Metropolitan News-Enterprise


Thursday, August 21, 2003


Page 3


C.A.: Janitors Constructively Possessed Store Property for Robbery


By a MetNews Staff Writer


Two janitors employed by a cleaning company who were present along with grocery store employees during an after-hours armed robbery constructively possessed store property, justifying robbery counts naming them as victims, this district’s Court of Appeal ruled yesterday.

The ruling by the court’s Div. Five upheld the conviction of Kevin Charles Gilbeaux, who was convicted in Los Angeles Superior Court of six counts of armed robbery. The convictions included one count for each of the four employees in the Long Beach Food 4 Less store and two counts for the two janitors, who were tied up and locked in a storage room by Gilbeaux and his confederate.

The janitors, Bernardo Lopez and Marcos Camacho, were employed not by Food 4 Less, but by Mr. Clean Maintenance Systems, and were regularly assigned to work at the Long Beach store.

Writing for the court, Justice Margaret Grignon said the evidence was sufficient to support the convictions for robbing the janitors as well as the Food 4 Less employees.

She rejected Gilbeaux’s contentions that janitors cannot be in possession of store property if other store employees with greater authority over the property are present and that non-employees cannot constructively possess property.

The justice wrote:

“We conclude Lopez and Camacho had constructive possession of the property of Food 4 Less....They were part of the group of workers in charge of the premises at the time of the robbery. The fact that other workers were also present in the store who also had constructive possession does not alter the conclusion. Moreover, it is irrelevant that Lopez and Camacho had no responsibility for handling the cash....It is true that Lopez and Camacho were not employees of Food 4 Less, but they had a special relationship with Food 4 Less that made them akin to employees. There are many tax, business, insurance, and liability reasons for a business to use contract workers rather than employees, but none of these reasons reflect on the issue of a worker’s possession of the property of a business as against a robber. The janitors were servants or agents of Food 4 Less for the purpose of the robbery. Substantial evidence supports the conclusion that Lopez and Camacho had sufficient representative capacity with respect to Food 4 Less so as to be in constructive possession of property stolen from Food 4 Less.”

Presiding Justice Paul A. Turner concurred.

Justice Ricfhard M. Mosk dissented.

“There is no substantial evidence that at the time of the robbery, the janitors, Lopez and Camacho, had the necessary authority or responsibility with respect to the store to be robbery victims,” Mosk wrote. “They lacked employment responsibilities that would involve any representative capacity that could confer authority over store funds or property.”

The dissenting justice added:

“Parenthetically, eliminating them as victims would reduce defendant’s sentence from 245 years to life to 175 years to life.”

The case is People v. Gilbeaux, 03 S.O.S. 4559.


Copyright 2003, Metropolitan News Company