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People v. Smith (Cal. Ct. App. - Sept. 29, 2009)

By Shaun Martin

Can you rob yourself? Yes you can.

Or, more precisely, you can be convicted of robbery even if the owner of the property is in on it. At least if, while you're "robbing" the owner, you "take" the property from employees who don't know that the whole thing's an inside job. Since the employees "possessed" the property (even though it was owned by the owner), you deprived these people of their possessory interest by force, and hence are guilty of robbery.

I understand the reasoning. But it's controversial. For example, say that I loan my car to Y, who drives it to her work. Under Justice Ruvolo's theory, if X, with my permission, goes and takes the car back from Y, without Y knowing that I told X it's okay, this is robbery. But I was entitled to revoke my gift, right? I could clearly do it directly. Why can't I do it through X? Is Y really under an obligation to explain it to X under penalty of a (very severe) robbery conviction? This seems, at a minimum, a little strange.

Another problem. Imagine I tell Y to take my watch to his work, and he does so and puts it on his office desk. I decide I want it back, and so tell my wife to go to the office and retrieve it. My wife goes to Y's office, but Y is at lunch. But my wife notices my watch on Y desk and takes it. I know this isn't robbery since there's no "force and fear". But under Ruvolo's theory, isn't this at least theft? After all, I've deprived Y of his possessory and uses interest, and Y never knew I consented to the taking (and presumably freaked out when he noticed the missing watch). It's nonetheless absurd to hold that my wife could be convicted of theft -- and yet the California theft statutes use the exact same "felonious taking . . ." language that Ruvolo interprets and applies here. So it seems like he's got to hold that my wife's gulity under his view, which casts his whole interpretive/possessory use principle in serious doubt.

One last problem. There are about a million California cases that say that theft is a lesser included offense of robbery. But if Smith's guilty and my wife isn't, then theft is not a lesser included offense, since Smith would be guilty since he used forced but wouldn't be guilty if he didn't use force. And that has major consequences for the routine robbery/theft cases that percolate through the system.

I think that Justice Ruvolo has to deal with these issues, and the opinion doesn't. So even beyond the facially counterintuitive principle that one can be convicted of helping an owner to steal something that he already owns, there are additional -- deeper -- problems here as well.

Could Smith be convicted of, say, conspiracy to engage in insurance fraud (since the owner was in on the deal to get the insurance money)? Of course. But robbery? That's a lot tougher. An issue that raises a lot of very important questions -- both in this case and elsewhere -- that need to be addressed before I think anyone can be persuaded that Smith's in fact guilty here.

Full post as published by California Appellate Report on September 30, 2009 (boomark / email).