California Criminal Jury Instructions (CALCRIM) (2017)

1600. Robbery

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A. ROBBERY
1600.Robbery (Pen. Code, § 211)
The defendant is charged [in Count ] with robbery [in violation
of Penal Code section 211].
To prove that the defendant is guilty of this crime, the People must
prove that:
1. The defendant took property that was not (his/her) own;
2. The property was in the possession of another person;
3. The property was taken from the other person or (his/her)
immediate presence;
4. The property was taken against that person’s will;
5. The defendant used force or fear to take the property or to
prevent the person from resisting;
AND
6. When the defendant used force or fear, (he/she) intended (to
deprive the owner of the property permanently/ [or] to remove
the property from the owner’s possession for so extended a
period of time that the owner would be deprived of a major
portion of the value or enjoyment of the property).
The defendant’s intent to take the property must have been formed
before or during the time (he/she) used force or fear. If the defendant
did not form this required intent until after using the force or fear, then
(he/she) did not commit robbery.
<Give the following bracketed paragraph if the second degree is the only
possible degree of the charged crime for which the jury may return a
verdict.>
[If you find the defendant guilty of robbery, it is robbery of the second
degree.]
[A person takes something when he or she gains possession of it and
moves it some distance. The distance moved may be short.]
[The property taken can be of any value, however slight.] [Two or more
people may possess something at the same time.]
[A person does not have to actually hold or touch something to possess
it. It is enough if the person has (control over it/ [or] the right to
control it), either personally or through another person.]
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[A (store/ [or] business) (employee/ <insert description>)
who is on duty has possession of the (store/ [or] business) owner’s
property.]
[Fear, as used here, means fear of (injury to the person himself or
herself[,]/ [or] injury to the person’s family or property[,]/ [or]
immediate injury to someone else present during the incident or to that
person’s property).]
[Property is within a person’s immediate presence if it is sufficiently
within his or her physical control that he or she could keep possession
of it if not prevented by force or fear.]
[An act is done against a person’s will if that person does not consent to
the act. In order to consent, a person must act freely and voluntarily
and know the nature of the act.]
New January 2006; Revised August 2009, October 2010, April 2011, August 2013,
August 2014, March 2017
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
To have the requisite intent for theft, the defendant must either intend to deprive
the owner permanently or to deprive the owner of a major portion of the property’s
value or enjoyment. (See People v. Avery (2002) 27 Cal.4th 49, 57–58 [115
Cal.Rptr.2d 403, 38 P.3d 1].) Select the appropriate language in element 5.
There is no sua sponte duty to define the terms “possession,” “fear,” and
“immediate presence.” (People v. Anderson (1966) 64 Cal.2d 633, 639 [51
Cal.Rptr. 238, 414 P.2d 366] [fear]; People v. Mungia (1991) 234 Cal.App.3d 1703,
1708 [286 Cal.Rptr. 394] [fear].) These definitions are discussed in the
Commentary below.
If second degree robbery is the only possible degree of robbery that the jury may
return as their verdict, do not give CALCRIM No. 1602, Robbery: Degrees.
Give the bracketed definition of “against a person’s will” on request.
If there is an issue as to whether the defendant used force or fear during the
commission of the robbery, the court may need to instruct on this point. (See
People v. Estes (1983) 147 Cal.App.3d 23, 28 [194 Cal.Rptr. 909].) See CALCRIM
No. 3261, In Commission of Felony: Defined—Escape Rule.
AUTHORITY
• Elements. Pen. Code, § 211.
Fear Defined. Pen. Code, § 212; see People v. Cuevas (2001) 89 Cal.App.4th
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689, 698 [107 Cal.Rptr.2d 529] [victim must actually be afraid].
• Immediate Presence Defined. People v. Hayes (1990) 52 Cal.3d 577, 626–627
[276 Cal.Rptr. 874, 802 P.2d 376].
• Intent. People v. Green (1980) 27 Cal.3d 1, 52–53 [164 Cal.Rptr. 1, 609 P.2d
468], overruled on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834,
fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99]; see Rodriguez v. Superior Court (1984)
159 Cal.App.3d 821, 826 [205 Cal.Rptr. 750] [same intent as theft].
• Intent to Deprive Owner of Main Value. See People v. Avery (2002) 27
Cal.4th 49, 57–58 [115 Cal.Rptr.2d 403, 38 P.3d 1] [in context of theft]; People
v. Zangari (2001) 89 Cal.App.4th 1436, 1447 [108 Cal.Rptr.2d 250] [same].
• Possession Defined. People v. Bekele (1995) 33 Cal.App.4th 1457, 1461 [39
Cal.Rptr.2d 797], disapproved on other grounds in People v. Rodriguez (1999)
20 Cal.4th 1, 13–14 [82 Cal.Rptr.2d 413, 971 P.2d 618].
• Constructive Possession by Employee. People v. Scott (2009) 45 Cal.4th 743,
751 [89 Cal.Rptr.3d 213, 200 P.3d 837].
