What fear in the victim is necessary for an act to be a robbery and not a theft?

People v. Montalvo, 2019 WL 2537611 (Cal.App. 3 Dist.), 1 (Cal.App. 3 Dist., 2019)

Did a man a woman posing as undercover police officers who took property from their victims commit a robbery?

The California Court of Appeal examined this issue in a case where a defendant and a female associate, posing as undercover police officers committed two robberies. They took money from a couple at a hotel and in another instance, under the ruse of conducting a prostitution sting operation they stole money from their victim. Defendant was arrested in a hotel room where police recovered rock cocaine and a glass smoking pipe.

Defendant was convicted of various crimes including robbery in the first degree (Pen. Code, §§ 211, 212.5, subd. (a))1 and robbery in the second degree (§§ 211, 212.5, subd. (c)). After striking one of two prior serious felony conviction allegations, the trial court sentenced defendant to a determinate term of 25 years in state prison and a consecutive one-year term in county jail.

Defendant argued on appeal that: (1) the evidence was legally insufficient to prove the “accomplished by means of force or fear” element of robbery; (2) in the alternative, his robbery convictions should be vacated because his conduct constituted violations of more specific statutes, obtaining money by false impersonation and false pretenses (§§ 530, 532), and thus a prosecution for robbery was preempted under the rule in In re Williamson (1954) 43 Cal.2d 651, 276 P.2d 593 (Williamson) (the Williamson rule);

What is a robbery?

Robbery is ‘the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.’ ” (People v. Williams (2013) 57 Cal.4th 776, 781, quoting Penal Code § 211.

Theft is the felonious taking, carrying, stealing, leading, or driving away of the personal property of another, or the appropriation of property, labor or money by fraudulent means. (§ 484.)

The greater offense of robbery includes all of the elements of theft, with the additional element of a taking by force or fear. (People v. Whalen (2013) 56 Cal.4th 1, 69, 152

The Fear Element

“The fear mentioned in Section 211 may be either:
1. The fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family; or
2. The fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.” (§ 212.)

1. “To establish a robbery was committed by means of fear, the prosecution ‘must present evidence “that the victim was in fact afraid, and that such fear allowed the crime to be accomplished.” ’ ” (People v. Morehead (2011) 191 Cal.App.4th 765, 772. Thus, the fear element is subjective in nature. (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1319.

No cases on impersonating a police officer and fear requirement of robbery

The State did not cite a single case in which a defendant’s representation that he or she was a police officer, without more, was sufficient to instill fear sufficient to support a robbery conviction. The Court also could locate no case dealing with this face part term through its own research. The Court reasoned that while an encounter with a supposed police officer might be frightening, this alone does not establish that any fear the victim suffered was fear of an injury. To prove the element of fear here, the prosecution was required to establish that the victim was placed in actual fear of injury.