CO 18-4-301. Robbery

CO 18-4-301. Robbery

State: Colorado

Colorado Revised (C.R.S.) 2016

TITLE 18. CRIMINAL CODE

ARTICLE 4. OFFENSES AGAINST PROPERTY

PART 3. ROBBER

18-4-301. Robbery

(1) A person who knowingly takes anything of value from the person or presence of another by the use of force, threats, or intimidation commits robbery.

(2) Robbery is a class 4 felony.

HISTORY: Source: L. 71: R&RE, p. 427, § 1. C.R.S. 1963: § 40-4-301.L. 77: (1) amended, p. 963, § 22, effective July 1.

Editor’s note: This title was numbered as chapter 40, C.R.S. 1963. The substantive provisions of this title were repealed and reenacted in 1971, resulting in the addition, relocation, and elimination of sections as well as subject matter. For amendments to this title prior to 1971, consult the Colorado statutory research explanatory note beginning on page vii in the front of this volume. For a detailed comparison of this title, see the comparative tables located in the back of the index.

Editor’s note: This title was repealed and reenacted in 1971. For historical information concerning the repeal and reenactment, see the editor’s note following the title heading.

ANNOTATION

I. General Consideration.
II. Elements of Offense.
III. Trial and Prosecution.
A. Indictment and Information.
B. Defenses.
C. Evidence.
D. Instructions.
IV. Verdict and Sentence.

I.GENERAL CONSIDERATION.

Law reviews. For article, “Recent Judicial Modification of Habitual Criminal Act”, see 23 Dicta 84 (1946). For comment on People v. Gallegos (130 Colo. 232, 274 P.2d 608 (1954)), see 27 Rocky Mt. L. Rev. 247 (1955). For article, “One Year Review of Criminal Law and Procedure”, see 39 Dicta 81 (1962). For article, “Mens Rea and the Colorado Criminal Code”, see 52 U. Colo. L. Rev. 167 (1981).

Annotator’s note. (1) Since § 18-4-301 is similar to former § 40-5-1, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

(2) Annotations appearing below from cases prior to 1979 were decided under the version of this section in effect prior to the 1977 amendment, which inserted “knowingly” preceding “takes anything of value”.

This section is not unconstitutional. It does not contain ambiguities that would trap or ensnare the unwary, and it also complies with the equal protection clause of the fourteenth amendment of the U.S. constitution inasmuch as the legislative classification of the crimes of robbery is neither arbitrary nor discriminatory and operates equally on all persons within the classification. People v. Small, 177 Colo. 118, 493 P.2d 15 (1972).

Felony murder based on robbery precludes conviction for robbery. The defendant’s conviction of the greater offense of felony murder, predicated as it is upon his killing of the robbery victim, precludes his simultaneous conviction of the lesser included offense of robbery. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

Robbery conviction not precluded by conviction for murder of another after deliberation. Although a separate judgment of conviction for robbery may not simultaneously exist with a judgment of conviction for first degree murder predicated upon the killing of the robbery victim, there is no such impediment to the entry of both a judgment of conviction for first degree murder based upon the killing of another after deliberation and a separate judgment of conviction for the robbery of the same victim. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983).

“Robbery” in felony murder provision used in generic sense. The term “robbery”, as used in the felony murder statute, is to be construed as meaning this type of felony in its generic sense, including all types of robbery as defined in the statutes. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff’d, 662 P.2d 1066 (Colo. 1983).

Where defendant was convicted of reckless manslaughter, robbery, and felony murder, appellate court could choose to give effect to the jury’s finding that the defendant acted knowingly in committing a robbery and that a death occurred in the course of the robbery. The court could appropriately vacate the jury’s finding of reckless manslaughter conviction. People v. Jones, 990 P.2d 1098 (Colo. App. 1999).

Any resulting death from robbery supports felony murder conviction. Any death that results in the course of any type of robbery may serve as a basis for a felony murder conviction, and all such types of robbery are necessarily merged in a felony murder charge. People v. Raymer, 626 P.2d 705 (Colo. App. 1980), aff’d, 662 P.2d 1066 (Colo. 1983).

