Miller v. Superior Court

The majority opinion completes the transmogrification of the crime of robbery from the offense defined in Penal Code section 211 1 as the “taking of personal property in the possession of another, from his person or immediate presence . . . , accomplished by means of force or fear” to the new offense of the taking or retaining personal property under those circumstances, a change accomplished by the court without legislative assistance.

Section 211 defines “robbery” 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.” (Italics added.) “The taking element of robbery itself has two necessary elements, gaining possession of the victim’s property and asporting or carrying away the loot. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 1158, 1165 [ 282 Cal.Rptr. 450 , 811 P.2d 742 ].) However, Cooper further stated: “Although the ‘immediate presence’ language comes directly from section 211, this language does not pertain to the duration of robbery. . . . Taking from the ‘person’ and from the ‘immediate presence’ [in section 211] are alternatives. These terms are…

Michael J. McCabe, San Diego, for Real Party in Interest.

Bonnie M. Dumanis, District Attorney, Kim-Thoa Hoang and Michael Zachary, Deputy District Attorneys for Petitioner.

No appearance for Respondent.

McINTYRE, J.

Penal Code section 211 defines a robbery 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." (All statutory references are to the Penal Code except as otherwise specified.) The issue presented in this case is whether the immediate presence requirement of a robbery charge is satisfied where the defendant, after stealing property belonging to the victim but not from the victim's presence, is confronted by the victim as he is attempting to carry the property to a place of temporary safety and uses forcible resistance to keep the property. We conclude that the immediate presence requirement is met under such circumstances and thus deny the defendant's petition for a writ of prohibition challenging the superior court's order denying his motion to dismiss the robbery charge.

On August 27, 2002, Jose Higareda went into the public restroom at La…

Penal Code section 211 defines a robbery 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.” (All statutory references are to the Penal Code except as otherwise specified.) The issue presented in this case is whether the immediate presence *219 requirement of a robbery charge is satisfied where the defendant, after stealing property belonging to the victim but not from the victim’s presence, is confronted by the victim as he is attempting to carry the property to a place of temporary safety and uses forcible resistance to keep the property. We conclude that the immediate presence requirement is met under such circumstances and thus deny the defendant’s petition for a writ of prohibition challenging the superior court’s order denying his motion to dismiss the robbery charge.

FACTUAL AND PROCEDURAL BACKGROUND

On August 27, 2002, Jose Higareda went into the public restroom at La Jolla Cove to change into his swimming trunks. He went into one of the restroom’s enclosed stalls and hung his pants, which contained his wallet (with more than $200 in…