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Name: People v. Gomez
Case #: S140612
Court: CA Supreme Court
District CalSup
Opinion Date: 04/10/2008

Attempt to use force while fleeing with property is robbery. Gomez entered the victim’s restaurant when the victim was not present and pried open and took money from the ATM in the lobby. The victim entered and saw Gomez, who fled. The victim followed Gomez, hoping to help police find him. While he was pursuing Gomez, Gomez fired two shots at the victim. Gomez drove away, and was arrested a short time later with money from the ATM in his backpack. He was convicted of second degree robbery and commercial burglary. On appeal, Gomez argued that there was insufficient evidence of robbery because the victim was not present when he took the money. The appellate court rejected the argument, finding that under People v. Estes (1983) 147 Cal.App.3d 23, Gomez’s use of force to retain the stolen property was sufficient. The California Supreme Court affirmed. A robbery is not completed the moment the robber obtains possession of the stolen property. The crime of robbery includes the element of asportation, including the escape. The force or fear element of robbery can be satisfied during either the “caption” (achieving possession of the property), or the asportation phase of the taking. By the same logic, the immediate presence element can be satisfied at any point during the taking. The evidence here supported the jury’s determination that Gomez used force to retain the property.