F 9.40.2

F 9.40.2a

Robbery–After Acquired Intent:

Improper Reference to the “Taking” Rather than the Application of Force or Fear

(PC 211)

* Modify CJ 9.40.2 to provide as follows: [added language is capitalized; deleted language is between <<>>]:

To constitute the crime of robbery, the perpetrator must have <<formed>> HAD the specific intent to permanently deprive an owner of [his][her] property <<before or>> at the time <<that the act of taking the property occurred>> OF THE APPLICATION OF FORCE OR VIOLENCE, OR THE USE OF FEAR OR INTIMIDATION. If such intent was not formed until after <<the property was taken from the person or immediate presence of the victim,>> THE APPLICATION OF FORCE OR VIOLENCE OR THE USE OF FEAR OR INTIMIDATION, the crime of robbery has not been committed.

THE DEFENDANT IN THIS CASE HAS INTRODUCED EVIDENCE THAT THE INTENT TO STEAL AROSE AFTER THE APPLICATION OF FORCE OR FEAR UPON THE VICTIM. IF AFTER CONSIDERATION OF ALL THE EVIDENCE YOU HAVE A REASONABLE DOUBT THAT DEFENDANT HAD THE INTENT TO STEAL AT THE TIME THE FORCE OR FEAR WAS APPLIED, YOU MUST FIND [HIM] [HER] NOT GUILTY OF ROBBERY.

Points and Authorities

The courts have consistently focused upon the application of force or fear as the essence of robbery. (Wilkoff v. Superior Court (85) 38 C3d 345, 351 [211 CR 742]; People v. Ramos (82) 30 C3d 553, 589 [180 CR 266]; People v. Ramkeesoon (85) 39 C3d 346, 351 [216 CR 455]; People v. Green (80) 27 C3d 1, 54 [164 CR 1]; People v. Turner (90) 50 C3d 668, 688 [268 CR 706].) CJ 9.40.2 erroneously focuses upon the “taking” and thus removes the proper element from the jury’s consideration in violation of the federal constitution. (6th and 14th Amendments.) Thus, where there is evidence that the intent to steal was formed after the application of force the defendant is entitled “upon request” to a pinpoint instruction informing the jury that it may not convict of robbery if the intent to steal arose after the assault. (People v. Webster (91) 54 C3d 411, 443 [285 CR 31]; see also People v. Bradford (97) 14 C4th 1005, 1055-57 [60 CR2d 225] [failure to instruct on theft based on after acquired intent was reversible error as to robbery conviction]; but see People v. Seaton (2001) 26 C4th 598, 673-674 [110 CR2d 441] [if defendant first attacked 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].)

In People v. Tapia (94) 25 CA4th 984, 1026-28 [30 CR2d 851], it was held that the trial court properly refused to supplement CJ 9.40 to focus the jury upon the requirement that the specific intent to steal be present at the time of application of force or violence as opposed to when the property was taken at a later time. This holding is clearly erroneous.

First, Tapia erroneously concluded that CJ 3.31 which requires “a union or joint operation of act … and … specific intent,” effectively informed the jury as to the defendant’s theory. There is nothing in CJ 3.31 which specifies which act — the application of force or the later taking of the property — with which the specific intent must concur.

Second, Tapia mistakenly asserted that CJ 9.40 “states that one is guilty of robbery if one takes property by means of force with the specific intent to [steal].” (Tapia 25 CA4th at 1027-28.) This is a misreading of CJ 9.40. The initial description of the offense in ¶ 2 of CJ 9.40 informs the jury that the taking must be “from the person or immediate presence of that person, accomplished by means of force or fear and with the specific intent permanently to deprive ….” [Emphasis added.] Use of the word “and” in this language suggests that the specific intent requirement applies to the taking rather than the application of force. Moreover, any doubt about this is eliminated by the later specification of elements in CJ 9.40 wherein the only reference to specific intent is contained in element #5 which refers only to the taking of the property. Nor did the fact that the jury was instructed upon larceny as a lesser included offense — which is the other factor relied upon in Tapia — adequately convey the specific intent requirement to the jury.

Finally, it should be emphasized that the instruction in Tapia was specifically requested by the defense in an effort to specifically pinpoint and relate the defendant’s theory of the case to a mental requirement of the charge. Absent clear instruction upon this theory by the other instructions, the trial court and Court of Appeal are bound by higher California Supreme Court authority (e.g., People v. Wharton (91) 53 C3d 522, 570 [280 CR 631]; see also FORECITE PG III(A)), which hold that the defendant is entitled, upon request to an instruction pinpointing the defense theory. (See also People v. Saille (91) 54 C3d 1103, 1120 [2 CR2d 364].)

In sum, Tapia erroneously concluded that “it is clear the jury was adequately instructed” and, further, Tapia erroneously failed to heed higher authority which required that the defense pinpoint instruction be given. (See Auto Equity Sales, Inc. v. Superior Ct. (62) 57 C2d 450, 455-57 [20 CR 321].)

The above proposed pinpoint instruction is modeled after CJ 4.50 which has been expressly approved as a proper pinpoint instruction. (See People v. Wright (88) 45 C3d 1126, 1137-41 [248 CR 600]; see also FORECITE PG III(A).)

As to deleted language regarding formation of intent “before” the taking see FORECITE F 9.40.2b.

NOTES

Even though a pinpoint instruction on after-formed intent must be requested, substantial evidence of such a theory requires sua sponte instruction upon all lesser included offenses. (Webster, 54 C3d at 443-44.) In Webster the lesser offenses were attempted robbery, grand theft from the person, grand theft and petty theft. (Id. at 443.)

F 9.40.2b

Robbery–After Acquired Intent: Intent Must Coincide With The Taking

(PC 211)

* Modify CJ 9.40.2 to provide as follows: [added language is capitalized; deleted language is between <<>>]:

To constitute the crime of robbery, the perpetrator must have formed the specific intent to permanently deprive an owner of [his][her] property <<before or>> at the time <<that the act of taking the property occurred>> OF THE APPLICATION OF FORCE OR VIOLENCE, OR THE USE OF FEAR OR INTIMIDATION. If such intent was not formed until after <<the property was taken from the person or immediate presence of the victim,>> THE APPLICATION OF FORCE OR VIOLENCE OR THE USE OF FEAR OR INTIMIDATION, the crime of robbery has not been committed.

Points and Authorities

As to the requirement of “application of force” rather than “taking” as the key act see FORECITE F 9.40.2a. As to requirement that the intent concur with rather than precede the application of force see FORECITE F 3.31.5 n1 regarding concurrence of act and intent as element of the charge.

F 9.40.2c

Robbery — After Acquired Intent: Concurrence Of Act And Intent

* Add to CJ 9.40.2:

The wrongful intent and the act of force or fear must concur in the sense that the act must be motivated by the intent.

Points and Authorities

People v. Green (80) 27 C3d 1, 53 [164 CR 1]; see also People v. Marshall (97) 15 C4th 1, 34 [61 CR2d 84].

Failure to adequately instruct upon a defense or defense theory implicates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury, compulsory process and due process. [See FORECITE PG VII(C).]