People v. Anderson

Filed 6/2/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, )
)
Plaintiff and Respondent, )
) S175351
v. )
) Ct.App. 4/1 D054740
PAUL D. ANDERSON, )
) Riverside County
Defendant and Appellant. ) Super. Ct. No. RIF113459
____________________________________)

We hold here that the intent element of robbery does not include an intent
to apply force against the victim or to cause the victim to feel fear. It is robbery if
the defendant committed a forcible act against the victim motivated by the intent
to steal, even if the defendant did not also intend for the victim to experience force
or fear. We also hold a trial court has no obligation to provide a sua sponte
instruction on accident where, as here, the defendant‟s theory of accident is an
attempt to negate the intent element of the charged crime.
BACKGROUND
Defendant Paul D. Anderson is a longtime methamphetamine addict. As of
the time of the crimes at issue here, he had been out of work for a year, was
separated from his wife, had neither a job nor a car, and was living on the streets
or spending nights in the homes of other methamphetamine users. He obtained
money by breaking into cars, sometimes by means of a shaved key, and stealing
things. He used stolen credit cards and sometimes tried to pass forged checks. He
1
had once stolen a car. Defendant‟s criminal history does not appear to have
involved any act of force or violence directed against his victims.
Defendant spent the morning and afternoon of November 7, 2003, at the
home of Ginger Lyle, a drug dealer, where he smoked methamphetamine and
socialized with Lyle and several other users. After leaving Lyle‟s home, he went
to an apartment complex a few blocks away, later stating he went with the
intention of finding a car to steal so he could visit his wife and children.
On November 7, 19-year-old Pamela Thompson came home from work
around 9:00 p.m. She parked her car in the apartment complex‟s carport and went
to her apartment to change her clothing before going out, leaving her purse in the
car. In the meantime, defendant entered the complex looking for a car he could
enter with his key. After failing to break into several cars, defendant successfully
opened the door to Pamela‟s car, started it, and attempted to drive out of the
complex. After discovering the gate to the complex did not open automatically,
defendant backed the car into a parking space to wait for someone else to open the
gate. By this time, Pamela had discovered her car was gone. She telephoned her
stepfather, Joe Deitz, asking if he had taken it. When he said he had not, she told
him the car had been stolen. Pamela also called her mother, Barbara Thompson,
telling her the car had been stolen and she was looking for it. After they spoke for
a few minutes, Barbara heard Pamela say, loudly, “Oh, my God. Here comes my
car real fast.” The phone went silent. A moment later Barbara‟s telephone
indicated someone was on another line. It was Joe, calling for information about
the car. Barbara told him something had happened to Pamela out at the gate. Joe
ran to the gate where he found Pamela lying in a puddle of blood on the street near
the drive that led into the apartment complex. Pamela was still conscious, but was
struggling for breath and stopped breathing shortly after Joe found her. Joe
performed CPR (cardiopulmonary resuscitation) until paramedics arrived. Pamela
2
never regained consciousness and died a few days later. She had suffered multiple
blunt-force traumas resulting in multiple skull and rib fractures, injuries consistent
with having been crushed by a car traveling the length of her body.
Witnesses reported hearing the sound of a car and a female voice in what
seemed to be an argument that went on for perhaps 20-30 seconds. The voice
shouted “Stop!” three times, after which there was a very loud thump and the
shouting stopped. The witnesses heard the car accelerate, but were not certain
whether the acceleration occurred before or after the thump. They heard the car‟s
tires screech as it left the complex.
Defendant had run over Pamela. He did not deny hitting her, but claimed it
was an accident. He stated he saw the gate to the complex open to admit a car.
After the car passed, he drove toward the gate, which began to close. He drove
quickly around the gate, estimating his speed at 25-30 miles per hour. He claimed
he had not heard anyone shout, explaining the car‟s windows were closed. He
stated he had kept his head down as he was driving, theorizing that for that reason,
and because it was night and the gate obscured his vision, he had not seen
anything until he looked up and saw Pamela standing just outside the gate,
approximately 10-12 feet from him, with her hand up. He swerved, explaining he
did not think he could stop in time. Defendant admitted feeling an impact, stating
he thought he might have struck the girl, but he also thought it was possible she
had hit the side of the car or he had gone up over the curb. He was frightened, did
not stop to see if he had injured anyone, and drove away without looking back.
Defendant maintained he had not intended to run over, injure, or frighten anyone.
He had been thinking about getting away and had not contemplated the possibility
that someone might be on the other side of the gate.

