Return to CALJIC Part 9-12 – Contents
F 9.40 n1 Robbery: Single Crime When Multiple Items Taken (PC 211).
A defendant commits only one robbery no matter how many items he steals from a single victim pursuant to a single plan or intent. (People v. Brito (91) 232 CA3d 316, 326, fn 8 [283 CR 441].)
[Research Note: See FORECITE BIBLIO 9.40]
F 9.40 n2 Robbery: Force Or Fear Should Be Further Defined When Appropriate (PC 211).
It is true that several cases have suggested that the terms “force” and “fear” as used in the definition of the crime of robbery have no technical meaning peculiar to the law and, therefore, it must be presumed that the terms were within the understanding of the jurors. (People v. Anderson (66) 64 C2d 633, 640 [51 CR 238]; People v. Mungia (91) 234 CA3d 1703, 1708-09 [286 CR 394]; People v. Hays (83) 147 CA3d 534, 543 [195 CR 252].) However, none of these cases directly considered the shortcomings of CJ 9.40 as set forth in FORECITE F 9.40i, FORECITE F 9.40j and FORECITE F 9.40k.
In Anderson, the court rejected the defendant’s argument that the term “force” should have been further defined because, on appeal, the defendant did not point to any specific shortcoming of the instruction which was given and, at trial, no amplifying instructions were requested. Hence, because the above referenced FORECITE instructions do demonstrate shortcomings in the standard CALJIC instruction and, especially when the FORECITE instructions are requested at trial, Anderson is no impediment to giving the FORECITE instructions.
Nor should Mungia preclude giving the FORECITE instructions since Mungia relied on Anderson. Furthermore, Mungia addressed the sufficiency of the evidence in that particular case rather than the adequacy of the instructions given.
Finally, People v. Hays simply stands for the proposition that robbery need not be accomplished by means of both force and fear. It did not specifically consider whether or both of these terms require further amplification as suggested by the above-referenced FORECITE instructions.
[Research Note: See FORECITE BIBLIO 9.40]
F 9.40 n3 Robbery: Force Or Fear May Occur During Escape (PC 211).
Even if the original taking is peaceful, a robbery occurs if force or fear is subsequently employed “in order to make good the theft or escape.” (People v. Webster (91) 54 C3d 411, 441-42 [285 CR 31]; People v. Winkler (86) 178 CA3d 750, 756 [224 CR 28].)
[Research Note: See FORECITE BIBLIO 9.40]
F 9.40 n4 Robbery: Negation Of Felonious Intent By Duress (PC 211).
See FORECITE F 4.40b.
Research Notes: See Annotation, Coercion, compulsion, or duress as defense to charge of robbery, larceny, or related crime, 1 ALR4th 481 and Later Case Service.
[Research Note: See FORECITE BIBLIO 9.40]
F 9.40 n5 Robbery: Negation of Felonious Intent By Good Faith Belief In Consent (PC 211).
See FORECITE F 14.02a.
[Research Note: See FORECITE BIBLIO 9.40]
F 9.40 n6 Theft As LIO Of Robbery (PC 211).
Grand theft from the person (PC 487(1)) and grand theft by larceny (PC 487(2)) may both be lesser offenses of robbery. However, the elements of each lesser offense are different. Grand theft from person requires that the property be taken from the victim’s body, clothing or a receptacle carried by the victim without force or fear. Grand theft larceny only requires a finding of no force or fear. (People v. Brew (91) 2 CA4th 99, 105-06 [2 CR2d 851].)
[Research Note: See FORECITE BIBLIO 9.40]
F 9.40 n7 Grand Theft Auto As LIO Of Robbery (PC 211).
“Theft, in whatever form it happens to occur, is a necessarily included offense of robbery. …We affirm the well-established rule that a defendant may not be convicted of both robbery and grand theft based upon the same conduct. [Citations.]” (People v. Ortega (98) 19 C4th 686, 699 [80 CR2d 489].) People v. Escobar (96) 45 CA4th 1232 [53 CR2d 9] [Grand theft auto included in robbery when automobile is part of the property taken in the robbery.] (People v. Rush (93) 16 CA4th 20, 23, 27 [20 CR2d 15]; People v. Irvin (91) 230 CA3d 180, 184-86 [281 CR 195]; see also People v. Gomez (92) 2 CA4th 819, 826 [3 CR2d 418].) Hence, it is error to convict the defendant of both the robbery and grand theft auto and conviction of the lesser offense should be reversed. (Irvin 230 CA3d at 186.)
(See LIO VI Lesser Included Checklist. PC 211 — Robbery: Offenses Included: Grand Theft Auto.)
[Research Note: See FORECITE BIBLIO 9.40]
F 9.40 n8 Robbery: Theft As Lesser Included When Loot Is Abandoned Before Application Of Force Or Fear (PC 211).
It is well settled that a robbery is committed when the defendant has taken possession of the victim’s property and forcibly prevents the victim from regaining the goods, however temporarily. (See People v. Estes (83) 147 CA3d 23, 27 [194 CR 909]; see also People v. Bigelow (84) 37 C3d 731, 753-54 [209 CR 328].) However, if the defendant has abandoned the loot before the application of any force or fear, then the crime is theft, not robbery. (See People v. Pham (93) 15 CA4th 61, 68 [18 CR2d 636].)
[Research Note: See FORECITE BIBLIO 9.40.]
F 9.40 n9 Robbery: Claim Of Right Limitations (PC 211).
Self Help For Unliquidated Claims. It is a defense to robbery and theft that the defendant acted under the subjective belief that he or she had a lawful claim on the property which was taken. (See FORECITE F 9.40a.) However, People v. Tufunga (99) 21 C4th 935 [90 CR2d 143] held that the claim of right defense is not applicable where the defendant intended to satisfy, settle or otherwise collect on a debt, whether liquidated or unliquidated.
