Estes Robbery
RC Phillips, DDA (Ret.)
October, 2021
This P&A examines two areas of robbery.
1) First, what is a “special relationship” for purposes of constructive possession? The P&A looks at takeover robberies at businesses as well as robberies in other contexts.
2) Second, when does force used in the course of a shoplifting transform the theft into an Estes robbery? The P&A examines what is an Estes robbery, what is mistaken for an Estes robbery, as well as recent California Supreme Court cases that expand and restrict variations on an Estes robbery, and the impact of Prop 47 on charging Estes robberies.
I. Constructive Possession and Robbery
A. General Principles
1. For robbery, property must be taken from the possession and immediate presence of the victim against his or her will, and must be by means of force or fear.
2. Robbery is limited to those persons in either actual or constructive possession of the property taken.
3. “A person who owns property or who exercises direct physical control over it has possession of it, but neither ownership nor physical possession is required to establish the element of possession for the purposes of the robbery statute.” (People v. Nguyen (2000) 24 Cal.4th 756, 762.)
4. Multiple convictions of robbery are proper if force or fear is applied to multiple victims in joint possession of the property taken. (People v. Ramos (1982) 30 Cal.3d 553, 589.)
5. For constructive possession, the victim of the robbery must have a “special relationship” with the owner of the property such that the victim had authority or responsibility to protect the stolen property. (People v. Scott (2009) 45 Cal.4th 743, 750.)
B. Takeover Robberies with Employee Victims
1. In People v. Scott, supra, 45 Cal.4th 743, 755, the Supreme Court took this bright-line approach regarding robberies of employees: all on-duty employees have constructive possession of the employer’s property during a robbery of the business or store, and thus may be victims of robbery.
2. Each employee subjected to force during a robbery is in constructive possession of the owner’s property solely by virtue of his or her status as an employee. (Id. at p. 752.)
3. Thus, it is unnecessary to examine whether the particular duties of the employee involved access to or control over the property that was stolen. (Ibid.)
4. In reaching this conclusion, the Supreme Court disapproved of case authority (People v. Frazer (2003) 106 Cal.App.4th 1105, 1115) which held that a constructive possession analysis depends upon the particular responsibilities of the employee in question and “whether those duties gave the employee express or implied authority over the property.” (Scott, supra, 45 Cal.4th at p. 746.)
5. The Supreme Court said its conclusion was consistent with a long line of California cases, which fully support the proposition that employees, regardless of their function, have constructive possession of the property stolen from the employer’s business. (Id. at pp. 752-753.)
6. The Supreme Court said its conclusion was also consistent with the notion of “special relationship” in non-employee cases required for constructive possession. (Id. at p. 753.)
a. “Any employee has, by virtue of his employment relationship with the employer, some implied authority, when on duty, to act on the employer’s behalf to protect the employer’s property when it is threatened during a robbery.” (Id. at p. 754.)
b. “ ‘Employees are custodians of the property on the business premises for the benefit of the owner/employer.’ ” (Ibid.)
c. “An employee's authority to protect the employer’s property is recognized in Civil Code section 50, which establishes the right to use ‘necessary force’ to protect the ‘property’ of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest.’ (Italics added.)” (Ibid.)
d. “In other words, the employee’s relationship with his or her employer constitutes a ‘special relationship’ sufficient to establish the employee’s constructive possession of the employer’s property during a robbery.” (Ibid.)
7. The Supreme Court also stated a policy reason for its decision: “Furthermore, it is reasonable to infer that the Legislature intended that all on-duty employees have constructive possession of the employer's property during a robbery, because such a rule is consistent with the culpability level of the offender and the harm done by his or her criminal conduct. As a matter of common knowledge and experience, those who commit robberies are likely to regard all employees as potential sources of resistance, and their use of threats and force against those employees is not likely to turn on fine distinctions regarding a particular employee's actual or implied authority.” (Id. at p. 755.)
