Miller v. Superior Court - 115 Cal. App. 4th 216, 8 Cal. Rptr. 3d 872 (2004)

Rule:

Although the immediate presence and force or fear elements of robbery originally had to be satisfied at the time of the gaining possession aspect of a taking, the law has long since allowed these elements to be supplied after the defendant has initially gained possession of the victim's property.

Facts:

The victim inadvertently left his pants hanging in a restroom stall after changing into his swimming trunks. He returned to find them missing and heard the velcro of his wallet in another stall. The victim and a friend confronted defendant and waited outside the stall. When defendant finally tried to leave the restroom, he charged the men, and, after a great deal of shuffling, gave the victim his wallet. The defendant was charged with robbery. Defendant filed a Cal. Penal Code § 995 motion to dismiss the charge. The superior court denied the defendant’s motion, and concluded that the defendant's resistance to the victim's attempt to regain the property was sufficient to support the existence of a taking from the victim’s immediate presence. Defendant petitioned for a writ of prohibition. 

Issue:

Was the defendant’s resistance to the victim’s attempt to regain the property sufficient to support the existence of a taking from the victim’s immediate presence? 

Answer:

Yes.

Conclusion:

In denying the writ of prohibition, the court concluded that the preliminary hearing evidence was sufficient to support the existence of a taking from the victim's immediate presence. Although the "immediate presence" element of robbery originally had to be satisfied at the time of gaining possession, the law had long since allowed that element to be supplied after defendant initially gained possession. Thus, defendant's use of force to retain the property after the victim confronted him was sufficient to support a robbery charge. The victim could reasonably have been expected to take effective steps to retain control over his property and thus the immediate presence requirement was satisfied.