• Constructive Possession by Subcontractor/Janitor. People v. Gilbeaux (2003)
111 Cal.App.4th 515, 523 [3 Cal.Rptr.3d 835].
• Constructive Possession by Person With Special Relationship. People v.
Weddles (2010) 184 Cal.App.4th 1365, 1369–1370 [109 Cal.Rptr.3d 479].
• Felonious Taking Not Satisfied by Theft by False Pretense. People v. Williams
(2013) 57 Cal.4th 776, 784–789 [161 Cal.Rptr.3d 81, 305 P.3d 1241].
Secondary Sources
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property, § 85.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142,
Crimes Against the Person, § 142.10 (Matthew Bender).
COMMENTARY
The instruction includes definitions of “possession,” “fear,” and “immediate
presence” because those terms have meanings in the context of robbery that are
technical and may not be readily apparent to jurors. (See People v. McElheny
(1982) 137 Cal.App.3d 396, 403 [187 Cal.Rptr. 39]; People v. Pitmon (1985) 170
Cal.App.3d 38, 52 [216 Cal.Rptr. 221].)
Possession was defined in the instruction because either actual or constructive
possession of property will satisfy this element, and this definition may not be
readily apparent to jurors. (People v. Bekele (1995) 33 Cal.App.4th 1457, 1461 [39
Cal.Rptr.2d 797] [defining possession], disapproved on other grounds in People v.
Rodriguez (1999) 20 Cal.4th 1, 13–14 [82 Cal.Rptr.2d 413, 971 P.2d 618]; see also
People v. Nguyen (2000) 24 Cal.4th 756, 761, 763 [102 Cal.Rptr.2d 548, 14 P.3d
221] [robbery victim must have actual or constructive possession of property taken;
disapproving People v. Mai (1994) 22 Cal.App.4th 117, 129 [27 Cal.Rptr.2d 141]].)
Fear was defined in the instruction because the statutory definition includes fear of
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injury to third parties, and this concept is not encompassed within the common
understanding of fear. Force was not defined because its definition in the context of
robbery is commonly understood. (See People v. Mungia (1991) 234 Cal.App.3d
1703, 1709 [286 Cal.Rptr. 394] [“force is a factual question to be determined by
the jury using its own common sense”].)
Immediate presence was defined in the instruction because its definition is related
to the use of force and fear and to the victim’s ability to control the property. This
definition may not be readily apparent to jurors.
LESSER INCLUDED OFFENSES
• Attempted Robbery. Pen. Code, §§ 664, 211; People v. Webster (1991) 54
Cal.3d 411, 443 [285 Cal.Rptr. 31, 814 P.2d 1273].
• Grand Theft. Pen. Code, §§ 484, 487g; People v. Webster, supra, at p. 443;
People v. Ortega (1998) 19 Cal.4th 686, 694, 699 [80 Cal.Rptr.2d 489, 968 P.2d
48]; see People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411–1413 [116
Cal.Rptr.2d 1] [insufficient evidence to require instruction].
• Grand Theft Automobile. Pen. Code, § 487(d); People v. Gamble (1994) 22
Cal.App.4th 446, 450 [27 Cal.Rptr.2d 451] [construing former Pen. Code,
§ 487h]; People v. Escobar (1996) 45 Cal.App.4th 477, 482 [53 Cal.Rptr.2d 9]
[same].
• Petty Theft. Pen. Code, §§ 484, 488; People v. Covington (1934) 1 Cal.2d
316, 320 [34 P.2d 1019].
• Petty Theft With Prior. Pen. Code, § 666; People v. Villa (2007) 157
Cal.App.4th 1429, 1433–1434 [69 Cal.Rptr.3d 282].
When there is evidence that the defendant formed the intent to steal after the
application of force or fear, the court has a sua sponte duty to instruct on any
relevant lesser included offenses. (People v. Bradford (1997) 14 Cal.4th 1005,
1055–1057 [60 Cal.Rptr.2d 225, 929 P.2d 544] [error not to instruct on lesser
included offense of theft]); People v. Ramkeesoon (1985) 39 Cal.3d 346, 350–352
[216 Cal.Rptr. 455, 702 P.2d 613] [same].)
On occasion, robbery and false imprisonment may share some elements (e.g., the
use of force or fear of harm to commit the offense). Nevertheless, false
imprisonment is not a lesser included offense, and thus the same conduct can result
in convictions for both offenses. (People v. Reed (2000) 78 Cal.App.4th 274,
281–282 [92 Cal.Rptr.2d 781].)
RELATED ISSUES
Asportation—Felonious Taking
To constitute a taking, the property need only be moved a small distance. It does
not have to be under the robber’s actual physical control. If a person acting under
the robber’s direction, including the victim, moves the property, the element of
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taking is satisfied. (People v. Martinez (1969) 274 Cal.App.2d 170, 174 [79
Cal.Rptr. 18]; People v. Price (1972) 25 Cal.App.3d 576, 578 [102 Cal.Rptr. 71].)