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 Defendant quickly abandoned the car, but took from it a credit card and
driver‟s license belonging to Pamela. He was arrested several days later after
having used the credit card several times.
Defendant was convicted, following a jury trial, of first degree felony
murder with the special circumstance of killing during the course of a robbery
(Pen. Code, §§ 187, 190.2, subd. (a)(17)(A)), robbery (id., § 211), and receipt of
stolen property (id., § 496, subd. (a)). He appealed, arguing that the trial court
erred by failing to provide a sua sponte instruction on accident as a defense to the
crime of robbery, thus requiring reversal not only of his robbery conviction, but
also of his conviction of first degree felony murder and the special circumstance.1
The Court of Appeal agreed. We reverse the judgment of the Court of Appeal.
DISCUSSION
I. Robbery
Robbery is defined as “the felonious taking of personal property in the
possession of another, from his person or immediate presence, and against his will,
accomplished by means of force or fear.” (Pen. Code, § 211.) Robbery is larceny
with the aggravating circumstances that “the property is taken from the person or
presence of another” and “is accomplished by the use of force or by putting the
victim in fear of injury.” (People v. Gomez (2008) 43 Cal.4th 249, 254, fn. 2.) In
California, “[t]he crime of robbery is a continuing offense that begins from the
time of the original taking until the robber reaches a place of relative safety.”
(People v. Estes (1983) 147 Cal.App.3d 23, 28.) It thus is robbery when the

1 The only intent required for felony murder is the specific intent to commit
the underlying felony. (People v. Booker (2011) 51 Cal.4th 141, 175.) Thus, for
purposes of first degree felony murder, it is irrelevant that Pamela‟s death might
have been the accidental result of a robbery, if the robbery was intentional.

