People v. Estes, Cr. 23762

• Citation: 194 Cal.Rptr. 909,147 Cal.App.3d 23
• Decision Date: 15 September 1983
• Docket Number: Cr. 23762
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Curtis Dale ESTES, Defendant and Appellant. A016854.

Page 909

194 Cal.Rptr. 909

147 Cal.App.3d 23

The PEOPLE of the State of California, Plaintiff and Respondent, v. Curtis Dale ESTES, Defendant and Appellant.

A016854.

Cr. 23762.

Court of Appeal, First District, Division 5, California.

Sept. 15, 1983.

Hearing Denied Nov. 9, 1983.

Frank Offen, Oakland, for defendant and appellant.

John K. Van De Kamp, Atty. Gen., Ann K. Jensen, Stanley M. Helfman, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

LOW, Presiding Justice.

In this case we affirm a robbery conviction for the taking of personal property owned by Sears, Roebuck & Company in the immediate presence of a security guard, using force and fear to complete the taking. Defendant Curtis Estes appeals from a judgment entered after a jury found him guilty of robbery (Pen.Code, § 211) by personal use of a deadly weapon (Pen.Code, § 12022, subd. (b)) and petty theft (Pen.Code, § 484) arising out of the theft of merchandise from a Sears department store. Defendant entered the Sears store in Larwin Plaza, Vallejo, wearing only jeans and a t-shirt and was observed by Carl Tatem, a security guard employed by Sears. Tatem next saw defendant wearing a corduroy coat of the type sold by Sears, and watched him remove a down-filled vest from a rack, take off the coat, put on the vest, then the coat, and leave the store without paying for the items. Tatem followed defendant outside the store, identified himself, and confronted him about the coat and vest in the parking lot about five feet from the store. Defendant refused to accompany Tatem to the store and began to walk away. As Tatem attempted to detain him, defendant pulled out a knife, swung it at Tatem, and threatened to kill Tatem. Tatem, who was unarmed, returned to the store for help.

Shortly thereafter, Tatem returned to the parking lot with Mel Roberts, the Sears' security manager. Tatem and Roberts confronted defendant and again asked him to accompany them back to the store. Defendant still clutched the knife in his hand. After some time, defendant returned to the store with Tatem and Roberts, but denied using the knife and denied stealing the coat and vest. At the trial, defendant admitted stealing the coat and vest from the store, but again denied using force or fear against the security guard, or any other person.

Defendant argues that the property was not taken from a person since the security guard did not have the authority or control over the property. "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 force or fear." (Pen.Code, § 211.)

It is not necessary that the victim of the robbery also be the owner of the goods taken. Robbery is an offense against the person who has either actual or constructive possession over the goods. (People v. Gordon (1982) 136 Cal.App.3d 519, 528-529, 186 Cal.Rptr. 373.) Thus, a store employee may be a victim of robbery even though he does not own the property taken and is not in charge or in immediate control of the property at the time of the crime. (See People v. Miller (1977) 18 Cal.3d 873, 880, 135 Cal.Rptr. 654, 558 P.2d 552; People v. Johnson (1974) 38 Cal.App.3d 1, 9, 112 Cal.Rptr. 834.) Nor is it a defense that the victim was a visitor to a store and was not the true owner of money or property taken (People v. Moore (1970) 4 Cal.App.3d 668, 84 Cal.Rptr. 771). Furthermore, a person may be convicted of robbing a janitor or night watchman by taking the employer's property. (People v. Downs (1952) 114 Cal.App.2d 758, 765-766, 251 P.2d 369 and People v. Dean (1924) 66 Cal.App. 602, 607, 226 P. 943.)

Defendant attempts to distinguish these cases on the grounds that these victims were the only persons present at the times of robbery and accordingly were the only persons who had constructive possession from which the personal property could be taken. Defendant reasons that in this case the store manager and sales clerks were the only ones with responsibility over the goods and thus they and not the guard, Tatem, could be the only victims.

The victim was employed by Sears to prevent thefts of merchandise. As the agent of the owner and a person directly responsible for the security of the items, Tatem was in constructive possession of the merchandise to the same degree as a salesperson. (See People v. Gordon, supra, 136 Cal.App.3d at p. 529, 186 Cal.Rptr. 373, and cases cited therein.) Simply because there were other people present in the store who also had constructive possession of the personal property is not relevant, since more than one person may constructively possess personal property at the same time and be a victim of the same offender. (See People v. Miller, supra, 18 Cal.3d at p. 881, 135 Cal.Rptr. 654, 558 P.2d 552 [security guard was potential robbery victim in addition to sales clerk].)

Defendant further alleges that the merchandise was not taken from the "immediate presence" of the security guard. The evidence establishes that appellant forceably resisted the security guard's efforts to retake the property and used that force to remove the items from the guard's immediate presence. By preventing the guard from regaining control over the merchandise, defendant is held to have taken the property as if the guard had actual possession of the goods in the first instance. (See People v. Anderson (1966) 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366.)

In Anderson, defendant entered a pawn shop and posing as a customer asked the salesman to show him a shotgun and shells. The salesman complied. No force was used at this point. Defendant took the shotgun, loaded it, and robbed the salesman at gunpoint. (Id., at pp. 635-636, 51 Cal.Rptr. 238, 414 P.2d 366.) The court rejected the contention that there was no robbery since defendant obtained possession of the merchandise without force or fear. A robbery is not completed at the moment the robber obtains possession of the stolen property. The crime of robbery includes the element of asportation, the robber's escape with the loot being considered as important in the commission of the crime as gaining possession of the property. Here, as in Anderson, a robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner's ...