People v. Gomez, No. S140612.

CourtUnited States State Supreme Court (California)
Writing for the CourtCorrigan
Citation74 Cal.Rptr.3d 123,43 Cal.4th 249,179 P.3d 917
PartiesThe PEOPLE, Plaintiff and Respondent, v. Alfonso GOMEZ, Defendant and Appellant.
Docket NumberNo. S140612.
Decision Date10 April 2008
74 Cal.Rptr.3d 123
43 Cal.4th 249
179 P.3d 917
The PEOPLE, Plaintiff and Respondent,
v.
Alfonso GOMEZ, Defendant and Appellant.
No. S140612.
Supreme Court of California.
April 10, 2008.

[74 Cal.Rptr.3d 125]

Michael Bacall, under appointment by the Supreme Court, San Diego, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Steve Oetting and Lise S. Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.

CORRIGAN, J.


Here defendant seized property from the victim's business while the victim was not present. The victim arrived on the scene before defendant departed and followed him as he was leaving. As the victim followed, defendant shot at him. Did defendant commit a robbery? Yes.

I. Facts and Procedural History

Shortly before 5:00 a.m. on January 12, 2004, defendant broke into an Anaheim restaurant. After covering two surveillance cameras with duct tape, he pried open and took money from an ATM machine in the lobby. He then went to the manager's office on the second floor. He forced open the desk and file drawers, but found no cash. As he went back downstairs, defendant heard the manager, Ramon Baltazar, unlock the front door. Defendant took a handgun from his backpack, placed it in his waistband, and walked to the restaurant kitchen.

Meanwhile, Baltazar noticed the alarm had been deactivated and the ATM damaged. Hearing a noise in the kitchen and

74 Cal.Rptr.3d 126

seeing the glow of a flashlight, he went outside, got in his truck and called 911. While speaking to the police dispatcher, Baltazar saw defendant leave by a side door and walk away. Baltazar drove behind defendant, staying on the phone with the dispatcher. Baltazar did not intend to apprehend defendant himself, but wanted to help the police find him. Baltazar did not know what, if anything, defendant had taken from the restaurant.

As Baltazar followed from 100 to 150 feet away, defendant fired two shots at him; he later said that he wanted to scare Baltazar. Baltazar quickly drove away, and defendant was arrested a short time later with money from the ATM in his backpack.

The jury convicted defendant of second degree robbery and commercial burglary. (Pen.Code, §§ 211, 212.5, subd. (c), 459, 460, subd. (b).)1 The jury also found that defendant was armed during the burglary and fired a gun during the robbery. (§§ 12022, subd. (a)(1), 12022.53, subd. (c).) Defendant was sentenced to three years in prison for the robbery with 20 years for the gun enhancement. Sentencing on the burglary charge and the arming enhancement were stayed under section 654.

On appeal, defendant claimed the evidence was insufficient as a matter of law to support his robbery conviction because the victim was not present when defendant initially took the money. The Court of Appeal rejected this argument. Relying on People v. Estes (1983) 147 Cal.App.3d 23, 194 Cal.Rptr. 909 (Estes), it held that defendant's use of force to retain the stolen property and remove it from Baltazar's immediate presence was sufficient to support the robbery conviction.

II. Discussion

Section 211 defines robbery as "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." Robbery is, therefore, "`"a species of aggravated larceny."'" (People v. Ortega (1998) 19 Cal.4th 686, 694, 80 Cal. Rptr.2d 489, 968 P.2d 48, quoting Perkins & Boyce, Criminal Law (3d ed.1982) p. 350 (Perkins).) Theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present. (See § 484, subd. (a).) To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence.2

In robbery, the elements of larceny are intertwined with the aggravating elements to make up the more serious offense. The issue here is the temporal point at which the elements must come together. The answer lies in the fact that robbery, like larceny, is a continuing offense. All the elements must be satisfied before the crime is completed.3 However,

74 Cal.Rptr.3d 127

as we explain in greater detail below, no artificial parsing is required as to the precise moment or order in which the elements are satisfied. This conclusion is consistent with decades of California jurisprudence.

