PEOPLE v. BRIGHTWELL (1980)

OPINION

Appellant Brightwell (Brightwell) was convicted of robbery (count one), and attempted robbery (count two). He appeals the conviction of count one contending that there is not substantial evidence to support the robbery conviction and that at best the conviction as to count one should have been attempted robbery. The facts are these:

On October 16, 1978, Mr. and Mrs. Cavanna were in their jewelry store in Modesto. At about 12:15 in the afternoon Brightwell entered their store. The Cavannas were the only people in the shop when Brightwell entered. The first thing Brightwell did upon entering the store was to walk up to the counter where Mr. Cavanna was standing and put a canvas bag on the counter top. Brightwell said, “Norman, I want you to take this bag back to the safe and fill it up or your daughter is in grave danger.” Mr. Cavanna was also told, “When you pick up the bag to go to the safe don't push any buttons.” Mr. Cavanna was frightened.

Mrs. Cavanna was by the safe door at the far end of the counter in the back of the store. The counters in the store are in a U—shape. Brightwell was about two to two and a half feet from Mr. Cavanna, right across the counter.

Mr. Cavanna walked back to the safe and pretended to fill up the sack. Mr. Cavanna picked up a revolver and hiding the gun with the sack, came back towards the counter. Mr. Cavanna dropped the sack and told Brightwell to “freeze.” Brightwell put his hands on the counter.

Mrs. Cavanna testified that she and her husband were alone in the store and she heard Brightwell come in and say, “Norman, take this bag to the safe and fill it up or otherwise your daughter is in grave danger.” She “peeped out from the safe” and saw Brightwell. She pushed the shop's silent alarm button. Mrs. Cavanna was frightened: She felt like she had a “steel gray ball” in her stomach.

Mrs. Cavanna had a check and three twenty—dollars bills in her hand. She laid the money on the counter, stood there, and turned her palms upward. Brightwell noticed but did not pick up the money. He did take a step in the direction of the money. Brightwell was about 12 feet from Mrs. Cavanna. Presumably, the counter was between Mrs. Cavanna and Brightwell so the money was somewhat closer. While Mrs. Cavanna was putting the money on the counter, Mr. Cavanna was walking towards the safe. It was at this point that Brightwell said, “Don't push any buttons.”

Brightwell admitted going into the jewelry store to purchase a Christmas present. He denied any intent to rob the Cavannas. When he asked to look at ladies watches and necklaces, Mr. Cavanna went to a display case and pulled out a pistol. He denied knowing that Mrs. Cavanna had placed money on the counter.

The court, after reviewing the evidence, explicitly stated that it believed Mr. and Mrs. Cavanna and opined that Brightwell's story was “totally incredible.”

Brightwell argues that his conviction for robbery of Mrs. Cavanna must be reversed because there is insufficient evidence of asportation and possession by Brightwell. We disagree.

Penal Code section 211 provides:

“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.”

Literally read the statute only requires caption and not asportation. Conceptually, such a conclusion would also be consistent with the ancient law where robbery and larceny were considered separate offenses (Perkins on Criminal Law (2d ed. 1969) p. 280). The crime of violence, robbery, was created before that of larceny (LaFave & Scott, Handbook on Criminal Law (1972) p. 692, fn. 1).¹ In any event caption and asportation have been blended together in the law by decisional gloss through the years and robbery has come to be a combination of assault and larceny (see 1 Witkin, Cal.Crimes (1963) § 430, p. 398; CALJIC No. 9.10).² Consequently, it is settled that asportation is part of the corpus of a robbery in California (People v. Anderson (1966) 64 Cal.2d 633, 638, 51 Cal.Rptr. 238, 414 P.2d 366; People v. Price (1972) 25 Cal.App.3d 576, 578-579, 102 Cal.Rptr. 71; People v. Martinez (1969) 274 Cal.App.2d 170, 174, 79 Cal.Rptr. 18; People v. Beghtel (1958) 164 Cal.App.2d 294, 297, 230 P.2d 444; People v. Wellman (1956) 141 Cal.App.2d 101, 104, 296 P.2d 82; People v. Quinn (1947) 77 Cal.App.2d 734, 737, 176 P.2d 404; People v. Melendrez (1938) 25 Cal.App.2d 490, 494, 77 P.2d 870; People v. Raucho (1935) 8 Cal.App.2d 655, 664, 47 P.2d 1108).

“A carrying away, or removal, by the robber is not required to establish an asportation; an asportation has taken place when the robber transfers money or goods from the victim's control to his own. [Citation.] It is immaterial whether the transfer is done by the robber himself or by another person, even by the victim, acting at the robber's direction. [citations].” (Commonwealth v. Flowers (1973) 1 Mass.App. 415, 298 N.E.2d 898, 901; see also People v. Alexander (1969) 17 Mich.App. 30, 169 N.W.2d 190, 191; People v. Price, supra, 25 Cal.App.3d at p. 578-579, 102 Cal.Rptr. 71.)

The crime of robbery is complete³ when the robber has exclusive dominion and control over the personal property of the victim. The robber need not reduce the property to his manual possession (People v. Martinez, supra, 274 Cal.App.2d at p. 174, 79 Cal.Rptr. 18). “A taking of possession away from the victim and into the control of the taker is sufficient.” (People v. Quinn, supra, 77 Cal.App.2d at p. 737, 176 P.2d 404.) It is sufficient if the robber had the power to reduce the property to manual possession even though exercise of that power by the robber be prevented by some intervening act.

