Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F06633
NICHOLSON, Acting P. J.
Convicted by jury of several counts of robbery, defendant contends that the evidence was insufficient to sustain the verdict as to one of the counts because one of his victims was not in constructive possession of her employer’s property. We affirm because the employee was in constructive possession of her employer’s property as a matter of law.
BACKGROUND
In 2004, defendant committed robberies at three different businesses: Taco Bell, Gunther’s Ice Cream, and Subway. His argument on appeal concerns the Taco Bell crimes only.
On April 11, 2004, four Taco Bell employees were working behind the counter: Gloria Sanchez (a cashier), Shirleen Nand (the assistant manager), Jose Noriega (a cashier), and Lourdes Solario (whose job description was not given at trial). Defendant entered the restaurant wearing a ski mask and brandishing a gun. As Solario and Sanchez fled to the back of the restaurant, defendant pointed the gun at Nand and demanded money. She opened the cash register. Defendant took some cash and ran.
A jury convicted defendant of eight counts of robbery with use of a firearm and one count of firearm possession by a felon, and defendant admitted four prior serious felony convictions. (Pen. Code, §§ 211; 667, subds. (a)-(i); 12021, subd. (a)(1); 12022.53, subd. (b).) The trial court sentenced defendant to a determinate term of 45 years and a consecutive indeterminate term of 100 years to life in state prison.
DISCUSSION
Defendant contends that the evidence was insufficient to support the jury’s conclusion that Solario constructively possessed the property of her employer, Taco Bell. We disagree.
When defendant entered Taco Bell, wearing a ski mask, and approached the counter, Solario was behind the counter. She reacted to defendant’s approach by fleeing to the back of the restaurant and hiding there. Defendant pointed the gun at Nand, who opened the register. Defendant took cash from the register and left. Other than the fact of her employment by Taco Bell and her presence behind the counter when defendant entered, there was no evidence concerning Solario’s duties at the restaurant.
“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.) “[A]n essential element of the crime of robbery is that property be taken from the possession of the victim.” (People v. Nguyen (2000) 24 Cal.4th 756, 762.) However, the possession requirement may be satisfied by constructive, rather than actual, possession. (Id. at p. 761.)
There are two conflicting views concerning whether an employee who is not in actual possession of the employer’s property constructively possesses that property. Some cases have held that “business employees -- whatever their function -- have sufficient representative capacity to their employer so as to be in possession of property stolen from the business owner.” (People v. Jones (2000) 82 Cal.App.4th 485, 491 (Jones); People v. Gilbeaux (2003) 111 Cal.App.4th 515, 521.) Another view is that the court must engage in “a fact-based inquiry regarding constructive possession by an employee victim . . . . [T]he proper standard to determine whether a robbery conviction can be sustained as to an employee who does not have actual possession of the stolen property is whether the circumstances indicate the employee has sufficient representative capacity with respect to the owner of the property, so as to have express or implied authority over the property.” (People v. Frazer (2003) 106 Cal.App.4th 1105, 1115 (Frazer).)
The California Supreme Court has granted a petition for review to resolve this conflict of authority. (People v. Scott (S136498).)
In our opinion, the Frazer fact-based standard is vague and unworkable. Though Frazer speaks of “indicia of express or implied authority,” it does not explain how a court can identify such “indicia” or apply them to particular facts. It merely cites two cases in which employees were found to have such authority. (Frazer, supra, 106 Cal.App.4th at p. 1115.) Nor does Frazer explain why the facts of employee status and on-duty presence on the premises during a robbery are not sufficient to support a finding of possession. (Ibid.)
On the other hand, the Jones per se standard is clear and is firmly based on precedent. Even though Jones goes beyond prior cases in stating as a matter of law that business employees have constructive possession of their employers’ property, it correctly concludes that virtually all the prior cases’ holdings are consistent with such a rule and logically imply it. (Jones, supra, 82 Cal.App.4th at pp. 490-492.)