We begin by considering the basic elements of theft by larceny. Larceny requires the taking of another's property, with the intent to steal and carry it away. (People v, Davis (1998) 19 Cal.4th 301, 305, 79 Cal.Rptr.2d 295, 965 P.2d 1165.)4 "Taking," in turn, has two aspects: (1) achieving possession of the property, known as "caption," and (2) carrying the property away, or "asportation." (People v. Lopez (2003) 31 Cal.4th 1051, 1056, 6 Cal.Rptr.3d 432, 79 P.3d 548; see 2 Witkin & Epstein, Cal.Criminal Law (3d ed. 2000) Crimes Against Property, § 15, p. 35; 3 Wharton, supra, § 357, pp. 412-413.) Although the slightest movement may constitute asportation (People v. Davis, at p. 305, 79 Cal.Rptr .2d 295, 965 P.2d 1165), the theft continues until the perpetrator has reached a place of temporary safety with the property. (People v. Flynn (2000) 77 Cal.App.4th 766, 772, 91 Cal. Rptr.2d 902).

A number of cases have considered the interaction of the taking element of larceny with the aggravating factors that elevate a theft to a robbery: the use of force or fear and the taking from the victim's presence.

A. Force or Fear

In People v. Anderson (1966) 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366 (Anderson) we considered when the element of force or fear must come into play to make a theft a robbery. Anderson, posing as a customer, went to a pawnshop where he inspected a shotgun. He agreed to buy the gun and ammunition. As the salesman totaled the price, Anderson grabbed the gun, loaded it and pointed at the salesman, threatening to kill him. When another employee told Anderson to take the gun and leave, Anderson shot and killed him. (Id. at pp. 635-636, 51 Cal. Rptr. 238, 414 P.2d 366.) On appeal, Anderson complained that since he obtained possession of the gun without the use of force or fear, there could be no robbery as a matter of law. We upheld the robbery conviction: "In this state, it is settled that a robbery is not completed at the moment the robber obtains possession of the stolen property and that 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. [Citations.] [¶] Accordingly, if one who has stolen property from the person of another uses force or fear in removing, or attempting to remove, the property from the owner's immediate presence, as defendant did here, the crime of robbery has been committed." (Id. at p. 638, 51 Cal.Rptr. 238, 414 P.2d 366.)

Anderson, supra, 64 Cal.2d 633, 51 Cal.Rptr. 238, 414 P.2d 366, stands for two points relevant here. First, a taking is not over at the moment of caption; it continues through asportation. Second, a robbery can be accomplished even if the property was peacefully or duplicitously

74 Cal.Rptr.3d 128

acquired, if force or fear was used to carry it away.

We discussed both points in People v. Cooper (1991) 53 Cal.3d 1158, 282 Cal.Rptr. 450, 811 P.2d 742 (Cooper), which involved the liability of an aider and abettor for robbery. Cooper's codefendants knocked the victim to the ground, stole his wallet, then jumped into Cooper's car. Cooper drove them away. He argued that the robbery was over by the time the codefendants jumped into the car because they had already seized the wallet, so that arguably he could only be liable as an accessory after the fact. We rejected this argument. "[T]he commission of a robbery for purposes of determining aider and abettor liability continues until all acts constituting the robbery have ceased." (Id. at p. 1161, 282 Cal.Rptr. 450, 811 P.2d 742.) "The taking element of robbery" consists of both a caption and an asportation. (Id. at p. 1165, 282 Cal.Rptr. 450, 811 P.2d 742.) Therefore, to determine the duration of a robbery, the focus must be on its final element, asportation. We emphasized that "[although, for purposes of establishing guilt, the asportation requirement is initially satisfied by evidence of slight movement [citation], asportation is not confined to a fixed point in time. The asportation continues thereafter as long as the loot is being carried away to a place of temporary safety." (Ibid., fn. omitted.) Thus, for conviction of the offense of aiding and abetting a robbery, a getaway driver must form the intent to facilitate or encourage the commission of the robbery before or during the carrying away of the loot. (Ibid.)5.

In analyzing the continuing nature of robbery, Cooper cited People v. Perhab (1949) 92 Cal.App.2d 430, 206 P.2d 1133, an older case that itself referred to preceding decisions: "We adopt the theory announced in the cited cases that the `taking' of the property in the possession of the complaining witness, from his immediate presence and possession, is not necessarily completed the moment the thief places his hands upon it. The crime of robbery also includes the element of asportation and appropriation of another's property. The escape of the thief with his ill-gotten gains by means of arms is as important to the execution of the robbery as gaining possession of it." (Perhab, at p. 438, 206 P.2d 1133; see Cooper, supra, 53 Cal.3d at p. 1165, 282 Cal.Rptr. 450, 811 P.2d 742.)

