"While walking down the street, Victim has his pockets picked by Defendant, thereby losing a wallet that contains $1500 in cash. Defendant is guilty of:
A. Felony theft
B. Felony robbery
C. Both (A) and (B).
D. Neither (A) nor (B)."
The correct answer is (A), right? It's a felony because the theft is over $950. And it's a theft, not robbery, because robbery requires that the theft (which is a lesser included offense) be accomplished by means of force or fear, which didn't occur here.
Now let's slightly change the hypo. Same fact pattern, but Victim is aware that his pocket is being picked, despite Defendant's attempt to do so secretly. Victim is triple Defendant's size, so Victim could easily resist the theft were they to attempt to do so. But unbeknownst to Defendant, due to a childhood trauma, Victim is intensely fearful of anyone wearing a red fez hat, which Defendant happens to have on, so Victim does not resist the pickpocket.
What now? Simple theft, or is it now robbery?
I think the answer is fairly clearly that it's still only theft. Yes, the fear that Victim had was a but for cause of the successful theft. But Defendant didn't intend that fear, nor is such fear an objectively likely outcome of the circumstances of the offense. So no robbery.
Yet today's opinion from the Court of Appeal appears to say that, nope, this latter hypothetical would indeed constitute robbery.
I think that's wrong.
I don't disagree with the outcome of the actual case, in which the defendant enters two different banks, gives the victims a note each time that demands $5000 with a warning "Don't play," and the tellers in both banks give him the cash and testify that they did so because they feared he had a weapon or would otherwise hurt them if they resisted. I agree with Justice Huffman that the elements of robbery are met in such a setting, in my view because (1) the victim was in fact in fear (a subjective test), and (2) the circumstances surrounding the taking are such that a reasonable person might in fact harbor such fear as a result -- an objective test.
But today's opinion seems to entirely eliminate this second prong, and instead hold that all that matters is the victim's state of subjective fear. The opinion says:
"Gefrerer also argues “the contents of the note, ‘don’t play’ can
reasonably be interpreted not as a threat but as an indication of a serious
invocation of the ‘hand it over’ policy.” We disagree that this was a
reasonable interpretation of the note and that this point would be relevant.
There is no evidence that Gefrerer was aware of the bank’s policy, let alone
that he sought to invoke it. And if such evidence did exist, it is the subjective
fear of the victim, not the existence of intent to cause fear by the perpetrator,
that is relevant. (People v. Anderson (2011) 51 Cal.4th 989, 995; Bordelon,
supra, 162 Cal.App.4th at p. 1319.) Here, both victims testified as to their
subjective fear caused by the threating note."
The second part of that paragraph seems wrong to me -- or, at a minimum, inartfully worded and thus misleading. Yes, the subjective existence of fear is relevant to the first prong. But the second prong of the robbery test is satisfied only if either (1) the perpetrator intended to cause fear (and thus had the requisite subjective mens rea), or (2) notwithstanding the lack of such intent, the circumstances of the offense would objectively engender such fear, notwithstanding the defendants' (unreasonable) failure to anticipate such a result. So "evidence [that fear] did exist" is necessary, but not sufficient, for robbery; in addition to this subjective state of affairs, fear needs to be either a subjective intent or objective result.
Otherwise, the fez hypothetical is robbery too. So too would walking up to a person and politely saying "Could you please donate $10 for UNICEF?" if the person you're talking to, unbeknownst to you, for some reason thinks that UNICEF is a terrorist organization and that your puffy jacket is actually filled with explosives that you intend to detonate if the requested donation is not made.
It seems to me critical to make clear the objective part of the test, and that subjective fear alone most definitely does not suffice to turn theft into robbery. Particularly where, as here, the objective test is satisfied, it seems to me wrong to say (or inartfully imply) that it is only "the subjective fear of the victim . . . that is relevant." You gotta meet the objective test as well.