“Aggravated” and “simple” robbery are but two degrees of the same offense. The former requires that the perpetrator have the intent, if resisted, to kill, maim, or wound the victim. The latter offense does not require this intent. Atwood v. People, 176 Colo. 183, 489 P.2d 1305 (1971).

Simple robbery is a lesser included offense within the charge of aggravated robbery. Hampton v. People, 171 Colo. 101, 465 P.2d 112 (1970); People v. Bartsch, 37 Colo. App. 52, 543 P.2d 1273 (1975).

Aggravated robbery distinguished. The essential difference between simple robbery and that form of aggravated robbery requiring the culpability element of “knowingly” is that the latter offense requires the defendant to “knowingly” put the person robbed or any other person in reasonable fear of death or bodily injury by the use of force, threats or intimidation with a deadly weapon. People v. Aragon, 653 P.2d 715 (Colo. 1982).

Simple robbery and aggravated robbery both require intent to rob. People v. Trujillo, 184 Colo. 387, 524 P.2d 1379 (1974).

Merger doctrine inapplicable to convictions for kidnapping, assault, and robbery. The merger doctrine does not apply to a single transaction resulting in convictions under § § 18-3-301 (1)(a) and 18-3-402 and this section. People v. Bridges, 199 Colo. 520, 612 P.2d 1110 (1980).

Attempted robbery lesser included crime of aggravated robbery. Attempted robbery without the element of the specific intent, if resisted, to kill, maim, or wound is a lesser included offense of aggravated robbery which requires the specific intent, if resisted, to kill, maim, or wound. People v. Trujillo, 184 Colo. 387, 524 P.2d 1379 (1974).

Third degree assault not included offense. Third degree assault requires proof of bodily injury, an element not necessary to culpability under robbery, and therefore, the former offense is not included within the latter. People v. Flores, 39 Colo. App. 556, 575 P.2d 11 (1977).

Theft is not lesser included offense of robbery. People v. Moore, 184 Colo. 110, 518 P.2d 944 (1974).

Theft by threat is not lesser offense included in robbery. Schott v. People, 174 Colo. 15, 482 P.2d 101 (1971); Maes v. People, 178 Colo. 46, 494 P.2d 1290 (1972).

Attempted robbery is not a lesser included offense of use of a stun gun. People v. Bass, 155 P.3d 547 (Colo. App. 2006).

Applied in Martinez v. Tinsley, 142 Colo. 495, 351 P.2d 879 (1960); People v. Morgan, 189 Colo. 256, 539 P.2d 130 (1975), overruled in Villafranca v. People, 194 Colo. 472, 573 P.2d 540 (1978); People v. Lobato, 192 Colo. 357, 559 P.2d 224 (1977); People v. Maes, 43 Colo. App. 426, 607 P.2d 1028 (1979); People v. Brown, 622 P.2d 109 (Colo. App. 1980); Smith v. District Court, 629 P.2d 1055 (Colo. 1981); People v. Martinez, 634 P.2d 26 (Colo. 1981); People v. Johnson, 634 P.2d 407 (Colo. 1981); People v. Shaw, 646 P.2d 375 (Colo. 1982); People v. Thompson, 655 P.2d 416 (Colo. 1982); People v. Bridges, 662 P.2d 161 (Colo. 1983); People v. Derrera, 667 P.2d 1363 (Colo. 1983); People v. Ward, 673 P.2d 47 (Colo. App. 1983); People v. Marquez, 692 P.2d 1089 (Colo. 1984).

II.ELEMENTS OF OFFENSE.

A threat is defined as a declaration of purpose or intention to work injury to the person, property, or rights of another by the commission of an unlawful act. Schott v. People, 174 Colo. 15, 482 P.2d 101 (1971).

The gravamen of the offense is the manner of the taking. In robbery, the kind and value of the property taken is not material, and the gravamen of the offense being the manner of the taking. Rowan v. People, 93 Colo. 473, 26 P.2d 1066 (1933); Sterling v. People, 151 Colo. 127, 376 P.2d 676 (1962), cert. denied, 373 U.S. 944, 83 S. Ct. 1554, 10 L. Ed. 2d 699 (1963).

