One spouse may be convicted of robbery for the forcible taking of community property from the other spouse based on a temporary taking theory. Defendant forcibly took his wife’s cell phone from her to prevent her from calling police while he was assaulting her. A jury convicted him of the second degree robbery of his wife (Pen. Code, § 211), and misdemeanor battery (Pen. Code, § 243, subd. (e)(1)). On appeal he challenged the robbery conviction because the cell phone was community property. Held: Affirmed. In People v. Llamas (1997) 51 Cal.App.4th 1729, the court held that one spouse may be held liable for the theft of community property. But the court also held that a spouse who takes a community property vehicle with the intent to temporarily deprive the other spouse of its use does not violate Vehicle Code section 10851 because the crime does not exceed the taking spouse’s right to the property. Further, Llamas reasoned that, for social policy reasons, such a taking is properly viewed as a domestic rather than a criminal matter. However, Llamas does not apply to the offense of robbery for the taking of community property based on a temporary taking theory. Robbery is the felonious taking of personal property in the possession of another, from her person or immediate presence, by force or fear. The intent may be either to permanently deprive the owner of the property or to deprive her of possession temporarily, but for an unreasonable time so as to deprive the person of a major portion of the property’s value or enjoyment. As applied to a spouse’s taking of community property this intent “exceeds the defendant’s rights to the property and offends the ownership and possessory interest of his or her spouse in the community property [citation], because the intent is to unreasonably deprive the other spouse of major attributes of ownership.” Unlike in Llamas, no social policy is furthered by treating robbery by one spouse from another as a domestic rather than criminal matter.

The trial court did not err in failing to instruct the jury on the principles of community and separate property. “Because the defendant spouse’s intent is determinative, informing the jury of principles of separate and community property is superfluous. If the prosecution proves the mens rea element of robbery, it also proves that the defendant spouse took property not his or her own.”

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B261243.PDF