SERIES 1600 ROBBERY AND CARJACKING
F 1600 NOTES
TABLE OF CONTENTS
F 1600 Note 1 Robbery: CALCRIM Cross-References And Research Notes
F 1600 Note 2 Robbery: Prejudicial Effect Of Hayes Error
F 1600 Note 3 Robbery: Taking, Not Other Overt Acts, Is Controlling
F 1600 Note 4 Robbery: Exception To Immediate Presence Requirement When Victim Lured Away
F 1600 Note 5 Robbery: Single Crime When Multiple Items Taken (PC 211)
F 1600 Note 6 Robbery: Force Or Fear May Occur During Escape (PC 211)
F 1600 Note 7 Robbery: Negation Of Felonious Intent By Duress (PC 211)
F 1600 Note 8 Robbery: Negation of Felonious Intent By Good Faith Belief In Consent (PC 211)
F 1600 Note 9 Robbery: Theft As Lesser-Included When Loot Is Abandoned Before Application Of Force Or Fear (PC 211)
F 1600 Note 10 Robbery: Claim Of Right Limitations (PC 211)
F 1600 Note 11 Robbery: Carjacking As Robbery (PC 211)
F 1600 Note 12 Robbery: Error To Instruct That Aiming Of Weapon With Demand For Money Amounts To Force And Fear (PC 211)
F 1600 Note 13 Robbery: Employees Of A Business Constructively Possess The Business Owner’s Property During A Robbery
F 1600 Note 14 Robbery: Knowledge Of Victim’s Presence
F 1600 Note 15 Robbery: Instruction Upon Lesser Offense of Assault Upon Request
F 1600 Note 16 Theft Of Community Property
F 1600 Note 17 Robbery: Force Or Fear Must Be Against The Victim, Not A Third Person
F 1600 Note 18 Robbery: Battery As Lesser-Included Offense
F 1600 Note 19 Robbery: Applicability To Forcefully Retaining The Property (Estes)
F 1600 Note 20 Control Of Property: Examples
Return to Series 1600 Table of Contents.
F 1600 Note 1 Robbery: CALCRIM Cross-References And Research Notes
CALCRIM Cross-References:
CALCRIM 1601 [Robbery In Concert]
CALCRIM 1602 [Robbery Degrees]
CALCRIM 1603 [Robbery Intent Of Aider And Abettor]
Research Notes:
See CLARAWEB Forum, Robbery And Carjacking—Series 1600.
F 1600 Note 2 Robbery: Prejudicial Effect Of Hayes Error
In the unpublished opinion of People v. Harris (C009938), the court held that the Hayes (People v. Hayes (1990) 52 C3d 577, 627) definition of “immediate presence” applies to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.
CALJIC NOTE: See FORECITE F 9.40f.
F 1600 Note 3 Robbery: 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. (People v. Hayes (1990) 52 C3d 577, 627-28.)
CALJIC NOTE: See FORECITE F 9.40f.
F 1600 Note 4 Robbery:Exception To Immediate Presence Requirement When Victim Lured Away
People v. Webster (1991) 54 C3d 411, 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.)
CALJIC NOTE: See FORECITE F 9.40f.
F 1600 Note 5 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 (1991) 232 CA3d 316, 326, fn 8.)
[Research Note: See FORECITE BIBLIO 9.40.]
CALJIC NOTE: See FORECITE F 9.40 n1.
F 1600 Note 6 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 (1991) 54 C3d 411, 441-42; People v. Winkler (1986) 178 CA3d 750, 756.)
[Research Note: See FORECITE BIBLIO 9.40.]
CALJIC NOTE: See FORECITE F 9.40 n3.
F 1600 Note 7 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.]
CALJIC NOTE: See FORECITE F 9.40 n4.
F 1600 Note 8Robbery: Negation of Felonious Intent By Good Faith Belief In Consent (PC 211)
See FORECITE F 14.02a.
[Research Note: See FORECITE BIBLIO 9.40.]
CALJIC NOTE: See FORECITE F 9.40 n5.
F 1600 Note 9Robbery: 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 (1983) 147 CA3d 23, 27; see also People v. Bigelow (1984) 37 C3d 731, 753-54.) 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 (1993) 15 CA4th 61, 68.)
[Research Note: See FORECITE BIBLIO 9.40.]
CALJIC NOTE: See FORECITE F 9.40 n8.
