Gilbeaux

Two armed men commit a robbery in a grocery store. Present in the store at the time of the robbery are four store employees: an assistant manager, a checker, a stocker, and a warehouse clerk. Also present in the store are two janitors employed by a cleaning company but regularly assigned to the store. At gunpoint, the robbers bind the two janitors and the stocker and imprison the two janitors, the stocker, and the checker in a storage room. One of the robbers forces the assistant manager to open the safe and put the money in a bag. While the robbery is ongoing, the warehouse clerk observes one of the robbers point a gun at the assistant manager. The warehouse clerk flees to a back office, locks the door, and calls the police. Defendant is convicted of the robbery of all six victims. Defendant contends the evidence is insufficient to support the robbery convictions as to the two janitors and the warehouse clerk. In the published portion of this opinion, we conclude the two janitors were in constructive possession of the property of the store. In the unpublished portion of the opinion, we conclude property was taken from the immediate presence of the warehouse clerk by fear…

Dissenting in part.

I respectfully dissent from the portion of the majority opinion that affirms the judgment as to counts 5 and 6.

The two janitors, Bernardo Lopez (Lopez) and Marcos Camacho (Camacho), did not, under the authorities, have a relationship with the Food 4 Less store sufficient to support a finding that they had constructive possession of the store’s property so as to be deemed victims of the robbery of the store. Parenthetically, eliminating them as victims would reduce defendant’s sentence from 245 years to life to 175 years to life.

As to the definition of robbery as the “felonious taking of personal property in the possession of another, from his person or immediate presence ... accomplished by means of force or fear” (Pen. Code, § 211), the Supreme Court in People v. Nguyen (2000) 24 Cal.4th 756, 762 [ 102 Cal.Rptr.2d 548 , 14 P.3d 221 ] (Nguyen) noted that “the theory of constructive possession has been used to expand the concept of possession to include employees and others as robbery victims.” The Supreme Court has not specified a standard regarding what constitutes constructive possession for the purpose of determining if a person is a robbery victim.…

Certified for Partial Publication. [*]

Two armed men commit a robbery in a grocery store. Present in the store at the time of the robbery are four store employees: an assistant manager, a checker, a stocker, and a warehouse clerk. Also present in the store are two janitors employed by a cleaning company but regularly assigned to the store. At gunpoint, the robbers bind the two janitors and the stocker and imprison the two janitors, the stocker, and the checker in a storage room. One of the robbers forces the assistant manager to open the safe and put the money in a bag. While the robbery is ongoing, the warehouse clerk observes one of the robbers point a gun at the assistant manager. The warehouse clerk flees to a back office, locks the door, and calls the police. Defendant is convicted of the robbery of all six victims. Defendant contends the evidence is insufficient to support the robbery convictions as to the two janitors and the warehouse clerk. In the published portion of this opinion, we conclude the two janitors were in constructive possession of the property of the store. In the unpublished portion of the opinion, we conclude property was taken from the…