8. Application to Facts in People v. Scott:
a. Three defendants entered a McDonald’s at 6:15 a.m., shortly after the restaurant opened. Each wore dark clothing and a ski mask and carried a gun.
b. Three employees were on duty: an employee working at the drive-through window; an employee who did only food preparation; the manager, who was the only employee who had access to the safe.
c. Defense counsel argued that only the manager was in constructive possession of the money stolen.
d. The prosecutor argued that all three of the employees were in constructive possession of the property because at the time of the robbery they were engaged in performing the responsibilities of their employment.
e. The jury returned a partial verdict, finding defendants guilty of the robbery of the manager. They sent a note asking for clarification whether all employees have constructive possession of the company’s property while on duty.
f. The trial court answered: “ ‘The employees of a business constructively possess the business owner's property during a robbery.’ ” Shortly thereafter, the jury found defendants guilty on the remaining robbery charges. (Id. at pp. 748-749.)
g. The Supreme Court affirmed the judgment. (Id. at p. 758.)
9. The Non-Employee Present During a Takeover Robbery:
a. The analysis of Scott as to constructive possession of the owner’s property “excludes as victims those bystanders who have no greater interest in the property than any other member of the general population.” (Id. at p. 758.)
b. In People v. Nguyen, supra, 24 Cal.4th 756, four employees, along with the husband of one of the employees, were in the lunchroom of a computer assembly business. The four defendants entered brandishing weapons, and took approximately $400,000 worth of computer equipment. The Supreme Court concluded that the employee’s husband “was a visitor to the business and was not in actual or constructive possession of the property taken from the business. None of the convictions for the robbery of [the husband], therefore, can be based upon evidence that property was taken from the business.” (Id. at p. 764.)
C. Other Kinds of Robberies
1. Apart from the employee context, in other situations a person may have constructive possession of the property of another and thus be the victim of a robbery.
2. “These persons must have a ‘special relationship’ with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner. Formulated another way, the question is whether the prospective victim may be expected to resist the taking.” (People v. Bradford (2010) 187 Cal.App.4th 1345, 1349.)
3. The key is the “special relationship” that gives rise to the authority or responsibility to protect the stolen property on behalf of the owner.
4. Family relationships may give rise to the “special relationship”:
a. In People v. Gordon (1982) 136 Cal.App.3d 519, the defendant entered the home of the two victims, threatened them at gunpoint, entered the bedroom of their adult son who was living with them, and took his property. The Court of Appeal rejected the defendant’s challenge to his two robbery convictions, for which he claimed insufficient evidence of possession by the parents. The Court of Appeal concluded the parents constructively possessed their son’s personal items because they had “responsibility to protect goods belonging to their son who resides with them in their home.” (Id. at p. 529.)
b. In People v. Weddles (2010) 184 Cal.App.4th 1365, the court upheld the defendant’s conviction for robbery as to Armando, the brother of Alex, who was the apartment tenant and the individual whose money was taken by the defendant. Both Alex and Armando were in the apartment on the night of the robbery, but the money was taken from Alex’s bedroom. Armando did not live in the apartment, and there was no indication that Armando had ever possessed the money or had been given the right to control the money that the defendant took from Alex’s bedroom. (See id. at pp. 1367–1371.)
The court held that Armando was a victim of residential robbery, stating: “We reject as untenable defendant’s argument that Armando had no concern about whether his brother’s savings were pilfered from the apartment that he regularly visited. Armando's close familial relationship with the owner of the property, his regular presence at the apartment, and knowledge of where the property was hidden by Alex establish that Armando had constructive possession of the cash.” (Id. at p. 1370.)
c. In People v. DeFrance (2008) 167 Cal.App.4th 486, the victim tried to stop the defendant from stealing her son’s car. The defendant ran over the victim and killed her, resulting in conviction of murder with robbery special circumstances. Defendant contended there was insufficient evidence of robbery because the mother had no right to control her son’s car. The Court of Appeal relied on the family “special relationship” in finding sufficient evidence to support the mother as a robbery victim. The son was living in the condominium owned by his mother. The car was parked in one of the parking spaces designated for the condominium, the mother had helped her son buy the car, had access to the keys to the car, had driven the car, and was named on the insurance. The Court of Appeal found the victim had sufficient custody over the car to be a victim of robbery. (Id. at pp. 498-499.)
d. Moreover, Civil Code section 50, relied on by the Supreme Court in Scott to find a “special relationship” in the employee context, provides that family members have a right to use ‘necessary force’ to protect the ‘property’ of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family. . . .”
