fear was proven and no instruction on mere theft was warranted.id: 20284
Evidence showed an intent to rob for purposes of aggravated kidnapping where defendants knew the victim was carrying $700 before they put her in the car.Defendant argued the evidence did not support the conviction for aggravated kidnapping because the evidence of an intent to rob was not formed until after they put the victim in the car. However, the evidence showed defendants lured the victim to the park so that should could be ambushed and assaulted knowing that she was carrying $700 they could take.id: 20038
Evidence supported conviction in "Estes robbery" situation where defendant pretended to point a gun at the store employee who sought to regain the stolen property.Evidence supported the robbery conviction where the fear was applied as defendant pretended to point a gun at the store employee who sought to regain the stolen property.id: 20013
The "purse snatch" supported a robbery conviction.A purse snatch satisfies the force or fear element of robbery where the thief wrests the purse from the victim's person using the amount of force necessary to get away.id: 19931
Evidence supported force or fear element in Estes robbery where defendant used force for the first time while trying to flee with the stolen goods.Defendant was convicted of robbery but argued the evidence was insufficient to establish force or fear since he took the items peacefully but then used force to prevent the mall security guard from retaking the items. This is known as an Estes robbery and the evidence supports a conviction where the perpetrator uses force for the first time while attempting to get away.id: 19936
Attempted kidnapping during the commission of a carjacking does not require a completed carjacking.Kidnapping during the commission of a carjacking under Penal Code section 209.5, subd.(a) requires a completed carjacking. However, a completed carjacking is not a prerequisite for an attempt to violate section 209.5, subd.(a).id: 19742
Since carjacking is a crime against possession rather than ownership it is not subject to a "claim of right" defense. Defendant argued the trial court erred by preventing him from offering a "claim of right" defense to the carjacking allegation. However, because carjacking is a crime against possession rather than ownership it is not subject to a claim
of right defense.id: 19707
CALCRIM robbery instruction is not deficient for failing to define force and fear. CALCRIM 1600 which sets forth the elements of robbery was not deficient for failing to define the terms "fear" and "force" for the jury as the terms have no meaning peculiar to the law.id: 19723
Robbery statute is not vague for failing to define "bank robbery."Penal Code section 211 was not unconstitutionally vague for failing to define "bank robbery." Moreover, the statute was not vague as applied where defendant was not charged with robbery of
banks but rather of robbery of persons who happened to be bank employees.id: 19668
Preventing the recovery of property through force or fear supports a robbery conviction.Defendant was confronted near his car by a store security guard who suspected defendant took merchandise without paying. Defendant threatened to shoot the guard. He argued on appeal that there was no robbery because he did not take the property from the immediate presence of the victim. However, the guard observed defendant take the goods from a security camera. Moreover, preventing the recovery of property through force or fear is itself force or fear.id: 19176
Movement of a truck one foot before it stalled supported the asportation element of carjacking. Defendant and his accomplice took control of the victim's truck. Defendant beat the victim who remained in the truck, while an accomplice attempted to drive the truck away. When the accomplice started the truck, the parking brake was engaged. The truck lurched forward one foot and stalled. The movement was sufficient to satisfy the asportation requirement
for carjacking.id: 19133
Evidence supported the robbery conviction where the victim gave defendant the money two hours after defendant fired the threatening shots.Defendant asked his friend to give him money and his friend refused. During the next four hours defendant threatened to kill his friend and fired shots outside the store where his friend worked. Two hours after the shots were fired, defendant came to the store and demanded money but did not show the
gun. His friend gave him the money. Under the circumstances, defendant committed a robbery as the evidence showed the victim was frightened when he gave defendant the money.id: 18967
A purse snatched from the victim's person qualifies as a robbery.A purse snatch satisfies the force or fear element of robbery where the thief wrests the purse from the individual who has it on his or her person, using the amount of force necessary to get it away.id: 18797
Defendant, who took the victim's watch in an altercation, committed robbery even though the victim did not realize the property had been taken at the time.Defendant argued there was insufficient evidence of robbery because the victim did not know any property had been stolen until after defendant fled from the scene of the crime. However, where, as here, the defendant used force to take the property from the victim's presence, the defendant committed a robbery even though the victim did not know the property was taken.id: 18521
The unlawful taking of a vehicle is not a lesser included offense of carjacking.California law prohibits convicting a defendant of two offenses arising from a single criminal act when one is a lesser offense necessarily included in the other. Contrary to defendant's claim, the unlawful taking of a vehicle under Vehicle Code section 10851 is not a lesser included offense of carjacking under Penal Code section 215. The court affirmed the convictions of both offenses.id: 18028
Defendant's use of force to retain the property after the victim confronted him while attempting to get away supported the robbery charge.The immediate presence requirement for robbery is satisfied where the defendant, after stealing property belonging to the victim, but not from the victim's presence, is confronted by the victim as he is attempting to carry the property to a place of temporary safety and used forcible resistance to keep the property.id: 17718
When robbery is not a charged offense, but merely forms the basis of a felony-murder charge, the court need not instruct on theft as an LIO.Defendant argued that the trial court erred in failing to instruct on theft as a lesser included offense of robbery. However, when robbery is not a charged offense but merely forms the basis for a felony-murder charge and a special circumstance allegation, a trial court has no sua sponte duty to instruct on theft.id: 17700
