*1 S140612. Apr. [No. 2008.] PEOPLE,

THE Plaintiff and Respondent, GOMEZ,

ALFONSO Defendant and Appellant.

Counsel Court, Defendant and Bacall, for Supreme Michael under appointment Appellant. General, Brown, Jr., R. Robert Attorneys G. and Edmund Lockyer

Bill Gillette, Attorneys Chief Assistant Anderson, and R. Jo Graves Dane Mary General, Schons, and General, Getting Steve Assistant Attorney W. Gary General, Jacobson, Plaintiff and Respondent. S. Attorneys Lise Deputy Opinion

CORRIGAN, J. defendant seized from the victim’s business Here while scene the victim was not The victim arrived on the before present. him defendant and As the followed as he victim departed leaving. followed, Did defendant shot at him. defendant commit a Yes. robbery? History

I. Facts Procedural 12, 2004, 5:00 a.m. broke Shortly before on defendant into an January Anaheim restaurant. After two with duct covering surveillance cameras tape, he and took from an ATM in the He then went to pried open money lobby. office on manager’s the second floor. He forced the desk and file open drawers, downstairs, but found no cash. As he went back defendant heard the Baltazar, manager, Ramon unlock the front took a door. Defendant handgun waistband, from his walked to restaurant’s backpack, placed kitchen.

Meanwhile, Baltazar noticed the alarm been had deactivated the ATM damaged. Hearing noise in the kitchen and of a seeing glow flashlight, outside, he went got in his truck and called While 911. speaking police dispatcher, Baltazar saw defendant leave side door and walk away. defendant, Baltazar drove behind on the staying with phone dispatcher. himself, Baltazar did not intend to defendant wanted but apprehend help *5 what, the find him. police Baltazar did not if know defendant had anything, taken from the restaurant.

As Baltazar followed from 100 150 feet fired away, defendant two shots him; he said later that he wanted to scare Baltazar. Baltazar drove quickly and away, defendant was arrested a short later money time with from the ATM in his backpack.

The jury convicted defendant of second and degree commercial Code, 212.5, 211, 459, 460, (Pen. burglary. (c), (b).)1 subd. subd. The jury §§ also found that defendant was armed the and fired a during burglary gun 12022, (§§ 12022.53, the (a)(1), (c).) subd. subd. Defendant was to three sentenced 20 years prison robbery, years the with for the

1 undesignated Further statutory references are to the Penal Code.

254 en- charge enhancement. on the and the

gun Sentencing burglary arming under section 654. stayed hancement claimed the evidence was insufficient as matter of

On defendant appeal, not his the victim was law conviction because present support of when took the The Court money. rejected defendant initially Appeal on v. Estes 147 23 Relying Cal.App.3d argument. retain (Estes), it held that defendant’s use of force to the stolen Cal.Rptr. 909] remove from Baltazar’s immediate was sufficient to and it conviction.

II. Discussion defines as “the felonious taking personal

Section another, from or immediate presence, his person is, will, of force or fear.” Robbery and means against accomplished by ” “ ‘ ’ therefore, Ortega (1998) “a aggravated (People species larceny.” 489, 48], & P.2d Perkins Cal.4th quoting (Perkins).) 1982) ed. Theft (3d by larceny may Law Boyce, Criminal bemay be without force or the threat violence completed committed (See (a).) To elevate subd. being without the victim ever present. § fear or by must be force larceny robbery, accomplished or in his must be taken from victim presence.2 aggravating are intertwined with larceny elements robbery, is the offense. The issue here temporal to make the more serious up elements lies in the fact must come answer together. which elements point All elements must be is a offense. continuing like robbery, larceny, However, as we greater explain satisfied before crime completed.3 below, or as to moment detail no artificial parsing required precise consistent with are This conclusion is order in which elements satisfied. decades of California jurisprudence. theft larceny. Larceny elements of considering basic begin carry the intent to steal another’s with talcing