4
property was peacefully acquired, but force or fear was used to carry it away.
(Gomez, at pp. 255-256.)
“As a general rule, no crime is committed unless there is a union of act and
either wrongful intent or criminal negligence. [Citations.] This rule, which is
„firmly embedded‟ in „ “the principles of Anglo-American criminal
jurisprudence” ‟ [citation] is so basic that wrongful intent or criminal negligence
„is an invariable element of every crime unless excluded expressly or by necessary
implication‟ [citations] and „penal statutes will often be construed to contain such
an element despite their failure expressly to state it‟ [citations].” (People v. King
(2006) 38 Cal.4th 617, 622-623; and see Pen. Code, § 20 [“In every crime or
public offense there must exist a union, or joint operation of act and intent, or
criminal negligence.”].) The intent required for robbery has been described as the
specific intent to deprive the victim of the property permanently. (People v.
Huggins (2006) 38 Cal.4th 175, 214; People v. Guerra (1985) 40 Cal.3d 377,
385.) Thus, “the act of force or intimidation by which the taking is accomplished
in robbery must be motivated by the intent to steal . . . .” (People v. Green (1980)
27 Cal.3d 1, 54.)
Defendant concedes he committed a forcible act against Pamela, killing her,
and that the act was motivated by his intent to steal Pamela‟s property. But he
argues the forcible taking was not robbery unless he applied the force with the
intent to strike or frighten Pamela. He cites People v. Bolden (2002) 29 Cal.4th
515, where we recognized that the standard jury instructions adequately explain
that “for the crime of robbery the defendant must form the intent to steal before or
during rather than after the application of force to the victim, and that the
defendant must apply the force for the purpose of accomplishing the taking.” (Id.
at p. 556, italics added.) But we were not there concerned with whether the
defendant intended to harm the victim, and our explanation that it is not robbery if
5
the intent to steal is formed only after the forcible act was committed cannot
reasonably be read to hold that the act by which the taking is accomplished must
be motivated by the intent to apply force against the victim or cause the victim to
feel fear.
Other cases cited by defendant also are not on point, explaining instead that
the requisite forcible act may be an act committed after the initial taking if it is
motivated by the intent to retain the property. (E.g., People v. Gomez, supra, 43
Cal.4th at p. 265 [evidence the defendant shot at the victim after taking the
victim‟s property supported the jury‟s determination that the defendant used force
to retain the property]; People v. Cooper (1991) 53 Cal.3d 1158, 1165, fn. 8 [theft
becomes robbery if the perpetrator peaceably gains possession but “resorts to force
or fear while carrying away the loot”]; Miller v. Superior Court (2004) 115
Cal.App.4th 216, 222 [it is robbery “where the perpetrator peacefully acquires the
victim‟s property, but then uses force to retain or escape with it”]; People v. Estes,
supra, 147 Cal.App.3d at p. 29 [it is sufficient that the defendant uses force to
prevent the retaking of the property and to facilitate his escape].) None of these
cases holds it is not robbery unless the act of force or intimidation was motivated
by an intent to apply force against the victim or to cause the victim to experience
fear.
In sum, no authority cited to us provides positive support for defendant‟s
argument. Nor do we find anything in the law, or the facts of this case, to
convince us robbery contains a heretofore unidentified element of intent to cause
the victim to experience force or fear. The law does require that the perpetrator
exert some quantum of force in excess of that “necessary to accomplish the mere
seizing of the property.” (People v. Morales (1975) 49 Cal.App.3d 134, 139;
accord, People v. Burns (2009) 172 Cal.App.4th 1251, 1258-1259.) But even
under his version of the facts, defendant drove Pamela‟s car with more force than
6
necessary to move it to a place of safety. And his motive for exerting the
additional force was to retain the property and facilitate his escape. In short, he
committed the requisite forcible act with the requisite intent. It was robbery even
if, as he claims, he did not intend to strike Pamela, but did so accidentally.2
II. Accident and Duty to Provide Sua Sponte Instruction on Accident
We turn now to the question of whether trial courts generally have a duty to
instruct on accident, sua sponte, when the issue is raised by the evidence. We
conclude they do not.
Penal Code section 26 states the statutory defense: “All persons are
capable of committing crimes except those belonging to the following classes:
[¶] . . . [¶] Five—Persons who committed the act or made the omission charged
through misfortune or by accident, when it appears that there was no evil design,
intention, or culpable negligence.” The defense appears in CALCRIM No. 3404,
which explains a defendant is not guilty of a charged crime if he or she acted
“without the intent required for that crime, but acted instead accidentally.” That
the law recognizes a defense of accident does not, however, establish that trial
courts have a duty to instruct on accident sua sponte. “In criminal cases, even in

2 In a supplemental brief, defendant argues that because robbery is
sometimes described as an assaultive crime, it must be concluded it not only
requires an intent to steal, but also has an intent element comparable to the intent
required for assault. He cites People v. Alvarez (1996) 14 Cal.4th 155, where we
observed, “[r]ape is an assaultive crime against the person, as are robbery and
murder.” (Id. at p. 188.) That an offense has assaultive aspects does not mean it is
an assault. In any event, even under defendant‟s version of the facts, the evidence
defendant drove blindly through the gates of the apartment complex at a speed of
25-30 miles per hour and made no effort to brake when he saw Pamela established
the requisite willful commission of an act that by its nature was likely to result in
injury to another. (See People v. Williams (2001) 26 Cal.4th 779, 780; People v.
Colantuono (1994) 7 Cal.4th 206, 217-218.)