Trial court had no duty to instruct sua sponte on after acquired intent.Defendant argued the court erred in failing to instruct sua sponte that he could not be convicted of robbery if he formed the intent to steal after killing or applying force to the victim. However, this pinpoint instruction required a request from counsel. Moreover, the point was otherwise made through CALJIC Nos. 9.40 and 8.21.id: 17701
Janitors not directly employed by the store had constructive possession of the store's property, and evidence supported the robbery convictions involving the janitors.Defendant committed a robbery in a grocery store. Present at the time were four store employees and two janitors employed by a cleaning company but regularly assigned to the store. Defendant was convicted of the robbery of all six victims. He argued the evidence was insufficient to support his conviction of robbery as to the two janitors because they were not in constructive possession of the store's money. However, the janitors were part of the group of workers in charge of the premises at the time of the robbery, and as such, had constructive possession of the store property.id: 17541
Theft from a dead body is not a lesser included offense of robbery.Defendant argued the trial court erred in refusing to instruct on theft from a dead body (Penal Code section 642) as a lesser included offense of robbery. However, the offense is not included within robbery and he was not entitled to the instruction. The failure to instruct sua sponte on simple theft was harmless where the jury found defendant guilty of robbery which showed he formed the intent to steal before the victim died.id: 17475
Car was taken from immediate presence of victims' for purposes of carjacking even though they were a block away after fleeing at the time the car was driven away.Defendant argued the evidence was insufficient to support the carjacking conviction because, at the time he drove the car away, the driver was a block away, and the passenger had likewise fled from the car. However, it was defendant's knife wielding that caused the victims to leave the car. Under the circumstances, the car was taken from the immediate presence of the victims. Moreover, contrary to defendant's claim, the passenger was "in possession" of the vehicle for purposes of the carjacking statute.id: 17467
Instruction regarding the taking of a car within the victim's "observation" for purposes of carjacking statute was not overly broad. Defendant argued the carjacking instruction (CALJIC 9.46) was overly broad because it included within the definition of "immediate presence," an area within the victim's "observation." However, the instruction clearly provides the area is that from which the victim "could, if not overcome by violence or prevented by fear, retain possession of the subject property." The "observation" language is not overly broad. Moreover, the victims in the present case were still in an area in which they had control, and not merely observation, where the driver's telephone was within five feet of the car, and the passenger remained in the car while defendant initiated the attack on the driver.id: 17468
The trial court was not required to give a special instruction on "possession" for purposes of carjacking.Defendant was convicted of carjacking among other things. He argued the court should have given CALJIC 1.24 concerning actual and constructive possession. However, the term "possession" has no specialized meaning in the present context. The jury could not have failed to understand that the driver/owner of the car had possession as he stood several feet away or that the passenger occupied the vehicle as she remained inside. Neither victim relinquished the property voluntarily.id: 17469
While one cannot rob a dead person, one can rob a living person by killing the person and then taking his or her property.Defendant argued the evidence was insufficient to show he entered the apartment of the victims with the intent to steal (burglary counts) or the intent to take property by force or fear (robbery counts) because he may have formed the intent to steal after the victims were dead. He claimed a dead person cannot feel fear and therefore cannot be the victim of robbery, and the record did not show the victims were alive when he took their property. However, the evidence showed defendant needed money, and that a struggle with one victim caused an audible disturbance. The jury could find he entered with the intent to steal, that he murdered the victims to take their property, and that he fled one victim's apartment without property after the noisy struggle. While one cannot rob a person who is already dead, one can rob a living person by killing that person and taking his or her property.id: 17312
Section 707, subd.(b)(25) applies to participants in a carjacking who did not personally wield the weapon.The juvenile court concluded the minor committed a carjacking while armed with a dangerous weapon within the meaning of Welfare and Institutions Code section 707, subd.(b)(25), which served as the basis for a CYA commitment not to exceed 10 years. The minor never held the gun during the crime. The term "armed" for purposes of section 707, subd.(b)(25), applies to principals to the offense who were not personally wielding the weapon.id: 17257
Special instruction did not remove the elements of possession and immediate presence for robbery when the victim was a store employee.Defendant argued a special instruction given to the jury removed the elements of possession and immediate presence for robbery when the victim was an employee. However, the special instruction did not suggest a robbery victim need not possess or be in control of stolen property, it merely explained that possession and control need not be immediate. Moreover, the instruction did not remove the element of immediate presence from the jury. Telling the jury that the property need not be in the employee's "immediate control and possession" did not detract from the immediate presence requirement. Finally, evidence showed the nonmanagerial employee victims constructively possessed the stolen property where they worked together as a retail team with constructive possession of the money in the cash register, and, through the manager, the money in the safe.id: 17231
Evidence supported carjacking conviction where defendant threatened the victim and demanded her car keys inside the store even though the victim was not present in the parking lot when defendant drove away in the car.Defendant robbed a jewelry store. In the process, he took the store employee's keys from her while her car was parked outside in the parking lot. He had previously threatened her and demanded the keys. Evidence supported defendant's carjacking conviction even though the victim was not physically present in the parking lot when he drove the car away.id: 17055
