Defendant could not be convicted of both first degree residential robbery and home invasion robbery based on the same act because residential robbery is a lesser included offense. A jury convicted the defendant of five counts of first degree residential robbery (Pen. Code, § 211) and five counts of home invasion robbery (Pen. Code, § 211). Each home invasion robbery count included an allegation that defendant and three other men acted in concert and entered an inhabited dwelling house during the commission of the robbery (Pen. Code, § 213, subd. (a)(1)(A)). The evidence at trial showed that the defendant and the other men entered a home where five family members were present and took property by force and threats of violence. On appeal, he argued that the five counts of first degree residential robbery must be vacated because they were not separate offenses from the five counts of home invasion robbery. Held: First degree residential robbery counts reversed. Multiple convictions may not be based on necessarily included offenses based on one criminal act. An offense is necessarily included within another if the statutory elements of the greater offense include all the elements of the lesser offense. Home invasion robbery has all of the elements of first degree residential robbery, with the additional element that it was done in concert with one or more other people. It does not create a separate offense. Therefore, all five of the first degree residential robbery convictions must be reversed, as they were merely lesser included offenses of the home invasion robbery offenses.

There was sufficient evidence to support defendant’s conviction for robbing homeowner’s daughter, who had constructive possession of the property that was taken based on her “special relationship” with the property owners. Defendant also argued that there was insufficient evidence to support his conviction for robbing the homeowners’ daughter, who was 15 years old and did not have any property physically taken from her. The Court of Appeal disagreed. Any person who has constructive possession of any property taken may be a victim of a robbery if force or fear is applied to such person. Two or more persons may be in joint constructive possession of a single item of personal property. Constructive possession requires only that there be some type of special relationship with the owner of the property sufficient to demonstrate the victim had authority or responsibility to protect the stolen property on behalf of the owner. Substantial evidence supported the determination that the daughter constructively possessed the stolen property under the special relationship doctrine. Aside from living in the home and being subjected to force and fear in order to prevent her from interfering with the robbery, her familial relationship with the owners of the property (her parents and siblings) is a special relationship within the meaning of Civil Code section 50, which provides that any necessary force may be used to protect from wrongful injury the property of a spouse, child, parent, or other relative, or member of one’s family. As a result, the daughter constructively possessed the property of her immediate family members.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/B279767.PDF