People v. Scott

• Decision Date: 19 February 2009
• Docket Number: No. S136498.,S136498.
• Citation: 89 Cal.Rptr.3d 213,200 P.3d 837,45 Cal. 4th 743
• Parties: The PEOPLE, Plaintiff and Respondent, v. Andre Rene SCOTT, et al., Defendants and Appellants.
• Court: California Supreme Court

200 P.3d 837

89 Cal.Rptr.3d 213

45 Cal. 4th 743

The PEOPLE, Plaintiff and Respondent, v. Andre Rene SCOTT, et al., Defendants and Appellants.

No. S136498.

Supreme Court of California.

February 19, 2009.

John Steinberg, Berkeley, under appointment by the Supreme Court, for Defendant and Appellant Maurice Kenney.

Cara DeVito, West Hills, under appointment by the Supreme Court, for Defendant and Appellant Andre Rene Scott.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson and Dane R. Gillette, Chief Assistant Attorneys General, Mary Jo Graves and Michael P. Farrell, Assistant Attorneys General, Janet

E. Neeley, J. Robert Jibson, and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.

GEORGE, C.J.

We granted review to resolve a conflict in the Courts of Appeal concerning whether, for purposes of the offense of robbery, all employees have constructive possession of the employer's property while on duty and thus may be separate victims of a robbery of the employer's business, assuming the other elements of robbery are met as to each employee. In the present case, the Court of Appeal concluded the trial court did not err in informing the jury, in response to its question, that all employees on duty during a robbery have constructive possession of their employer's property, a conclusion in accord with the holding in People v. Jones (2000) 82 Cal. App.4th 485, 98 Cal.Rptr.2d 329 (Jones). This decision of the Court of Appeal conflicts with People v. Frazer (2003) 106 Cal.App.4th 1105, 1115, 131 Cal.Rptr.2d 319 (Frazer), which requires the jury to examine all of the circumstances in order to determine whether each "employee has sufficient representative capacity with respect to the owner of the property, so as to have express or implied authority over the property." We agree with the Court of Appeal below that Jones correctly states the law and, accordingly, we disapprove Frazer.

I.

Defendants Andre Rene Scott and Maurice Kenney were charged with three counts of robbery based on a single incident, the early morning robbery of a McDonald's restaurant in Sacramento. (Pen.Code, § 211.)¹ An enhancement for personal use of a firearm was alleged as to each robbery count, and each defendant also was charged with being a felon in possession of a firearm. (§§ 12022.53, subd. (b), 12021, subd. (a).) Defendant Kenney was charged with having one prior conviction and defendant Scott with having two prior convictions. (§§ 667, subds. (b)-(i), 1170.12.)

The three alleged victims were employees on duty at the restaurant that morning— Jinel Guillebeau, Diana Salazar, and Serena Wong. Evidence presented at trial established that defendants Scott and Kenney were two of the three men who participated in the robbery.² The three men entered the restaurant at approximately 6:15 a.m., shortly after it opened. Each wore dark clothing and ski masks; one had a gun, and another had a rifle.

Ms. Guillebeau was working at the restaurant's drive-through window. When she saw two masked men, one with a gun, she immediately hid under the grill and remained there for the duration of the robbery. Ms. Salazar was working in the kitchen area, preparing food, when she saw the men. She observed that one of the men stood in front of the counter, holding a rifle. She hid under a table and remained there for the duration of the episode.

Ms. Wong, the manager, was working at the drive-through window. She heard Ms. Guillebeau scream, turned around, and saw a man holding a handgun. This individual directed Wong to the back of the store toward the safe. She brought him to the office and opened the safe using the combination, which she had memorized. She placed money in a bag, along with an electronic tracking device that she had been trained to place with the money in case of a robbery. Later, through the activation of the tracking device, the police located both defendants at an apartment building where defendant Scott resided.

Ms. Wong was the only employee working at the restaurant during the robbery who had access to the safe. As the shift manager, she was responsible for directing the work of others, taking care of any customer complaints, and generally overseeing the operation of the restaurant. Ms. Guillebeau's responsibilities included taking customers' orders, presenting food to customers, and working one of the cash registers. Ms. Salazar's duties involved food preparation. She did not handle money or work at a cash register.