5. Non-Family “Special Relationships”:
a. In People v. Bradford (2010) 187 Cal.App.4th 1345, the Court of Appeal concluded mall security guards had constructive possession of store property based on “special relationship.” A store employee reported a theft to two mall security guards who gave chase to defendant. One of the security guards tackled the defendant and wrestled with him on the ground. The defendant attempted to stab the guard. The defendant was convicted of two counts of robbery. (Id. at p. 1348.)
The defendant argued there was no substantial evidence that the guards had the right to control the property that was stolen from the store. The Court of Appeal said that while the security guards were not employees of the store, they had a special relationship with the store (and presumably, with other businesses in the mall) by virtue of their position as mall security guards. The uniformed guards were employees of a company that was contractually obligated to provide security services to businesses in the mall. The guards were usually the first people the stores called in cases of theft. The store employee who contacted the guards testified that her store would call on mall security services when there had been a theft and that it relied on the security guards to contact suspects and recover the property if they could. The Court of Appeal concluded the security guards could be “ ‘expected to resist the taking’ ” of property from the store, and as such were in constructive possession of the property stolen by defendant. (Id. at p. 1350.) Moreover, the employee specifically asked the security guards to assist the store in recovering its stolen property, and thus had been granted “ ‘implied authority’ ” to prevent the theft. (See People v. Bekele below)
b. In People v. Bekele (1995) 33 Cal.App.4th 1457, overruled on other grounds in People v. Rodriguez (1999) 20 Cal.4th 1, 13–14, the Court of Appeal concluded that an owner of stolen property, by specifically requests another’s assistance in recovering that property, may confer authority that results in constructive possession. (Id. at pp. 1461–1463.) Jump and his co-worker Fernandez saw the defendant burglarizing Jump’s truck. Jump told Fernandez, “ ‘Let's stop,’ ” and “ ‘There is somebody in my truck.’ ” Fernandez chased the defendant, who had taken property from the truck. As Fernandez followed, the defendant pointed a gun at him. (Id. at p. 1460.) The defendant was properly convicted of robbing Fernandez. “Fernandez had constructive possession of Jump’s property through Jump’s implied grant of authority to help stop the theft.” (Id. at p. 1462.)
c. In People v. James 2015 WL 1736281 [nonpublished –informational only], the court determined that a “special relationship” existed between two friends The two friends, described in the opinion as “best friends” drove to a store and parked. The owner of the car (“owner”) placed her purse on the floor of the car on the driver’s side and got out to talk to some people in a nearby car. Her friend stayed in the car, but after while got out to join the owner, leaving the unlocked unattended. The owner told the friend to return to the car because her purse was inside. As the friend returned to the car, she saw the defendant standing at the driver’s side door, having taken the purse. When the friend confronted the defendant, he punched her in the face and had a knife in his other hand.
On appeal the defendant argued there was insufficient evidence to support a robbery conviction because the friend had no constructive interest in the owner’s purse. The Court of Appeal disagreed. It said the owner, realizing the friend “was no longer at the car, guarding her property in the car, told the friend to return to the car, impliedly telling her to do precisely that. That established the special relationship between the [owner] and [the friend] concerning the property. The fact that the [friend] felt it ‘her place’ to demand of defendant that he return the [owner’s property] further established that such a relationship existed, which gave the [friend] ‘standing’ to demand the return.”
The Court of Appeal said that the fact the owner and friend were best friends established the kind of relationship such that the owner entrusted her friend to safeguard the property. The owner’s words to the friend clearly conveyed the authority she delegated to the friend to act on her behalf in protecting her property.
