People v. Nguyen

• Decision Date: 28 December 2000
• Docket Number: No. S075300.,S075300.
• Citation: 102 Cal.Rptr.2d 548,24 Cal.4th 756,14 P.3d 221
• Parties: The PEOPLE, Plaintiff and Respondent, v. Thuan Van NGUYEN et al., Defendants and Appellants.
• Court: California Supreme Court

102 Cal.Rptr.2d 548

24 Cal.4th 756

14 P.3d 221

The PEOPLE, Plaintiff and Respondent, v. Thuan Van NGUYEN et al., Defendants and Appellants.

No. S075300.

Supreme Court of California.

December 28, 2000.

As Modified January 17, 2001.

Corinne S. Shulman, under appointment by the Supreme Court, Hydesville, for Defendant and Appellant Thuan Van Nguyen.

Leslie C. Greenbaum, under appointment by the Supreme Court, Pacific Palisades, for Defendant and Appellant Anphong Due Nguyen.

Anne V. Moore, Nevada City, and Patrick DuNah, San Diego, under appointments by the Supreme Court, for Defendant and Appellant Sokha Kong.

John L. Dodd, under appointment by the Supreme Court, Tustin, for Defendant and Appellant Thanh Van Le.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General, Gary W. Schons, Assistant Attorney General, Janelle M. Boustany, Matthew C. Mulford and Laura Whitcomb Halgren, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C. J.

Relying upon its opinion in People v. Mai (1994) 22 Cal.App.4th 117, 27 Cal. Rptr.2d 141, the Court of Appeal held that a robbery can be committed even if the victim did not possess the property that was taken by force or fear. We disapprove the decision in Mai and reverse, in part, the judgment of the Court of Appeal in the present case.

I

Around 5:30 p.m. on February 10, 1995, a number of employees were celebrating a coworker's birthday in the lunchroom of G & G Assemblers, a computer assembly business located in Huntington Beach. Also present was Jose Jiminez, the husband of one of the employees. During the celebration, defendants Thuan Van Nguyen, Thanh Van Le, Anphong Due Nguyen, and Sokha Kong entered the lunchroom brandishing weapons, ordered the victims to lie facedown on the floor, and bound the victims' arms and legs with plastic strips and ties.

Three of the employees testified that defendants took their money and identification. One defendant announced an intention to take identification from each of the victims so defendants would know where the victims lived, which might dissuade the victims from reporting defendants to the authorities. A fourth employee testified, but was not asked and did not state whether defendants took her money or identification. The remaining five victims, including the visitor Jiminez, did not testify. Defendants took approximately $400,000 worth of computer modules and memory chips from the business and fled.

Several months later, defendants returned to G & G Assemblers, apparently intending to repeat the crime. Employees recognized defendants and summoned the police. Later that day, police officers arrested defendants at a nearby park.

At trial, the court granted the prosecutor's request for the following special jury instruction, apparently based upon language in People v. Mai, supra, 22 Cal. App.4th 117, 129, 27 Cal.Rptr.2d 141: "To be a victim of robbery, however, a person need not own, possess, be in control of, or even have the right to possess or control the property sought by the perpetrator. A victim may be an employee or visitor who becomes subject to the application of force or fear utilized to obtain the property of another person, owner of a business or employee."

Defendants were convicted of nine counts of second degree robbery (Pen. Code, § 211),¹ and conspiracy to commit an additional robbery (§ 182). The jury found true the allegations that all defendants except Kong personally used a firearm during the robberies (§ 12022.5, subd. (a)(1)), that Kong, a principal, was armed with a firearm during the robberies (§ 12022, subd. (a)(1)), and that all defendants were armed with firearms during the conspiracy to commit the additional robbery (§ 12022, subd. (a)(1)). Thuan Nguyen, Le, and Anphong Nguyen each were sentenced on the first count of robbery to a term of five years in prison, plus an enhancement of four years for personally using a firearm, plus consecutive terms of one year for each of the remaining eight counts of robbery, and the one count of conspiracy, plus enhancements of 16 months on each of the remaining eight counts of robbery, for a total term of 28 years and eight months in state prison. Kong was sentenced on the first count of robbery to a term of five years in prison, plus an enhancement of one year for being armed with a firearm, plus consecutive terms of one year each on five of the remaining counts of robbery, for a total term of 11 years in state prison.