Nevertheless, even if the claim is subject to dispute or unliquidated, failure to instruct upon the “claim of right” defense whenever the evidence suggests a bona-fide belief may implicate fundamental constitutional principles. The due process provisions of the state (Art. I, § 7) and federal (14th Amendment) constitutions require that the prosecution prove all elements of the charged offense. (Sandstrom v. Montana (79) 442 US 510, 526 [61 LEd2d 39; 99 SCt 2450]; In re Winship (70) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; People v. Figueroa (86) 41 C3d 714, 721, 725 [224 CR 719]; People v. Beeman (84) 35 C3d 547, 555 [199 CR 60].) Given the fact that felonious intent is an element of the charge of theft, any honestly perceived claim of right negates the intent element of the offense, just as criminal intent may be negated in other contexts. (E.g., diminished actuality, People v. Olea (84) 160 CA3d 891, 896 [206 CR 829]; imperfect self defense, People v. Flannel (79) 25 C3d 668, 674-80 [160 CR 84]; see also People v. Threestar (85) 167 CA3d 747, 754-55 [213 CR 510]; People v. Navarro (79) 99 CA3d Supp 1, 10 [160 CR 692]; Witkin, California Criminal Law, 2d Ed. 1988, § 490, p. 553; § 511, p. 578.)
Moreover, merely because there may be a factual dispute over the amount of the damages, does not make them unliquidated. As long as the jury can reasonably find that the “claim of right” was for a sum certain, the theory should be available. (See FORECITE PG V(A)(9) and PG X(A)(1) [in determining whether to instruct evidence is taken in light most favorable to the defendant].)
Use of Force or Violence. Since People v. Butler (67) 65 C2d 569 [55 CR 511] was decided, a number of other jurisdictions have rejected the claim-of-right defense for public policy reasons in cases where force, violence, or weapons are used for self-help debt collection. (E.g., State v. Mejia (95) 141 NJ 475 [662 A2d 308]; State v. Self (86) 42 Wash.App. 654 [713 P2d 142] [rejecting majority’s opinion in Butler]; People v. Hodges (85) 113 AD2d 514 [496 NYS2d 771] [same]; State v. Winston (82) 170 WVa. 555 [295 SE2d 46] [defense unavailable where accused takes money or other property, to which he did not have a specific ownership claim, in satisfaction of a debt]; Commonwealth v. Dombrauskas (80) 274 Pa.Super. 452 [418 A2d 493] [citing favorably to Justice Mosk’s dissent in Butler]; State v. Russell (75) 217 Kan. 481 [536 P2d 1392]; Cates v. State (74) 21 Md.App. 363 [320 A2d 75] [citing favorably to Justice Mosk’s dissent in Butler]; Crawford v. State (Tex. 1974) 509 SW2d 582; State v. Martin (73) 15 Ore.App. 498 [516 P2d 753]; Edwards v. State (70) 49 Wis.2d 105 [181 NW2d 383] [defense unavailable if accused cannot trace ownership to specific personal property or money (i.e., bills or coins) taken from the claimed debtor]; People v. Uselding (69) 107 Ill.App. 305 [247 NE2d 35]; cf. State v. Lewis (78) 121 Ariz. 155 [589 P2d 29] [defense unavailable where claimed debt was unliquidated].)
In People v. Barnett (98) 17 C4th 1044, 1146 [74 CR2d 121] the court recognized the “obvious public policy reasons for strictly circumscribing the circumstances” under which persons should be permitted to enforce their debt demands at gunpoint.
People v. Tufunga (99) 21 C4th 935, 950 [90 CR2d 143] held that a claim of right defense can negate “the animus furandi element of robbery where the defendant is seeking to regain specific property in which he in good faith believes he has a bona fide claim of ownership or title.” Hence, claim of right applies to forcible takings intended to recover specific property in which the defendant in good faith believes he has a bona fide claim of ownership or title.
Collection of Proceeds of Illegal Transactions. In California, limitations have been imposed on the availability of the defense. For example, the defense is not permitted where the claimed right to the property is rooted in a “notoriously illegal” transaction. (E.g., People v. Hendricks (88) 44 C3d 635, 642 [244 CR 181] [fee collection for prostitution services]; People v. Gates (87) 43 C3d 1168, 1182 [240 CR 666] [distribution of proceeds from a forgery ring]; see also People v. Barnett (98) 17 C4th 1044, 1146 [74 CR2d 121]; but see People v. Rosen (38) 11 C2d 147 [78 P2d 727].)
[Research Note: See FORECITE BIBLIO 9.40.]
F 9.40 n10 Robbery: Amount Of Force Must Exceed That Necessary To Take The Property (PC 211).
(See FORECITE F 9.40k.)
F 9.40 n11 Robbery: Carjacking As Robbery (PC 211).
Carjacking (PC 215) is robbery only if the defendant intended to permanently deprive the victim of the car at the time the car was put in motion. (People v. Wader (93) 5 C4th 610, 645-46 [20 CR2d 788].)
[Research Note: See FORECITE BIBLIO 9.40]
F 9.40 n12 Robbery: Error To Instruct That Aiming Of Weapon With Demand For Money Amounts To Force And Fear (PC 211).
In People v. Higareda (94) 24 CA4th 1399, 1406 [29 CR2d 763], the court held that the trial court improperly directed a verdict against the defendant by instructing the jury that “… the aiming of a handgun or shotgun at a victim accompanied by a demand and receipt of money or personal property amounts to force and inferably fear ….”
[Research Note: See FORECITE BIBLIO 9.40]
F 9.40 n13 Robbery: Employees Of A Business Constructively Possess The Business Owner’s Property During a Robbery.
