Thursday, October 1, 2009
C.A. Upholds Convictions in S.F. Jewelry Store Robbery
By STEVEN M. ELLIS, Staff Writer
A San Francisco jewelry store owner’s alleged consent to a heist perpetrated while the store was under the control of employees not in on the scheme did not vitiate the “felonious taking” element of robbery, the First District Court of Appeal has ruled.
Div. Four on Tuesday upheld the robbery convictions of Troy Devin Smith, who was part of a group that made off with almost $4.5 million in jewelry from a Union Square store in 2003 in what was reportedly the largest jewelry heist in the city’s history.
Prosecutors and defense counsel in Smith’s 2006 trial argued that the robbery of Lang Antique & Estate Jewelry was an inside job set up by owner Mark Zimmelman, who collected a $4 million insurance payment for the loss, but Zimmelman was never charged in connection with the crime and has maintained his innocence.
Writing on appeal, Presiding Justice Ignazio J. Ruvolo said that Zimmelman’s alleged consent did not matter and opined that “it is the possession of property, not its ownership, which is the determining factor regarding whether a robbery has occurred.”
Smith, with the help of his brother, Dino Smith, and George Turner, broke into the jewelry store during the weekend leading up to Monday, April 7, by cutting a hole in the wall of the adjacent Rumpus Restaurant, where they had wired the door for easy entry.
The men entered the store while it was closed for the weekend and its safe room was being remodeled. The store’s security camera was not recording, and the men concealed themselves until employees arrived to open the premises.
A motion detector alarm was set off in the safe room that Sunday night, but police saw no problems with the store’s exterior and Zimmelman took no further action after being called by the alarm company.
When the employees arrived Monday morning, the men jumped into action, tying up the employees and making off with 1,297 pieces of jewelry.
Authorities arrested Turner in 2003, but Dino Smith was not apprehended until almost a year later, after he had gone to New York City. Troy Smith remained at large until 2006, when he surrendered to the police in the company of his attorney.
Troy Smith was found guilty of four counts of second degree robbery, among other charges, and San Francisco Superior Court Judge Jerome T. Benson sentenced him to 26 years in prison.
On appeal, Smith maintained that Zimmelman had been a part of the heist, and argued that a property owner’s consent in an “inside job” scenario negated one of the elements of robbery by rendering the taking non-felonious.
Penal Code Sec. 211 defines 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.”
But Ruvolo—noting that the court advanced no opinion whether a felonious taking would occur if the consenting property owner was the only one present—said that a taking from employees who were unaware of the property owner’s consent was robbery, even if the owner was “secretly in league with the perpetrators.”
Explaining that possession was key, he said:
“This principle makes sense, because the risk of injury or death resulting from confrontations between robbers and victims is not significantly reduced merely because the victims lack legal title to the property in their possession.”
Justices Timothy A. Reardon and Maria P. Rivera joined Ruvolo in his opinion.
The case is People v. Smith, 09 S.O.S. 5841.
Copyright 2009, Metropolitan News Company