Evidence supported robbery and felony-murder convictions where jury could have inferred the shooting followed a request for the victim's car rather than an unrelated dispute.Defendant argued the evidence was insufficient to support his convictions of robbery and felony murder since the shooting grew out of a dispute between the two men over the heat in their apartment and any theft was incidental to the shooting. However, the jury was not required to credit defendant's version of the events. The jury could have inferred from the evidence that the dispute concerned defendant's insistence that the victim surrender his car, and that defendant shot the victim in order to compel him to accede to his demands.id: 16790
Sentencing range for attempted second degree robbery is set forth in section 213, subd.(b).Penal Code section 664 does not apply to convictions of attempted second degree robbery. Instead, section 213, subd.(b) specifically provides the punishment for the offense. The sentencing range is 16 months, two years, or three years. Accordingly, the trial court's imposition of one-third of two years (eight months) doubled to 16 months under the three strikes law was proper.id: 16724
Trial court did not err in refusing to instruct on grand theft person as an LIO of robbery where there was a two minute struggle for the victim's purse.The trial court did not err in refusing to instruct on grand theft person as a lesser included offense of robbery. Contrary to defendant's claim, there was substantial evidence of force where the defendant and victim fought over her black purse for two minutes.id: 16685
Evidence supported an intent to steal at the time defendant applied force to the murder victim where he took her personal stereo, even though he did not find cash she had in the motel room dresser.Defendant argued the evidence was insufficient to support his guilt for robbery because there was no substantial evidence that he formed the intent to steal before or during, rather than after he applied force to the victim. After he strangled the victim, he took her stereo equipment and sold it for $70. He argued the intent to steal was rebutted by the fact that he did not take $130 that was in the motel room dresser. However, the evidence showed he raped and killed the victim elsewhere and may have hurriedly returned her body to the motel room. His failure to thoroughly search the room did not establish the lack of an intent to steal when he killed her. In any event, the evidence of felony murder based on rape was also strong and independently supported the conviction.id: 16551
Two beating theory supported robbery for felony murder and the special circumstance if defendant attacked the victim without the intent to steal, and then formed the intent and finished off the victim.The prosecutor urged the jury to convict defendant of felony murder and to find the robbery and burglary murder special circumstances true if it believed the two beating theory. Defendant argued the two beating theory was legally insufficient to establish the killing occurred in the course of a robbery. However, if defendant first attacked the victim without the intent to steal, and he then decided to steal and finished the victim off to achieve that goal, he was guilty of robbery.id: 16366
"Force or fear" for robbery is established if the perpetrator obtains the property peacefully but then uses force to retain or escape with it.Defendant argued he could have obtained the victim's money by false pretenses (passing off the bunk cocaine as real cocaine), stabbing the victim only when he discovered the ruse and attempted to reclaim the money. Defendant argued under these facts, the "force or fear" element of robbery would be lacking. However, even if the perpetrator obtained the money by peaceful means, the theft was transformed into robbery with the later force used to retain or escape with the money.id: 15408
Absent evidence of claim of right there was no sua sponte duty to instruct on trespass and assault as LIO's of burglary and robbery.Defendant argued the court erred by failing to instruct sua sponte on trespass and assault as lesser included offenses of burglary and robbery, respectively. However, there was no evidence that defendant intended to take only items from the victims to which he had a bona fide belief of a right or claim.id: 15409
Claim of right defense is still valid but may no longer be used to defend forcible takings perpetrated to collect a debt.The claim-of-right defense provides that a defendant's good-faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for a conviction of theft or robbery. The Supreme Court found that the claim-of-right should continue to be recognized as a defense to robbery in California. However, the defense may no longer be used to defend forcible takings perpetrated to satisfy, settle or otherwise collect on a debt, liquidated or unliquidated.id: 15411
Court did not err in failing to instruct sua sponte on theft as an LIO of robbery absent evidence of a lack of intent to steal prior to the use of force or fear.Defendant argued the trial court erred in failing to instruct sua sponte on theft as a lesser included offense of robbery. However, there was no error since there was no evidence that defendant did not form any intent to steal until after he used force or fear to effect the taking.id: 15412
Defendant aided and abetted a single robbery where the robber took half the victim's money, entered defendant's car, and after following the victim to a stop, took the other half of the money.A robber reached into the victim's car and grabbed money the victim was holding. The bills tore in half. The robber then entered defendant's car and they followed the victim's car. The robber again confronted the victim and took the other half of the torn money. Defendant was charged with aiding and abetting a robbery. He argued there were two separate robberies and there was no evidence of aiding and abetting due to the break between the crimes. However, the evidence supported the conviction of aiding and abetting a single robbery because the robber never reached a place of temporary safety when he entered defendant's car. Moreover, there was no sua sponte duty to instruct the jurors need to unanimously agree as to which of the two acts he aided and abetted.id: 15413