See FORECITE F 1600 Note 13.
F 9.40 n14 Robbery: Knowledge Of Victim’s Presence.
No California case has specifically discussed whether knowledge of the victim’s presence is an element of robbery. This may be an issue when the defendant is charged with or convicted of robbery in a person who is several feet away, in another room of a house, or another building on the premises. (See People v. Prieto (93) 15 CA4th 210, 214, 18 CR2d 761 [such facts can constitute robbery].)
Given the fact that criminal intent requires the defendant to intentionally commit the act which the statute prohibits (see FORECITE F 3.30a) it stands to reason that the jury must find that the defendant was aware of the victim’s presence to prove the commission of a robbery. Otherwise, a defendant who intends only to commit theft (i.e., to take unattended property without force or violence) may be guilty of robbery if, unbeknownst to the defendant, the owner of the property is actually present. [ See Brief Bank # B-692 for additional briefing on this issue.]
F 9.40 n15 Robbery: Instruction Upon Lesser Offense of Assault Upon Request.
A line of earlier cases held that assault (PC 240) is a lesser included offense of robbery (PC 211). (People v. Carter (69) 275 CA2d 815, 822 [80 CR 202] [simple assault]; People v. Duncan (45) 72 CA2d 423, 426 [164 P2d 510] [ADW (PC 245) is included in charge of robbery with a deadly weapon].) People v. Wolcott (83) 34 C3d 92, 100-01 [192 CR 748], implicitly overruled Duncan and Carter, by holding that neither simple assault or ADW are lesser included offenses of robbery if the weapon was not employed to assault the victim. (However, if the information specifically alleges robbery by force, then assault may be a lesser included on the accusatory pleading. See FORECITE LIO I(A).) Nevertheless, in the appropriate circumstances, Carter and Duncan should require instruction upon lesser assault offenses upon request as a defense theory. (See LRO II(B).) There may be question as to the viability of People v. Wright (96) 51 CA4th 818, 840 fn 16 [59 CR2d 316] after Birks.
F 9.40 n16 Theft Of Community Property.
A defendant may be convicted of the theft of property to which he or she holds a community-property interest if there was an intent to permanently deprive the other community-property interest holder of his or her interest. (People v. Llamas (97) 51 CA4th 1729 [60 CR2d 357]; see also LaParle v. State (1998 Alaska) 957 P2d 330 [spouse may commit theft of marital property by concealing marital assets from wife during divorce proceedings].)
However, this result seems questionable. For example, if a husband takes community property funds from his wife’s purse to buy food for the household, can it really be said that a crime has been committed if the wife did not consent to the taking? [See Brief Bank # B-715 for additional briefing on this issue.]
F 9.40 n17 Appellate Issue Alert: Pre-1997 Version.
The pre-1997 version of CJ 9.40 failed to define “against the will.” (See CALJIC History CJ 9.40.)
F 9.40 n18 Robbery: Force Or Fear Must Be Against The Victim, Not A Third Person.
See People v. Cash (2002) 28 C4th 703 [prosecutor misstated the law in arguing that the use of force against the attempted murder victim satisfied the force or fear element for the robbery of the murder victim].
See also FORECITE F 9.40j.
F 9.40 n19 Robbery: Battery As Lesser Included Offense.
CAVEAT: People v. Fuentes DEPUBLISHED (2004) 116 CA4th 226 is not citable.
Battery is a lesser included offense of robbery where the accusatory pleading alleges the taking was accomplished by force and fear.
“By statute, a robbery may be committed by a taking [of property] from the person of another by means of force or fear“ (People v. Wright (96) 52 CA4th 203, 209 (Wright); PC 211), the accusatory pleading alleged [the defendant] used force and fear in committing the robbery of [the victim]. [Footnote omitted.] According to the pleading, then, force was used in the robbery. Force is also an element of the crime of battery. “A battery is any willful and unlawful use of force or violence upon the person of another.“ (PC 242.)
Therefore, when the pleading charges a robbery by force and fear battery is a lesser included offense. This is so because it is well established that a crime is a lesser included offense of another if “the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.“ (People v. Geiger (84) 35 C3d 510, 517, fn 4 [199 CR 45]; see also People v. Lopez (98) 19 C4th 282, 288 [79 CR2d 195]; People v. Clarke (90) 50 C3d 583, 636 [268 CR 399] [offense is LIO if (1) included within the statutory elements; or (2) “the charging allegations of the accusatory pleading include language describing it in such a way that if committed in that manner the lesser offense must necessarily be committed“].)
F 9.40 n20 Robbery: Applicability To Forcefully Retaining The Property (Estes).
The crime of robbery occurs when property is forcefully retained in the victim’s presence, even when the victim was not present at its initial taking. (People v. Gomez (2008) 43 C4th 249, 264; see also People v. Estes (1983) 147 CA3d 23 [defendant’s use of force to retain the stolen property and remove it from victim’s immediate presence was sufficient to support the robbery conviction].)
F 9.40a
Claim Of Right:
Defense To Robbery/Theft Where Defendant Seeks To Regain Specific Property
(PC 211)
*To be added as supplement to CJ 9.40
The defendant’s honest belief, even if mistakenly held, that [he] [she] had a right or claim to the property taken negates the felonious intent necessary to convict [him] [her] of [robbery] [burglary] [or] theft.
The defendant need not show the claim of right was reasonable. An unreasonable belief that [he] [she] had a legal right to take the property will suffice so long as the claim was made in good faith.
If the evidence leaves you with a reasonable doubt as to whether defendant acted under a bona-fide belief in a right or claim to the property you must find that defendant did not form the necessary felonious intent.