7
the absence of a request, a trial court must instruct on general principles of law
relevant to the issues raised by the evidence and necessary for the jury‟s
understanding of the case.” (People v. Martinez (2010) 47 Cal.4th 911, 953.)
That duty extends to “ „instructions on the defendant‟s theory of the case,
including instructions “as to defenses „ “that the defendant is relying on . . . , or if
there is substantial evidence supportive of such a defense and the defense is not
inconsistent with the defendant‟s theory of the case.” ‟ ” ‟ ” (People v. Gutierrez
(2009) 45 Cal.4th 789, 824.) But “ „when a defendant presents evidence to
attempt to negate or rebut the prosecution‟s proof of an element of the offense, a
defendant is not presenting a special defense invoking sua sponte instructional
duties. While a court may well have a duty to give a “pinpoint” instruction
relating such evidence to the elements of the offense and to the jury‟s duty to
acquit if the evidence produces a reasonable doubt, such “pinpoint” instructions
are not required to be given sua sponte and must be given only upon request.‟ ”
(People v. Saille (1991) 54 Cal.3d 1103, 1117.)
One commentator opines that statutory provisions codifying “a defense for
an actor who commits the act or omission constituting an offense „through
misfortune or by accident, when it appears that there was no evil design, intention,
or culpable negligence.‟. . . [¶] . . . have historical significance, [but] are now
unnecessary restatements, in a defense format, of the requirements of the
definitional elements of an offense. To say that it is a defense that the criminal
conduct or omission was committed by a non-negligent accident, is simply to say
that all result element offenses [i.e., offenses that require an intent to produce a
particular result] require at least proof of negligence as to causing the prohibited
result. This is already made clear by the culpability requirements of specific
offense definitions . . . .” (1 Robinson, Criminal Law Defenses (1984) Accident or
Misfortune, § 63, p. 269, fns. omitted.) A trial court‟s responsibility to instruct on
8
accident therefore generally extends no further than the obligation to provide,
upon request, a pinpoint instruction relating the evidence to the mental element
required for the charged crime.
The California cases that have discussed the “defense” of accident,
including those cited by defendant, generally support the commentator‟s view. In
People v. Jennings (2010) 50 Cal.4th 616, 674, we explained, “[g]enerally, the
claim that a homicide was committed through misfortune or accident „amounts to
a claim that the defendant acted without forming the mental state necessary to
make his or her actions a crime.‟ ” In People v. Acosta (1955) 45 Cal.2d 538, this
court reversed a conviction of willfully, unlawfully, and feloniously driving and
taking a vehicle without the consent of the owner and with the intent to deprive the
owner of title to and possession of the vehicle. The defendant had been in the
backseat of a taxi when the taxi driver, believing himself to be under attack by the
defendant, rolled out of the moving vehicle. The defendant then either climbed
into the front seat and got behind the wheel of the taxi or attempted to steer the
taxi from the backseat. This court found it would be accident if the defendant did
not intend the criminal act—driving the taxi—or if the act had not been motivated
by an intent to deprive the owner of title and possession of the vehicle. (Id. at pp.
543-544.) We thus recognized the “defense” would rebut the prosecution‟s proof
of a mental element of the crime.
In People v. Gonzales (1999) 74 Cal.App.4th 382, the defendant was
convicted of the willful infliction of corporal injury on a cohabitant. Under the
defense version of the events, the complaining witness‟s injuries were caused
when the defendant opened a door to gain entry into a room the victim was leaving
and, without intending to do so, struck the victim in the face with the door. (Id. at
p. 390.) The accident defense was raised to negate the mental element of the
crime: the intent to inflict corporal injury. In People v. Lara (1996) 44
9
Cal.App.4th 102, the court found the defense of accident was available in a
prosecution for battery (“any willful and unlawful use of force or violence upon
the person of another” (Pen. Code, § 242)), when there was evidence the defendant
accidentally injured the victim while turning around in an attempt to free himself
from her grasp. The court explained: “The accident defense amounts to a claim
that the defendant acted without forming the mental state necessary to make his or
her actions a crime.” (Lara, at p. 110.) In People v. Jones (1991) 234 Cal.App.3d
1303, a prosecution for attempted murder, there was evidence the defendant
pointed a shotgun at an investigating police officer but did not intend to fire it; the
shotgun discharged as the officer attempted to knock it aside. The court found the
defense of accident was available because there was evidence from which a
reasonable juror could have concluded the defendant did not intend to discharge
the firearm. (Id. at p. 1314.) Similarly, in People v. Garnett (1908) 9 Cal.App.
194, the court reasoned it would not have been murder if the shot that killed the
victim resulted from the accidental discharge of the defendant‟s gun. (Id. at pp.
203-204.)
In each case, the defense of accident was raised to rebut the mental element
of the crime or crimes with which the defendant was charged. Consequently,
assuming the jury received complete and accurate instructions on the requisite
mental element of the offense, the obligation of the trial court in each case to
instruct on accident extended no further than to provide an appropriate pinpoint
instruction upon request by the defense.3

