Where defendant impersonated a police officer and stole money from victims, there was insufficient evidence of fear, but the evidence of force was sufficient to support robbery convictions. Montalvo and a female associate, Ortega, posed as undercover officers to commit robberies. In one, using fake guns and badges, the defendants took money from a couple in a motel. In another, pretending to be on a prostitution sting operation, they took property from a man who had solicited Ortega for sex. Montalvo was convicted of the robberies and other crimes. On appeal he argued the victims complied with his demands because they believed he was a police officer and thus, there was insufficient evidence of force or fear to sustain the convictions. Held: Affirmed. Robbery is the felonious taking of personal property from the person of another, against his will, by means of force or fear. To prove fear, the evidence must show the victim was in fact afraid of unlawful injury to self, a family member or another in the victim’s company, or to property, and that the fear facilitated the defendant’s taking of the property. To prove force, the evidence must show the force was actually sufficient to overcome the victim’s resistance and must be force in excess of that necessary to merely take the property. Here, the evidence did not show the victims were afraid. Without more, a defendant’s representation he was a police officer is insufficient to instill fear sufficient to support a robbery conviction. However, there was sufficient force to support the robbery conviction. In one incident, Montalvo put a victim against a wall and searched him, taking his money. In the other incident, the victim was put on the hood of his car and “frisked” before his money was taken.

The Williamson rule did not require the prosecution to charge defendant under more specific statutes (false personation, theft by false pretense) instead of the general statute (robbery) where the specific statutes do not cover defendant’s conduct. Montalvo argued the Legislature enacted more specific statutes, Penal Code sections 530 (false personation) and 532 (theft by false pretense) for punishing the conduct in which he engaged. Generally, where a general statute proscribes the same conduct as a specific statute, the specific statute controls and prosecution under the general statute is precluded (the “Williamson rule”; In re Williamson (1954) 43 Cal.2d 651). This rule applies when (1) each element of the general statute corresponds to an element in the specific statute, or (2) when it appears from the statutory context that violation of the specific statute will necessarily result in a violation of the general statute. A predicate to the application of the rule is that defendant’s conduct fits the elements of the more specific statute. That is not the case here. Montalvo did not receive property via false personation, he took it. Nor did he obtain the property via a consensual transfer induced by false pretenses, he took the property. Thus, his prosecution for robbery was not preempted.

The full opinion is available on the court’s website here: https://www.courts.ca.gov/opinions/archive/C078115.PDF