Points and Authorities
A claim of right defense is available in a robbery prosecution. People v. Tufunga (99) 21 C4th 935, 950 [90 CR2d 143] held that a claim of right defense can negate “the animus furandi element of robbery where the defendant is seeking to regain specific property in which he in good faith believes he has a bona fide claim of ownership or title.” (See also People v. Butler (67) 65 C2d 569, 573 [55 CR 511]; People v. Hendricks (88) 44 C3d 635, 642 [244 CR 181]; People v. Gates (87) 43 C3d 1168, 1182 [240 CR 666]; People v. Navarro (79) 99 CA3d Supp 1, 3 [160 CR 692].) So long as the claim is made in good faith, it need not be objectively reasonable and it may be based upon either a mistake of fact or a mistake of law. (People v. Romo (90) 220 CA3d 514, 518 [269 CR 440]; Witkin and Epstein, Calif. Crim. Law § 586.)
However, the defense is not available if the claim is based on illegal activities (see Hendricks and Gates) or is founded on revenge. (People v. Romo at 518; People v. Alvarado (82) 133 CA3d 1003, 1017 [184 CR 483].)
As with other defenses founded upon a factual contention which, if established, would tend to overcome or negate proof of an element of the charged offense such as identity (CJ 2.91), alibi (CJ 4.50), unconsciousness (CJ 4.31) or self-defense (CJ 5.15) the jury should be instructed that the defendant need only leave them with a reasonable doubt as to mistake of fact. (See EC 502; People v. Simon (95) 9 C4th 493, 500-01 [37 CR2d 278] [as to defense theories, the trial court is required to instruct on who has the burden and the nature of that burden]; see also, People v. Wright (88) 45 C3d 1126, 1136-37 [248 CR 600] [approving CJ 2.91 and CJ 4.50 — which require acquittal if there is a reasonable doubt as to the defense]; People v. Tewksbury (76) 15 C3d 953, 963-64, fn 9 [127 CR 135]; FORECITE PG III(A).)
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).]
(See FORECITE F 9.40 n9.)
NOTES
It is still unresolved whether the defense applies to self help; i.e., when property is taken to recoup an unliquidated debt or as recompense for unlawful property damage. (See FORECITE F 9.40 n9 above.)
RESEARCH NOTES
See Annotation, Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 ALR3d 1309 and Later Case Service.
F 9.40b
Claim Of Right On Behalf Of Another
(PC 211)
*Add to CJ 9.40:
The defendant’s honest belief, even if mistakenly held, that [he] [she] had a right or claim to the possession of the property on behalf of another negates the felonious intent necessary to convict [him] [her] of [robbery] [burglary] or [theft].
The defendant need not show the claim of right was reasonable. An unreasonable belief that [he] [she] had a legal right to take the property on behalf of another will suffice so long as the claim was made in good faith.
If the evidence raises a reasonable doubt as to whether defendant acted under a bona-fide belief in a right or claim to the property on behalf of another, you must find that defendant did not form the necessary felonious intent.
Points and Authorities
The claim of right defense is applicable when the defendant has “a subjective belief, he or she has a lawful claim on the property.” (People v. Romo (90) 220 CA3d 514, 519 [269 CR 440].) Logically the defense also applies when the defendant is acting as an agent for another party who the defendant believes has a valid claim to the property.
Moreover, this logic is reflected in case law analysis. “The principle that larceny is not predicable on a good-faith taking under claim of right also applies in the case of one acting under the belief … that one whom he assists in the taking has a right thereto ….” (50 Am.Jur.2d “Larceny” Section 41); Dean v. State (1899) 41 Fla. 291 [26 SO 638]. (“[The intent to steal] cannot be where the taker honestly believes the property is … that of another, and that he has a right to take possession of it … for another, for the protection of [the other]”) and Ambrose v. Commonwealth (1921) 129 Va. 763 [106 S.E. 348, 349]: [“(A)lthough Mrs. Schnoele was not the owner, yet if the defendant honestly thought she was, and acted on that belief [when he acquired her estranged husband’s car], they should acquit him”.] (See also FORECITE F 9.40a.)
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).]
(See FORECITE F 9.40 n9.)
F 9.40c
Robbery/Theft: Good Faith Belief In Consent
(PC 484 & PC 487)
*Add to CJ 9.40:
If one takes personal property of another with the good faith belief that [he] [she] [has permission to take the property] [__________] [insert other legal claim], [he] [she] is not guilt of theft. This is the case even if such good faith belief is unreasonable. The prosecutor must prove beyond a reasonable doubt that the defendant did not so believe for you to convict the defendant of theft.
Points and Authorities
It is well settled that the felonious intent required for theft and robbery may be negated by the defendant’s good faith belief that it is the defendant’s property. (See FORECITE F 9.40a.) A logical corollary to this principle is that the defendant’s good faith belief that he/she had a legal right to the property, such as permission of the owner, also negates felonious intent. (See People v. Navarro (79) 99 CA3d Supp 1, 5-11 [160 CR 692].)
Hence, because the defendant has the right to pinpoint the theory of the defense (see FORECITE PG III(A)), it would be error to refuse, when appropriate, an instruction such as the one set forth above.
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).]
NOTES
The above instruction was erroneously refused in Navarro (99 CA3d at Supp 3) and People v. Williams DEPUBLISHED (92) 9 CA4th 209 [11 CR2d 772]. [A copy of the Williams opinion is available to FORECITE subscribers. Ask for Opinion Bank # O-145.]
F 9.40d
Robbery: When Still In Progress – Aider And Abettor Liability
(PC 211)
*To be added at end of CJ 9.40:
In order for an accused to be guilty of robbery as an aider and abetter, [he] [she] must have formed the intent to encourage or facilitate the perpetrator prior to or during the commission of the robbery. The commission of the robbery continues so long as the “loot” is being carried away to a position of temporary safety.
