ESTABLISHED ELEMENTS OF ROBBERY NOT IN CALJIC

Note: All references to "FORECITE" refer to FORECITE California, authored by Thomas Lundy and available from James Publishing. Go to: http://jamespublishing.com/books/fc.htm

    Despite the fact that CALJIC has included instructions on robbery for decades, there are still several settled elements and principles not yet included in CALJIC’s standard robbery instructions. The following are some examples:

*Add at the end of CJ 9.40:

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].) Thus, this element must be added to the standard instruction on the elements of robbery.

    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).]

*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. (See Sykes v. Superior Court (94) 30 CA4th 479, 484 [35 CR3d 571].) 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. 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.

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].) 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 Iniguezfor purposes of PC 261 should be dispositive of the fear required for robbery under PC 211.

    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.)

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