Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS in mandate. L.A.S.C. No. NA082369, Judith L. Meyer, Judge.
Michael P. Judge, Public Defender, Albert J. Menaster, Natasha Khamashta and Robert J. Hill, Deputy Public Defenders for Petitioner.
No appearance for Respondent.
Steve Cooley, District Attorney, Irene Wakabayashi and Cassandra Hart-Franklin, Deputy District Attorneys, for Real Party in Interest.
OPINION AND ORDER GRANTING PEREMPTORY WRIT OF MANDATE
We hold that the elements of robbery have not been satisfied where the force used by the defendant was not used against the owner of the property, but against the property owner’s friend, who had no authority or responsibility to protect the stolen property on behalf of the owner. Accordingly, we conclude that the robbery count should have been dismissed.
As there is not a plain, speedy and adequate remedy at law, and in view of the fact that the issuance of an alternative writ would add nothing to the presentation already made, we deem this to be a proper case for the issuance of a peremptory writ of mandate “in the first instance.” (Code Civ. Proc., § l088.) Opposition was requested and the parties were notified of the court’s intention to issue a peremptory writ. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 180.)
FACTS
At the July 1, 2009 preliminary hearing, Phillip Victor testified that he was at a donut shop with his friend Fran Moore. Moore and Victor have met at the donut shop regularly. Moore’s car keys were on top of the table at which the pair was sitting. Victor saw, through the window, Kalfin walk back and forth on the sidewalk in front of the shop for “15, 20 minutes.” Kalfin entered the donut shop and grabbed Moore’s car keys off the table. Victor followed Kalfin out the door and grabbed Kalfin by the shirt, demanding that Kalfin return the keys. Kalfin told Victor that he needed a car. Kalfin swung at Victor and then threw the keys on the ground. After Kalfin left, Victor discovered a scratch on his arm.
Kalfin was charged with one count of robbery and one count of petty theft with priors. The magistrate (Hon. Judith L. Meyer) ordered Kalfin be bound over for trial.
On July 16, a three-count information was filed. In addition to the two charges already alleged against him (second degree robbery as to Victor and petty theft as to Moore), Kalfin was also charged with the attempted carjacking of Moore.
On August 18, Kalfin moved to set aside the information.
On August 27, the People amended the information to add two counts: assault against Victor with force likely to produce great bodily injury and second degree commercial burglary of the donut shop. It was further alleged that Kalfin had one prior.
On September 2, Kalfin was arraigned. That same day, the superior court granted Kalfin’s motion to dismiss the counts of attempted carjacking and second degree commercial burglary of the donut shop. The superior court denied the motion as to the robbery count.
DISCUSSION
Where the friend of a property owner attempts to retrieve the personal property stolen from the property owner, and the thief “takes a swing” at the friend, there has been no taking from the property owner by force or fear. A friend, unlike a parent or employee of a property owner, has no authority or responsibility to protect the stolen property on behalf of the property owner. Thus, while there has been a theft from the owner of the property, there has been no 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.” (Pen. Code, § 211.) “Robbery is, therefore, ‘“‘a species of aggravated larceny.’”’ [Citation.] Theft by larceny may be committed without force or the threat of violence and may be completed without the victim ever being present. [Citation.] To elevate larceny to robbery, the taking must be accomplished by force or fear and the property must be taken from the victim or in his presence. [Fn. omitted.]” (People v. Gomez (2008) 43 Cal.4th 249, 254.)
“A person from whose immediate presence property was taken by force or fear is not a robbery victim unless, additionally, he or she was in some sense in possession of the property. (People v. Scott (2009) 45 Cal.4th 743, 749.) “For constructive possession, courts have required that the alleged victim of a robbery have a ‘special relationship’ with the owner of the property such that the victim had authority or responsibility to protect the stolen property on behalf of the owner.” (People v. Scott, supra, 45 Cal.4th at p. 750.) Security guards have a special relationship with the companies that hire them to protect property. (People v. Miller (1977) 18 Cal.3d 873, 880.) Employees on duty have a special relationship with their employers and constructive possession of the employers’ property in their care. (See, e.g., People v. Scott, supra, 45 Cal.4th at p. 749; People v. Gilbeaux (2003) 111 Cal.App.4th 515, 523.) Parents of adult children who share a residence with the adult child also have a special relationship to protect the property of the adult child. (People v. DeFrance (2008) 167 Cal.App.4th 486, 497; People v. Gordon (1982) 136 Cal.App.3d 519, 529.)
Husbands of employees do not have that special relationship. (People v. Nguyen (2000) 24 Cal.4th 756, 765.) Roommates do not have that special relationship. (People v. Ugalino (2009) 174 Cal.App.4th 1060, 1064–1065.) Neither do friends.
DISPOSITION
THEREFORE, let a peremptory writ issue, commanding respondent superior court to vacate its order of September 2, 2009, denying the motion to set aside count 1 of the information, the charge of robbery, and to issue a new and different order granting same, in Los Angeles Superior Court case No. NA082369, entitled People v. Richard L. Kalfin.
THE COURT:
MALLANO, P.J. ROTHSCHILD, J. CHANEY, J.