1602. Robbery: Degrees
Robbery is divided into two degrees. If you conclude that the defendant committed a robbery, you must then decide the degree.
To prove that the defendant is guilty of first degree robbery, the People must prove that:
[The robbery was committed in an inhabited (dwelling/vessel/ floating home/trailer coach/part of a building). A (dwelling/vessel/ floating home/trailer coach/part of a building) is inhabited if someone lives there and either is present or has left but intends to return.]
[The robbery was committed while the person robbed was using or had just used an ATM machine and was still near the machine.]
[The robbery was committed while the person robbed was performing (his/her) duties as the driver of or was a passenger on (a/an) (bus/taxi/cable car/streetcar/trackless trolley/ <other kind of vehicle used to transport people>.]
All other robberies are of the second degree.
The People have the burden of proving beyond a reasonable doubt that the robbery was first degree rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree robbery.
The court has a sua sponte duty to give an instruction if first degree robbery has been charged, or if the prosecution is seeking a first degree conviction based on the facts. Give one of the three bracketed paragraphs defining the elements of first degree robbery.
Determination of Degrees. Pen. Code, § 212.5.
Floating Home Defined. Health & Saf. Code, § 18075.55(d).
Trailer Coach Defined. Veh. Code, § 635; Health & Saf. Code, § 18009.3.
Vessel Defined. Harb. & Nav. Code, § 21.
Inhabitation. People v. Jackson (1992) 6 Cal.App.4th 1185, 1188 [8 Cal.Rptr.2d 239].
2 Witkin & Epstein, California Criminal Law (3d ed. 2000) Crimes— Property, § 88.
6 Millman, Sevilla & Tarlow, California Criminal Defense Practice, Ch. 142, Crimes Against the Person, § 142.10[a][i],  (Matthew Bender).
A hotel room is an "inhabited dwelling house" for purposes of first degree robbery. (People v. Fleetwood (1985) 171 Cal.App.3d 982, 987-988 [217 Cal.Rptr. 612].)
Robbery in One's Own Residence
A robbery committed in one's own residence is still first degree robbery. (Pen. Code, § 212.5; People v. Alvarado (1990) 224 Cal.App.3d 1165, 1169 [274 Cal.Rptr. 452] [defendant robbed two salesmen after bringing them back to his hotel room]; People v. McCullough (1992) 9 Cal.App.4th 1298, 1300 [12 Cal.Rptr.2d 341].)
(New January 2006)