requires *6 2 1872, (See 211, robbery requirements. common law incorporates enacted in Section 143, 935, 168].) (1999) Cal.Rptr.2d P.2d Under 987 Tufunga [90 v. 21 Cal.4th 945-947 law, aggravating two circumstances: larceny plus the the crime of consists common another; (2) taking and the (1) person the or the is taken from property Wharton’s, (4 injury. the in fear of by putting the of force or victim accomplished use LaFave, 454, 1995) (Wharton); Criminal Law (15th pp. 3 Substantive ed. 2-3 § Criminal Law 20.3(a), 996-997.) (2d 2003) ed. pp. § 3 the cash taken from deciding possessory had a interest in without Baltazar assume defendant, court is not before this challenged by and possession ATM. issue of not the appeal. on

255 301, 295, (1998) v. Davis 19 Cal.4th 305 away. Cal.Rptr.2d (People [79 turn, 1165].)4 (1) P.2d achieving 965 has two “Taking,” aspects: possession (2) of the known and the or “caption,” carrying away, property 1051, (2003) v. 31 Cal.4th “asportation.” (People Lopez Cal.Rptr.3d [6 432, 548]; (3d ed. 2000) P.3d see 2 Witkin & Cal. Criminal Law Epstein, 15, 35; Wharton, 357, 412-413.) Crimes Against Property, p. pp. § § Davis, the movement v. Although slightest may {People constitute asportation at 305), the theft continues until the has reached a p. place perpetrator (2000) with the temporary safety Flynn v. property (People Cal.App.4th 766, 902]).

A number cases the element taking have considered interaction the with the factors that a theft to the larceny robbery: elevate a use aggravating of force or fear and the from the victim’s presence.

A. Force or Fear 238,

In v. People Anderson 64 Cal.2d 633 Cal.Rptr. (Anderson) we considered force when element of or fear Anderson, must come into a make theft a as a play posing customer, to a went where he He agreed to pawnshop inspected shotgun. buy and ammunition. As the totaled gun salesman Anderson price, it, salesman, grabbed loaded it gun, pointed at the to kill threatening leave, him. When another told to take Anderson employee gun (Id. Anderson shot and killed at him. On Anderson appeal, that since he of the complained obtained without the use of possession gun fear, force or there could be no matter of We as a law. upheld state, conviction: “In not is settled that robbery is completed at the moment robber obtains of the stolen possession property the crime of robbery includes asportation, robber’s escape with the loot being considered as commission crime as important gaining if one property. who Accordingly, [f] [Citations.] has stolen from the of another uses force or fear in person removing, remove, or from the owner’s immediate attempting presence, here, as defendant did crime of has been committed.” 638.) p. 4 1927, embezzlement, larceny, pretenses the crimes of theft and false were consoli Davis, (People dated in section 484. as it 19 Cal.4th “Insofar defines theft

by larceny, (a), Code simply ‘Every person Penal section subdivision provides who steal, take, lead, feloniously shall carry, away personal or drive of another ... ” (Davis, guilty of theft.’ fn.

Anderson, First, 64 Cal.2d stands for two relevant here. points a not over at the moment of it continues taking through is caption; asporta- Second, tion. a can be even the if was accomplished or if force or fear used to carry was peacefully duplicitously acquired, away. (1991) in

We both v. 53 Cal.3d 1158 People Cooper discussed points [282 an which involved the of Cal.Rptr. (Cooper), liability the aider and abettor for codefendants knocked victim robbery. Cooper’s wallet, the stole his then into car. drove ground, jumped Cooper’s Cooper the the the argued them He that over time codefendants away. by wallet, the had seized the so that already into car because jumped they liable an after fact. We he could be as arguably only accessory rejected a for of argument. determining commission of purposes “[T]he until the robbery aider and abettor continues all acts liability constituting 1161.) of of (Id. have ceased.” at “The element consists robbery” p. Therefore, (Id. 1165.) a and at to determine the both an asportation. p. caption element, on We robbery, duration of a the focus must be its final asportation. “[although, establishing guilt, of emphasized purposes asporta- of movement tion evidence requirement initially slight [cita- satisfied tion], a fixed in The is not confined to time. point asportation asportation to a of thereafter as the loot is carried long being away place continues as Thus, (Ibid., omitted.) of the offense of fn. for conviction safety.” temporary must form the intent to and driver aiding abetting robbery, getaway of or facilitate or the commission before encourage (Ibid.)5 loot. carrying away cited v. People