Cooper also cited with approval Court of Appeal cases holding that theft becomes robbery when the force or fear is used for the first time during asportation. We explained that the asportation phase of...

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  • People v. Mckinnon, No. S077166.
    • United States
    • United States State Supreme Court (California)
    • October 12, 2011
    ...be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence. ( People v. Gomez (2008) 43 Cal.4th 249, 256, 264 [74 Cal.Rptr.3d 123, 179 P.3d 917]; People v. Estes (1983) 147 Cal.App.3d 23, 27 [194 Cal.Rptr. 909].)” ( People v. Bradford (2010) 187 Cal......
  • People v. Gonzalez, S234377
    • United States
    • United States State Supreme Court (California)
    • June 4, 2018
    ...and low-volume drug deals are not the kinds of crimes ordinarily understood to involve a grave risk of death. ( People v. Gomez (2008) 43 Cal.4th 249, 254, 74 Cal.Rptr.3d 123, 179 P.3d 917 ["Theft by larceny may be committed without force or the threat of violence and may be completed witho......
  • People v. Kaufman, D070902
    • United States
    • California Court of Appeals
    • November 16, 2017
    ...57 Cal.4th 776, 787, 161 Cal.Rptr.3d 81, 305 P.3d 1241.) "[T]he slightest movement may constitute asportation." ( People v. Gomez (2008) 43 Cal.4th 249, 255, 74 Cal.Rptr.3d 123, 179 P.3d 917.) By taking money from Reinicke and keeping it for himself, Kaufman satisfied the asportation elemen......
  • People v. Mckinnon, No. S077166.
    • United States
    • United States State Supreme Court (California)
    • October 12, 2011
    ...be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence. ( People v. Gomez (2008) 43 Cal.4th 249, 256, 264 [74 Cal.Rptr.3d 123, 179 P.3d 917]; People v. Estes (1983) 147 Cal.App.3d 23, 27 [194 Cal.Rptr. 909].)” ( People v. Bradford (2010) 187 Cal......
  • Request a trial to view additional results
431 cases
  • People v. Mckinnon, No. S077166.
    • United States
    • United States State Supreme Court (California)
    • October 12, 2011
    ...be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence. ( People v. Gomez (2008) 43 Cal.4th 249, 256, 264 [74 Cal.Rptr.3d 123, 179 P.3d 917]; People v. Estes (1983) 147 Cal.App.3d 23, 27 [194 Cal.Rptr. 909].)” ( People v. Bradford (2010) 187 Cal......
  • People v. Gonzalez, S234377
    • United States
    • United States State Supreme Court (California)
    • June 4, 2018
    ...and low-volume drug deals are not the kinds of crimes ordinarily understood to involve a grave risk of death. ( People v. Gomez (2008) 43 Cal.4th 249, 254, 74 Cal.Rptr.3d 123, 179 P.3d 917 ["Theft by larceny may be committed without force or the threat of violence and may be completed witho......
  • People v. Kaufman, D070902
    • United States
    • California Court of Appeals
    • November 16, 2017
    ...57 Cal.4th 776, 787, 161 Cal.Rptr.3d 81, 305 P.3d 1241.) "[T]he slightest movement may constitute asportation." ( People v. Gomez (2008) 43 Cal.4th 249, 255, 74 Cal.Rptr.3d 123, 179 P.3d 917.) By taking money from Reinicke and keeping it for himself, Kaufman satisfied the asportation elemen......
  • People v. Mckinnon, No. S077166.
    • United States
    • United States State Supreme Court (California)
    • October 12, 2011
    ...be guilty of robbery if he uses force or fear to retain it or carry it away in the victim's presence. ( People v. Gomez (2008) 43 Cal.4th 249, 256, 264 [74 Cal.Rptr.3d 123, 179 P.3d 917]; People v. Estes (1983) 147 Cal.App.3d 23, 27 [194 Cal.Rptr. 909].)” ( People v. Bradford (2010) 187 Cal......
  • Request a trial to view additional results

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