There was sufficient evidence of to support robbery convictions where the victims had used their ATM cards to access their bank accounts and defendants used force and intimidation to take over the transactions and withdraw money. Mullins and Russell were convicted of several counts of robbery (Pen. Code, § 211) based on evidence they pushed victims away from bank ATMs before the victims could end the transaction and subsequently withdrew large sums of money from the victims’ accounts. On appeal, appellants argued there was insufficient evidence to sustain the robbery convictions because the victims did not have possession of the money, the funds were not in the immediate presence of the victims, and there was insufficient evidence of force or fear. Held: Affirmed. Neither ownership nor physical possession is required to establish the element of possession for purposes of the robbery statute. (People v. Scott (2009) 45 Cal.4th 743, 749.) While there is authority that money in the ATMs belonged to the bank and the victims were merely creditors, that legal conclusion does not control here because the bank gave the victims access to and the right to control the money by allowing the victims to withdraw money after inserting their ATM cards. This access and right to control amounted to constructive possession for purposes of the robbery statute. Furthermore, the money was in the victims’ immediate presence because they “were in an area within which they could reasonably be expected to exercise some physical control over their property.” (People v. Hayes (1990) 52 Cal.3d 577, 627.) Appellants accomplished the robberies by force and fear by shoving the victims away from the ATMs, preventing the victims from accessing the ATMs to end their transactions, and intimidating victims who were smaller and much older than appellants. The court concluded there was sufficient evidence to sustain the robbery convictions and there was sufficient evidence that Mullins aided and abetted the robberies.
Identity theft statute did not preclude convictions for robbery because the robbery statute requires an additional element of the use of force or fear to achieve the theft. Appellants argued their convictions for robbery should be reversed because the Legislature has enacted a more specific law proscribing the use of personal identifying information for an unlawful purpose (Pen. Code, § 530.5, subd. (a)). The Court of Appeal disagreed. If a general statute includes the same conduct as a special statute, the court infers that the Legislature intended that conduct to be prosecuted exclusively under the special statute. (See In re Williamson (1954) 43 Cal.2d 651.) The Williamson rule applies when (1) each element of the general statute corresponds to an element on the face of the special statute, or (2) when it appears from the statutory context that a violation of the special statute will necessarily or commonly result in a violation of the general statute. Here, neither application of the Williamson rule applies to appellants’ convictions because (1) robbery requires force or fear whereas the identity theft statute does not; and (2) violations of the identity theft statute will not commonly result in violation of the robbery statute for the same reasonrobbery requires proof that force or fear was used.
Trial court did not err when it modified the standard jury instruction on robbery by adding accurate statements of law related to force and immediate presence. At the prosecution’s request, the trial court modified the standard instruction on robbery (CALCRIM No. 1600) by adding that the jury may consider the victim and defendant’s physical characteristics to determine if force was used and that property is taken from the victim’s immediate presence if the victim leaves the vicinity of the property out of fear. On appeal, appellants did not argue that these were incorrect statements of law but rather that the statements were argumentative and highlighted the facts favorable to the prosecution. The Court of Appeal disagreed. Jury instructions should not relate particular facts to a legal issue. An instruction is argumentative when it is “of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence.” (People v. Campos (2007) 156 Cal.App.4th 1228, 1244.) The court distinguished the modified instruction in this case from the instruction in People v. Hunter (2011) 202 Cal.App.4th 261, concluding that the trial court here merely informed the jury that it could “consider” the physical characteristics of the defendants and the victims to determine whether force was used and it set forth the legal principle for the jury to apply to the facts. Even if the instruction as modified was argumentative, the evidence strongly indicated that appellants intentionally used force to gain advantage over their smaller victims, and any error was harmless.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/C079295.PDF