3 The convictions in People v. Gonzales, supra, 74 Cal.App.4th at page 390,
and People v. Jones, supra, 234 Cal.App.3d at page 1314, were reversed for the
failure to provide instructions on accident sua sponte. In each case, the defendant
would have been entitled to a pinpoint instruction relating his theory of accident to
the evidence of intent, but only upon request. (See People v. Roldan (2005) 35

(footnote continued on next page)

10
 III. Application to the Present Case
The trial court instructed the jury with CALCRIM No. 1600, explaining, as
relevant, that the prosecution was required to show “the defendant used force or
fear to take the property, or to prevent the person from resisting [and also that]
when the defendant used force or fear to take the property, he intended to deprive
the owner of it permanently, or to remove it from the owner‟s possession—or to
remove it from the owner‟s possession [so] that the owner would be deprived of
the major portion of the enjoyment or value of the property. [¶] The defendant‟s
intent to take property must have been formed before or during the time he used
force or fear. . . . [¶] . . . The use of force or fear can occur with the initial taking
of the property, or it can occur while the defendant attempts to get away with the
stolen property.” The instruction explains the act and the intent elements of the
offense and that the act must have been motivated by the requisite intent: the
intent to steal. (Pen. Code, § 211; People v. Green, supra, 27 Cal.3d at p. 54.) As
defendant‟s theory of accident concerning the use of force added a nonexistent
element of intent to the offense, an instruction on that theory would have been
improper even upon defense request.
But defendant argues that even if the instruction adequately explained the
intent element for robbery, the jury likely was confused because it was also
instructed with CALCRIM No. 540A: “A person may be guilty of felony murder
even if the killing was unintentional, accidental or negligent.” That argument, like
the others defendant has advanced, is premised on the theory that accident, in the

(footnote continued from previous page)
Cal.4th 646, 715.) We disapprove People v. Gonzales, supra, 74 Cal.App.4th 382,
and People v. Jones, supra, 234 Cal.App.3d 1303, to the extent they hold a sua
sponte instruction on accident is required when the defense is raised to negate the
intent or mental element of the charged crime.

11
sense that it represents the absence of an intent to cause the victim to experience
force or fear, is a defense to robbery. As we have explained, that theory is
incorrect. The instruction could not have caused the jury to fail to consider a
potentially meritorious defense.
CONCLUSION
The judgment of the Court of Appeal is reversed.

WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
BAXTER, J.
CHIN, J.
CORRIGAN, J.
WOODS, J.*

* Associate Justice of the Court of Appeal, Second Appellate District,
Division Seven, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.

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 CONCURRING OPINION BY KENNARD, J.

Robbery is statutorily defined as “the felonious taking of personal property
in the possession of another, from his person or immediate presence, and against
his will, accomplished by means of force or fear.” (Pen. Code § 211; further
undesignated statutory references are to the Penal Code.) Here, defendant
Paul D. Anderson was charged not only with the felony of robbery but also with
first degree felony murder because a killing occurred during the robbery. (§ 189.)
To establish first degree felony murder, the prosecution had to prove defendant‟s
commission of the robbery. Defendant claimed that his use of force in taking the
victim‟s property was “an accident,” but he did not ask for a jury instruction on
that theory. The jury found defendant guilty as charged.
On appeal, defendant faulted the trial court for not instructing the jury,
without request, on the defense theory of “accident,” that is, if the jury were to
conclude that defendant‟s use of force in taking the victim‟s property was not
intentional, it would have to acquit him of robbery and of felony murder based on
robbery. The Court of Appeal agreed. It held that robbery requires “a purposeful
or willful act involving a general intent to use force” (italics omitted); thus, if
defendant‟s use of force was truly accidental, he lacked the general intent that in
the Court of Appeal‟s view is required for robbery. The Court of Appeal also held
that the trial court erred in not so instructing the jury even though the defense had

