• Robbery and the Element of the Victim’s Fear:
• CALCRIM No. 1600; Force or Fear

To constitute a robbery, it must be proved that the victim himself gave up personal property out of fear.  It is insufficient that a reasonable person, in the same or similar circumstances, would have been afraid.

Defendant Jesse Quincy Collins entered a Walgreens store in South Gate on May 2, 2019, bringing with him an empty bag.  An employee observed him “stuff(ing)” his bag with deodorant and shaving supplies.  The employee notified the store’s assistant manager, Amir Hasan.  Hasan approached defendant and, while standing some three feet from him, “quietly” and “discreetly” suggested to defendant that he needed to either pay for the items in his bag or put them back. Defendant suggested a third alternative; i.e. that Hasan just let him take the items.  He was told “no,” that was not an option.  Hearing this disappointing news, defendant attempted to push Hasan out of the way.  Hasan took a step back and told defendant; “Don’t touch me.”  Defendant proceeded to pull an already opened folding knife from his pocket, showing it to Hasan as if to say:  “This is what I got and you all ain’t going to be able to do nothing.”  Upon seeing the knife, Hasan took another step back from defendant and allowed him to exit the store with the bag full of unpurchased merchandise.  Defendant was subsequently arrested (the circumstances of which were not included in the case decision) and charged in state court with second degree robbery, plus a pile of allegations related to the use of the knife as well as his prior convictions and prison terms.  At defendant’s preliminary hearing, when asked about whether he felt threatened by defendant when defendant pulled out his knife, Hason responded with: Well, duh: “of course” he “fel[t] threatened when [defendant] pulled out the knife.”  But at trial, when asked the same question—for whatever reason feeling his oaks for the first time—Hasan repeatedly testified that he was not frightened by defendant pulling out the knife, that he “didn’t feel threatened,” and that he “had no fear.”  The jury, however, was also presented with Hasan’s prior preliminary hearing testimony to the contrary (presumably as a “prior inconsistent statement,” admissible “for the truth of the matter” pursuant to Evid. Code § 1235).  After all the evidence was presented, the trial judge read to the jury CALJIC instruction No. 1600, which defines “fear” as “fear of []injury to the [victim],” but does not specify whether the victim must himself be afraid or whether it suffices if some other objective person in the victim’s shoes would have been afraid.  Also, the prosecutor was allowed to argue to the jury (over the defendant’s objections) that the “force or fear” element of robbery was an “objective” one; i.e., whether a reasonable person under the circumstances have felt fear.  Defendant’s request for a clarifying instruction on this issues was denied.  Defendant was convicted of second degree robbery and all the allegations found to be true.  Sentenced to 15 years in prison, defendant appealed.

The Second District Court of Appeal (Div. 2), in a split (2-to-1) decision, reversed.  Robbery, pursuant to Pen. Code § 211, is defined 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 use of “force” was not the theory used by the prosecution in this case, and, as noted by the Court, there is no way of knowing whether the jury relied upon the force used here in reaching a guilty verdict.  As a result, the issue was whether the People had met its burden of proving beyond a reasonable doubt that the “fear” element of a robbery had been proven.  Central to this issue is whether the “fear” element necessary to constitute a robbery was required to have been felt by the victim himself (i.e., “subjectively”), or whether it was sufficient that a reasonable person in the victim’s shoes would have felt fear under the circumstances (i.e., “objectively”).  CALJIC No. 1600, as read to the jury and as noted above, fails to answer this question.  So the prosecutor took it upon himself—supported by the trial court’s refusal to clarify the issue—to argue to the jury that an objective test is sufficient; i.e., that the taking of personal property by means of placing the victim in a situation where any reasonable person, under the circumstances, would have been afraid, constitutes a robbery.   The Appellate Court here supplied sufficient case law showing that this is incorrect.  The fear element must have been felt by the victim himself for the taking of property to be a robbery.  (See People v. Montalvo (2019) 36 Cal.App.5th 597, 612;  People v. Mullins (2018) 19 Cal.App.5th 594, 604; People v. Anderson (2007) 152 Cal.App.4th 919, 946; People v. Cuevas (2001) 89 Cal.App.4th 689, 698; People v. Davison (1995) 32 Cal.App.4th 206, 212; and  People v. Mungia (1991) 234 Cal.App.3rd 1703, 1709, fn. 2.)  The majority of the Court found that misleading the jury on this issue violated both the U.S. and the California Constitutions, and as such, to be reversible error.  However, because there was evidence supporting the argument that Hasan was in fact placed in fear by defendant’s actions, despite his protestations to the contrary, the Court ruled that on remand, the People have the option of retrying the case.

The dissent pointed out that there was substantial evidence supporting the argument that the jury was not mislead; i.e., that the victim himself, Amir Hasan, was in fact placed in fear by defendant’s actions despite his claims to the contrary, and disagreed with the majority’s decision to reverse defendant’s conviction.  But that, and a dime, won’t even get you a cup of coffee anymore.  The bottom line here is that the prosecutor in this case took a pretty bold stance on an issue that was apparently not researched prior to trial, given the cases directly on point as cited (above) by the Court.  And the judge (who perhaps should have at least asked the attorneys for case authority on this issue) let him get away with it.  For future reference, the officer taking a robbery report can help immensely by simply asking the victim whether a robber’s actions scared him (preferably out of the presence of his girlfriend or anyone else it’s important for him to appear macho in front of), and note any other evidence supporting the argument that he was in fact afraid, before the victim has the opportunity to recover from the trauma of just having been robbed.  As a Deputy District Attorney assigned to a unit where we prosecuted a lot of robberies (i.e., the San Diego DA’s Major Violator Unit), I’ve had this issue come up before where my victim refused to admit that he gave up his property out of fear.  I didn’t find it too difficult to merely point out to the jury how, despite his denials, the victim’s actions were consistent with someone being afraid.  The evidence in this case similarly showed that Amir Hasan relented to defendant’s demands out of fear—stepping back when the knife was displayed and letting him walk out of the store with the stolen property—even if he declined to admit it.  Jurors under these types of circumstances, using their common sense, will inevitably find that the victim was in fact in fear despite his claims to the contrary.  That’s what should have happened in this case.