5. No Special Relationship Found:
a. In Sykes v. Superior Court (1994) 30 Cal.App.4th 479, the defendant burglarized a music store and took a saxophone from the premises. A security guard from a neighboring business chased after the defendant. The security guard eventually caught the defendant and after a struggle, during which the defendant injured the guard’s hand, the guard retrieved the saxophone. The prosecution argued that the security guard constructively possessed the saxophone because he sought to retrieve it on the music store’s behalf.
The Court of Appeal rejected the argument: “Constructive possession depends upon a special relationship with the owner of the property . . . . The fact that [the security guard] was employed as a guard for another business did not make him an agent of the music store. His relationship to the music store was that of a neighbor and good citizen seeking to catch a criminal.” (Id. at p. 484.)
b. In People v. Galoia (1994) 31 Cal.4th 595, the defendant entered a convenience store, grabbed several items, and fled. A man servicing his video game machines inside the store pursued the defendant and told him to stop. The defendant turned and while threatening the vendor, the defendant's companion hit the vendor from behind. The defendant and his accomplice fled with the property. (Id. at p. 597.) The Court of Appeal held the vendor lacked a sufficient interest in the stolen property to be a robbery victim. The vendor “was not an employee or agent of the convenience store. Nor was he in any way responsible for the security of the items taken.” (Ibid.)
The court also rejected the Attorney General's argument the vendor was acting under the store’s implicit authorization when he pursued the defendant because “no one from the store instructed [the vendor] to give chase, and there is no evidence [he] was motivated by anything other than good citizenship.” (Id. at p. 598.)
D. Summing It Up
1. As to robberies occurring in business, stores, restaurants: all on-duty employees have constructive possession of the employer’s property by virtue of their status as an employee and may be victims of robbery. No factual inquiry as to the particular duties of the employee is necessary.
2. If the robbery occurs in a non-employee context, a “special relationship” with the owner must be shown, demonstrating that the victim had authority or responsibility to protect the stolen property on behalf of the owner.
3. For family members and relatives, this “special relationship” can be shown with minimal factual inquiry. In other words, make a showing of more than just the family connection, e.g., close familial relationship, living in same home with the owner of the property or regular presence in the home, knowledge of the property and where it is located, shared use of the property.
4. As to non-family members, a greater factual inquiry is needed to show the “special relationship.” For example, greater emphasis on the nature of the relationship such that owner of property would be expected to entrust safeguarding of that property to the victim, knowledge of the property and where it is located, any conduct or words that indicating owner gave express or implied authority to the other person to protect that property.
II. The Estes Robbery
A. What is an Estes Robbery?
1. This is an Estes robbery: a defendant who does not use force or fear in the initial taking of the property may nonetheless be guilty of robbery if he uses force or fear to retain the property or carry it away in the victim's presence. “Estes robbery” comes from People v. Estes (1983) 147 Cal.App.3d 23.
2. In People v. Estes, a security guard at a Sears store saw Estes remove clothing from a rack, put it on, and leave the store without paying. The guard followed Estes outside to the parking lot. About five feet from the door, the guard identified himself and confronted Estes about the items taken. Estes refused to return to the store and began walking away. When the guard tried to detain him, Estes pulled out a knife, swung it at the guard, and threatened to kill him. (Id. at p. 26)
3. The robbery conviction was upheld based on Estes’ forceful retention of property in the guard’s presence while in the parking lot.
4. Thus, what begins with a simple theft can ripen into robbery when force or fear is used by the defendant to retain possession of the property.
B. The Principles Underlying the Estes Analysis
1. Estes argued that for robbery, the assaultive behavior must occur at the same time as the taking of the merchandise. He argued that he was guilty only of petty theft and the subsequent assault. (People v. Estes, supra, 147 Cal.App.3d. at p. 28.)
2. He was wrong. The crime of robbery is a continuing offense that begins from the time of the original taking and continues until the robber reaches a place of safety. (Ibid.)
3. Robbery is a species of aggravated larceny. Larceny requires the taking of another’s property, with the intent to steal and carry it away. To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence. (People v. Gomez (2008) 43 Cal.4th 249, 254.)
