stating, "'[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation, or control, that he could, if not overcome by violence or prevented by fear, retain his 19 possession of it'"
How later courts described this case
- stating, "'[a] thing is in the [immediate] presence of a person, in respect to robbery, which is so within his reach, inspection, observation, or control, that he could, if not overcome by violence or prevented by fear, retain his 19 possession of it'"
- conc. & dis. opn. of Broussard, J.
- conc. & dis. opn. of Kennard, J.
- cone. & dis. opn. of Broussard, J.
Written by the judges who cited it.
The opinion
KENNARD, J.
Concurring and Dissenting. I concur in the judgment. I cannot agree, however, with the majority’s treatment of the “immediate presence” element of robbery, and therefore write separately.
Penal Code section 211, defining the crime of robbery, requires that property be taken from the person or immediate presence of the victim through the use of force or fear. In People v. Hayes (1990) 52 Cal.3d 577, 627 [ 276 Cal.Rptr. 874 , 802 P.2d 376 ], we held that “immediate presence” means “an area over which the victim, at the time force or fear was employed, could be said to exercise some physical control.”
In this case the evidence, viewed in the light most favorable to the prosecution (People v. Johnson (1980) 26 Cal.3d 557, 576 [ 162 Cal.Rptr. 431 , 606 P.2d 738 , 16 A.L.R.4th 1255 ]), showed that at the time of the attack the victim was approximately one-quarter mile from his car, and was walking down a narrow trail single file with defendant and two others. The majority sets forth two reasons why, in its view, the immediate presence requirement of robbery was met in this case. Neither is convincing.
First, the majority reasons that “[t]he jury could . . . reasonably infer that but for defendant’s attack, [the victim’s] relative proximity would have allowed him to take effective physical steps to retain control of the vehicle . . . .” (Maj. opn., ante, at p. 440.) This reasoning is unpersuasive.
In effect, the majority substitutes a concept of relative proximity to the stolen property for the statutory element of immediate presence. The defect in the majority’s reasoning can be best understood by hypothesizing that at the time of the attack the victim and his attackers were not one-quarter mile but two miles from the car. The majority’s reasoning would be equally *469 applicable to that situation, since one could reasonably infer that but for the attack the victim’s “relative proximity” would have enabled him to take effective physical steps to retain control of the vehicle. Yet it cannot be rationally argued that a car two miles from its driver is within the driver’s “immediate presence,” that is, in an area in which the driver could exercise physical control over the vehicle.
Still another example reveals the defects of the majority’s approach. Let us assume that the victim and defendant had merely decided to go for a walk, and that a third party stole the car from the lot where it was parked when the victim was a quarter-mile away. The victim, who was walking away from the car and down a narrow trail with defendant at the time of the theft, would not have known the car was gone until he returned. In other words, in all probability the car would not have been within the victim’s sensory perception at the time it was taken. If the “immediate presence” requirement of the robbery statute is not tested by sensory perception, however, then it is difficult to see what it means. For instance, defendant and his companions could have walked with the victim not a quarter-mile, but a mile, or three miles, or five, and apparently the immediate presence requirement would still be met under the majority’s approach. The majority’s “relative proximity” theory thus nullifies the statutory requirement of immediate presence.
Second, the majority finds the immediate presence requirement of the robbery statute satisfied on a “luring away” theory. Under the majority’s approach, robbery is committed when the defendant “uses peaceful means to move the victim away from a place where the victim could physically protect the property, then employs force or fear upon the victim in order to make good the theft or escape.” (Maj. opn., ante, at pp. 441-442.)
This approach presumes that the elements of robbery can occur over a theoretically limitless time span. But less than 10 months ago, the members of this court unanimously agreed that the term immediate presence means “an area over which the victim, at the time force or fear was employed, could be said to exercise some physical control.” (People v. Hayes, supra, 52 Cal.3d at p. 627, italics added.) The majority’s conclusion in this case—that a defendant who lures the victim away from the immediate presence of the property, then employs force or fear, can be guilty of robbery—directly conflicts with this unambiguous language from our recent decision in Hayes .
The majority correctly finds that the evidence supports a conclusion that the key to the victim’s car was taken from his person by means of force or fear. But because, as the majority observes, we cannot be certain under the *470 circumstances of this case that the jury based its robbery finding on the taking of the key and not the car, this rationale alone cannot support the robbery special circumstance. (See People v. Green (1980) 27 Cal.3d 1, 70 [ 164 Cal.Rptr. 1 , 609 P.2d 468 ].) Accordingly, I would strike the robbery special circumstance, and affirm the death verdict in this case based solely on the lying-in-wait special circumstance.
Appellant’s petition for a rehearing was denied November 20, 1991. Mosk, J., was of the opinion that the petition should be granted.