1
not requested such an instruction. (This latter issue was the basis for this court‟s
grant of review.)
The majority reverses the Court of Appeal. The majority holds, and I
agree, that a claim of an act being an “accident” is a defense that, at most, negates
a mental element of an offense, and thus is not the type of defense warranting a
jury instruction by the trial court without a request by the defendant. (Maj. opn.,
ante, at pp. 7-11.) This is true so long as the trial court has given “complete and
accurate instructions on the requisite mental element of the offense.” (Id. at p. 10.)
What then is the “requisite mental element” here? According to the Court
of Appeal, it is the general intent to use force in taking another‟s property. That
court concluded that the use of such force in taking property from the possession
of another is the “ „central element‟ ” of robbery, and that therefore the crime must
require “a purposeful or willful act involving a general intent to use force or fear
to initially take the property or thereafter retain the stolen property.” The majority
disagrees, stating that a general intent to use force is not an element of robbery.
(Maj. opn., ante, at pp. 4-7.) (We did not grant review to decide this issue but
later asked the parties to brief it.)
The Court of Appeal‟s reasoned determination that robbery requires a
general intent to use force in taking property from another person‟s possession
cannot be dismissed lightly, as the majority seems to do. But I see no need to
decide that issue in this case because in my view the trial court‟s failure to instruct
the jury on general intent could not have prejudiced defendant.
I
As relevant here, robbery occurs when a person uses force to take property
from another‟s possession or immediate presence. (§ 211; People v. Bolden
(2002) 29 Cal.4th 515, 556.) The use of force need not be contemporaneous with
the taking, however; a robbery also occurs if, after taking the property, the taker

2
exerts force when the owner tries to regain possession. (People v. Gomez (2008)
43 Cal.4th 249, 255-256; People v. Estes (1983) 147 Cal.App.3d 23, 28 [a robbery
occurred when the defendant shoplifted from a store and then, when confronted by
a security guard who demanded return of the stolen property, pulled a knife].) The
use of force that followed the forceless taking in Estes is similar to what occurred
here.
Defendant, without permission, took a car belonging to 19-year-old Pamela
Thompson from its parking stall in the carport of a large apartment complex, and
then drove it toward the exit‟s security gate. Meanwhile, Thompson had entered
the carport and discovered her car missing. Thompson, using her cellular phone,
told her mother that someone had taken her car. As Thompson, still on the phone
with her mother, headed toward the complex‟s exit gate, she exclaimed: “Oh, my
God. Here comes my car real fast.” She then yelled at the driver to stop. At this
point, someone entering the apartment complex activated the security gate, which
led defendant to accelerate the car so he could clear the gate before it closed. In
the process, defendant ran over Thompson, killing her.
At trial, defendant admitted stealing Thompson‟s car. But he claimed that
he had not seen Thompson (who was standing some 10 feet in front of the car)
until seconds before the collision, that he swerved the car to avoid hitting her, and
that his intent in speeding out the security gate was not to use force against
Thompson but to leave the apartment complex as fast as he could.
The Court of Appeal held that, in light of defendant‟s testimony, the trial
court had a duty, without defense request, to instruct the jury that defendant could
not be guilty of robbery if his use of force against Thompson was an accident. In
other words, if defendant lacked a general intent to use force against Thompson
when getting away with her car, he did not commit a robbery. This court
disagrees. It holds that a trial court need not instruct on the defense of accident on

