U.P. (In re U.P.)

This case is not covered by Casetext's citator
G052805 (Cal. Ct. App. Jun. 13, 2017)



In re U.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. U.P., Defendant and Appellant.

William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. DL035932) OPINION Appeal from a judgment of the Superior Court of Orange County, Fred W. Slaughter, Judge. Affirmed. William G. Holzer, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

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U.P. was adjudged a ward of the court under Welfare and Institutions Code section 602, based on findings he committed two counts of second degree robbery. (Penal Code §§ 211, and 212.5.) He argues the judgment must be reversed because there was no evidence he relied on force or fear in the taking of any goods; instead, he resorted to force only after he had already exited a Kohl's department store wearing stolen clothing, but was then forced to back up into the store by the store's loss prevention officers.

All further statutory references are to the Penal Code, unless otherwise indicated. --------

U.P. recognizes the juvenile court relied upon case law—which he identifies specifically as People v. Estes (1983) 147 Cal.App.3d 23 (Estes)—in concluding his taking of the goods (and thus the robbery) would not be completed until he had reached a place of temporary safety with them. U.P. also acknowledges that under that rule, the force he resorted to after being accosted by the loss prevention officers would qualify his conduct as a robbery.

However, U.P. contends Estes was wrongly decided because it improperly expanded the scope of robbery beyond the language of section 211. He argues that under the proper interpretation of section 211, his "taking" of the goods was completed when he exited the store, and thus any force he employed after that point would be irrelevant.

We cannot agree. Our Supreme Court has embraced the same interpretation of robbery relied upon in Estes, and we are bound by its pronouncement. We consequently affirm the judgment.


In September 2015, U.P. was seen entering a dressing room in a Kohl's store with some jeans. After a few minutes he left the dressing room, apparently without the jeans, and when the dressing room was checked shortly thereafter, no jeans were found. A Kohl's loss prevention officer suspected U.P. was wearing the jeans under his pants.

When U.P. walked outside the store without paying for anything at the register, he was confronted by two loss prevention officers and asked to return to the store. U.P. backed up into the store, while insisting he would not come back and he did not have anything. He then became belligerent, and balled his hands into fists. One of the officers grabbed U.P.'s shirt, and the two officers moved him toward a wall as part of an effort to take him into a back office.

U.P. then pushed both of the loss prevention officers, one on the chest and the other on the stomach. He was thereafter arrested by a police officer and found to be wearing one extra shirt and two extra pairs of pants, with merchandise tags still attached. He also possessed a device used for the removal of store sensors.

Based upon the incident at Kohl's, the district attorney filed a petition asking that U.P. be declared a ward of the juvenile court pursuant to Welfare and Institutions Code section 602. The petition alleged U.P.'s conduct at Kohl's equated to two counts of second degree robbery.

Following a hearing, the juvenile court found the allegations of the petition to be true, and declared U.P. a ward of the court. The court ordered he be committed to juvenile hall, or other appropriate facility, for 90 days, with credit for 40 days previously served. Following that commitment, U.P. was to be released on probation and into the custody of his parents.


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."

U.P.'s sole contention on appeal is that section 211, properly interpreted, confines the "taking" in a robbery to the initial act of gaining possession of property, and does not include any subsequent efforts to retain the property. Under that interpretation, the crime of robbery would be committed only when that initial act of gaining possession of the property was accomplished by means of force or fear. Thus, U.P. reasons that any force used after the thief has obtained possession of the property—e.g., to retain possession or escape capture—would be irrelevant in establishing the commission of a robbery. And since the only force he used in this case came after he had obtained possession of the clothing and stepped outside of Kohl's, U.P. claims his conduct did not amount to a robbery.

U.P. acknowledges that Estes, a case relied upon by the juvenile court, states "[t]he crime of robbery is a continuous offense that begins from the time of the original taking until the robber reaches a place of relative safety" (Estes, supra, 147 Cal.App.3d at p. 28), but he argues the case is wrongly decided and ignores the common law roots of section 211.

We cannot agree. The question of whether the crime of robbery under California law is completed when the thief obtains possession of the stolen goods, or instead continues until the defendant has reached a place of temporary safety with those goods, is not open to debate in our intermediate courts of appeal.

In People v. Cooper (1991) 53 Cal.3d 1158 (Cooper), our Supreme Court expressly endorsed the latter rule: "The taking element of robbery itself has two necessary elements, gaining possession of the victim's property and asporting or carrying away the loot. [Citation.] Thus, in determining the duration of a robbery's commission we must necessarily focus on the duration of the final element of the robbery, asportation. [¶] Although, for purposes of establishing guilt, the asportation requirement is initially satisfied by evidence of slight movement [citation], asportation is not confined to a fixed point in time. The asportation continues thereafter as long as the loot is being carried away to a place of temporary safety." (Id. at p. 1165, fn. omitted, italics added.)

Under the principle of stare decisis, we are bound by the decisions of the Supreme Court. (Auto Equity Sales. Inc. v. Superior Court of Santa Clara County (1962) 57 Cal.2d 450, 455.) We consequently reject U.P.'s suggestion that we declare the analysis in Estes, which mirrors that of the Supreme Court in Cooper, to be erroneous.


The judgment is affirmed.