People v. Estes

California Court of Appeal Sep 15, 1983 No. Crim. 23762Published

Before: Low

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Holding. The court held that a security guard has constructive possession of store merchandise, making them a victim of robbery when force or fear is used to resist the guard's attempt to retake stolen property. Because petty theft is a lesser included offense of robbery, the court affirmed the robbery conviction but reversed the separate petty theft conviction.

Issues

Whether a security guard has constructive possession of store merchandise sufficient to be a victim of robbery.
Whether the use of force to resist a security guard's attempt to retake stolen property constitutes robbery.
Whether a defendant can be convicted of both robbery and the lesser included offense of petty theft for the same act.

Disposition. Affirmed in part, reversed in part.

Quotations verified verbatim against the opinion

“Robbery is an offense against the person who has either actual or constructive possession over the goods.”

“The crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety.”

“Where there is sufficient evidence to sustain the conviction of the greater offense, the conviction of the lesser offense must be reversed.”

Opinion

LOW, P. J.

In this case we affirm a robbery conviction for the taking of personal property owned by Sears, Roebuck & Company in the immediate

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presence of a security guard, using force and fear to complete the taking. Defendant Curtis Estes appeals from a judgment entered after a jury found him guilty of robbery (Pen. Code, § 211) by personal use of a deadly weapon (Pen. Code, § 12022, subd. (b)) and petty theft (Pen. Code, § 484) arising out of the theft of merchandise from a Sears department store. Defendant entered the Sears store in Larwin Plaza, Vallejo, wearing only jeans and a T-shirt and was observed by Carl Tatem, a security guard employed by Sears. Tatem next saw defendant wearing a corduroy coat of the type sold by Sears, and watched him remove a down-filled vest from a rack, take off the coat, put on the vest, then the coat, and leave the store without paying for the items. Tatem followed defendant outside the store, identified himself, and confronted him about the coat and vest in the parking lot about five feet from the store. Defendant refused to accompany Tatem to the store and began to walk away. As Tatem attempted to detain him, defendant pulled out a knife, swung it at Tatem, and threatened to kill Tatem. Tatem, who was unarmed, returned to the store for help.

Shortly thereafter, Tatem returned to the parking lot with Mel Roberts, the Sears security manager. Tatem and Roberts confronted defendant and again asked him to accompany them back to the store. Defendant still clutched the knife in his hand. After some time, defendant returned to the store with Tatem and Roberts, but denied using the knife and denied stealing the coat and vest. At the trial, defendant admitted stealing the coat and vest from the store, but again denied using force or fear against the security guard, or any other person.

Defendant argues that the property was not taken from a person since the security guard did not have the authority or control over the property. “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 force or fear.” (Pen. Code, § 211.)

It is not necessary that the victim of the robbery also be the owner of the goods taken. Robbery is an offense against the person who has either actual or constructive possession over the goods.

People v. Estes

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LOW, P. J.

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