Points and Authorities
In People v. Cooper (91) 53 C3d 1158, 1159 [282 CR 450], the court, in a 4-3 decision, held that for purposes of aider and abettor liability “the commission of a robbery continues so long as the loot is being carried away to a position of temporary safety.” Hence, the commission of robbery is now defined by the asportation of the “loot.”
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
For ancillary purposes, such as GBI and felony murder, commission of the robbery is defined in terms of escape, not asportation. (Cooper 53 C3d at 1158.) Hence, CJ 8.21.1 (former CJ 9.44) should not be given to define commission for purposes of aiding and abetting liability. (Ibid.) When both aiding and abetting and ancillary liability are at issue the jury should be clearly instructed as to the different definitions. (See FORECITE F 8.21.1b.)
In light of the absurd consequences which may flow from Cooper (see dissenting opinion of Kennard, J., 53 C3d at 1176-78) it may be subject to constitutional attack upon 14th Amendment substantive due process (see Gray v. Whitmore (71) 17 CA3d 1, 21 [94 CR 904]; People v. Beachem (63) 223 CA2d 383, 387 [35 CR 673]) and/or 8th Amendment (see In re Lynch (72) 8 C3d 410 [105 CR 217]) grounds.
F 9.40e
Robbery: After Acquired Intent
(PC 211)
ALERT: CJ 9.40.2 (1995 NEW) now provides an instruction on this issue.
* To be given following CJ 9.40:
To convict the defendant of robbery you must find that [he] [she] had the specific intent to steal BEFORE OR at the time of the application of force or violence, or the use of fear or intimidation.
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
[See FORECITE F 9.40.2a.]
F 9.40f
Robbery: Definition Of Immediate Presence
(PC 211)
*To be added at end of CJ 9.40:
A thing is in the immediate presence of a person if it is so within [his] [her] reach, observation or control, that [he] [she] could, if not overcome by violence or prevented by fear, retain [his] possession of it.
(or)
Immediate presence means an area within which the victim could be expected to exercise some physical control over the property.
Points and Authorities
CJ 9.40 does not provide a definition of immediate presence. Both of the above definitions appear in People v. Hayes (90) 52 C3d 577, 626-29 [276 CR 874]. These definitions supersede the more limited one suggested by the appellate court in People v. Brown (89) 212 CA3d 1409, 1419 [261 CR 262] [victim need only perceive events relating to the robbery]; Auto Equity Sales Inc. v. Superior Court (62) 57 C2d 450, 454-56 [20 CR 321].) Because “immediate presence” has taken on special legal definition it should be defined for the jury. (People v. Pitmon (85) 170 CA3d 38, 52 [216 CR 221]; see also FORECITE PG II(B).)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
Prejudicial Effect Of Hayes Error. In the unpublished opinion of People v. Harris (C009938) the court held that the Hayes (People v. Hayes (90) 52 C3d 577, 627 [276 CR 874]) definition of “immediate presence” applies to cases which were on direct appeal at the time Hayes was decided. After an extensive discussion of the prejudicial effect of the “immediate presence” instruction, the court held the instruction to be prejudicial. [FORECITE subscribers may obtain a copy of the Harris opinion. Ask for Opinion Bank # O-123.]
Immediate Presence. “Immediate presence” with respect to robbery has to do with dominion and control over the property. (People v. Dominguez (92) 11 CA4th 1342, 1347-48 [15 CR2d 46].) So long as the victim exercised dominion and control over the property when the taking began, then the “immediate presence” element of robbery is satisfied. (Ibid.)
Taking, Not Other Overt Acts, Is Controlling. Any definition of immediate presence should make it clear that it is the taking — as opposed to other overt acts related to the robbery — which must occur in the victim’s immediate presence. (Hayes at 627-28.)
Exception To Immediate Presence Requirement When Victim Lured Away. People v. Webster (91) 54 C3d 411 [285 CR 31], creates an exception to the immediate presence element of robbery when the victim is lured “far enough away from the property to make his control more difficult or the application of force more convenient.” (Id. at 441-42; but see separate dissenting and concurring opinions of Mosk, J., Broussard, J., and Kennard, J.)
F 9.40g
Robbery: Taking From Intoxicated Victim
(PC 211)
*Add to CJ 9.40:
The terms force, violence, fear or intimidation as used in this instruction are not limited to external forces such as bludgeoning the victim or displaying a lethal weapon to overcome [his] [her] will and resistance. If the defendant administered a drug or alcohol to an unsuspecting victim and the victim was involuntarily intoxicated, the force or fear element may be established. However, the victim’s voluntary intoxication does not satisfy the force or fear element even if the defendant enticed the victim into becoming intoxicated for the purpose of taking [his] [her] property.
Points and Authorities
In People v. Dreas (84) 153 CA3d 623, 628-29 [200 CR 586], the court held that a showing of “force or fear” for purposes of establishing robbery under PC 211 is not limited to external forces such as bludgeoning the victim or displaying a lethal weapon to overcome his will and resistance. The court held that a poison or intoxicant may also be used as a means of imposing force or fear, thus justifying a conviction of robbery.
However, in People v. Kelley (90) 220 CA3d 1358, 1371-72 [269 CR 900], the court distinguished Dreas — where the defendant administered a drug to an unsuspecting victim — from the situation where the victim voluntarily participates in a drinking game and thus knowingly “administered” the intoxicating liquor to himself. (Kelley at 1368.)
Hence, the taking of property from a victim who is voluntarily asleep or unconscious from drinking does not constitute robbery. (Id. at 1359; see also People v. Russell (53) 118 CA2d 136, 138-39 [257 P2d 39]; 4 Wharton’s Criminal Law (15th ed.) § 464; 67 Am.Jur.2d Robbery, §§ 22, 29, 31-32; 77 C.J.S. Robbery, § 22; see also out-of-state cases cited in Kelley at 1369; compare People v. Hill (2000) 23 C4th 853 [98 CR2d 254] [awareness of victim not an element of carjacking [PC 215].]) [See Brief Bank # B-833 for additional briefing on this issue.]