3
its own initiative, so long as “the jury received complete and accurate instructions
on the requisite mental element of the [charged] offense.” (Maj. opn., ante, at
p. 10.) I agree. But the majority further holds that the crime of robbery does not
require any intent to use force in taking another‟s property. I am not convinced.
As discussed in part II below, leading criminal law treatises describe robbery as a
combination of two distinct crimes: theft and assault. If that is correct, then it
follows that proof of a robbery would require proof of all of the elements of the
crimes of theft and assault; the latter requires a general intent to use force. (People
v. Colantuono (1994) 7 Cal.4th 206, 218 (Colantuono); see also People v.
Williams (2001) 26 Cal.4th 779, 784 (Williams).)
II
Long before the California Legislature in 1872 codified the crime of
robbery in Penal Code section 211, the common law defined robbery as a
“[larceny] from the person” committed “by open and violent assault.” (4
Blackstone, Commentaries 241.) Rather recent editions of leading criminal law
treatises have embraced that common law view. (Perkins & Boyce, Criminal Law
(3d ed. 1982) Offense Against Property, § 2, p. 350 [describing robbery as a
“compound offense” made up of both theft and assault]; 4 Wharton‟s Criminal
Law (15th ed. 1996) § 454, p. 5 [stating that robbery typically “consists of a
battery plus larceny or an assault plus larceny”]; 2 Witkin & Epstein, Cal.
Criminal Law (3d ed. 2000) Crimes Against Property, § 86, p. 115 [describing
robbery as a “combination of assault and larceny”].)
Did the common law definition of robbery as consisting of both assault and
theft find its way into California‟s robbery statute when it was enacted in 1872? If
so, all the elements of those two distinct crimes would be included within the
crime of robbery. Robbery includes the mental element necessary to prove theft,
the specific intent to permanently deprive the owner of the property. (People v.

4
Bacon (2010) 50 Cal.4th 1082, 1117; People v. Montoya (2004) 33 Cal.4th 1031,
1037.) No one disputes this here. With respect to the crime of assault (§ 240), it
requires a general intent “to commit an act likely to result in . . . physical force,”
that is, “a general intent to attempt to commit the violence.” (Colantuono, supra,
7 Cal.4th 206, 218; see also Williams, supra, 26 Cal.4th 779, 782 [“clarify[ing]”
the Colantuono rule as requiring “actual knowledge of the facts sufficient to
establish that the defendant‟s act by its nature will probably and directly result in
injury to another”].) This general intent for assault, the Court of Appeal here held,
was also required to prove the use of force in a robbery. As the Court of Appeal
reasoned, because the use of force in taking property from another‟s possession is
the “central element” of robbery (People v. Ramos (1982) 30 Cal.3d 553, 589), it
follows that robbery “requires a purposeful or willful act involving a general
intent to use force or fear to initially take property or thereafter retain the stolen
property.”
Whenever a court needs to construe the meaning of statutory language, it
must determine and give effect to the intent of the Legislature. (Catlin v. Superior
Court (2011) 51 Cal.4th 300, 304; Klein v. United States of America (2010) 50
Cal.4th 68, 77.) Here, the Court of Appeal, in concluding that robbery requires a
general intent to use force in taking another‟s property, did not consider whether
that was the Legislature‟s view when in 1872 it enacted the robbery statute.
Likewise, the majority in holding that robbery does not require any intent to
use force, does not consider whether that was the 1872 Legislature‟s view.
Instead, in arriving at that holding, the majority discusses several cases relied on
by defendant (maj. opn., ante, at pp. 5-6), decides they do not hold that robbery
includes any intent to use force (id., at p. 6 [“no authority cited to us provides
positive support for defendant‟s argument”]), and concludes that therefore the