Defendant committed robbery where he used fear to retain the property after it was taken.Defendant snatched the purse off the victim's shoulder. He subsequently displayed a gun and screamed at her to get away from his car. The willful use of fear to retain property immediately after it has been taken from the owner constitutes robbery. So long as the victim's fear to accomplish the retention of the property, it makes no difference whether the fear is generated by words or actions designed to frighten, or by the circumstances surrounding the taking.id: 15415
Defendant was properly convicted of the attempted robbery of four K-Mart employees he subjected to force or fear although none of them possessed the cash he attempted to steal.Defendant was properly convicted of attempted robbery of K-Mart's personnel manager, sales associate, pantry clerk and inventory clerk - all of whom were subjected to force or fear during defendant's attempt to steal their employer's property. While none of the employees had K-Mart cash in their immediate control, each had a representative capacity to K-Mart and a sufficient possessory interest in the property to be victim's of defendant's attempted robbery.id: 15416
Murder victim's statements regarding fear of defendant were relevant to prove lack of consent to burglary and robbery, and were admissible under the state-of-mind exception.The trial court did not err in allowing the testimony of three witnesses regarding the victim's statements declaring her fear of defendant. The statements were relevant to prove the lack of consent to the burglary and robbery related to her murder. Moreover, the statements were admissible under the state-of-mind exception to the hearsay rule where they were reliable and offered to prove lack of consent in the burglary and robbery.id: 15417
Defendant was properly convicted of two counts of attempted robbery even though he was stopped before he confronted either victim.Defendant argued that in situations where the perpetrator never comes into actual contact with the victims, the perpetrator can be convicted on only a single court of attempted robbery. Defendant acknowledged his intent to rob two people but claimed the intent was meaningless since the number of victims could have changed before he actually confronted them. However, since defendant intended to rob two people and his conduct went beyond mere preparation he was properly convicted of two counts of attempted robbery.id: 15317
Against-the-will requirement for carjacking and kidnapping involving infant victims is satisfied if the act is done for an illegal purpose or with an illegal intent.Convictions of kidnapping and carjacking generally require proof that the perpetrator committed the criminal acts against the will of the victim, i.e., without the victim's consent. This requirement presents special problems when the victim is an infant too young to give or withhold consent. However, in such cases, the against-the-will requirement is satisfied if the criminal act is done for an illegal purpose or with an illegal intent.id: 15320
Carjacking statute is not vague for including the terms "felonious taking" and "temporarily deprive".Inclusion of the terms "felonious taking" and "temporarily deprive" does not render the carjacking statute (Penal Code section 215, subdivision (a)) unconstitutionally vague.id: 15321
Carjacking victim may be deprived of possession not only when forced out of the car but also when he or she remains in the car and the perpetrator exercises dominion and control of the car by force or fear.Defendant argued the evidence did not support the carjacking conviction (Penal Code section 215) because there was no evidence that he tried to take the victim's car away from her presence, and there was no evidence that he intended to deprive her of possession of the car. However, the owner or possessor of the car may be deprived of possession not only when the perpetrator forces the victim out of the vehicle, but also when the defendant exercises dominion and control over the car by force or fear. Evidence supported defendant's conviction where he sought to exercise dominion and control over the car, and therefore intended to deprive the victim of possession of the car.id: 15322
Defendant may be convicted of carjacking and either theft or robbery based upon the commission of a single act or course of action.A defendant charged with carjacking, robbery, and theft, based upon the commission of a single act or course of action may be convicted of both carjacking and robbery, or of both carjacking and theft, but may not be convicted of both robbery and theft.id: 15323
There was sufficient asportation for the "taking" element of carjacking where the victim stopped the moving car and ran with the keys following defendant's order to stop.Defendant argued there was insufficient evidence to support his carjacking conviction because there was no evidence of even slight movement of the victim's vehicle. However, there was sufficient movement of the vehicle to satisfy that element. After the victim refused to exit the car, defendant reached in his waistband for what appeared to be a gun. The victim then stopped the car, and exited with the keys, thereby frustrating defendant's plan. A taking occurred when defendant exercised dominion and control by ordering the victim to stop the car and get out. The victim's response in braking the car and running away provided the asportation element of the completed crime.id: 15331
Aiding and abetting instructions were not required where defendant supplied the force or fear necessary to commit the robbery even though his accomplice actually took the beer from the victim.Defendant argued that where the prosecution's theory of the robbery count was that a key element was performed by an accomplice, the jury must be instructed on aiding and abetting. In this case the evidence showed defendant's accomplice actually took the beer from the victim. However, defendant provided the "force of fear" necessary to accomplish the robbery. As such, he was one of the direct perpetrators of the robbery, even if he did not physically deprive the victim of the property. No aiding and abetting instruction was necessary.id: 15308
Despite robbery instruction's reference to objective reasonableness of fear, the full definition and arguments by counsel emphasized the requirement that the victim subjectively was afraid.When the prosecution seeks to prove a robbery was committed by means of fear it must present evidence from which it can be inferred the victim was in fact afraid, and that such fear allowed the crime to be accomplished. The jury was instructed it need only find that it was objectively reasonable for the victim to feel fear. However, the instruction was not improper in light of the full definition given to the jury, as well as the arguments of counsel emphasizing the actual fear experienced by the victim.id: 14855