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 9.40h
Robbery: When Two Or More Persons
Are In Joint Possession Of A Single Item Of Property
(PC 211)
*Add to CJ 9.40:
To constitute robbery, the property must be removed from the possession and immediate presence of the victim against [his] [her] will, and such removal must be by force or fear. When two or more persons are in joint possession of a single item of personal property, the person attempting to unlawfully take such property must deal with all such individuals. All must be placed in fear or forced to unwillingly give up possession before a defendant may be convicted of robbery. If you have a reasonable doubt as to whether all persons in joint possession of the property were placed in fear or forced to unwillingly give up possession, you must resolve that doubt in favor of the defendant and find [him] [her] not guilty.
Points and Authorities
This principle was set forth by the California Supreme Court in People v. Ramos (82) 30 C3d 553, 589 [180 CR 266]; see also People v. Martinez (84) 150 CA3d 579, 597 [198 CR 565].) (As to prosecution’s burden [last sentence], see FORECITE PG III(D)&(E).)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
If force or fear is applied to two victims in joint possession of property, two convictions of robbery are proper. (Ramos 30 C3d at 589; People v. Clay (84) 153 CA3d 433, 459 [200 CR 269].)
F 9.40i
Robbery: “Violence” And “Intimidation” Should Be Deleted From Definition
*Modify element 4 of CJ 9.40 to provide as follows [deleted language is between <<>>]:
4. The taking was accomplished by force, <<violence>> or fear, <<intimidation>>, and
Points and Authorities
By presenting violence and intimidation as alternatives to force and fear, CJ 9.40 improperly permits the jury to find robbery without finding the statutory element of force or fear. Either actual fear on the part of the victim or use of force by the perpetrator must be found to establish robbery under PC 211. Hence, because the terms “intimidation” and “violence” may permit the jury to find robbery without finding actual fear or use of force, they should not be included in the definition of robbery. (See People v. Davison (95) 32 CA4th 206, 215-15 [38 CR2d 438].)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 9.40j
Robbery: Victim Must Actually Be Afraid
*Add the following to CJ 9.40 element 4 regarding force or fear:
A taking is not accomplished “by fear” unless, as a result of the perpetrator’s actions, the victim was in fact afraid and such fear allowed the taking to be accomplished.
Points and Authorities
PC 211 permits conviction of robbery based either upon “force” or “fear”. In the case of “fear,” it must be proven that “the victim was in fact afraid, and that such fear allowed the crime to be accomplished. [Citations].” (People v. Mungia (91) 234 CA3d 1703, 1709 [286 CR 394]; see also People v. Davison (95) 32 CA4th 206, 213-15 [38 CR2d 438]. Hence, even if the term “fear” is not a technical term requiring sua sponte definition (see Mungia 234 CA3d at 1708 [CJ 9.40 does not make it clear that “by fear” requires that the victim was afraid and that such fear allowed the taking to be accomplished]), CJ 9.40 should be supplemented as set forth above. (See also People v. Cuevas (2001) 89 CA4th 689, 698-700 [107 CR2d 529] [defendant’s argument that the passage from People v. Wright (96) 52 CA4th 203 [59 CR2d 316] incorrectly instructed jury on fear element, making it an objective test, was correct. The fear element in robbery is subjective and the prosecution must present evidence “from which it can be inferred that the victim was in fact afraid”].)
See FORECITE F 9.40 n18.
Such instruction would be especially appropriate when requested to pinpoint a theory of the defense in light of a factual issue as to whether or not the victim actually was afraid. (See FORECITE PG III(A).)
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
RESEARCH NOTES
[See Annotation, Purse Snatching As Robbery Or Theft, 42 ALR3d 1381 and Later Case Service.]
F 9.40k
Robbery: Force Requires Physical Touching Beyond That
Necessary For The Taking
*Add the following to CJ 9.40 element 4:
A taking is not committed “by force” unless the perpetrator actually applied physical force that was substantially different from or substantially greater than that necessary to accomplish the taking itself.
Points and Authorities
PC 211 allows conviction for robbery based alternatively upon “force” or “fear”. Although the cases have suggested that the terms force and fear are presumed to be within the understanding of the jurors (see People v. Mungia (91) 234 CA3d 1703, 1708 [286 CR 394]), no case has expressly considered whether there is a duty to instruct upon the principle that robbery requires more force than that which is necessary to accomplish the mere seizing of the property and that the force be the means by which the taking was accomplished. Both of these principles are well settled. “[I]t is established that something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property.” (People v. Morales (75) 49 CA3d 134, 139 [122 CR 157]; see also People v. Turner (90) 50 C3d 668, 725 [268 CR 706]; People v. Jones (92) 2 CA4th 867, 870-72 [3 CR2d 602]; People v. Mungia (91) 234 CA3d 1703, 1708 [286 CR 394]; cf. People v. Pitman (85) 170 CA3d 38, 52 [216 CR 221] [applying same principle to force as defined by PC 288(b)].) It is also well established that the “force” or “fear” must be the means by which the taking was accomplished. (See People v. Prieto (93) 15 CA4th 210, 214 [18 CR2d 761]; but see People v. Wright (96) 52 CA4th 203, 210-11 [criticized in Fuentes, supra].)