The gravamen of robbery is the application of physical force or intimidation against the victim at any time during the course of a transaction culminating in the taking of property from the victim’s person or presence. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Villalobos, 159 P.3d 624 (Colo. App. 2006).

Force or fear being the main elements of the offense. Rowan v. People, 93 Colo. 473, 26 P.2d 1066 (1933); People v. Thomas, 181 Colo. 317, 509 P.2d 592 (1973).

The gist of the crime of simple robbery is the putting in fear and taking of property of another by force or intimidation. People v. Small, 177 Colo. 118, 493 P.2d 15 (1972); People v. Jenkins, 198 Colo. 347, 599 P.2d 912 (1979).

The robbery statutes endorse the basic public policy that even rightful owners should not be permitted to use force to regain their property, once it has been taken. People v. Scearce, 87 P.3d 228 (Colo. App. 2003).

The intent to steal is a substantive element in the commission of the crime of robbery. People v. Gallegos, 130 Colo. 232, 274 P.2d 608 (1954) (overruled in People v. Moseley, 193 Colo. 256, 566 P.2d 331 (1977)).

And the taking of property under a fair claim of right of possession does not constitute robbery. People v. Gallegos, 130 Colo. 232, 274 P.2d 608 (1954).

As when a creditor takes money from his debtor in satisfaction of an obligation, even though in so doing he uses force or intimidation, it cannot be regarded as robbery. People v. Gallegos, 130 Colo. 232, 274 P.2d 608 (1954).

Property is taken from the “presence of another” when it is so within the victim’s reach, inspection or observation that he or she would be able to retain control over the property but for the force, threats, or intimidation directed by the perpetrator against the victim. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Benton, 829 P. 2d 451 (Colo. App. 1991); People v. Fox, 928 P.2d 820 (Colo. App. 1996); People v. Villalobos, 159 P.3d 624 (Colo. App. 2006).

It is immaterial that the victim was not in the motel lobby when defendant used force to take away the victim’s control of the cash register. Defendant’s conduct in luring the victim to said defendant’s apartment and attacking the victim there in order to steal the money from the cash drawer in the lobby was sufficient evidence to prove that defendant took something of value from the presence of the victim by the use of force. People v. Clemons, 89 P.3d 479 (Colo. App. 2003).

A motor vehicle can be taken from the “presence” of the owner even if the owner is still in the vehicle, the key element being the forcible seizure, from the owner, of the present ability to control the motor vehicle. People v. James, 981 P.2d 637 (Colo. App. 1998).

A security guard, pursuant to his employment in a department store, was the custodian of property taken by the defendant, and had the right to exercise control over the property. People v. Foster, 971 P.2d 1082 (Colo. App. 1998).

Robbery includes the snatching of an object attached to the person of another if force is used to tear or break the attachment. People v. Davis, 935 P.2d 79 (Colo. App. 1996).

Force need not be contemporaneous with taking. There is no requirement that the application of force or intimidation must be virtually contemporaneous with the taking. People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Villalobos, 159 P.3d 624 (Colo. App. 2006).

The required “taking” need not be accomplished personally by the robber. If the robber forces another to “take” the property, a robbery has occurred. People v. James, 981 P.2d 637 (Colo. App. 1998).

The amount of the property is not an essential element of the offense. There is no provision in this section which makes the amount of property taken an essential element of the offense. Nor is there anything in the nature of robbery as defined by the common law from which it appears that the value of the property has ever been deemed of the essence of the crime. Rowan v. People, 93 Colo. 473, 26 P.2d 1066 (1933).

In robbery the kind or value of the property taken is immaterial. Sterling v. People, 151 Colo. 127, 376 P.2d 676 (1962), cert. denied, 373 U.S. 944, 83 S. Ct. 1554, 10 L. Ed. 2d 699 (1963).