A felonious taking can occur for carjacking purposes even when the victim remains in the car.Defendant argued a felonious carjacking did not occur for purposes of Penal Code section 215, subd.(a), because the victims remained in the car during the entire episode and there was therefore no "taking." However, a "taking" occurred when defendant imposed his dominion and control over the car by ordering the victim to drive.id: 14852
Robbery in one's own house is of the first degree.If a defendant invites a guest to his home and then robs him, the guest is more vulnerable than the robbery victim on the street who has a greater chance to escape. Such a robbery is first degree robbery pursuant to Penal Code section 212.5.id: 10127
Shoving of a pregnant woman when snatching her purse was sufficient evidence of force to sustain a robbery conviction.Appellant argued there was insufficient evidence of force or fear to establish that the crime alleged was robbery rather than the necessarily included lesser offense of grand theft from the person. However, the evidence supported the implied finding of force where defendant shoved the victim, separate and apart from snatching her purse and given that the appellant was larger and stronger than the victim who was eight months pregnant and thus more susceptible to being shoved off balance and less able to recover her equilibrium quickly.id: 10128
Taking a bicycle by threat of force for ransom constitutes a robbery.Appellant told the victim that he heard one of the victim's relatives had stolen appellant's bicycle. Appellant told the victim he intended to keep the victim's bike until appellant's stolen bike was returned. Appellant then took the victim's bike after threatening to knock him down if he did not surrender the bike. Appellant argued there was no robbery because he only intended to deprive the victim of his bike temporarily. However, taking a bicycle by threat of force for ransom constitutes a robbery.id: 10130
The legislature enacted increased penalties for robbery committed in an inhabited dwelling and did not expressly exempt the robber's residence from that category.Defendant argued that evidence he had robbed two victims in his motel room was insufficient to support convictions of first degree robbery. While a person cannot be convicted of burglarizing his or her own residence, a person may commit a first degree robbery in his or her own home.id: 10131
There was substantial evidence of armed robbery of a property owner's companion where the companion had implied authority to help stop a theft in progress.Defendant was convicted of armed robbery of the property owner's companion. He argued there was insufficient evidence that he robbed the victim because the stolen property was in the possession of the owner and not the victim (the owner's companion) when the element of force or fear through display of the firearm occurred. However, the victim had constructive possession of the property through the owner's implied grant of authority to help stop the theft. There was substantial evidence that defendant robbed the victim.id: 10132
Trial court had no sua sponte duty to give a detailed explanation of asportation when instructing on robbery.Defendant argued the trial court erred in failing to fully explain the concept of asportation to the jury. The court instructed with CALJIC 9.40 which states all the elements of robbery. The failure of defendant to request a more detailed explanation of any of the elements constituted a waiver of the issue.id: 10133
Under the accusatory pleading test assault is not necessarily included when the pleading alleges a robbery by force.Since the element of force can be satisfied by evidence of fear, it is possible to commit a robbery by force without necessarily committing an assault. Consequently, under the accusatory pleading test, assault is not necessarily included when the pleading alleges a robbery by force. As a result, the trial court had no duty to instruct sua sponte on assault as a lesser-included offense of robbery even though there was evidence of intoxication.id: 10134
Court properly instructed that a robber who has kidnapped his victim is continuously in jeopardy during the period of captivity.Jurors asked a question regarding the duration of robbery. The court instructed that a robber who has kidnapped his victim is continuously in jeopardy during the period of captivity because at any unguarded moment the victim might manage to escape or signal for help. Defendant recognized the instruction was accurate but argued that it was argumentative and coercive. However, the instruction was not argumentative. Moreover, it did not direct the jury to presume a fact in issue nor did it shift the burden of proof to defendant.id: 10093
Court properly instructed the jury as to actual or constructive possession of property by a store employee for purposes of robbery.Defendant argued the jury instructions were misleading in that they did not make clear to the jury that store employees are victims of robbery only if there is evidence they are in actual or constructive possession of the items stolen from the robbery. However, employees such as the store truck driver, who was present in the cash register area during the robbery, have sufficient representative capacity with respect to the owner of the property to be the victim of robbery.id: 10094
Defendant may be convicted of a first degree residential robbery committed in his own residence.Defendant argued that he could not be convicted of first degree residential robbery where the crime took place in his own house. However, a robbery in the defendant's residence to which the victim was invited is no different from a robbery committed by some unknown third person inside a friend's house.id: 10096
Defendant may properly be convicted of carjacking where the victim is not physically present in the vehicle.Defendant was convicted of carjacking under Penal Code section 215. The victim had been lured into a hotel room by a woman believed to be a prostitute. Once in the room he was handcuffed by the woman while defendant and another man emerged from the bathroom. The two men beat the victim, took his money and car keys, and left with the car. Defendant argued the concept of immediate presence cannot be applied to carjacking in the same manner it is applied to robbery and that actual physical proximity to the vehicle is required. However, because of the immediate presence requirement the victim need not be physically present when the confrontation occurs. Evidence supported the conviction as the only reason the victim was not in the car was that he had been lured away from it by trick or device. The immediate presence requirement was satisfied.id: 10097
