Robbery; the Force or Fear Element
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.