Accordingly, since Solario was an employee of Taco Bell, on duty and behind the counter at the time of the robbery, she was in constructive possession of Taco Bell’s property -- namely, the cash -- when defendant took it by means of force or fear. The evidence was sufficient to sustain the conviction for robbery on the Solario count.
DISPOSITION
The judgment is affirmed.
I concur: CANTIL-SAKAUYE, J.
Morrison, J.
I respectfully dissent.
The Legislature has defined robbery in relevant part as the taking of property “in the possession of another.” (Pen. Code, § 211.) Thus, as to each count alleging a separate victim, the People must persuade the jury beyond a reasonable doubt that the property was taken from that victim’s “possession.”
Holding that all employees of a business necessarily “possess” all of the business’s property amounts to an improper mandatory presumption that an element of the crime (possession) flows from the predicate fact that each victim was an employee of the business. (See People v. McCall (2004) 32 Cal.4th 175, 182-187 [discussing mandatory presumptions].)
In the past a business robbery would be charged in a single count, regardless of the number of employees present, because only a single taking took place. However, People v. Ramos (1982) 30 Cal.3d 553 (revd. on other grounds sub nom. California v. Ramos (1983) 463 U.S. 992 [77 L.Ed.2d 1171]), held (at pp. 587-589) that a single taking of property jointly possessed by two victims constitutes two robberies. The custom then arose to charge as many robbery counts as there were individuals in joint possession—actual or constructive—of the property. (See People v. Frazer (2003) 106 Cal.App.4th 1105, 1112-1113 (Frazer).)
But the California Supreme Court has emphasized that there must be evidence showing possession by each named victim. (See People v. Nguyen (2000) 24 Cal.4th 756, 761-764.)
Put another way, each count must be evaluated on its facts:
“[T]he proper standard to determine whether a robbery conviction can be sustained as to an employee who does not have actual possession of the stolen property is whether the circumstances indicate the employee has sufficient representative capacity with respect to the owner of the property, so as to have express or implied authority over the property. Under this standard, employee status does not alone as a matter of law establish constructive possession. Rather, the record must show indicia of express or implied authority under the particular circumstances of the case. To illustrate, a janitor may well be deemed to have implied authority if all other employees who handle the cash are gone. [Citation.] On the other hand, by virtue of his job title charging him with guarding the premises, a security guard may be deemed to have authority even when other employees who handle the property are present.” (Frazer, supra, 106 Cal.App.4th at p. 1115, italics added.)
As the majority states, some authorities hold or imply that the fact of employment suffices of itself to show a person has constructive possession of the business’s property. (See People v. Jones (2000) 82 Cal.App.4th 485, 490-492.) The California Supreme Court has granted review in a case decided by a panel of this court which adopted that view. (People v. Scott, S136498.) I was a member of the appellate panel in that case, but on reconsidering the issue, I now believe I was wrong for the reasons stated above.
In this case defendant argues as follows:
“The only evidence concerning . . . Solario was that she was standing next to Ms. Sanchez when the robbery began, and that she started panicking and took off to the back of the store. . . . There was no evidence of Ms. Solario’s duties or responsibilities, and nothing to show that she had access to or authority for the cash registers, or that she interacted with customers.
“In the absence of facts demonstrating that [Solario] had implied or express authority over the property of the business, there was no substantial evidence that [Solario] had either the actual or constructive possession of the property of the business that is an essential element of robbery.”
There is no evidence of Solario’s job title or duties, only evidence that she was behind the counter and that she went to the back of the restaurant out of fear caused by defendant’s display of a gun. Contrary to the People’s assertion, there is no evidence that she was part of a “retail team.” (Cf. Frazer, supra, 106 Cal.App.4th at pp. 1119-1120.)
Accordingly, there was no substantial evidence that she was in possession of the money taken from her coworkers and owned by the business.