During closing arguments, counsel for defendant Kenney argued that Ms. Guillebeau was not a victim of the robbery, because she did not have constructive possession of the money stolen. Counsel argued that unlike Ms. Wong, who was responsible for everything in the restaurant, Ms. Guillebeau did not have access to the safe. The district attorney objected to that argument. At a sidebar conference, the court directed defense counsel to discontinue this line of argument. Thereafter, defense counsel concluded this portion of his argument by simply telling the jury that it would have to decide whether Ms. Guillebeau or Ms. Salazar had constructive possession of the property in the safe. In rebuttal, the district attorney argued that all three of the alleged victims were in constructive possession of the property because at the time of the robbery they were engaged in performing the responsibilities of their employment.

The jury was instructed that the crime of robbery requires, among other things, proof that a person "had possession of property of some value" and that the property was taken against the will of the person by force or fear. (See CALJIC No. 9.40.) The jury also was instructed that "[t]here are two kinds of possession: actual possession and constructive possession. Actual possession requires that a person knowingly exercise direct physical control over a thing. Constructive possession does not require actual possession but does require that a person knowingly exercise control over or the right to control a thing, either directly or through another person. One person may have possession alone, or two or more persons together may share actual or constructive possession." (See CALJIC No. 1.24)

On the second day of deliberations, the jury returned a partial verdict, finding defendants Scott and Kenney guilty of the robbery of Ms. Wong.³ After the jurors resumed deliberations on the remaining charges, they sent a note to the judge, asking for clarification of CALJIC No. 1.24; specifically, they inquired whether all employees have constructive possession of the company's property while on duty.

During a discussion with counsel concerning how the trial court should respond to the jury's question, the court observed that two recent appellate decisions were in conflict on this issue. The trial court noted that Jones, supra, 82 Cal.App.4th 485, 490-491, 98 Cal. Rptr.2d 329, stands for the proposition that all employees on duty during the robbery of a business establishment constructively possess the business owner's property. The trial court believed Jones was better reasoned than Frazer, supra, 106 Cal.App.4th 1105, 1115, 131 Cal.Rptr.2d 319, which requires a fact-based inquiry into the express or implied authority of each employee. Over objections from defense counsel, the trial court answered the jury's question in accordance with Jones: "The employees of a business constructively possess the business owner's property during a robbery." Shortly thereafter, the jury found defendants Scott and Kenney guilty on the remaining robbery charges. In a bifurcated hearing, the jury also found true the allegations of defendants' prior felony convictions, making the defendants eligible for sentencing under the Three Strikes law. (§§ 667, subds. (b)-(i), 1170.12.) Defendant Scott was sentenced to a term of 116 years eight months to life, and defendant Kenney was sentenced to a term of 30 years eight months. In an unpublished decision, the Court of Appeal affirmed the judgment rendered by the trial court and held that the trial court properly instructed the jury based upon the decision in Jones. We granted review to resolve the conflict between Jones and Frazer.

II.

Robbery is defined in section 211 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 a crime of violence committed against a person. (People v. Ramos (1982) 30 Cal.3d 553, 589, 180 Cal.Rptr. 266, 639 P.2d 908 (Ramos).) Robbery of a particular person has not occurred unless property was taken from the person's immediate presence and the defendant used force or fear to take the property or to prevent the person from resisting. (See CALCRIM No. 1600.)

A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property. "It has been settled law for nearly a century that an essential element of the crime of robbery is that property be taken from the possession of the victim." (People v. Nguyen (2000) 24 Cal.4th 756, 762, 102 Cal.Rptr.2d 548, 14 P.3d 221 (Nguyen).) We affirmed the continuing validity of that principle in Nguyen, overruling an appellate court decision, People v. Mai (1994) 22 Cal. App.4th 117, 27 Cal.Rptr.2d 141, that had dispensed entirely with the requirement of possession. In Nguyen, we concluded that the trial court erred in instructing the jury that a visitor to the premises of a business where a robbery occurred could be the victim of the robbery based upon the taking of the business's property, even though the visitor did not "`own, possess, [have] control of or even have the right to possess or control the property sought by the perpetrator.'" (Nguyen, supra, 24 Cal.4th at p. 765, 102 Cal.Rptr.2d 548,...