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Name: People v. Frazer
Case #: D037855
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 03/07/2003
Subsequent History: Rev. denied 5/21/03

Appellant was convicted of eight counts of robbery based on the robbery of two stores where eight employees were present. The jury was given a standard instruction defining the elements of robbery (including possession and immediate presence) and a special instruction stating an employee need not have the stolen property “in their immediate control and possession.” On appeal, he argued that the special instruction removed the elements of possession and immediate presence from the definition of robbery, the jury was not presented with the theory of constructive possession needed to support the convictions based on the nonmanagerial employees, and that even if the jury was presented with the theory of constructive possession, there was insufficient evidence of constructive possession by those six employees. The appellate court here rejected the arguments. First, reasonably intelligent jurors would understand that “immediate presence” refers to the location of the employee in relation to the property, and not the control of the property. Second, although the trial court should have defined constructive possession for the jury, any error in this regard was harmless because the instructions given adequately instructed them that the employees can possess their employer’s property even if they are not immediately handling it. Finally, there was sufficient evidence that the employees worked together as a retail team and therefore had constructive possession over the money which was stolen.