In nature continuing robbery, Cooper analyzing 1133], an case that itself Perhab P.2d older (1949) 92 Cal.App.2d announced in the cited theory referred decisions: “We adopt to preceding in the complaining cases that the ‘taking’ witness, not necessarily from his immediate presence possession, it. The crime of upon the thief his hands the moment completed places anoth- also includes the element of asportation appropriation means of of the thief with his ill-gotten gains er’s property. escape 5 rale,” originated case of Cooper, which in the landmark distinguished “escape In we rale, escape applied Boss P. Under the 881]. 210 Cal. robbery, ancillary felony-murder consequences certain other context of the doctrine and safety, or not “robbery through place temporary to a whether escape to continue is said supra, (Cooper, escape . . .” Cal.3d asportation of the loot coincides with the . rale, reasoning determining Cooper, aider escape we to extend the declined robbery, constituting escape.” not the liability “the must be on the acts and abettor focus (Id. Cooper robbery, that in escape an element of is not observed escape. coincide with the asportation some circumstances will not

257 arms is as important execution of the robbery gaining possession 438; (Perhab, it.” 1165.) see 53 Cal.3d at p. Cooper, supra, p. Cooper also cited with Court of cases that theft approval holding Appeal becomes when the force or fear is used for the first time We that the asportation. explained “is not asportation phase time,” confined to a fixed in and added in a footnote: point “This reasoning cases, consistent with a line of long Court of left undisturbed Appeal court, that mere theft holding becomes if the perpetrator, having gained fear, possession without of force or property .use resorts to force or fear while (See, [Estes, carrying loot. away e.g., 147 supra,] Cal.App.3d ; . 207, 27-28 . . v. Kent pp.] People (1981) 125 [at 213 Cal.App.3d [178 Perhab, 28]; Cal.Rptr. v. People 434-436.) In Cal.App.2d pp.] [at conviction, order to the taking, either the gaining posses sion or the carrying away, must be accomplished by (See or force fear. Thus, § 211.) these cases hold that the implicitly asportation component the taking continues while the loot is carried away, does not end on slight 1165, 8, movement.” 53 Cal.3d at (Cooper, added.) fn. p. italics B. Immediate Presence

The other factor aggravating to elevate required theft to robbery is must be taken from the victim or his immediate As presence. with the duration of robbery from caption through asportation, spacial of immediate concept has presence been broadly applied. explained (1990) 874, v. People Hayes 52 Cal.3d 577 Cal.Rptr. [276 “ 1

802 P.2d (Hayes): is in the thing “[a] of a presence [immediate] person, respect reach, which robbery, is so within his inspection, control, could, observation or that he if not overcome by violence or ’ fear, prevented retain his of it.” (Id. at [Citations.]” Thus, pp. victim, “immediate is “an area presence” over which the at the time force or fear was could be said to exercise employed, some control” over his physical definition, property. “Under this be found to be in immediate property may the victim’s ‘even though house, is located in another room of the or in another on building [the] (Ibid.) premises.’ [Citations.]” (1998) v. People Frye 18 Cal.4th 183], “ ”

we noted that the or immediate ‘person presence’ requirement of section “describes spatial between the relationship victim and the victim’s and refers to the area from which the (Frye, taken.” 955-956, “Thus, citing 53 Cal.3d at Cooper, supra, decisions addressing ‘immediate presence’ have an focused on the taken located in area in which the whether have take victim could effective retain control over expected steps Harris (See, e.g., Cal.4th 422-424 property. *9 200, car outside 886 P.2d restrained in forcibly 1193] [victim v. Webster location]; People office and home while robbers looted each 411, 31, 54 Cal.3d 439-442 Cal.Rptr. [defendants car, induced victim to walk a from his then killed him and quarter-mile away car]; Hayes, 52 Cal.3d and supra, took his at 626-629 assaulted [victim v. Bauer taken]; feet office where killed 107 from motel property 632, (1966) 241 641-642 killed Cal.App.2d Cal.Rptr. 687] [defendant inside her then stole and took her car keys victim victim’s apartment, parked (Frye, at p. outside].)” 956.) Immediate During Presence