Defendant was properly convicted and punished separately for both carjacking and robbery where the crimes were separated in time and place.Defendant argued he could not be convicted of both carjacking and robbery based on the same incident. However, carjacking is not a lesser offense included within robbery and defendant was properly convicted of both offenses. Moreover, because the carjacking was separated in time and place from the initial robbery of the victim's purse and was interrupted by the sexual attack perpetrated by defendant, the record supported the trial court's finding the taking of the purse and taking of the vehicle were separate incidents which merited separate and additional punishment.id: 10098
Defendant was properly convicted of two counts of robbery where he took two purses from one purse owner while the other purse owner was a few feet away.A woman was pushing another woman in a wheelchair. The seated woman had purses belonging to both women on her lap. The woman pushing the wheelchair was distracted for a moment and walked a few feet away. Defendant then approached and took both purposes. The woman who had been pushing the chair saw defendant and yelled: What are you doing? Stop. The evidence supported a conviction of two counts of robbery. The purse of the woman who had been pushing the wheelchair was taken from her immediate presence. Moreover, the forceful struggle to take both purses from the seated woman caused the walking woman to be fearful and shocked such that the taking was accomplished by force or fear.id: 10099
Evidence established robbery where defendant applied force with intent to steal and then stole the vehicle.Defendant hitchhiker pointed a gun at the face of a motorist who stopped to offer a ride and when the driver fled the car, after demands for his money, defendant shot him in the back and drove away in the car. Defendant argued the evidence was insufficient to show robbery and the court erred in failing to instruct on the lesser included offense of theft. The robbery conviction was supported by the evidence because defendant applied force with intent to steal, and then stole the vehicle. Moreover, since it was clear defendant intended to rob the victim at the time he applied the force, his taking the vehicle when it was vacated by the victim because of his fear constituted the robbery of the vehicle. Since there was no evidence upon which the jury could find him not guilty of robbery, but guilty of grand theft, he was not entitled to the lesser included offense instruction.id: 10101
Evidence of force or fear supported robbery conviction after the rape where defendant held the knife to the victim while he took money from her pants pocket.Defendant was convicted of robbery. He argued there was insufficient evidence of force or fear to deprive the victim of money because the force was applied to accomplish the rape and taking the money was an afterthought. However, with the knife positioned towards the victim, and after the victim had stabbed defendant, defendant said the pain was killing him. He then removed $20 from the victim's jeans pocket at the time he was still on the bed. Sufficient evidence existed of the use of force or fear to deprive the victim of her money.id: 10102
Evidence supported conviction of first degree residential robbery notwithstanding that the residents were in the process of moving out.Defendants argued the evidence was insufficient to sustain their convictions for first degree residential robbery because defendant's bedroom, in which the robbery occurred, was not currently inhabited at the time of the robbery. They claimed that defendant's possessions were moved from the house to his vehicle prior to the robbery, and therefore no evidence supported the conclusion that defendant currently or in the future intended to use the house for habitation. However, where a dwelling was previously inhabited, it does not become uninhabited until the residents leave never intending to return to use the dwelling as sleeping quarters. While defendant may have been in the process of moving out, the dwelling was still inhabited.id: 10103
Evidence supported defendant's robbery conviction where he entered a house with other men and proceeded to loot the house and all family members.Four men entered a family residence and remained for over an hour while they robbed four and assaulted two family members. Defendant argued there was insufficient evidence - notwithstanding his presence - he aided and abetted in one particular robbery. He claimed that since there was no evidence he encouraged an associate to rob one victim, or assist in taking her jewelry, he was not an aider and abettor in the robbery. However, defendant was a party to a compact of criminal conduct, a compact which embraced the looting of the residence and all its' occupants. Evidence was overwhelming that defendant was a principal in the robbery in question.id: 10104
Evidence supported the robbery conviction notwithstanding that the car was not in the victim's immediate presence.Evidence indicated that defendant and his companions, acting by prearrangement, induced the victim to leave his car in the beach parking lot, then walk with them to a more secluded place where their attack would be safer and his ability to protect the vehicle from seizure would be reduced. The jury could therefore conclude defendants robbed the victim of the car. Furthermore, the evidence supported a conclusion that the key to the car was taken from the victim's immediate presence by force or fear.id: 10105
Evidence supported the robbery conviction where the victim grabbed defendant causing defendant to drop the loot bag.Victim saw defendant removing objects from victim's car. As the victim approached defendant started to flee with a bag containing the loot. The victim apprehended defendant, the two struggled and defendant dropped the bag. Defendant argued the evidence was insufficient to prove the taking of the property was accomplished by force or fear because there was reasonable doubt he had dominion and control over the property after the use of force or fear. However, the evidence was sufficient for the jury to conclude that defendant forcibly transported or carried away the victim's property when he physically resisted the victim's attempt to regain it. Moreover, given the facts, the trial court did not err in failing to instruct on the lesser included offense of attempted robbery.id: 10106
Evidence that defendants fired guns in the victims apartment and took jewelry as one victim watched from the closet area supported the robbery conviction.The aiming and firing of a loaded gun at close range allowing the defendants to search the victims and their apartment clearly established the necessary force to commit robbery. Moreover, the victim testified that he saw defendant take his watch from the window sill after he had come out of the closet, thus establishing the immediate presence requirement.id: 10108
