Metropolitan News-Enterprise


Friday, April 11, 2008


Page 3


Supreme Court: Forcible Retention of Stolen Property Constitutes Robbery


By SHERRI M. OKAMOTO, Staff Writer


A defendant’s forcible retention of stolen property in a victim’s presence constitutes robbery, even if the victm was not present when the defendant initially gained possession of the property, the California Supreme Court ruled yesterday.

Affirming an unpublished opinion by Div. Three of the Fourth Distirct Court of Appeal, the high court held that sufficient evidence existed to support Alfonso Gomez’s conviction for robbery after he broke into a restaurant and fired gunshots at an employee who pursued him.

Gomez broke into an Anaheim restaurant and stole money from an ATM, but a restaurant employee saw him leave the building and followed in his truck. When Gomez noticed the employee, he fired two shots at the truck from a distance of 100 to 150 feet, and the employee drove away.

A jury later convicted Gomez of robbery.

Gomez contended the evidence was insufficient to support his conviction because the employee was not present when he initially took the money.

However, the Court of Appeal upheld the conviction, concluding that Gomez’s use of force to retain the stolen property and remove it from the employee’s immediate presence was sufficient to support the robbery conviction.

The Penal Code defines robbery as the taking of personal property by force or fear from a victim or from the victim’s immediate presence.

Writing for the high court on appeal, Justice Carol A. Corrigan explained that the “taking” involves both the actual achievement of possession, or “caption,” and the carrying away, or “asportation” of the property.

Citing People v. Anderson (1966) 64 Cal.2d 633, which held that the use of force or fear during asportation was sufficient to transform a peaceful taking into a robbery, and People v. Cooper (1991) 53 Cal.3d 1158, which held that asportation continues as long as the stolen property is being carried away to a place a temporary safety, Corrigan reasoned:

“[R]obbery is a continuing offense. If the aggravating factors are in play at any time during the period from caption through asportation, the defendant has engaged in conduct that elevates the crime from simple larceny to robbery.”

Following this logic, Corrigan concluded that if the “force or fear” element of robbery could arise for the first time during asportation, the “immediate presence” element could also arise for the first time during asportation as well.

In support of her reasoning Corrigan cited People v. Estes (1983) 147 Cal.App.3d 23 and Miller v. Superior Court (2004) 115 Cal.App.4th 216, which both upheld robbery convictions for defendants who used force to retain stolen property in the victim’s presence.

Explaining that the victim’s “immediate presence” was the area within “reach, inspection, observation or control” of the victim, so that the victim could retain his possession of his property if he were not overcome by violence or prevented by fear, she concluded that “[a] victim who tries to stop a thief from getting away with his property is in the presence of the property.”

Corrigan agreed with the appellate court’s determination that the restaurant employee could have caught up with Gomez had he not shot at the employee and caused the employee to flee. As a result, she also concluded that the parties’ distance from each other at the time of the shooting was not so great as to preclude defendant’s conviction for robbery.

Chief Justice Ronald M. George, and Justices Marvin R. Baxter, Kathryn Mickle Werdegar, Ming W. Chin and Carlos R. Moreno joined Corrigan in her opinion.

Justice Joyce L. Kennard concurred with the majority’s judgment, but wrote separately to reiterate her disagreement with Cooper, insofar as it held a person who formed the intent to aid in the asportation of stolen property during its asportation may be found liable as an aider and abettor of the robbery.

San Diego Deputy Attorney General Lise S. Jacobson called the high court’s opinion a “very useful clarification on the law of robbery.”

Gomez’s counsel, San Diego attorney Michael Bacall, could not be reached for comment.

The case is People v. Gomez, 08 S.O.S. 2097.


Copyright 2008, Metropolitan News Company