4. Larceny requires the taking of another’s property. There are two aspects of taking: (1) the caption – achieving possession of the property, and (2) the asportation – the carrying away of the property. A taking is not over at the moment of caption. It continues through asportation. (Gomez, at p. 255.)
5. The application of force or fear can occur when the property is originally taken (the traditional robbery) or can occur during the “carrying away” in order to retain the property and facilitate the escape (an Estes robbery).
6. A robbery can be accomplished even if the property was peacefully or duplicitously acquired, if force was used to carry it away. (Gomez, at p. 256.) Again, this is at the heart of an Estes robbery.
7. “[A] robbery occurs when defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner’s immediate presence regardless of the means by which defendant originally acquired the property.” (Estes, supra, 147 Cal.App.3d at pp. 27–28.)
8. Because robbery is a continuing offense, even if the property was acquired peacefully, the later use of force to retain the property in the victim’s presence makes the actions a robbery. (Id. at p. 28.) This why the defendant in such a circumstance has not simply committed a theft and an assault.
C. What if the Defendant Abandons the Property During the Pursuit?
1. Scenario: A person leaves a store without paying for the goods, drops the goods when confronted by a security guard, and flees; the guard gives chase and at some point during the pursuit, the person uses force to resist the pursuing guard’s attempt to detain him.
2. Result: No robbery was committed, because there’s no evidence that the person intended to deprive the owner of the property at the time force was used. At the time the force was used, the person was no longer in possession of the property. Robbery requires the felonious taking of property in the possession of another, accomplished by force or fear. (Pen. Code, § 211.)
3. The result of this scenario is a theft and a battery, not robbery.
D. Scenarios for Estes Robbery
1. While an Estes robbery is typically associated with shoplifting, it can occur in any scenario in which the defendant has committed a theft and uses force to resist the victim’s efforts to retake the property. For example, a victim encounters the defendant stealing items from his car, the defendant flees with the items, the victim gives chase, and the defendant responds with force to maintain possession of the items and facilitate his escape.
E. Charging Mistakes
1. Per the charging gurus – the biggest charging mistake is assuming that whenever force is applied during a shoplifting, it’s an Estes robbery. An Estes robbery only occurs if force is applied to retain the property and take it away. So, for example, the thief abandons the property and tries to escape, leaving the property behind, but the store owner chases him to bring him back to the store to await the police, and the thief punches the store owner to get away. In this scenario, the use of force has not occurred to accomplish the taking of the property. There may be a battery or assault, but not a robbery.
2. Scenario: The thief walks leaves the store with the goods, the security guard approaches and confronts the defendant, and then there is some immediate scuffling with the security guard. Has an Estes robbery occurred?
These scenarios illustrate the difficulty of trying to interpret what is going on in an Estes robbery situation. Prosecutors must be able to prove the defendant’s intent when he applied the force. Did the defendant apply the force out of anger or fear or surprise? Was he trying to escape? Was he applying force to asport with the property, to take it away from the security guard or store owner?
Frequently during the initial detention following the shoplifting, some tussling back and forth may occur. Using prosecutorial discretion, is there enough evidence to prove the defendant was using force at that moment to steal away the property? Factors to consider: How far from the store did he get? How much force did he apply? Did he drop/abandon the property? One of the most determinative factors will be the amount of force. The more force the defendant is using, the greater likelihood of proving an Estes robbery.
F. Impact of Proposition 47
1. With the passage of Proposition 47, careful analysis of Estes robberies is especially important. Theft cases often involve particularly egregious conduct that may approach but not quite cross the line between robbery and theft. The defendant may prey on a vulnerable victim, use ambiguous or implied threats or intimidation, snatch items from the victim’s person, or commit repeated thefts, sometimes against the same victim.