Whether or not the robber has exclusive dominion and control over the property is essentially a question of fact in each individual case. The factual situations run the gamut from cases where there is actual manual possession, such as People v. Carroll (1970) 1 Cal.3d 581, 83 Cal.Rptr. 176, 463 P.2d 400 (where the accused's taking of the victim's wallet constituted robbery even though the accused discarded the wallet as soon as he discovered that it was empty) and the case of the clumsy robber, People v. Beal (1934) 3 Cal.App.2d 251, 39 P.2d 504, (in which the accused had actual possession of a bag of money but fell in the process of escape and was captured) to cases such as People v. Wellman, supra, 141 Cal.App.2d 101, 296 P.2d 82 (where the accused ordered a bartender to place money on the counter and the accused proceeded to “fan out” the bills and the “fanning out” motion was deemed to be sufficient asportation).

After careful consideration of all the circumstances we conclude that the elements of robbery are present in the instant case. While the record does not show that Brightwell ever specifically directed any remarks to Mrs. Cavanna, we believe that it is reasonable to conclude (considering the relatively small area of the store, the physical arrangement, the proximity to each other of Mrs. Cavanna and Brightwell, the act of Mrs. Cavanna in turning up her palms, and the awareness by Mrs. Cavanna of the “weapon” held by Brightwell (she described her feelings as “… I had like a steel gray ball in the center of my stomach”)), an explicit demand by Brightwell for the property from Mrs. Cavanna was not required to satisfy the caption element of the crime of robbery. The placing of the money on the counter in front of Brightwell was sufficient to meet the asportation element of robbery.

The money was taken from the customary place where it was kept by the owner. Dominion and control had been transferred from the owner to the thief: Control had been surrendered by the the owner. The trier of fact could reasonably infer that the step taken by Brightwell was a movement toward the money and toward manually picking up that money. Brightwell had dominion and control over the money to the effective exclusion of others. The facts here are very similar to People v. Smith (1971) 132 Ill.App.2d 911, 270 N.E.2d 136 (published in abstract only) in which the court held that evidence, including evidence that defendant, while armed, forced a bartender to place money and whiskey on the bar, was sufficient to establish robbery, although the defendant chose to leave the property on the bar for a time and was arrested before he touched the property. We agree with the holding in Smith.

There was substantial evidence to support the conviction of robbery.

Brightwell contends that Penal Code sections 2900.5 and 4019 entitle him to good—time/work—time credits for presentence custody. The Supreme Court decision in People v. Sage (1980) 26 Cal.3d 498, modified 27 Cal.3d 144a, 165 Cal.Rptr. 280, 611 P.2d 874 [as modified] holds that equal protection compels such conduct credits.

The judgment is affirmed. The Department of Corrections is directed to determine the presentence conduct credits to which appellant is entitled upon appellant's application for administrative determination of such credits.

FOOTNOTES

1.  Historically the concept of robbery began with a concern for crimes of violence. Then the criminal law expanded via the ancient quasi criminal writ of trespass to cover larceny (see Model Penal Code, Tentative Draft No. 1 (1953) Appendix A, pp. 101-106, Article 206 for the chronology). Robbery and mere theft were also distinguished in the early law by the fact that robbery was a plea of the crown while theft was a plea of the sheriff (2 Holdsworth, A History of English Law (4th ed. 1936; reprinted 1966) p. 359. As pointed out in 2 Pollock and Maitland (2d ed. 1959 reprint by Lawyers Literary Guild), History of English Law, pp. 493-494: “In later times robbery is regarded as an aggravated kind of theft. In old law the two crimes are kept apart; the one is the open, the other the secret crime ․” This difference was still felt in the 13th century when Bracton borrowed from the Institutes a definition of larceny. In England today by virtue of the Theft Act of 1968 the common law crimes of larceny and robbery have been abolished (see 11 Halsbury, Laws of England (4th ed. 1976) par. 1261) but stealing remains an essential ingredient of the statutory crime (see ibid. par. 1273). Even in this century it has been held that asportation is not necessary to the crime of robbery and the crime is consummated upon the forcible taking of the property (2 Wharton's Criminal Law (12th ed. 1932), § 1086, fn. 14, citing People v. Campbell (1908) 234 Ill. 391, 84 N.E. 1035). That is to be contrasted with Blackstone's characterization of robbery as being open and violent larceny from the person (4 Blackstone, p. 241) and compared to the Rapina of the civilians (Rapina was aggravated furtum—theft with violence (see Inst. 4, 2)).

2.  The elements of caption and asportation continue to be stated in some works in the disjunctive rather than the conjunctive. (See e. g., 77 C.J.S., Robbery, § 3, p. 450 stating black letter law: “… it is necessary that there be a taking or asportation …” (emphasis added).) The discussion in that section seems to view these elements as interchangeable.)

3.  We recognize that the word “complete” may be used in a different sense (i. e., the idea of “continuing” until a place of safety is reached) when felony murder is charged and robbery is the underlying felony (see e. g., People v. Anderson, supra, 64 Cal.2d 633, 638, 51 Cal.Rptr. 238, 414 P.2d 366; see also People v. Carroll (1970) 1 Cal.3d 581, 585, 8 Cal.Rptr. 176, 463 P.2d 400.)

HOPPER, Associate Justice.

GEO. A. BROWN, P. J., and ANDREEN, J., concur.