California Penal Code Section 211 essentially defines robbery as the taking of property from a person by “force or fear.” It’s the element of force or fear that separates a robbery charge from a less serious theft charge. In People v. Hodges 213 Cal.App.4th 531 (2013), the California Court of Appeal for the First District was asked to interpret the application of the force or fear element.
William Hodges went into a Safeway store in Petaluma, California and shoplifted soda, batteries, and bananas by placing them into a Safeway bag he brought with him into the store and walking out without making any attempt to pay for the items. Two loss prevention officers working in the store that day witnessed the theft. They confronted Mr. Hodges as he was getting into the driver seat of his car in the parking lot. They identified themselves as loss prevention officers and asked Mr. Hodges for his receipt. He told them he lost his receipt, and they asked him to accompany them back into the store. Mr. Hodges declined to accompany the officers back into the store, but he offered to return the items to them. When the loss prevention officers told him they could not accept the items back, Mr. Hodges started his car. Believing Mr. Hodges was going to leave, one of the loss prevention officers walked to the rear of the car to write down his license plate number. The other loss prevention officer remained at Mr. Hodges’ open car door and again asked him to come back into the store. Mr. Hodges got out of his car. As he did so, he threw the items against the loss prevention officer’s chest, causing the officer to fall backward into a parked van. While the officer recovered, Mr. Hodges got back into his still running car. When the officer reached into the car to turn off the key, the car began moving backward dragging the officer. Mr. Hodges’ car stopped briefly, and the officer was able to get back to his feet. When the car started moving in reverse again, the same loss prevention officer was struck by the driver’s door, propelling him over the door and onto the ground. Mr. Hodges drove away but was later arrested. The loss prevention officer suffered moderate injuries requiring surgery.
At trial, the defense requested the jury be instructed that if Mr. Hodges had abandoned the property prior to using force he would be guilty of theft, but not robbery. The trial court denied the defense request and instead gave the standard jury instructions for robbery. The instruction stated, in relevant part, “The defendant used force or fear to take the property or to prevent the person from resisting.” The instruction given did not refer to the potential abandonment of the stolen property prior to any use of force.
During deliberation, the jury sent out a note on this very subject. They asked if the timing or sequence of events were relevant as relating to the use of force. Over defense objection, the Court gave the following response: “With regard to Count 1, Penal Code 211, the theft is deemed to be continuing until the defendant has reached a point in which he is no longer being confronted by the security guards. Thus, item 4 of the instruction 1600 applies to the confrontation in the parking lot.” The defense argued that the theft ceased after Mr. Hodges no longer intended to keep the property, but the jury did not hear that argument. Mr. Hodges was convicted, and he appealed.
There is a type of robbery that occurs when a defendant doesn’t use force to take property but uses force to escape capture and maintain possession of the property. These are commonly referred to as Estes robberies, so named after People v. Estes, 147 Cal. App.3d 23 (1983). The defense in this case differentiated Mr. Hodges’ case from an Estes robbery in that Mr. Hodges obviously had no intention of maintaining possession of the property after he threw it at the loss prevention officer. That being the case, the theft ended before the loss prevention officer was dragged by the car and struck by the car door. The Court of Appeals agreed with the defense. The Court held that the trial court had not given a proper response to the jury’s question about the sequence of events. They also held that because Mr. Hodges had abandoned the stolen items prior to the use of force involving the car, he was not guilty of robbery. Mr. Hodges’ robbery conviction was reversed, and the case was sent back to the trial court for further proceedings.
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