C. Asportation Anderson, 1158, Cal.3d Cal.2d Cooper, supra, As and affirm, fear” element if the comes into during “force or not play caption The the but the crime is still a raised during robbery. question asportation, arises of this case is a related one: If the “immediate element presence” facts is robbery? yes not at but is there a The answer during caption asportation, a Anderson: the articulated and is Cooper and for same reason in offense. the factors are in at time continuing aggravating play any If the from the defendant has through asportation, engaged period caption crime that from to larceny robbery. conduct elevates the simple Estes, supra, here the relied on reaching In conclusion Court Appeal retain the that the use of force or fear to Cal.App.3d proposition Estes, security a victim’s constitutes property on, rack, a and at a Sears Estes remove from clothing put store saw guard the store without The followed Estes outside leave paying. guard door, himself lot. About five feet from identified guard parking the store Estes the items Estes refused return to confronted about taken. him, to detain Estes guard When tried began walking away. pulled knife, kill it at the and threatened to him. swung guard, out a alia, could not be of robbery Estes inter that he argued, guilty On appeal, the merchan- with the because the assault was not contemporaneous “The of The Court of crime Appeal disagreed: dise from store. until the time of the original taking a offense that from continuing begins reaches of relative It is sufficient safety. the robber a place the guard retaking used force to from conviction appellant prevent crime is not divisible into series and to facilitate his escape. be each weighed step acts. Defendant’s not to guilt separate although the crime robbery, as it The events constituting unfolds. time and take some are extend over distances they may large complete, linked Whether defendant used single-mindedness purpose. [Citation.] force to or to resist to retake gain original attempts in furtherance of the guard stolen force was applied against (Estes, and can be used to the conviction.” sustain properly Cal.App.3d here,

Like defendant Estes that no occurred because the argued merchandise was not taken from the immediate security guard’s presence. The Estes Court of as well: “The evidence rejected argument Appeal establishes that resisted efforts [sic] appellant forceably security guard’s to retake used force to remove the items from immediate guard’s presence. By from control guard regaining preventing *10 merchandise, over the defendant is held to have taken the if the as property [Anderson, had guard (See actual in the first goods instance. possession supra,] .)[][]... 64 Cal.2d 633 ... A is not at the completed the moment robber obtains the stolen The crime of possession property. robbery includes the element of the robber’s with the loot asportation, escape considered being as in the commission of the crime as important gaining Anderson, Here, a occurs when property. defendant uses force or fear in to the resisting regain or in attempts property to remove the from the attempting owner’s immediate property presence regardless of the means which defendant the originally acquired property.” (Estes, supra, 27-28, added.) 147 at italics Cal.App.3d pp. Anderson,

Defendant criticizes the Estes court’s reliance on Cal.2d the that the immediate proposition presence can be the time satisfied when victim is not at the present taking. out that in Anderson the clerk He points was when the defendant laid present note, however, that Estes did not cite hands on the gun. We Anderson The Estes court observed that direct but rather extended its support, analysis. occurred in Anderson the defendant because used “force or fear in regain or in to remove the resisting attempts property attempting (Estes, immediate from the owner’s property presence.” Estes, 27-28, Likewise, added.) at italics force Cal.App.3d was used to pp. defeat the victim’s efforts to as the defendant regain property attempted court, the Estes For whether was carry away. acquired from the owner or outside his was not determinative. The peacefully presence offense, court reasoned that because robbery later use of continuing force to retain the in the victim’s renders the actions a presence robbery, means which defendant “regardless originally acquired property.” Estes’ s immediate

