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Name: People v. Gomez
Case #: G034752
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 12/14/2005
Subsequent History: Rev. Granted 3/22/06: S140612

Appellant broke into a restaurant and took money from an ATM inside the restaurant. When the restaurant manager entered, he heard appellant and went back outside to call 911. Appellant fled. When he realized the manager was following him in a car, he fired two gunshots at him. He was convicted of burglary and second degree robbery. On appeal, he argued that there was insufficient evidence to support the robbery because the manager was not present when appellant took the money. The appellate court disagreed and affirmed. A robbery occurs when a defendant uses force or fear in resisting attempts to regain the property or in attempting to remove the property from the owner’s presence. The immediate presence requirement need not be satisfied at the time of the initial taking. It does not matter whether force or fear is used in the asportation phase. Here, appellant used force to retain the stolen money and remove it from the manager’s presence, and the distance between him and the manager did not preclude the conviction for robbery.