El Cajon & San Diego Robbery Lawyer
Robbery is a particularly weighty allegation because it is both a theft crime and also a crime of violence. Anyone accused of committing Robbery must fight the charges with all their energy and every effort. In this article, we explain the law of robbery and how you can fight criminal Robbery charges.
What is Robbery?
Penal Code 211 describes Robbery as taking property from another person by means of force or fear. To prove that you are guilty of a robbery, prosecutors must prove that:
- You took property that was not your own;
- The property was taken from another person’s possession and immediate presence;
- The property was taken against that person’s will;
- You used force of fear to take the property or to prevent the person from resisting;
AND - When you used force or fear to take the property, you intended to either:
- Deprive the owner of it permanently, or
- Remove it from the owner’s possession for such an extended period of time that the owner would be deprived of a major portion of the value or enjoyment of the property.
Let’s break these 5 elements of the crime down a little further to gain a greater understanding of what the prosecutors must prove. A review of the California Criminal Jury Instructions are helpful, as seen below.
First Element
The first element seems obvious, but is not always. Sometimes the laws of community property and family law come into play in a criminal Robbery case. Other times, a dispute between girlfriend and boyfriend who live together and share expenses can have a role in determining who the owner of the property is. At Lounsbery Law Office, PC, we have successfully defended clients accused of Robbery when they were only attempting to retrieve their own property from someone who took it from them.
Second Element
The second element is often a point of litigation and dispute between prosecutors and defense counsel in a Robbery case. When can it be said that you took something from someone? What if you grab a wallet and take two steps away from the alleged victim but then drop the wallet on the ground? Is there a rule on how far you must take the property from its owner before you can be convicted of Robbery? The law does not provide a hard and fast rule. However, the property only needs to be taken some distance, even a short distance, away from the alleged victim for the prosecutors to prove this element of the crime. Taking the property back to the alleged victim does not negate the fact that the property was taken to begin with (but it may help show that you never intended to take the property away permanently.)
Another hotly contested issue may be whether or not the property was actually in someone’s possession or immediate presence. A person does not actually have to be holding or touching something in order for the law to deem him to be in possession of it. In fact, two or more people can be in possession of one item of property at the same time. However, the prosecutors must prove that the alleged victim had control over the property (or the right to control it), either personally or through another person.
This second element is construed broadly to benefit businesses and their employees. In fact, what is oftentimes a second degree burglary may end up being charged as a Robbery. For example, if you steal from a liquor store you may be charged with Robbery even if the property you take is not in the immediate physical control of a store employee or a store owner. In this situation, the prosecutors need only prove that the employee was a representative of the store owner and that the employee either explicitly or implicitly had control or authority over the property.
The use of the language “immediate presence” is sometimes confusing. Property is considered to be in someone’s “immediate presence” if it is sufficiently within her physical control that she could keep possession of it if not prevented by force or fear.
Third Element
The third element is usually pretty obvious and not normally disputed. You take property from someone against her will if she does not consent to you taking it. In order for a person to “consent,” she must act freely and voluntarily and know the nature of your act. For example, if you tell someone you want to borrow an item of property for a few days and that person consents, it is unlikely that person is at the same time consenting to you taking the property for a few months. One can also imagine a situation where an alleged victim allows a defendant to leave with property, but then changes her mind and calls the cops to report the property as stolen or robbed. In this situation, one would obviously dispute this element of the crime vigorously.
Fourth Element
The fourth element is perhaps the most hotly contested of the five elements. What does “by force or fear” mean? Fear can mean any of the following:
- Fear of injury to the person himself or herself
- Fear of injury to the person’s family or property
- Fear of immediate injury to someone else present during the incident
- Fear of immediate injury to the property of someone else present during the incident
Note that in the four types of fear above, only two of them require fear of immediate injury. A defendant may be convicted of Robbery even if he only threatens injury in the future.
In order to prove the fourth element, prosecutors must prove that you formed the intent to take the property before or at the same time you used force or fear. If you used force or fear against someone and afterward decided to take property from that person, you did not commit Robbery. The distinction is crucial and is often litigated in court. The distinction is made because it reflects your purpose and motivation for using force or fear. Robbery is intended to punish people who specifically use force or fear for the purposes of stealing.
Fifth Element
The fifth element is also one on which many defendants hang their hat. It is practically impossible for someone to prove your intent with any direct evidence. Therefore, prosecutors can only rely on circumstantial evidence and supposition in order to prove that you intended to permanently deprive the owner of the property. As part of your defense, you may present evidence that shows you intended to return the property within a reasonably short period of time. The question of intent is always a sticky issue and one left for the jury to make a judgment call, based on all of the evidence.
For both Petty Theft and Grand Theft the value of the property taken is relevant and important. In fact, the prosecutors must prove the value of the item taken. That is not true for Robbery. Someone can be convicted of Robbery no matter what the value of the item taken is.
Are there different types of Robbery?
There are two types of Robbery: first degree and second degree. First degree Robbery is defined in Penal Code 212.5. It includes robbery committed in someone’s home, robbery of someone using an ATM, robbery of someone who is driving a vehicle, etc. Second degree Robbery includes all types of Robbery that does not fall within first degree Robbery.
What is the maximum sentence for Robbery?
Robbery of the first degree is punishable by custody in the state prison for anywhere from 3 to 9 years, depending on the facts of the case. See Penal Code 213(a)(1).
Robbery of the second degree is punishable by custody in the state prison for 2, 3 or 5 years. See Penal Code 213(a)(2).
Attempted Robbery is punishable for 16 months, 2 years or 3 years in the state prison. See Penal Code 213(b).
Is Robbery a strike crime?
A Robbery conviction qualifies as a strike crime. It is a “violent felony” under Penal Code 667.5(c)(9). It is also a “serious felony” under Penal Code 1192.7(c)(19). Pursuant to Penal Code 1203.06(a)(1)(B), a person convicted of Robbery may not be granted probation as a general rule, and therefore must be sentenced to state prison.
How can I defend myself against the charge of Robbery?
To properly defend yourself against these criminal charges, you must obtain quality and dedicated legal representation. There is a long list of tasks that need to take place right away. Investigation may need to be conducted, witnesses may need to be interviewed, surveillance cameras may need to be reviewed and subpoenaed, etc. The breadth and depth of your investigation will largely depend on the factual scenario of your particular case. Learn more about what you can do to help us win your case.
At Lounsbery Law Office, PC, we have successfully defended clients accused of Robbery. We know what it takes to win. To speak with an El Cajon attorney today, call 619-792-1451 or send us an email.