Defendants appealed, arguing, among other contentions, that there was insufficient evidence to establish that any property was taken from the visitor Jiminez, and, therefore, that each defendant's conviction based upon the robbery of Jiminez must be reversed. The Court of Appeal affirmed, holding that to be the victim of a robbery, a person need not have been in possession of the property taken and that, in any event, there was sufficient evidence establishing that defendants took whatever money or identification Jiminez had in his possession. We granted review. For the reasons that follow, we reverse, in part, the judgment of the Court of Appeal.

II

Section 211 provides: "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 means of force or fear." Despite this statutory language requiring that the property be taken from "the possession of another" (ibid.), the Court of Appeal concluded that defendant could be convicted of robbing Jiminez based upon the taking of property from the business, whether or not Jiminez had a possessory interest over the merchandise taken from the business. In reaching this conclusion, the Court of Appeal relied upon its earlier decision in People v. Mai, supra, 22 Cal.App.4th 117, 27 Cal.Rptr.2d 141.

In Mai, the defendant and his accomplice entered a gold business and held at gunpoint the owner of the business, his mother, his brother, and his brother's nephew. The robbery attempt was foiled when the owner and his brother overpowered their assailants, wounding the defendant and killing his accomplice. The defendant was convicted of the murder of his accomplice and four counts of attempted robbery. He challenged the conviction of attempted robbery of the nephew on the ground that there was insufficient evidence that the nephew was in joint possession of the gold that the defendant tried to steal from the business. The Court of Appeal rejected this contention with a broad holding: "Assuming the nephew was no more than a visitor to the business premises and neither owned nor possessed the gold, once force and fear were applied to him in an attempt to deprive someone, or anyone, of property, [the nephew] became the victim of an attempted robbery. [Citation.] A robbery consists of the application of force or fear to obtain the property of another. The victim need not own, possess, or even have the right to possess the property sought by the perpetrator." (People v. Mai, supra, 22 Cal.App.4th 117, 129, 27 Cal.Rptr.2d 141.)

Less than a year later, the Court of Appeal in Sykes v. Superior Court (1994) 30 Cal.App.4th 479, 35 Cal.Rptr.2d 571, took a different approach. Sykes broke into a music store and stole a saxophone. A security guard employed by a business across the street saw the defendant leaving the music store and ordered him to stop. The defendant initially approached the guard, but then turned and fled. The guard pursued and apprehended the defendant following a struggle, during which the defendant bit or scraped the guard's hand. The Court of Appeal held that the defendant could not be prosecuted for robbery, because the saxophone had not been taken from the possession of the security guard.

The decision in People v. Galoia (1994) 31 Cal.App.4th 595, 37 Cal.Rptr.2d 117 followed the decision in Sykes v. Superior Court, and held that a Good Samaritan who attempted to thwart a robbery was not a victim of that robbery. Galoia took several items from a convenience store in which Mark Steadman was collecting money from the video games he maintained in the store. Steadman pursued Galoia until Galoia threatened him and Galoia's companion struck him. Relying upon the decision in Sykes, supra, 30 Cal.App.4th 479, 35 Cal.Rptr.2d 571, the Court of Appeal held that "Steadman did not have a sufficient interest in the property to be a robbery victim." (People v. Galoia, supra, 31 Cal.App.4th at p. 598, 37 Cal.Rptr.2d 117.)

We granted review to resolve this conflict in authority. For the reasons explained below, we conclude that the holding in People v. Mai supra, 22 Cal. App.4th 117, 27 Cal.Rptr.2d 141, that the property taken during a robbery need not be taken from the possession of the victim, should be disapproved.

We consistently have held that, in order to constitute robbery, property must be taken from the possession of the victim by means of force or fear. "To constitute robbery the property must be removed from the possession and immediate presence of the victim against his will, and such removal must be by force or fear." (People v. Ramos (1982) 30 Cal.3d 553, 589, 180 Cal.Rptr. 266, 639 P.2d 908, revd. on other grounds sub nom, California v. Ramos (1983) 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171.)

In People v. Miller (1977) 18 Cal.3d 873, 135 Cal.Rptr. 654, 558 P.2d 552, we held that a security guard had constructive possession of property taken from the jewelry store in which he was employed and, thus, properly could have been alleged as a victim of the robbery: "`Robbery is an offense against the person; thus a store employee may be the victim of a robbery even though he is not its owner and not at the moment in immediate control of the stolen property.' [Citation.] Robbery convictions have been upheld against contentions that janitors and night watchmen did not have a sufficient possessory interest in...