Defendant nevertheless asserts analysis, presence lot, based on events in the dicta because parking security guard Hayes, supra, (See watched take the in the store. 52 Cal.3d clothing Estes reasoned that the the Court of have Although Appeal might observa- immediate element was satisfied by security guard’s presence stated, store, here tions in the it did not. As the Court of Appeal “[T]he to the fact the defendant holding forcibly court its pegged [Estes] squarely that force efforts to retake the used security guard’s ‘resisted ([Estes, supra,] immediate to remove the items from the guard’s presence.’ 27.)” based on defendant’s forceful The conviction upheld while in the lot. retention of property guard’s presence parking immediate later in was followed 20 years Estes’s analysis Miller v. Court (2004) 115 Superior Cal.App.4th Miller, (Miller). into his trunks in a swimming public the victim changed outside, he he had left After a few realized restroom at beach. steps fastener, wallet, a Velcro was inside in the restroom stall. His with his pants stall, but the were He then gone. The victim returned to pants pants. stall. The victim heard the sound of Velcro in another being peered opened from his view. The victim something over the door to see Miller shielding When the victim’s to minutes for Miller to come out of the stall. waited 15 restroom, had the victim what explained happened. friend came into he return the of Miller’s stall and demanded that friend knocked on the door but was blocked by Miller tried to force his out of restroom way wallet. *11 eventually his friend. The three of them and Miller struggled the victim and (Id. 219-220.) at returned wallet. pp. the robbery denied Miller’s section motion to dismiss

The trial court denial, challenged a writ of Miller In a for charge. petition prohibition, was taken from the victim’s there was no evidence that property arguing (Miller, 220.) The Court of supra, immediate at Cal.App.4th p. presence. to the long-standing prin- “Pursuant majority rejected argument: Appeal Estes, after use of force to retain the property announced in Miller’s ciples to with get away him while he was attempting [the confronted victim] [the a robbery charge to the assertion of was sufficient money support victim’s] circumstances, ‘have reasonably could him. In such against [the victim] and thus control over his take effective to retain property’ expected steps (Id. 224.) at p. is satisfied. the immediate presence requirement [Citations.]” Estes, that the immediate concluded majority presence on Relying has initially gained after the defendant “be robbery may supplied (Miller, 224.) the victim’s p. property.” possession Cooper noted, for its discussion we cited Estes with As approval of robbery. the force and fear element regarding temporal aspect not address Estes’s fn. We did 53 Cal.3d at p. (Cooper, supra, with here and find it consistent We do so of “immediate analysis presence.” law of robbery. to the California’s approach within the definition of robbery any

Defendant argues expansion the courts. No expansion not Legislature, the exclusive purview a offense continuing described involved. California has adopting have enacted statutes specifically decades. While some jurisdictions have and other states California theory robbery,6 this continuous offense a offense.7 continuing statutes as establishing construed their existing 211, the or immediate Under the of section language phrases “person refer to the “taking” personal property. and “force or fear” both presence” either the during The force or fear element of can be satisfied caption 638; (Anderson, 64 Cal.2d at taking. or the phase asportation Estes, the immediate the same By logic, Cal.App.3d legisla element can be satisfied at No any taking. presence point amendment 211 is this conclusion. necessary tive section 548, 14 P.3d People Nguyen 24 Cal.4th 756 Nguyen, (Nguyen), relies, four on which defendant is not to the contrary. while were codefendants entered business brandishing guns employees in the lunchroom. The husband of one celebrating birthday employee The defendants took attended the celebration as a visitor to the business. business, with belonging along money computer equipment trial, identification from the At the visitor did not testify. employees. visitor, defendants their convictions for there challenged robbing arguing was insufficient evidence that had been taken from him. The any property affirmed, Court of that a need not have been in holding Appeal person taken to be the victim of a It concluded the business from the of the visitor was computers sufficient to establish a of him.

