Element of Fear in Robbery Cases - Penal Code 212 PC
Robbery is a felony offense in California that is punishable by up to 9 years in prison, possibly longer if sentencing enhancements apply.
But by California law, one element that distinguishes the crime of robbery is the element of fear, defined in Penal Code 212 PC as the "fear of an immediate and unlawful injury." This element of fear differentiates robbery from other crimes of theft, such as burglary or petty theft.
In California, Penal Code 211 PC defines the crime of robbery as "the felonious taking of personal property in possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear."
Thus, to convict someone of robbery in California, the prosecution must prove that the defendant took property from another person and that they did so by force or fear. If the prosecution has no compelling evidence that force or fear existed, the charges may be downgraded to a lesser offense—and in some cases, dismissed completely.
Penal Code 212 PC says, “the fear Section 211 may be either (1) the fear of an unlawful injury to the person or property of the person robbed, or of any relative of their family, or (2) The fear of an immediate and unlawful injury to someone or property of anyone in the company of the person robbed at the time of the robbery.”
In the context of robbery, the perpetrator places the victim in fear if they cause them to fear that some injury will occur to themselves or a family member, damage to their property, or that some injury will happen to someone at their company or their personal property.
Of importance is that the victim's feeling of fear has to be reasonable for a defendant to be convicted of robbery, which the judge determines.
A perpetrator can cause anxiety in committing a robbery by displaying a deadly weapon or using threats of harm or death, among other ways. Let's review this state-level law further below.
Penal Code 212 PC Explained
The fear factor in a robbery crime, according to PC 212, must be such that the alleged victim fears any/all of the following:
- Imminent injury to themselves or their property;
- Imminent injury to the person or property of anyone else who is with the victim at the time of the robbery; or
- Imminent injury to the person or property of any of the victim's relatives or family members.
Effectively, this means there has to be a measure of threatening within the act of theft, such that the victim fears they or someone else will be hurt if they don't give up the object being taken, for it to be considered robbery in California. Examples of instilling fear include:
- Verbal threats (i.e., actually threatening to harm someone);
- Brandishing a deadly weapon;
- Using force (physically pushing/pulling someone);
- Doing harm to someone else in front of them (as proof of your intentions)
- Holding the victim against their will.
Two Degrees of Robbery and Their Penalties
Robbery is always charged as a felony offense. Beyond the basic definition of robbery (i.e., taking something by force or fear from another person), California also recognizes two degrees of severity when it comes to robbery:
You can be charged with first-degree robbery in any of the following situations:
- The robbery takes place inside an inhabited dwelling (e.g., house, apartment, trailer)—meaning a home where someone stores their belongings and sleeps;
- The robbery occurred near an ATM the alleged victim used or had just used;
- The alleged victim is a driver or a passenger of a mode of transportation for hire (e.g., bus, taxi, subway, etc.).
The penalties for first-degree robbery are typically 6 to 9 years in state prison.
However, suppose great bodily injury occurs as a result of the robbery. In that case, there's a penalty enhancement of an additional six years—and since robbery counts as a "strike" under the state's Three Strikes Law, if a robbery conviction is your third strike, the penalty is 25 years to life.
All other instances of a robbery that don't meet the above criteria are charged as second-degree robbery. The penalty for a conviction is up to 5 years in state prison. However, the same possible sentencing enhancements imposed on first-degree robbery may also apply.
What Are the Related Crimes of Theft?
Suppose your attorney succeeds in disproving the element of fear in your robbery charges. In that case, it may be sufficient to get the case dismissed—or in some cases, it may result in downgraded charges to a different type of theft with lesser penalties. These may include, but are not limited to:
- Petty theft, defined under Penal Code 484 PC is taking someone's property valued at $950 or less;
- Grand theft, defined under Penal Code 487 PC is taking someone's property valued at $950 or more;
- Grand theft auto, defined under Penal Code 487(d)(1), is taking someone's vehicle that is valued at $950 or more:
- Burglary, defined under Penal Code 459 PC, is entering a commercial or residential building intending to steal;
How Can You Disprove the Element of Fear?
The use of force or fear continually defines robbery. Suppose there is no evidence that you used physical force to commit the crime.
In that case, prosecutors are left with proving the element of fear—namely, that you made the victim fearful for their safety, the safety of their family, or those with them. Some common ways a defense attorney may attempt to disprove this element are discussed below.
Perhaps we can argue that the victim's fear was unreasonable. You can't be convicted just because the alleged victim expressed fear; your actions must have been such that a reasonable person would have been made fearful by them.
If the attorney can show the victim was inordinately afraid, this may be enough to cast reasonable doubt on the fear factor.
Perhaps we can argue that you did nothing to incite fear. For example, if you snuck up behind the person, took the object, and ran before they knew what was happening, they couldn't have had time to process fear of imminent danger.
Contact our law firm to review the case details and legal options if you were accused of robbery. Eisner Gorin LLP is located in Los Angeles, California. You can contact us for a case consultation by phone or fill out the contact form.