F 1600 Note 10Robbery: 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 (1999) 21 C4th 935, 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 (1979) 442 US 510, 526 [61 LEd2d 39; 99 SCt 2450]; In re Winship (1970) 397 US 358, 364 [25 LEd2d 368; 90 SCt 1068]; People v. Figueroa (1986) 41 C3d 714, 721, 725; People v. Beeman (1984) 35 C3d 547, 555.) 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 (1979) 25 C3d 668, 674-80; see also People v. Threestar (1985) 167 CA3d 747, 754-55; People v. Navarro (1979) 99 CA3d Supp 1, 10; Witkin, California Criminal Law, 2d Ed. 1988, §490, p. 553; §511, p. 578.) [Research Note: See FORECITE BIBLIO 9.40.]
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 (1967) 65 C2d 569 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 (1995) 141 NJ 475 [662 A2d 308]; State v. Self (1986) 42 Wash.App. 654 [713 P2d 142] [rejecting majority’s opinion in Butler]; People v. Hodges (1985) 113 AD2d 514 [496 NYS2d 771] [same]; State v. Winston (1982) 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 (1980) 274 Pa. Super. 452 [418 A2d 493] [citing favorably to Justice Mosk’s dissent in Butler]; State v. Russell (1975) 217 Kan. 481 [536 P2d 1392]; Cates v. State (1974) 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 (1973) 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 (1969) 107 Ill.App. 305 [247 NE2d 35]; cf. State v. Lewis (1978) 121 Ariz. 155 [589 P2d 29] [defense unavailable where claimed debt was unliquidated].)
In People v. Barnett (1998) 17 C4th 1044, 1146, 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 (1999) 21 C4th 935, 950, 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 (1988) 44 C3d 635, 642 [fee collection for prostitution services]; People v. Gates (1987) 43 C3d 1168, 1182 [distribution of proceeds from a forgery ring]; see also People v. Barnett (1998) 17 C4th 1044, 1146; but see People v. Rosen (1938) 11 C2d 147.)
[Research Note: See FORECITE BIBLIO 9.40.]
CALJIC NOTE: See FORECITE F 9.40 n9.
F 1600 Note 11Robbery: 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 (1993) 5 C4th 610, 645-46.)
[Research Note: See FORECITE BIBLIO 9.40.]
CALJIC NOTE: See FORECITE F 9.40 n11.
F 1600 Note 12 Robbery: Error To Instruct That Aiming Of Weapon With Demand For Money Amounts To Force And Fear (PC 211)
In People v. Higareda (1994) 24 CA4th 1399, 1406, 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.]
CALJIC NOTE: See FORECITE F 9.40 n12.
F 1600 Note 13 Robbery: Employees Of A Business Constructively Possess The Business Owner’s Property During A Robbery
“. . . [A] long line of California cases that have found evidence sufficient to establish that employees working at a business premises were in constructive possession of the employer’s property during a robbery, based upon their status as employees and without examining whether their particular duties involved access to or control over the property stolen. Although some of these cases may stop short of declaring an unequivocal rule, they support the proposition . . . that ‘California follows the long-standing rule that the employees of a business constructively possess the business owner’s property during a robbery. …’ [Citation.]” (See People v. Scott (2009) 45 C4th 743, 752.)
Scott disapproved People v. Frazer (2003) 106 CA4th 1105 and the following definition of constructive possession in CC 1600 which was based on Frazer:
If the facts show that the employee was a representative of the owner of the property and the employee expressly or implicitly had authority over the property, then that employee may be robbed if property of the store or business is taken by force or fear.
(Scott, 45 C4th at 751.)
See also FORECITE F 1600 Note 20.
F 1600 Note 14 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 (1993) 15 CA4th 210, 214 [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.]
CALJIC NOTE: See FORECITE F 9.40 n14.
F 1600 Note 15Robbery: 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 (1969) 275 CA2d 815, 822 [simple assault]; People v. Duncan (1945) 72 CA2d 423, 426 [ADW (PC 245) is included in charge of robbery with a deadly weapon].) People v. Wolcott (1983) 34 C3d 92, 100-01, 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 FORECITE LRO II(B).) There may be question as to the viability of People v. Wright (1996) 51 CA4th 818, 840 fn 16 after Birks.
CALJIC NOTE: See FORECITE F 9.40 n15.
F 1600 Note 16Theft 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 (1997) 51 CA4th 1729; 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.]
CALJIC NOTE: See FORECITE F 9.40 n16.
F 1600 Note 17Robbery: 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 1600.5 Inst 5.
CALJIC NOTE: See FORECITE F 9.40 n18.
F 1600 Note 18Robbery: 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 (1996) 52 CA4th 203, 209 (Wright); PC 211.) However, if the accusatory pleading alleges the defendant used force and fear in committing the robbery then according to the pleading 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 (1984) 35 C3d 510, 517, fn 4; see also People v. Lopez (1998) 19 C4th 282, 288; People v. Clarke (1990) 50 C3d 583, 636 [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.”]
CALJIC NOTE: See FORECITE F 9.40 n19.
F 1600 Note 19 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].