Galoia

In this appeal, Edward Galoia (1) mounts numerous challenges to his second degree robbery conviction, (2) attacks the constitutionality of a prior serious felony conviction, (3) alleges a procedural sentencing error, and (4) contends CALJIC No. 2.90 violates due process. We find no robbery occurred and reverse.

I

Early one evening, Galoia entered a convenience store and retrieved a 12-pack of beer from a cooler. He then selected a candy bar from the front of the store and put the items on the checkout counter. As the cashier was *597 ringing up the goods, Galoia grabbed some cigarettes and left the store with the beer and candy.

Mark Steadman was in the store at the time collecting money from the video games he has there. He chased Galoia outside and asked him to stop. Galoia turned around and told Steadman he was going to “kick his ass.” Steadman said “come on” and was then hit from behind by Galoia’s companion, Duhamel. At that point, Steadman retreated and Galoia and Duhamel left with the beer.

Galoia testified he was drunk and unaware Duhamel intended to strike Steadman.

II

Galoia describes Steadman as a “Good Samaritan” who lacked a sufficient interest in the…

Dissenting. — Whether the crime Galoia committed was a robbery may only be determined after consideration of all the circumstances surrounding the event and a presumption in favor of the verdict. (See People v. Jones (1990) 51 Cal.3d 294, 314 [ 270 Cal.Rptr. 611 , 792 P.2d 643 ].) Focusing on the force Galoia used at the moment of taking the property, or limiting the review to just an analysis of Steadman’s status, is like placing blinders on a horse: it may very well move forward as the driver commands, but it cannot see the whole picture.

It is undisputed that a robber can commit a robbery without a show of force at the time of the taking as long as force is exerted later to retain the stolen goods. (See People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165 [ 282 Cal.Rptr. 450 , 811 P.2d 742 ].) And there are circumstances when the actual, or constructive, owner of the goods need not be the person from whom the property is taken. For instance, in People v. Moore (1970) 4 Cal.App.3d 668 [ 84 Cal.Rptr. 771 ], two girls were running a store for its owner. They were held up, but thought the robber was only joking when he demanded the store’s money. The mother of one happened to appear…

In this appeal, Edward Galoia (1) mounts numerous challenges to his second degree robbery conviction, (2) attacks the constitutionality of a prior serious felony conviction, (3) alleges a procedural sentencing error, and (4) contends CALJIC No. 2.90 violates due process. We find no robbery occurred and reverse.

Early one evening, Galoia entered a convenience store and retrieved a 12-pack of beer from a cooler. He then selected a candy bar from the front of the store and put the items on the checkout counter. As the cashier was ringing up the goods, Galoia grabbed some cigarettes and left the store with the beer and candy.

Mark Steadman was in the store at the time collecting money from the video games he has there. He chased Galoia outside and asked him to stop. Galoia turned around and told Steadman he was going to "kick his ass." Steadman said "come on" and was then hit from behind by Galoia's companion, Duhamel. At that point, Steadman retreated and Galoia and Duhamel left with the beer.

Galoia testified he was drunk and unaware Duhamel intended to strike Steadman.

(1) Galoia describes Steadman as a "Good Samaritan" who lacked a sufficient interest…