Failure to instruct on grand theft as a lesser included offense of robbery was harmless where the jury was instructed on and rejected petty theft.Defendants were convicted of robbery. They argued the court erred in failing to instruct sua sponte on the lesser included offense of grand theft. The court did instruct on the lesser included offense of petty theft. Under the instructions given the jury was not put to an improper all-or-nothing choice, but necessarily rejected the theory of after-acquired intent when it found defendants guilty of robbery rather than petty theft. Any error in failing to instruct on the additional offense of grand theft was harmless.id: 10109
Hotel lobby is an inhabited dwelling house for purposes of first degree robbery.A lobby is an integral part of a hotel for purposes of determining whether a robbery occurring in the lobby is punishable as a first degree offense. Therefore, sufficient evidence supported defendant's first degree robbery conviction.id: 10112
Immediate presence requirement for attempted robbery was satisfied where the victim was behind a pool table, 30 feet from defendant who was at the bar.Defendant argued the evidence was insufficient to support the attempted robbery conviction. He claimed that since the victim was at the pool table, 30 feet away from the bar, it was impossible for him to be able to take the victim's property from his immediate presence. However, the record established that the victim stayed behind the pool table because defendant had the gun. The immediate presence requirement was satisfied where the victim was in the general vicinity.id: 10113
Interjecting himself physically between the cashier and cash register supported a finding of fear necessary to support appellant's robbery conviction.Appellant, who was considerably larger than the cashier, approached the cash register. He had alcohol on his breath and stood real close to her as there was no counter between he and the cashier. He made a bogus purchase causing the cashier to open the drawer. He then wedged himself in between the cashier and the register causing her to step back in fear. These facts supported a finding of fear or intimidation sufficient to support a robbery conviction. However, this evidence would also support a finding of no force or fear, and therefore the court erred in failing to instruct the jury on the lesser included offense of grand theft by larceny.id: 10115
Issue of whether a robber has reached a place of temporary safety is to be determined on an objective basis.Defendant argued the evidence was insufficient to support the special circumstance findings and the first degree murder conviction because the robberies had ended<197>he had reached a place of temporary safety<197>before the homicide occurred. Contrary to defendant's assertion, the issue of place of temporary safety is determined on an objective standard and his personal belief that he had reached a place of temporary safety is only one factor for the jury to consider. Evidence supported the jury's finding that defendant was in constant flight where he did not have time to dispose of the gun or the stolen property or change into the warm-up suit that the state theorized he placed in the stolen car to alter his appearance after the robberies.id: 10116
Lesser offense instructions were not required in felony murder case despite a lack of evidence that defendant intended to permanently deprive the victims of their car.Defendant argued the court erred in failing to grant his request for instructions on second degree murder and manslaughter where the evidence did not show he intended to kill in the course of the robbery because there was no showing of an intent to permanently deprive the victims of their car. However, there was no evidence defendant intended to return the car to its owners, that he took it believing he owned it or that he took it inadvertently. The court did not err in rejecting the lesser included offense instructionsid: 10117
Moving robbery victim to the ATM was sufficient to establish kidnapping for the purpose of robbery.Defendant forced the robbery victim to accompany him on a two-to-three block drive to the victim's automatic teller machine. Moreover, the victim believed defendant possessed a gun and knife and feared he would be killed. Evidence supported the conviction of kidnapping for the purpose of robbery.id: 10118
No instruction of grand theft from the person as a lesser included offense of robbery following a purse snatching was required where the evidence of force was uncontradicted.Defendant was convicted of robbery following a purse snatching incident. He argued that the evidence also supported a conclusion that the crime was theft but not robbery, and therefore the court was required to instruct sua sponte on theft as a lesser included offense. However, the victim's uncontradicted testimony that she received injuries from the manner in which the purse was taken established the additional element of force which made the crime robbery, not grand theft from the person.id: 10119
Residential robbery applies when the robber resides in the dwelling.Defendant argued that his conviction for residential robbery (Penal Code section 212.5) could not stand because the residence was his own. However, residential robbery does apply when the robber resides in the dwelling. In fact, victims may be especially vulnerable when they are guests and their assailant is a resident with superior knowledge of the premises and available means of escape or defense.id: 10120
Robbery at an ATM machine statute is not vague and does not require a defendant's knowledge the victim just used the ATM.Penal Code section 212.5, subdivision (c) provides that when a victim is robbed while in the vicinity of an ATM machine or immediately after using the machine, the robbery is in the first degree. The phrases in the vicinity and immediately after do not render the statute unconstitutionally vague because they have common dictionary meanings. Moreover, the statute does not require a defendant's knowledge that the victim has just used the ATM.id: 10121
A jail cell is an inhabited dwelling for purposes of first degree robbery.A jail cell in which seven or eight inmates live is an inhabited portion of a building for purposes of first degree robbery under Penal Code section 212.5.id: 10085