We reversed the of the Court of to the extent it affirmed judgment Appeal 211’s convictions for of the visitor. We stated section despite *12 6 84, 2007) 90], v. Moore State (Ct.App. See 374 S.C. 468 S.E.2d for an “exhaustive [649 theory” robbery by jurisdictions adopting review” therein of the “continuous offense of statute. 7See, 1170, (1997) (“The Ball v. State g., mere fact that 347 Md. 156 A.2d 1185] e. asportation perpetrator occurred before the use of force does not mean that the is some has guilty robbery. . . the use of enables the thereafter not of the offense of . ... force [When] property accused to retain of the in the face of immediate resistance from the possession victim, robbery.”); People (Colo. 1983) v. Bartowsheski talcing properly then the is considered a 235, (“The gravamen robbery application physical of of force or 244 is culminating in the against any during intimidation the victim at time the course of a transaction taking requirement There is no property person presence. of from the victim’s or [Citations.] virtually contemporaneous be with the application of force or intimidation must Kennedy (“while taking.”); Ill.App.3d 10 519 N.E.2d force, taking may robbery departure property if the with the is be without offense is force”). accomplished the use of be taken “from ‘the of express language requiring property possession ” another,’ “the Court of concluded that defendant could Appeal [erroneously] be convicted of based robbing of from upon taking [the visitor] business, whether or not had a interest over the possessory [the visitor] merchandise taken from the business.” (Nguyen, Cal.4th we observed that section 222.1 of the Model Penal Nguyen, Code avoids of interest to include the problem “by defining robbery possessory use of force or fear of a theft.” against any during the commission person 763.)8 24 Cal.4th at (Nguyen, that the language emphasized reflects, instead, California’s section 211 is different: “Section traditional that limits victims of to those in either approach persons actual or constructive of the taken. We take no possession position on which of these Our has differing approaches preferable. Legislature the traditional as reflected in the section 211. language of adopted approach, It is be desirable.” up Legislature implement any change may declined we to extend the definition of (Nguyen, Accordingly to include a forceful from the of a like the taking presence person, visitor, who had no in the taken. interest possessory

Here, that the “immediate by concluding presence” be satisfied even when the victim is not may asportation phase, time the defendant we do not present gains possession extend the Decades law have clear that of case made statutory language. offense, in California is a continuing “taking” comprising aspor- well tation as as caption.

Defendant nevertheless contends that this of section interpretation with the “In the duration conflicts following passage Cooper. determining we that commission of the robbery asportation, reject argument ends from the once the loot is removed ‘immediate necessarily presence’ from the victim. the ‘immediate comes Although language directly presence’ not to the duration of Section section does language pertain as ‘the felonious defines robbery personal property ’ another, (Italics or immediate . . . . person from added.) and from the ‘immediate are from Taking ‘person’ presence’ alternatives. These terms are rather than temporally, descriptive. spatially, or commit [f] [][] 8 the course ^[1] An act shall be deemed *13 (b) Section 222.1 of the Model Penal Code (c) threatens another with or theft or in commits committing or threatens flight after the ‘in the course of immediately theft, purposely puts attempt he: ff] or commission.” to commit provides: (a) committing him in fear of immediate serious inflicts serious “(1)... any a theft’ if it occurs felony A bodily injury upon person of the first or second guilty bodily injury; an another; attempt degree. if, or to not how taken, which it is the refer to the area

They far from limitations on scope Put another these way, taken. [Citations.] as taking component relate to the ‘gaining possession’ statute robbery supra, (Cooper, 53 Cal.3d distinct from the ‘carrying away’ component.” Cooper defendant, that the “immediate pres- demonstrates According which the perpetrator from ence” element of relates robbery only space this Defendant reads the victim’s initially gains property. a restatement of final sentence is simply too Its broadly. passage Cooper, which, no sentence, there is under the facts about preceding time dispute. Cooper which during not to limit the does purport satisfied, be as That may must be in the victim’s presence. requirement Estes, satisfied, Cooper, be as in at the moment of It also may caption. 23, during 147 Cal.App.3d asportation. Hayes, supra, relies on 52 Cal.3d argue defendant

