Error and/or relief
We reverse one of the two counts of robbery for insufficient evidence. The matter is remanded for resentencing.
First Holding:
The defendant and his accomplices broke into a house. The defendant pointed a gun at the homeowner, while one of the accomplices pointed a gun at a sleeping child. They took property and fled. The jury convicted the defendant of two counts of robbery.
Section 211 defines robbery as 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.
Authority:
PEN 211
Second Holding:
Because the child slept through the entire act, there is insufficient evidence to support a conviction of robbing that child. In cases where the victim’s lack of resistance or unconsciousness is not due to the defendant surreptitiously drugging the victim, but due to the victim’s own actions, the legal authorities and courts of this and other states have found the force element lacking when the defendant takes property from an unconscious victim.
In cases where the evidence showed the defendant took property from a person who was voluntarily asleep or unconscious from drinking, the courts have held the evidence did not support a robbery conviction.
Authority:
People v. Kelley (1990) 220 Cal.App.3d 1358, 1368–1369
People v. Russell (1953) 118 Cal.App.2d 136, 138–139 [theft from drunk, robbery conviction reversed]
Hicks v. State (1974) 232 Ga. 393 [theft from sleeping person; armed robbery conviction reversed]
People v. Jones (1919) 290 Ill. 603 [pickpocket of drunk, robbery conviction reversed]
Hall v. People (1898) 171 Ill. 540 [theft from unconscious drunk, robbery conviction reversed]
Bowling v. Commonwealth (Ky. 1952) 253 S.W.2d 21 [theft from unconscious drunk, robbery conviction reversed]
State v. Cohen (1978) 60 Ohio App.2d 182 [theft from sleeping person, robbery conviction reversed]
People v. Flynn (1984) 123 Misc.2d 1021 [475 N.Y.S.2d 334, 337] [Such activities as rolling a drunk, picking a pocket or snatching a purse from an unsuspecting and unresisting victim may properly bring forth a felony count of larceny from the person; but, because of the lack of physical force involved, these actions will not support any robbery charge.]
Marks v. State (1940) 69 Okla. Crim. 330 [noting the force or fear element is missing when the theft is from one who is helplessly drunk]
Third Holding:
This rule does not apply to carjacking, however, under the rationale expressed in Hill. Unlike robbery, carjacking is more a crime against a person than against property.
Authority:
People v. Hill (2000) 23 Cal.4th 853, 860