44 Cal.App.5th 413
Cal. Ct. App.2020Background
- Dec. 2017: Kristin Benson shoplifted a large amount of clothing from a department store; a loss prevention officer (LPO) confronted her outside the store.
- Benson pushed the LPO and attempted to flee to a waiting van; the LPO detained her until two men (defendant Robins and codefendant Scotto) exited the van, threatened the LPO, and forced Benson into the van.
- The van fled; a police officer activated lights and siren, the van evaded at high speed through a parking lot and sidewalk, struck a pedestrian and parked cars, and crashed; Scotto fled and was arrested, Benson was a passenger, Robins was in the rear cargo area.
- Robins was charged with attempted second-degree robbery (based on an Estes robbery theory) and felony reckless evading, and admitted prior-strike/prior-prison/prior-serious-felony allegations; sentenced to a total of 32 months.
- On appeal Robins raised three issues: (1) whether an "attempted Estes robbery" is a legally cognizable offense; (2) whether there was sufficient evidence he aided and abetted the attempted robbery under the natural-and-probable-consequences doctrine; and (3) whether there was sufficient evidence he aided and abetted the reckless evading under the same doctrine.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of an "attempted Estes robbery" | Attempt is a valid offense under Penal Code §663; an attempt conviction may stand even if the substantive crime was completed. | Concept is incoherent: once force/fear is used during escape the Estes robbery is complete, so there can be no mere attempt. | Court rejected defendant: §663 allows conviction for attempt even if the substantive crime was completed; no logical bar to attempted Estes robbery. |
| Sufficiency of evidence to aid/abet attempted robbery (natural & probable consequences) | Robins, as a getaway participant, reasonably foresaw that theft could escalate to an Estes robbery; substantial evidence supports liability. | No evidence Benson was prone to violence; Robins did not participate in the theft or the physical confrontation. | Court affirmed: given the plan (getaway van, large theft, holiday shopping), an Estes robbery was a reasonably foreseeable consequence of aiding the theft. |
| Sufficiency of evidence to aid/abet reckless evading (natural & probable consequences) | Escape was an essential part of the plan; a high probability of a police pursuit made reckless evasion reasonably foreseeable. | Robins was not the driver and did not actually flee; insufficient to hold him for the driver’s reckless evasion. | Court affirmed: presence in the getaway vehicle and the plan to rapidly escape made reckless evasion a reasonably foreseeable consequence. |
Key Cases Cited
- People v. Estes, 147 Cal.App.3d 23 (Cal. Ct. App. 1983) (defines Estes robbery: use of force/fear during escape converts shoplifting into robbery)
- People v. Pham, 15 Cal.App.4th 61 (Cal. Ct. App. 1993) (refused attempted-Estes instruction where evidence supported only completed robbery or no robbery)
- People v. Rundle, 43 Cal.4th 76 (Cal. 2008) (Penal Code §663 permits conviction for attempt even though the substantive crime was completed)
- In re James M., 9 Cal.3d 517 (Cal. 1973) (attempted assault is logically inconsistent because assault is itself defined as an attempt)
- People v. Johnson, 51 Cal.App.4th 1329 (Cal. Ct. App. 1996) (attempted involuntary manslaughter is logically impossible)
- In re Kent W., 181 Cal.App.3d 721 (Cal. Ct. App. 1986) (attempted reckless-causing-a-fire is logically impossible)
- People v. McCoy, 25 Cal.4th 1111 (Cal. 2001) (explains natural-and-probable-consequences doctrine for aider-and-abettor liability)
- People v. Medina, 46 Cal.4th 913 (Cal. 2009) (foreseeability standard for natural-and-probable-consequences liability)