Finally, to be satisfied the “immediate element presence” permitting renders the element devoid of and redundant meaning asportation phase Hayes Hayes the “force or fear” element. does not support proposition. rooms and left killed the of a residential hotel in one manager guest there, office and manager’s him bound with coat He then went to hangers. them, several located 107 feet and ransacked living quarters, away, conviction and cartons of and some cash. We reversed cigarettes robbery During circumstances because the was misinstructed. special finding jury of “immedi- deliberations the had asked for clarification of the jury meaning the court gave ate as used in the instruction. In response, presence” “ ‘An act can be said to have occurred in the instruction: special any act victim’s immediate as the victim overt long perceived ” 627-628, italics connected with the commission of the offense.’ added.) to find the

This instruction was erroneous because it jury “permitted mentioned in the ‘immediate if of the acts any presence’ (Hayes, victim’s definition of occurred in the general presence.” feet from the victim’s 52 Cal.3d at While the distance of 107 to have been bound or not have been found body may may jury immediate was relieved of jury within the victim’s sufficiently presence, instruction allowed them to such because making finding special conclude that the “overt act” of assault was all that was necessary Hayes, we “The count. Under the facts of concluded: particular *14 instruction thus rendered the special ‘immediate element devoid of presence’ all it redundant with independent meaning, mating the ‘force or fear’ clear, here, element.” Hayes 628.) makes as p. we affirm that “force or elements, fear” and “immediate are both presence” of which must be separate Hayes does not stand for the established to prove proposition the immediate element not be satisfied presence may A asportation. is in the victim who tries to a thief from with his stop getting away property of the presence property.9 crime

Our holding occurs when is property retained in the victim’s forcefully even when the victim was not presence, at its initial is present consistent with the caption, completely Legislature’s decision to treat as an in the aggravated larceny. Although classified Penal Code as a crime a crime against person, robbery actually against v. both the (People Tufunga, supra, person 21 Cal.4th at property. 948.) violates the social in the p. “Robbery interest safety security as well as the social interest person protection property rights.” (Perkins, 350.) supra, Both interests are when a victim p. implicated to from a it attempts regain who is even if perpetrator carrying away, the victim at the was absent time of the initial theft.

Defendant that “the law does not and citizens argues encourage vigilantism are ill in law enforcement.” Neither engage does law equipped theft, or that a encourage citizen sit while a violent felon require meekly by with the makes off victim’s “When the and victim property. perpetrator that, remain in close a reasonable if not proximity, assumption prevented so, from the victim will to reclaim his or her doing attempt property.” (People Flynn, effort Cal.App.4th reject any defendant to shift the blame to the victim. It is the conduct perpetrator theft, who resorts violence to further his and not decision of the victim to confront that should be whether a analyzed considering perpetrator, v. Ramos (1982) has occurred. As we observed in 30 Cal.3d 9 broadly, argument holding today Even viewed more defendant’s is without merit. Our does not render the “immediate element fear” presence” duplicative requirement. “force or There are in which a victim could placed subjected circumstances be in fear or to force while Hayes, beyond presence. example, is stolen from a location his immediate culprits compel we described a scenario in which enter the home and him to reveal victim’s away. culprits convey the combination of a safe located in his office miles then opens combination to a confederate in the office who the safe while the victim remains at (Hayes, Conversely, certainly distant location. 52 Cal.3d at a thief could seize resorting carry away from the victim’s immediate without ever Thus, holding today the rule that “interpretations force or fear. our does not run afoul of (People v. Hudson statutory meaningless surplusage render terms are to be avoided.” 168].) 38 Cal.4th 1010 [44 *15 the crime 266, 908], “the central

553, P.2d Cal.Rptr. 589 in order to victim to the individual or fear applied the force [is] a whether occurs of That deprivation him of his deprive property.” maintain or to possession fear to gain relies on force or perpetrator carries away him time as he for the first a who encounters victim against loot. Robbery the Evidence