Claim of Right
If a person honestly believes that he or she has a right to the property even if that
belief is mistaken or unreasonable, such belief is a defense to robbery. (People v.
Butler (1967) 65 Cal.2d 569, 573 [55 Cal.Rptr. 511, 421 P.2d 703]; People v. Romo
(1990) 220 Cal.App.3d 514, 518 [269 Cal.Rptr. 440] [discussing defense in context
of theft]; see CALCRIM No. 1863, Defense to Theft or Robbery: Claim of Right.)
This defense is only available for robberies when a specific piece of property is
reclaimed; it is not a defense to robberies perpetrated to settle a debt, liquidated or
unliquidated. (People v. Tufunga (1999) 21 Cal.4th 935, 945–950 [90 Cal.Rptr.2d
143, 987 P.2d 168].)
Fear
A victim’s fear may be shown by circumstantial evidence. (People v. Davison
(1995) 32 Cal.App.4th 206, 212 [38 Cal.Rptr.2d 438].) Even when the victim
testifies that he or she is not afraid, circumstantial evidence may satisfy the element
of fear. (People v. Renteria (1964) 61 Cal.2d 497, 498–499 [39 Cal.Rptr. 213, 393
P.2d 413].)
Force—Amount
The force required for robbery must be more than the incidental touching necessary
to take the property. (People v. Garcia (1996) 45 Cal.App.4th 1242, 1246 [53
Cal.Rptr.2d 256] [noting that force employed by pickpocket would be insufficient],
disapproved on other grounds in People v. Mosby (2004) 33 Cal.4th 353, 365, fns.
2, 3 [15 Cal.Rptr.3d 262, 92 P.3d 841].) Administering an intoxicating substance or
poison to the victim in order to take property constitutes force. (People v. Dreas
(1984) 153 Cal.App.3d 623, 628–629 [200 Cal.Rptr. 586]; see also People v.
Wright (1996) 52 Cal.App.4th 203, 209–210 [59 Cal.Rptr.2d 316] [explaining force
for purposes of robbery and contrasting it with force required for assault].)
Force—When Applied
The application of force or fear may be used when taking the property or when
carrying it away. (People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [282
Cal.Rptr. 450, 811 P.2d 742]; People v. Pham (1993) 15 Cal.App.4th 61, 65–67 [18
Cal.Rptr.2d 636]; People v. Estes (1983) 147 Cal.App.3d 23, 27–28 [194 Cal.Rptr.
909].)
Immediate Presence
Property that is 80 feet away or around the corner of the same block from a
forcibly held victim is not too far away, as a matter of law, to be outside the
victim’s immediate presence. (People v. Harris (1994) 9 Cal.4th 407, 415–419 [37
Cal.Rptr.2d 200, 886 P.2d 1193]; see also People v. Prieto (1993) 15 Cal.App.4th
210, 214 [18 Cal.Rptr.2d 761] [reviewing cases where victim is distance away from
property taken].) Property has been found to be within a person’s immediate
presence when the victim is lured away from his or her property and force is
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subsequently used to accomplish the theft or escape (People v. Webster (1991) 54
Cal.3d 411, 440–442 [285 Cal.Rptr. 31, 814 P.2d 1273]) or when the victim
abandons the property out of fear (People v. Dominguez (1992) 11 Cal.App.4th
1342, 1348–1349 [15 Cal.Rptr.2d 46].)
Multiple Victims
Multiple counts of robbery are permissible when there are multiple victims even if
only one taking occurred. (People v. Ramos (1982) 30 Cal.3d 553, 589 [180
Cal.Rptr. 266, 639 P.2d 908], reversed on other grounds California v. Ramos (1983)
463 U.S. 992 [103 S.Ct. 3446, 77 L.Ed.2d 1171]; People v. Miles (1996) 43
Cal.App.4th 364, 369, fn. 5 [51 Cal.Rptr.2d 87] [multiple punishment permitted].)
Conversely, a defendant commits only one robbery, no matter how many items are
taken from a single victim pursuant to a single plan. (People v. Brito (1991) 232
Cal.App.3d 316, 325–326, fn. 8 [283 Cal.Rptr. 441].)
Value
The property taken can be of small or minimal value. (People v. Simmons (1946)
28 Cal.2d 699, 705 [172 P.2d 18]; People v. Thomas (1941) 45 Cal.App.2d 128,
134–135 [113 P.2d 706].) The property does not have to be taken for material gain.
All that is necessary is that the defendant intended to permanently deprive the
person of the property. (People v. Green (1980) 27 Cal.3d 1, 57 [164 Cal.Rptr. 1,
609 P.2d 468], disapproved on other grounds in People v. Hall (1986) 41 Cal.3d
826, 834, fn. 3 [226 Cal.Rptr. 112, 718 P.2d 99].)
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