Sykes

Edward Charles Sykes, accused of burglarizing a music store and robbing a security guard, seeks dismissal of the robbery charge and other allegations. “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.” (Pen. Code, § 211.) The issue we address is whether a saxophone was taken “from the person or immediate presence” of a security guard who chased Sykes after Sykes left the burglarized building with the saxophone. The People contend the guard, who was not employed by the burglarized store, constructively possessed the saxophone because he sought to retrieve it on the owner’s behalf and Sykes momentarily dropped it during the chase and then picked it up. We find no basis for the robbery charge. We direct issuance of a writ of prohibition to restrain further prosecution on the charge. We deny the petition in other respects.

Two security guards employed by the business across the street from the burglarized premises testified against Sykes at the preliminary examination. Lewis Cobb stated that he observed Sykes break through the music store…