Metropolitan News-Enterprise


Wednesday, January 28, 2004


Page 1


C.A. Eases ‘Presence’ Requirement for Robbery Convictions


By DAVID WATSON, Staff Writer


A theft from an absent owner can become robbery if the owner returns and a struggle over the property ensues, the Fourth District Court of Appeal ruled yesterday.

A dissenting justice complained that the ruling “completes the transmogrification” of robbery into an offense substantially different from that defined in the Penal Code by eviscerating the requirement that property be taken from the “immediate presence” of the victim by force or fear.

The Div. One majority affirmed the conviction of Matthew Bryan Miller. Miller took Jose Higareda’s wallet in a public restroom at La Jolla Cove after Higareda left it, and his pants, hanging on a hook in a stall. Higareda was changing into swimming attire.

Higareda and a companion returned to the restroom and confronted Miller, subduing him after a struggle. Police found money and drugs on the defendant and arrested him.

The wallet—without any money in it—and Higareda’s pants were recovered in another stall.

Writing for himself and Presiding Justice Judith McConnell, Justice James A. McIntyre said the evidence against Miller satisfied the definitional requirements of Penal Code Sec. 211, which provides that robbery is 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.”

McIntyre noted that in People v. Estes (1983) 147 Cal.App.3d 23, a robbery conviction was affirmed where a security guard observed a shoplifting incident and the shoplifter resisted the guard’s efforts to recover the merchandise. He rejected the contention that the guard’s proximity to the theft was essential to the court’s finding that a robbery had occurred.

He explained:

“Although the Estes court could have found that the immediate presence element was satisfied based on the security guard’s observation of the theft, the fact remains that it did not do so. Rather the court concluded that, as the use of force or fear only in carrying the stolen property away was sufficient to support a robbery charge, the victim’s immediate presence during the asportation of the property was likewise sufficient. Courts and practitioners have widely accepted this analysis, such that robberies in which the victim only comes upon the defendant after the latter has gained possession of the stolen property are commonly referred to as ‘Estes robberies.’”

Under the “long-standing principles announced in Estes,” the force used by Miller to retain Higareda’s property was “sufficient to support the assertion of a robbery charge against him,” McIntyre declared.

Justice Alex C. McDonald, in dissent, said the court was redefining robbery in derogation of the authority of the Legislature.

He commented:

“The majority opinion completes the transmogrification of the crime of robbery from the offense defined in Penal Code section 211  as the ‘taking of personal property in the possession of another, from his person or immediate presence..., accomplished by means of force or fear’ to the new offense of the taking or retaining personal property under those circumstances, a change accomplished by the court without legislative assistance.”

Under People v. Cooper (1991) 53 Cal.3d 1158, People v. Hayes (1990) 52 Cal.3d 577, and People v. Webster (1991) 54 Cal.3d 411, the taking itself must be from the person or immediate presence of the victim, McDonald declared.

“Under the Supreme Court decisions in Cooper, Hayes and Webster, a necessary element of a section 211 robbery is the victim’s presence in a location in which he or she could reasonably expect some physical control of the personal property at the time the perpetrator gained possession of the property,” he argued. “In this case, Higareda was not in that location; he was outside the public restroom at the time Miller gained possession of Higareda’s trousers and the items contained in those trousers. An element of the charged robbery, as described by the Supreme Court, is absent in this case. Miller may have been guilty of burglary, assault, theft or other criminal offenses, but he was not guilty of robbery.

As for Estes, McDonald said, to the extent that opinion “stated the element of immediate presence can be satisfied by a victim’s presence during a defendant’s asporting or carrying away of property, it is inconsistent with Cooper, which concluded immediate presence applies only to the gaining possession component and not to the asporting or carrying away component.”

Responding to McDonald’s suggestion that Estes had been, to some extent, overruled by Cooper, McIntyre wrote:

“[A]lthough Cooper described the immediate presence element of a robbery charge as relating to the ‘gaining possession’ element of the taking rather than the ‘carrying away’ element—, the opinion did not overrule or disapprove of Estes in any respect, but rather cited Estes with approval.”

He added:

“[I]n light of the widespread acceptance of the analysis of Estes and the fact that the California Supreme Court has not criticized or overruled Estes in the 20 years since that decision issued, we do not believe that our opinion expresses a change in the law, but instead reflects the current state of the law on the issue of what is sufficient to establish the immediate presence element of a robbery charge.”

The case is Miller v. Superior Court (People), 04 S.O.S. 405.


Copyright 2004, Metropolitan News Company