D. Sufficiency find that could Here, jury from which sufficient evidence there is Baltazar’s that was in the stolen money force to retain defendant used sufficiency In resolving the force was used. when immediate presence in the claims, light the entire record court reviews “an appellate evidence evidence whether it contains to determine most favorable to the prosecution credible, value, trier of reasonable, a rational solid from which that is and of v. (People doubt.” a reasonable guilty beyond fact could find the defendant 27, 1100, 450].) (2001) 26 Cal.4th Kipp that defendant used determination The evidence the jury’s supports the immediate presence satisfies sufficiently force retain restaurant, he defendant inside While Baltazar did not confront element. in his backpack. left carrying money truck after defendant followed his followed, fired two shots he defendant realized he was being When stated, the Court of Appeal of 100 to 150 feet. As Baltazar from a distance resistance, caught up Baltazar could have not overcome by “[I]f [defendant’s] this didn’t to him .... The reason only happen [defendant]—and violent rewarded for should not be let it. pistol—didn’t [Defendant] to him. It would closer getting any Baltazar from actions prevented allow the victim you occurs if say be anomalous to certainly him, him away not if you keep with and then hit but catch up you at him.” shooting killed in which victim 52 Cal.3d the room Hayes,

In observed that the location of the stolen property. was 107 feet from instructed, fact, the immediate could conclude trier of reasonable properly Webster, (id. met. element was fact could find trier of concluded that a reasonable 54 Cal.3d we the distance between when satisfied immediate presence requirement of a mile. was a quarter and the murder scene stolen property was not so time of this shooting each other at the distance from The parties’ for defendant’s conviction as to great preclude Disposition III. judgment Court of is affirmed. Appeal J., Baxter, J., J., Chin, J., Moreno, J., C.

George, Werdegar, concurred. KENNARD, J., Concurring. I concur I write fully majority opinion. to reiterate separately my continuing disagreement with the holding *16 People Cooper Cal.3d 1158 Cal.Rptr. cited

(Cooper), decision and discussed and by majority, how explain the issue here differs from the presented issue decided in Cooper.

Cooper addressed the of for the crime of scope accomplice liability and, There, more robbery the “late specifically, joiner” defendant problem. drove his two codefendants to a Cooper center lot. shopping parking (Cooper, lot, Cal.3d at The codefendants ran across the p. parking wallet, knocked down an 89-year-old stole his and returned to shopper, (Ibid.) car. (Ibid.) drove At Cooper’s Cooper “hurriedly away.” Cooper’s trial, ensuing evidence prosecution presented an inference that supporting had in the Cooper participated and had planning agreed (Id. (dis. advance to act as the “getaway” driver. at of p. 1179 opn. Kennard, however, J.).) During argument jury, said that prosecutor the defendant was if he his codefendants guilty knowingly helped with the victim’s of whether the defendant knew escape property, regardless (Id. beforehand that his codefendants were a robbery. at planning p. Kennard, (dis. J.).) The trial court’s instructions reinforced the opn. (Id. argument. The convicted the defend prosecutor’s jury ant, (Id. and he 1163.) The Court of reversed the appealed. p. Appeal conviction, and (Ibid.) this court review. granted

The concluded that the defendant had been majority Cooper properly convicted because “a driver who has no of a getaway knowledge prior but who forms the intent to aid in the loot robbery, away carrying during [its] be found liable as an aider and abettor of the asportation, may properly 53 Cal.3d at robbery.” (Cooper, supra, with Disagreeing I out that it no either in holding, “finds pointed statutory language court,” or in the decisions of this that it “is inconsistent with the rule previous that a who aids an felon is an after the fact” rather person escaping accessory than a and “lead that would to absurd results because criminal principal, will bear little or no offender.” liability relationship culpability Kennard, (dis. J.).) views on that issue have not My opn. changed.

Here, however, the definition of but liability the issue is not accomplice been committed whether a has More the issue is specifically, when, reaching before place after another’s wrongfully taking property, of a person legally while in the immediate safety, temporary the thief uses force against person. entitled to of that properly the described offense decision majority’s in the decisions definition of prior grounded statutory results here will holding produce and the Courts of this court Appeal, I concur. Accordingly, related to the offender’s culpability. that are rationally