2. Before November of 2014, the prosecutor could consider a number of felony charges that might address the egregious conduct without having to resort to charging robbery. Now, unless the defendant has a disqualifying “super-strike” prior conviction, there are very few felony options to address what was once considered felony conduct. Theft from the person (PC 487(a)) and receiving stolen property (PC 496) are misdemeanors unless the property stolen exceeds $950 in value. Petty theft with a prior (PC 484/666) applies only to sex registrants, super-strikers, and those convicted of theft related elder abuse. Commercial burglary of a retail establishment during business hours must be charged as a shoplifting (PC 495.5) or theft case unless the property stolen exceeds $950. Thus, theft of less than $950 is generally going to be a misdemeanor except in Estes situations.
3. In deciding whether to charge an Estes robbery, keep two concepts in mind. First, is there sufficient circumstantial evidence that the defendant used force with the intent to carry off the property? Second, use prosecutorial discretion: is this conduct that really calls for a felony conviction? If the defendant with five prior robberies is carrying away the poor box from a local charity and uses a sawed-off shotgun to threaten the hapless receptionist who confronts him in the parking lot – charge a felony. If the defendant is a young parent with no record who steals a loaf of bread for the family and merely pulls away from the manager without making any threats–charge a misdemeanor. If the conduct falls somewhere in the middle, which theft cases almost always do – use your best judgment.
G. Variation on Estes – People v. Gomez
1. In People v. Gomez (2008) 43 Cal.4th 249, the California Supreme Court decided a case that was a variation on a theme of the Estes robbery. Estes concerned whether the force can occur for the first time during asportation. The issue in Gomez was whether the “immediate presence” element can occur for the first time during asportation. The Supreme Court concluded that the crime of robbery occurs when property is forcefully retained in the victim’s presence, even when the victim was not present at its initial caption. (Id. at p. 264.)
2. Just before 5:00 a.m., the defendant broke into a restaurant and took money from the ATM located there. As the defendant was searching around the premises, the restaurant manager arrived. The restaurant manager heard movement and saw the glow of a flashlight. The manager went out to his truck and called 911. While speaking to the police, the manager saw the defendant leave by a side door and walk away. The manager then followed the defendant, while staying on the line with the dispatcher. The defendant turned and from a distance of 100 to 150 feet he fired two shots at the manager. The defendant was convicted of second degree robbery. (Id. at p. 253.)
3. The California Supreme Court reiterated the notion discussed in Estes that robbery, like larceny, is a continuing offense. Thus, just as the force or fear can be satisfied during the asportation phase, as in an Estes robbery, the immediate presence element can also be satisfied during the asportation phase. (Id. at pp. 258-259.).
4. Although the defendant seized property from the victim’s business while the victim was not present, the Supreme Court said the evidence was sufficient that the defendant used force to retain the stolen money while in the manager’s presence. (Id. at p. 265.)
H. No Estes Robbery Possible When Theft By False Pretenses
1. In People v. Williams (2013) 57 Cal.4th 776, the defendant went into a Walmart store and used payment cards that had been re-encoded with a third party’s credit card information, to buy gift cards. The store’s security guards were alerted to the scam and asked defendant to show them the payment cards and the gift card receipts. When the numbers on the cards and receipts didn’t match, the defendant started walking to the exit and ignored the security guards’ requests to stop. He then shoved one of the guards and started running away. There was a brief struggle inside the store and the guards wrestled defendant to the ground. (Id. at p. 780.)
2. The theft crime committed by the defendant was theft by false pretenses. There can be no robbery because only theft by larceny can satisfy the “felonious taking” requirement of robbery.
3. First, larceny requires asportation. Unlike larceny, theft by false pretenses has no asportation requirement. The crime ends when title to the property is acquired and thus cannot become robbery by the defendant’s later use of force or fear. When the defendant shoved the security guards, he was no longer engaged in the commission of the offense because he had already acquired the title to the gift cards. (Id. at p. 787.)
4. Second, larceny requires a “trespassory taking,” which is taking without the property owner’s consent. By contrast, theft by false pretenses involves the consensual transfer of possession and title to property. Because robbery requires a taking without the consent of the owner, and here the store owner consented to the sale of the gift cards, no robbery occurred. (Ibid.)