Accordingly, when there is a factual issue as to either or both of the above elements, CJ 9.40 may not adequately instruct the jury on the meaning of force.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES:
Sua Sponte Requirement. The formulation of “force,” requiring something more than the force necessary to commit the underlying act, is a technical definition peculiar to the law and thus requires instruction sua sponte. (People v. Pitmon (85) 170 CA3d 38, at 52 [216 CR 221].) The “something more” requirement is part and parcel of the essential element of force, at least when the evidence raises the issue, and as such, it is a general principle of law necessary to the jury’s understanding of the case which requires sua sponte instruction. (People v. Cummings (93) 4 C4th 1233, 1311 [18 CR2d 796].)
Moreover, inasmuch as the “something more” requirement qualifies the meaning of the word “force,” it is an integral part of that essential element which must be heard by the jury, under both state law and the 14th Amendment. (People v. Enriquez (96) 42 CA4th 661, 665 [49 CR2d 710]; U.S. v. Gaudin (9th Cir. 1994) 28 F3d 943, 952 [cert. gtd. o.g. and aff’d (95) 515 US 506 [132 LEd2d 444; 115 SCt 2310].
Thus while in most contexts it has been held that the word “force” in the crime of robbery has no technical meaning (People v. Anderson (66) 64 C2d 633, 639-40 [51 CR 238]), that is not true when the evidence raises the issue of whether the force used was substantially more than that required to commit the underlying offense. Jurors cannot know the level of force required to commit an offense unless they are told. (See People v. Whitehurst (92) 9 CA4th 1045, 1050 [12 CR2d 33] [instructions are given jurors because it is assumed lay people do not know the law].)
In PC 288 cases, where this type of issue arises more often, the word “force” is considered to have a technical meaning, for precisely this reason. Force “substantially different from or substantially greater” than that necessary to accomplish the underlying offense is “a specialized meaning not readily known to the average lay juror.” (People v. Pitmon, supra, 170 CA3d at 52.) The CALJIC Committee recognized this, for after Pitmon, it built that technical definition into the standardized instruction for PC 288(b) cases. (CJ 10.42.) [Additional briefing regarding this issue in the related context of carjacking is available to FORECITE subscribers. See FORECITE F 9.46 n4.]
F 9.40l
Robbery: Asportation Requirement
*Add at the end of CJ 9.40:
6. Such property was carried away.
Points and Authorities
An essential element of robbery is the “asporting or carrying away [of] the loot.” (People v. Cooper (91) 53 C3d 1158, 1165 [282 CR 450]; see also People v. Shannon (98) 66 CA4th 649 [78 CR2d 177] [element of asportation requires that the goods be severed from the possession or custody of the owner and moved slightly with the intent to permanently deprive the owner of it].) Thus, this element must be added to the standard instruction on the elements of robbery. (See also People v. Montero DEPUBLISHED (96) 48 CA4th 1524, 1532-33 [56 CR2d 303].)
People v. Jones (96) 42 CA4th 1047, 1055 [50 CR2d 46] held that absent request for an instruction on the element of “taking” or “asportation,” the court had no sua sponte duty to instruct on the term. The court noted that since CJ 9.40 stated all of the elements of robbery, it was incumbent on the defendant to request clarifying language regarding asportation if the defense deemed it to be an issue in the case.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 9.40m
Robbery: Possession Requires Ownership, Actual
Possession Or Representative Capacity
*Add to CJ 9.40:
In order to find that __________ [insert name of alleged victim] had possession of the property, the prosecution must prove beyond a reasonable doubt that __________ [insert name of alleged victim]:
1. Owned the property;
2. Had actual possession of the property; or
3. Was expressly or impliedly authorized to act in a representative capacity with respect to the owner of the property taken.
Points and Authorities
“Robbery is an offense against the person who has either actual or constructive possession over the goods.” (People v. Estes (83) 147 CA3d 23, 26 [194 CR 909].) Therefore, possession for robbery requires evidence that the person charged as the victim owned the property, had actual possession of the property or acted in some representative capacity with respect to the owner of the property. (People v. Frazer (2003) 106 CA4th 1105 [131 CR2d 319]; see also People v. Nguyen (2000) 24 C4th 756 [102 CR2d 548]; see also People v. Jones (2000) 82 CA4th 485, 491-92 [98 CR2d 329] [administrative office employees were in a “representative capacity” and had a sufficient possessory interest to be victims of attempted robbery even though they were not in possession or control of company cash]; Sykes v. Superior Court (94) 30 CA4th 479, 484 [35 CR2d 571]; but see People v. Guerin (72) 22 CA3d 775, 782 [99 CR 573] [grocery store “box boy” not robbery victim].) The person must have acted in “some representative capacity with respect to the owner of the property taken” such that the person had express or implied authority over the item taken. (People v. Bekele (95) 33 CA4th 1457, 1460-61 [39 CR2d 797]; see also People v. Frazer, supra; People v. Jones (96) 42 CA4th 1047, 1054 [50 CR2d 46]; Witkin & Epstein, 2 Cal. Crim Law (2d ed.) § 640, p. 722.) Thus, for example, a store employee may be found to have possession of property in the store (see People v. Miller (77) 18 C3d 873, 880 [135 CR 654]), while a mere passenger in a car stolen by force from both its owner and the passenger is not a victim of robbery. (Bekele, 33 CA4th at 1461-62.) Nor is a “Good Samaritan” who attempts to thwart a theft and is assaulted by the thieves a victim of robbery. (See People v. Galoia (94) 31 CA4th 595, 597-98 [37 CR2d 117]; see also, Sykes v. Superior Court, 30 CA4th at 484.)
Accordingly, when appropriate, the jury should be instructed upon the required elements of possession.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
F 9.40n
Robbery: Victim’s Fear Must Be Objectively Reasonable
*Add to CJ 9.40:
The fear or intimidation element of robbery requires proof of the following:
1. The victim parted with [his] [her] property, without [his] [her] consent, as a result of actual fear caused by the defendant’s conduct;
2. The victim’s fear was genuine and reasonable under the circumstances [, or if unreasonable, the perpetrator must have known of the victim’s subjective fear and taken advantage of it].