An honest but unreasonable belief in duress does not negate the specific intent element of robbery.Defendant argued that an honest but unreasonable belief that one is acting under duress should be a complete defense to the charge of robbery. However, even if defendant took the jewelry from the store under the unreasonable belief that doing so was necessary to protect life<197>his own or that of a family member<197>that unreasonable belief alone would have no effect on his intent to deprive the rightful owner permanently of the jewelry.id: 10087
CALJIC 2.15 is appropriate in a robbery as well as receiving stolen property charge.CALJIC 2.15 provides that possession of stolen property is insufficient by itself to prove robbery and that corroborating evidence is necessary. Defendant argued the instruction is appropriate only in a receiving stolen property case and that it violated due process by lessening the prosecution's burden of proving every element beyond a reasonable doubt. However, the instruction is appropriate when the crime charged is theft, robbery, or knowingly receiving stolen property. Moreover, the instruction creates only a permissive inference and therefore does not relieve the prosecution of any burden of establishing proof beyond a reasonable doubt.id: 10088
Court did not err in refusing to instruct on lesser offenses of theft and assault where the robber used force and fear against the victim at the ATM machine.Defendant was convicted of the robbery of a person attempting to use an automated teller machine. He argued the court erred in denying his requested instructions on the lesser offenses of theft and assault. However, there was no evidentiary basis on which the jury could have found the offense to be other than robbery as the victim testified he complied with the robber's demands out of fear and after he was punched. Defendant claimed the evidence was ambiguous on the issue of whether the punching (force) was an independent act or whether it was in conjunction with the robbery. However, the entire episode lasted only a few minutes and there was no way the punching could be viewed as a separate criminal act.id: 10090
Court did not prejudicially err in failing to instruct sua sponte on theft as a lesser included offence of robbery where it conflicted with the defense and the evidence established robbery.Defendant was convicted of robbery. He argued the trial court erred in failing to instruct on theft as a lesser included offense. He claimed that the victim gave him $20 to make change, that he went to a dope house to get the change but when refused the change, he spent the money on cocaine. He no doubt failed to request a theft instruction because it was inconsistent with his version of the facts. The court had no sua sponte duty to instruct on theft where the instruction conflicts with the defense. Even if the failure to so instruct was error, the other properly delivered instructions indicate the jury must have found defendant formed the intent to steal by force or fear, before depriving the victim of her money.id: 10091
Multiple carjacking convictions are proper where the vehicle is taken from the driver and a passenger is also present.Defendant was properly convicted of two counts of carjacking pursuant to Penal Code section 2145 based on his taking of a vehicle at gunpoint from a husband and wife, one the driver and one the passenger. If a robber may be doubly convicted and doubly punished for a single taking with two victims there is no reason to believe the Legislature intended to treat carjackers more leniently. Moreover, evidence supported the conviction as to the wife even though the defendant more directly accosted the husband (the driver) as the effect of defendant's armed approach was to compel the wife to give up any interest in the car. <i>People v.</i>id: 9704
Use of force or violence in carjacking need not be contemporaneous with the gaining possession of the vehicle.Defendant argued the evidence was insufficient to support a carjacking conviction under Penal Code section 215, subdivision (a) because it did not establish that he gained possession of the vehicle by force or fear. However, section 215 is not limited to cases in which a defendant initially gains possession by dispossessing the victim of the vehicle through the use of force or fear.id: 9716
Carjacking is not a lesser included offense of robbery and separate convictions are proper although separate sentences are improper if the crimes were based on the same act.Carjacking under Penal Code section 215 is not a lesser included offense to robbery, or vice versa, and the trial court did not err in entering convictions on both offenses. However, because the two crimes were based on the same act, separate sentences were prohibited by section 654. The term imposed for the robbery conviction was stayed.id: 9685
Carjacking requires either movement of the car or seizure of possession and control by forceful dispossession of the victim's possession and control.Defendant argued that movement is an element of carjacking under Penal Code section 215, and if the car fails to move, the crime is only attempted carjacking. Since he never moved the car defendant argued the evidence was insufficient to support the carjacking conviction. However, the taking required for a completed carjacking requires either some movement of the car or seizure of possession and control by forceful dispossession of the victim's possession and control.id: 9687
Evidence supported the attempted robbery conviction even though the victim was not in joint possession of the gold.Defendant argued the evidence did not support the conviction of attempted robbery against victim Khoa because the prosecution never established this victim was in joint possession of the gold in the office. However, assuming Khoa was no more than a visitor to the business premises and neither owned nor possessed the gold, once force and fear was applied to him in an attempt to deprive someone or anyone of property, Khoa became the victim of an attempted robbery.id: 9666
For purposes of determining aider and abettor liability, the commission of a robbery continues so long as the loot is being carried away to a place of temporary safety.The commission of a robbery for purposes of determining aider and abettor liability continues until all acts constituting the robbery have ceased. The asportation, the final element of the offense of robbery continues so long as the stolen property is being carried away to a place of temporary safety. Accordingly, in order to be held liable as an aider and abettor, the requisite intent to aid and abet must be formed before or during such carrying away of the loot to a place of temporary safety. Therefore, a getaway driver who has no prior knowledge of a robbery, but who forms the intent to aid in carrying away the loot during such separation, may properly be found liable as an aider and abettor of the robbery.id: 9632
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245