Is Larcenous Intent an Element of Robbery?
September 12th, 2016

For decades CALJIC 9.40 has relied on the literal language of PC 211 to define the specific intent required for robbery as an intent to permanently deprive the possessor of the property that is taken. However, this definition is erroneous because robbery requires an intent to steal which is defined as an intent to permanently deprive the owner – not the posssessor — of the property. (See e.g., People v. Ford (1964) 60 Cal.2d 772, 792-793 [judge must go beyond the literal language of PC 211 to include specific intent to steal when defining robbery by giving former CALJIC No. 72-B “even without a request therefore by defendant”].) Former CALJIC No. 72-B provided, inter alia, as follows:

…[I]n the crime of robbery, a necessary element is the existence in the mind of the perpetrator of the specific intent to permanently deprive an owner of his property; and, unless such intent so exists, that crime is not committed.” [Emphasis added] (People v. Spencer (1963) 60 Cal.2d 64, 87.)

Subsequent appellate decisions have confirmed that Spencer, Ford, and former CALJIC No. 72-B correctly defined the mens rea of robbery. Some of the more recent decisions that do so include the following:

People v. Williams (2013) 57 Cal.4th 776, 786-787 — “Because California’s robbery statute (PC 211) uses the common law’s phrase “felonious taking,” and because at common law “felonious taking” was synonymous with larceny, we conclude that larceny is a necessary element of robbery.”

People v. Anderson (2011) 51 Cal.4th 989, 1002 [Justice Kennard asserts that “[r]obbery includes the mental element necessary to prove theft, the specific intent to permanently deprive the owner of the property” and then observes: “No one disputes this here.”].)

People v. Bacon (2010) 50 Cal.4th 1082, 1117 [“Theft and robbery have the same felonious taking element, which is the intent to steal, or to feloniously deprive the owner permanently of his or her property.”]

People v. Chun (2009) 45 Cal.4th 1172, 1183-1184 [the intent-to-permanently-deprive requirement, although nonstatutory in the limited sense that no California statute uses those words, is based on statute.]

People v. Aguilera (2016) 244 Cal.App.4th 489, 502 [“Here, the jury was properly instructed pursuant to CALCRIM No. 1600 that the requisite intent for robbery existed if the defendant intended ‘to deprive the owner of [the property] permanently….’ ”]

Moreover, consistent with the above case law, the CALCRIM instruction defining robber [CC 1600] requires an intent to permanently deprive the owner.

And, in its February 2016 revision to the Bench Notes for CC 625 the committee reaffirmed the intent to deprive the owner element by revising to Bench Notes to replace intent to “take property by force or fear” with intent to “deprive the owner of the property.”

See also this post: CC 1600 Robbery: Intent To Apply Force Is Not An Element

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