Points and Authorities
PC 211 defines robbery as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” No California case has addressed the question of whether the fear specified in the statute refers to subjective fear of the victim or objectively reasonable fear. There are conflicting authorities on the issue from other jurisdictions. (See LaFave & Scott, Substantive Criminal Law (1986), § 8.11, pp. 450-51 [discussing split in authority regarding whether fear must be objectively reasonable]; Note, 24 Minn.L.Rev. 708 (1940) [same].) However, if no element of objective reasonableness is included in the definition of robbery, “we would run the risk that the victim’s subjective reaction to benign conduct would unjustifiably escalate a theft to a robbery.” (Goodwine v. State (Wyo. 88) 764 P2d 680, 682-83.) On the other hand, if subjective fear is not required, robbery could occur without any force or actual fear. Hence, logic dictates that the fear element of robbery must be both subjective and objective.
This view is consistent with the California Supreme Court’s interpretation of similar language in the rape statute (PC 261) (People v. Iniguez (94) 7 C4th 847, 852-53 [30 CR2d 258].) Iniguez held as follows: “Thus, the element of fear of immediate and unlawful bodily injury has two components, one subjective and one objective. The subjective component asks whether a victim genuinely entertained a fear of immediate and unlawful bodily injury sufficient to induce her to submit to sexual intercourse against her will. In order to satisfy this component, the extent or seriousness of the injury feared is immaterial. [Citations.] ¶ In addition, the prosecution must satisfy the objective component, which asks whether the victim’s fear was reasonable under the circumstances, or, if unreasonable, whether the perpetrator knew of the victim’s subjective fear and took advantage of it. [Citation.]”
Similarly, the fear required for kidnapping (PC 207) has been held to encompass both subjective and objectively reasonable components. (See People v. Reyes-Martinez (93) 14 CA4th 1412, 1415 [18 CR2d 300] [approving CJ 9.50 which requires that the person be “unlawfully compelled … [to move] because of a reasonable apprehension of harm …”]; see also, People v. Pensinger (91) 52 C3d 1210, 1260 [278 CR 640] [making determination of whether a crime involves violence based on whether it could have “put a reasonable person in fear …”]; see also, U.S. v. Marsh (9th Cir. 1994) 26 F3d 1496, 1500 [extortion under federal law (18 USC 1951) requires reasonable fear]; U.S. v. Tolub (2d Cir. 1962) 309 F2d 286, 288 [victim’s fear under federal extortion statute (18 USC § 1951) must be reasonable].) It is true that fear for purposes of robbery is specifically defined in PC 212, whereas the fear necessary for kidnapping and rape is not specifically defined. However, PC 212 does not purport to address the subjective/objective aspects of the fear requirement, but rather addresses the persons for whom the fear may be held. Accordingly, the definition of fear set forth in Iniguez for purposes of PC 261 should be dispositive of the fear required for robbery under PC 211.
Failure to adequately instruct the jury upon matters relating to proof of any element of the charge and/or the prosecution’s burden of proof thereon violates the defendant’s state (Art. I, § 15 and § 16) and federal (6th and 14th Amendments) constitutional rights to trial by jury and due process. [See generally, FORECITE PG VII(C).]
NOTES
If the charge is attempted robbery, the reasonable fear requirement may not be necessary since there only need be an intent to cause fear rather than actual fear by the victim. (See U.S. v. Marsh, 26 F3d at 1501.)
F 9.40o
Robbery: Asportation Requirement
*Modify CJ 9.40, Element 2, to provide as follows [added language is capitalized]:
2. The property was taken from that person or from [his] [her] immediate presence AND CARRIED AWAY FOR AT LEAST A SLIGHT DISTANCE.
Points and Authorities
(See FORECITE F 9.46b.)
F 9.40p
Robbery: Intent To Deprive Of Main Or Major Value
(PC 211)
*Modify CJ 9.40, 2nd paragraph and Element 5, as follows [added language is capitalized]:
Every person who takes personal property in the possession of another, against the will and from the person or immediate presence of that person, accomplished by means of force or fear and with the specific intent [permanently to deprive that person of the property] [TO DEPRIVE THAT PERSON OF THE [MAIN] [MAJOR] VALUE OF THE PROPERTY], is guilty of the crime of robbery in violation of Penal Code section 211.
5. The property was taken with the specific intent [permanently to deprive that person of the property] [TO DEPRIVE THAT PERSON OF THE [MAIN] [MAJOR] VALUE OF THE PROPERTY].
Points and Authorities
People v. Avery (2002) 27 C4th 49 [115 CR2d 403] held that taking property temporarily, but for a period of time to deprive the owner of major or main portion of the property‘s value or enjoyment, is equivalent to the intent to permanently deprive an owner of the property the required intent of theft. However, ex post facto and/or due process principles may preclude retroactive application of this change. (See generally FORECITE F 2.90 n5.)
F 9.40q
Robbery: Required Force—Purse Snatch
*Add to CJ 9.40:
The prosecution must prove that the defendant used more force than was needed merely to take the property from ____________ (name of victim). [In deciding this issue consider all the circumstances including the physical characteristics of defendant and _______ (name of victim).]
Points and Authorities
“When actual force is present in a robbery, at the very least it must be a quantum more than that which is needed merely to take the property from the person of the victim, and is a question of fact to be resolved by the jury taking into account the physical characteristics of the robber and the victim.” (People v. Wright (1996) 52 CA4th 203, 210; see also People v. Morales (1975) 49 CA3d 134, 139 [“something more is required than just that quantum of force which is necessary to accomplish the mere seizing of the property”].)