Since punishment does not depend on the value of the property. There is no occasion, as there is in theft, for alleging the value, as the punishment is not made to depend on the value of the property taken. Rowan v. People, 93 Colo. 473, 26 P.2d 1066 (1933).

Robbery requires no specific intent to permanently deprive the owner of the use or benefit of his property. People v. Moseley, 193 Colo. 256, 566 P.2d 331 (1977) (overruling People v. Gallegos, 130 Colo. 232, 272 P.2d 608 (1954)).

Robbery of an at-risk adult is a lesser included offense of aggravated robbery; therefore, the conviction for robbery of an at-risk adult must be vacated because it merges with the aggravated robbery conviction. People v. Lovato, 179 P.3d 208 (Colo. App. 2007).

III.TRIAL AND PROSECUTION.

A. Indictment and Information.

Information held sufficient. Falgout v. People, 170 Colo. 32, 459 P.2d 572 (1969).

An information which substantially follows the terms of this section, is expressed in plain language, and which is easily understood, is sufficient. Albert v. People, 90 Colo. 219, 7 P.2d 822 (1932).

Money referred to in information construed to mean money of the United States. Where the information under this section alleges that money was taken, money will be construed to mean money of the United States, and the court will take judicial notice of its value. Rowan v. People, 93 Colo. 473, 26 P.2d 1066 (1933).

It is not necessary to allege that person from whom property was taken was the owner thereof, since it is sufficient if it appears from the allegations that accused was not the owner. Regardless of the legal title, ownership may properly be laid in the person from whose physical possession the property was taken. Hampton v. People, 146 Colo. 570, 362 P.2d 864 (1961); People v. Marquez, 692 P.2d 1089 (Colo. 1984).

B. Defenses.

Defendant has right to use his mental condition at time of robbery as a defense on the merits of whether or not he had the requisite intent to commit the crime. People v. Scheidt, 186 Colo. 142, 526 P.2d 300 (1974).

Self-defense is not affirmative defense. Self-defense cannot justify the taking of a thing of value from the person or presence of another, and the lawfulness of the force used to accomplish the taking is immaterial. Therefore, self-defense is not an affirmative defense to the crime of aggravated robbery. People v. Beebe, 38 Colo. App. 80, 557 P.2d 840 (1976).

Defendant was entitled to a jury instruction on self-defense as an affirmative defense to aggravated robbery. It is illogical to allow self-defense as an affirmative defense to some of the general intent crimes, but not all of them. People v. DeGreat, 2015 COA 101, — P.3d — (disagreeing with People v. Beebe annotated above).

To present an affirmative defense for abandonment to the jury, defendant must present “some credible evidence” on the issue of the claimed defense. It is not necessarily the case, however, that the defense of abandonment is not available once defendant has injured the victim. O’Shaughnessy v. People, 2012 CO 9, 269 P.3d 1233.

C. Evidence.

Evidence of other crimes committed or attempted by accused is admissible to prove scienter, or guilty or criminal knowledge, with respect to the crime charged, if similar and occurring at or about the same time, or at a time not too remote. For such evidence to be admissible, such knowledge must be in issue or be an element of the offense charged, and the other offenses must be so connected with that charged as to throw light on the question. Proper evidence tending to show guilty knowledge is not to be excluded because disclosing the commission of a different crime by accused. Hampton v. People, 146 Colo. 570, 362 P.2d 864 (1961).

Recent and unexplained possession of fruits of robbery is an incriminating circumstance, and such fact, coupled with the other related facts and circumstances in the instant case, is deemed sufficient to support the verdict. Martinez v. People, 156 Colo. 380, 399 P.2d 415, cert. denied, 382 U.S. 866, 86 S. Ct. 134, 15 L. Ed. 2d 104 (1965).

When a proper foundation has been laid, evidence that the property taken in the robbery in question was found in the possession of the accused shortly thereafter is admissible against him, subject to the rules governing the admissibility of evidence of the possession of the fruits of crime generally. There was no error in instructing the jury on this matter, even though the charge was robbery and not larceny. Cruz v. People, 147 Colo. 528, 364 P.2d 561 (1961), cert. denied, 368 U.S. 978, 82 S. Ct. 483, 7 L. Ed. 2d 440 (1962).

