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When is Robbery First vs. Second Degree in California?

Posted by Neil Shouse | Jun 17, 2019 | 0 Comments

potential robbery of a car

Robbery is divided into first-degree robbery and second-degree robbery in California (Penal Code 212.5). First degree robbery is committed when the victim is:

  • the driver or passenger of certain fare earning vehicles;
  • robbed while located in a residence, inhabited vessel, trailer coach, or building;
  • using or just used an ATM machine.

Second degree robbery is any other kind of robbery that is not listed as first degree.

The required elements of robbery are:

  • the felonious taking of personal property,
  • in the possession of another,
  • from his or her person or immediate presence,
  • against his or her will,
  • by means of force or fear.

First degree robbery is punishable by imprisonment in the state prison for

  • three, four, or six years.

Please note that first degree robbery committed in concert with two or more persons has increased penalties. It is punishable by imprisonment in state prison for:

  • three, six, or nine years.

Second degree robbery is punishable by imprisonment in state prison for:

  • two, three, or five years.

A variety of defenses to robbery charges can be raised by an experienced criminal defense attorney. For example:

  • the accused was taking back his or her own property,
  • mistaken identity,
  • there is insufficient evidence,
  • the accused was intoxicated,
  • the rights of the accused were violated.

How Does First Degree Robbery Differ from Second Degree Robbery?

Of critical importance when distinguishing between first and second-degree robbery is:

  • where the person was when they were robbed,
  • what type of vehicle or building the victim may have been in at the time of the robbery,
  • whether the robber had accomplices (including drivers).

To prove that the accused is guilty of robbery the prosecutor must show that:

  1. The accused took property that was not his or her own;
  2. The property was in the possession of another person;
  3. The property was taken from the other person's immediate presence;
  4. The property was taken against that person's will;
  5. The accused used force or fear to take the property, or to prevent the person from resisting;
  6. When the accused used force or fear he or she intended to permanently deprive the owner of the property.

For first degree robbery, in addition to those things, the prosecutor must specifically prove that the person robbed:

  • was working as the driver of, or was a passenger on, a bus, taxi, cable car, streetcar, trackless trolley, or other kind of vehicle used to transport people; or
  • was in an inhabited dwelling, vessel, floating home, trailer coach, or part of a building; or
  • was using or had just used an ATM machine and was still near the machine.

Second degree robbery is any other kind of robbery not listed as first degree.

Please note that fear is a necessary element of any robbery charge. It could be:

  • fear of an unlawful injury to the person, or property, of the person robbed,
  • fear of injury to any relative, family member, or others present.

Are there Different Penalties for First Degree and Second Degree Robbery?

Yes. The punishment for first degree robbery is greater than second degree robbery.

First degree robbery is punishable by imprisonment in the state prison for:

  • three, four, or six years.

Further, first degree robbery committed in concert with two or more other persons is punishable by imprisonment in the state prison for:

  • three, six, or nine years.

Second degree robbery is punishable by imprisonment in the state prison for

  • two, three, or five years.

If the accused personally uses a firearm in the commission of a robbery a 10–year enhancement could be added to any sentence.

First and second-degree robbery are considered serious and violent felonies under California's Three Strikes Law.

What are some examples of Robbery under California Penal Code 211?

Example: John points a gun at Bill and says, “give me your wallet.” Bill does so, but when John opens the wallet he sees it's empty. He gives it back to John. John is guilty of armed robbery.

Example: John is standing behind Bill in a store when he sees Bill drop his wallet on the floor. John grabs the wallet and runs out of the store. John is guilty of theft, not robbery.

Are there Legal Defenses to Robbery Charges?

Yes, an experienced criminal defense attorney can raise numerous defenses to a robbery charge in California, including:

  • The accused was taking back his or her own property,
  • Mistaken identity,
  • Insufficient evidence,
  • The accused was intoxicated,
  • The rights of the accused were violated.

What's the Difference Between Carjacking and Robbery?

There are several differences between robbery and carjacking (Penal Code 215).

  • robbery requires an intent to permanently deprive while carjacking can be to temporarily deprive;
  • robbery requires taking from the person/presence of the possessor while carjacking can include any passenger;
  • robbery can involve any type of personal property while carjacking involves only vehicles.

The penalty for carjacking is imprisonment in the state prison for a term of:

  • three, five, or nine years.

Please note that the district attorney can file a separate carjacking charge for each occupant of a carjacked vehicle.

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.

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