A prima facie case of robbery is made out where the victim’s wrist watch was later located in defendant’s coat pocket, and the victim’s pants pocket and billfold were later found on the floor in the back seat of the squad car in close proximity to defendant. Sterling v. People, 151 Colo. 127, 376 P.2d 676 (1962), cert. denied, 373 U.S. 944, 83 S. Ct. 1554, 10 L. Ed. 2d 699 (1963).

One may be convicted upon uncorroborated testimony of accomplices, but to support a conviction it must be clear and convincing, must be received with great caution, and show guilt beyond a reasonable doubt. Bowland v. People, 136 Colo. 57, 314 P.2d 685 (1957), cert. denied, 355 U.S. 934, 78 S. Ct. 418, 2 L. Ed. 2d 417 (1958).

Evidence that defendant closely resembles one of three men who held up a supermarket and forced an employee to open the safe, and whose codefendants testify that defendant was a participant, is sufficient to justify the jury in rejecting defendant’s alibi and giving credence to the testimony of his codefendants. Bowland v. People, 136 Colo. 57, 314 P.2d 685 (1957), cert. denied, 355 U.S. 934, 78 S. Ct. 418, 2 L. Ed. 2d 417 (1958).

Proof of robbery in felony murder case. Specific intent is not a necessary element in the proof of the offense of robbery, the question of mental capacity to form intent is of no relevance in a felony murder case where in the commission of a robbery a death occurred. Jones v. People, 146 Colo. 40, 360 P.2d 686 (1961).

Where defendant was charged with committing murder while perpetrating a robbery, it was incumbent on the state to prove that a robbery occurred. The admission by the defendant that he committed the robbery does not prevent the state from presenting separate and independent proof of the fact admitted. Bizup v. People, 150 Colo. 214, 371 P.2d 786 (1962).

Evidence sufficient to sustain robbery conviction. Atwood v. People, 176 Colo. 183, 489 P.2d 1305 (1971); People v. Goff, 187 Colo. 103, 530 P.2d 514 (1974).

Where a defendant is properly charged with the crime of robbery, the robbery is shown to have occurred, and defendant’s role as an accessory is proved, a prima facie case is made, and thus defendant may be properly convicted under this section, although he was an accessory. Fernandez v. People, 176 Colo. 346, 490 P.2d 690 (1971).

Where defendants’ fingerprints were found on the inside of the entry door and on an envelope normally kept in a desk drawer in the victim’s bedroom, and where defendants theorize that the prints could have been made at a time other than during the commission of the crime, but did not testify nor present other testimony to buttress the theory, the evidence was sufficient for conviction of robbery and conspiracy to commit robbery. People v. Hannaman, 181 Colo. 82, 507 P.2d 466 (1973).

D. Instructions.

Evidence in aggravated robbery case held insufficient to support instruction on simple robbery. People v. Reed, 180 Colo. 16, 502 P.2d 952 (1972).

Simple robbery instruction is mandatory when the evidence would justify acquitting a defendant of aggravated robbery while convicting him of simple robbery. Tacorante v. People, 624 P.2d 1324 (Colo. 1981).

Where no rational basis for simple robbery conviction, court may refuse to instruct. Where the evidence presented to the jury showed, at a minimum, that the defendant had participated as a complicitor in the commission of an aggravated robbery, as proscribed by § 18-4-302, there was no rational basis on which the jury could have acted to acquit the defendant of aggravated robbery while convicting him of simple robbery, and the trial court did not therefore err in refusing to instruct the jury on the latter offense. People v. Glenn, 200 Colo. 416, 615 P.2d 700 (1980).

Required instructions by court. Where the defendant is charged with aggravated robbery and declines the court’s offer to instruct on simple robbery, the court is obligated to instruct on the lesser nonincluded offense of theft only if there is no evidence of the defendant’s guilt of the lesser included offense of simple robbery. People v. Graham, 41 Colo. App. 390, 590 P.2d 511 (1978), aff’d, 199 Colo. 439, 610 P.2d 494 (1980).

Instruction on theft refused. The trial court did not commit error in refusing to instruct the jury on the crime of larceny where the defendant’s theory of the case and his defense were based upon mistaken identity and alibi, and the only evidence presented relating to the incident of the offense was that presented by the people, all of which supported robbery. It is not error for a court to have refused a tendered instruction concerning an issue regarding which no facts were presented. Leyba v. People, 174 Colo. 1, 481 P.2d 417 (1971).

An instruction that a charge of robbery carries with it the lesser included offense of petty and grand theft would have been improper, since the kind and value of the property taken in a robbery is immaterial. Maes v. People, 178 Colo. 46, 494 P.2d 1290 (1972).

Lesser offense instruction is properly refused when an element that distinguishes the greater offense from the lesser offense is uncontested. Thus, defendant charged with aggravated robbery and felony murder was not entitled to lesser theft offense instruction because there was no evidence disputing the use of force against, and the killing of, the victim. People v. Villalobos, 159 P.3d 624 (Colo. App. 2006).

Test applicable to defendant’s request for an instruction on the crime of theft is whether there existed a rational basis to acquit him of simple robbery but still convict him of theft; the test is not whether there is a total absence of evidence showing the defendant to be guilty of simple robbery. Graham v. People, 199 Colo. 439, 610 P.2d 494 (1980).

Where, at a minimum, defendant committed simple robbery, no theft instruction. Because the uncontroverted evidence before the jury established, at a minimum, that the defendant had committed simple robbery, he was not entitled to an instruction on the crime of theft. Graham v. People, 199 Colo. 439, 610 P.2d 494 (1980).

Trial court properly included in jury instruction language from another case that concerned the definition of “presence”. People v. Benton, 829 P.2d 451 (Colo. App. 1991).

Money was not taken in “presence” of movie theater ticket taker since money was not in the physical possession of ticket taker and since ticket taker did not have right to exercise control over the money. People v. Ridenour, 878 P.2d 23 (Colo. App. 1994).

IV.VERDICT AND SENTENCE.

Proof of intent sufficient to support conviction. Proof of an intent to force the giving up of a thing of value is sufficient to support a conviction for robbery. People v. Bridges, 199 Colo. 520, 612 P.2d 1110 (1980).

Verdicts on offense and conspiracy must be consistent. If counsel for the people insist upon submitting to the jury a count of conspiracy as well as a count of robbery where the evidence which would convict upon either charge is exactly the same, the jury should be instructed that it cannot convict on one count and acquit on the other. People v. Way, 165 Colo. 161, 437 P.2d 535 (1968).

General verdict treated as conviction of lesser offense. Where a proper instruction on simple robbery was given and the evidence was sufficient to sustain a verdict of guilty on the lesser included offense of simple robbery, the supreme court elected to treat the verdict of guilty “as charged” as a verdict of guilty of simple robbery. Hampton v. People, 171 Colo. 101, 465 P.2d 112 (1970).

Convictions for two counts of robbery arising out of the same criminal episode are not multiplicitous. The issue turns on whether two robberies can arise out of a single taking of property. The inquiry then focuses on whether the crime of robbery is intended to protect people or property. If robbery is intended to protect people, a single taking could support multiple convictions if the one item is taken from multiple people with control over the item. The plain language of the robbery statute is ambiguous as to whether it is intended to protect people or property. The common law history of robbery and case law indicates robbery statutes are intended to protect people. Therefore, a single taking can support multiple convictions for robbery if the taking is made in the presence of multiple victims. People v. Borghesi, 66 P.3d 93 (Colo. 2003).

Defendant’s acts constitute separate offenses as to each victim and conviction is not multiplicitous where the common property taken from the first victim was taken in the second victim’s presence. People v. Sweeney, 78 P.3d 1133 (Colo. App. 2003).

Defendant’s sentence of eight to nine years for simple robbery was not excessive. People v. Nierle, 624 P.2d 1333 (Colo. 1981).

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