5
opposite must be true, namely, that robbery does not require an intent to use force
(id., pp. 6-7).
The task of ascertaining the 1872 Legislature‟s intent could well have been
daunting. (See, e.g., People v. Evans (2008) 44 Cal.4th 590, 596-597 [consulting
19th century British and American treatises to determine the 1872 Legislature‟s
intent in enacting Penal Code section 1200, pertaining to a defendant‟s right to
allocution].) But it is called for in light of the divergent views of the Court of
Appeal and of this court‟s majority on the issue of intent to use force in obtaining
or maintaining another person‟s property.
Under my approach — assuming that, as the Court of Appeal held, the trial
court erred in not instructing without a defense request on general intent to use
force, I perceive no prejudice to defendant — a determination of legislative intent
in enacting the robbery statute is not necessary. Below, I discuss this.
III
As noted earlier on page 2, the majority‟s determination (with which I
agree) that a trial court need not on its own initiative instruct the jury on a defense
of “accident” hinges on the trial court having given proper instructions on the
requisite intent for the underlying offense. (Maj. opn., ante, at p. 10.)
Here, assuming, as the Court of Appeal held, that the crime of robbery
requires a general intent to use force in taking another‟s property, the jury would
not have been able to determine whether defendant had that intent, because the
trial court failed to tell the jury (1) that robbery requires such intent, or (2) that if
defendant‟s use of force was accidental, this would negate the requisite intent.
Instructional error that withholds an element of an offense from the jury is
of federal constitutional dimension. (Neder v. United States (1999) 527 U.S. 1,
15.) In that situation, the inquiry is whether “ „beyond a reasonable doubt‟ ” the
error “ „did not contribute to the verdict.‟ ” (Ibid; see also Chapman v. California

6
(1967) 386 U.S. 18, 24.) This standard is satisfied when it is “clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent
the error.” (Neder, at p. 18.)
Here, defendant could not have been prejudiced by any error of the trial
court in not submitting to the jury the issue of general intent to use force, which
according to the Court of Appeal is an element of robbery. Defendant testified
that he noticed Thompson‟s presence some 10 feet ahead as he was driving her car
toward the closing security gate at 25 to 30 miles per hour. By his own admission,
defendant never tried to stop the car but only “swerved” in an effort to avoid
Thompson, who was trying to stop him from driving away in her car. Defendant‟s
conduct was sufficient to establish a general intent to attempt to “commit the
violence,” that is, to use the force necessary to commit the harm, the standard that
a majority of this court articulated in Colantuono, supra, 7 Cal.4th at page 218, as
the mental element for the crime of assault. (See p. 4, ante, regarding the view
that robbery is comprised of both theft and assault.) And defendant‟s conduct
likewise satisfies the general-intent-for-assault standard described by the majority
in Williams, supra, 26 Cal.4th at page 790, that is, “an intentional act and actual
knowledge of those facts sufficient to establish that the act by its nature will
probably and directly result in the application of physical force against another.” 1

1 I disagreed with the majority of the court in both Colantuono and Williams.
My separate opinion in Colantuono concluded that assault (§ 240) requires a more
stringent form of intent, that is, the specific intent to commit a violent injury
against another. (See Colantuono, supra, 7 Cal.4th at pp. 225-228 (conc. & dis.
opn. of Kennard, J.).) My separate opinion in Williams concluded that the
majority there, in describing the mental element for assault, had reduced the
required mental state from general intent to criminal negligence and thus was “not
faithful” to the majority opinion in Colantuono. (Williams, supra, 26 Cal.4th at
p. 795; see id. at pp. 791-797 (dis. opn. of Kennard, J.).)

7
Accordingly, if a rational jury that accepted defendant‟s version of the facts was
instructed that the general intent required for assault is an element of robbery (an
instruction that the Court of Appeal viewed as being required here), that jury
would conclude that defendant committed the felony of robbery as well as a
robbery murder when he ran over and killed car owner Thompson in order to get
away in the car he had stolen from her. Hence, the trial court‟s failure to submit to
the jury the issue of general intent to use force against Thompson could not,
beyond a reasonable doubt, have contributed to the verdict. (Neder v. United
States, supra, 527 U.S. at p. 15.)
On this basis, I conclude that the Court of Appeal erred in reversing
defendant‟s convictions, and I concur in the majority‟s reversal of the Court of
Appeal.
KENNARD, J.

8
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Anderson
__________________________________________________________________________________

Unpublished Opinion XXX NP opn. filed 7/2/09- 4th Dist., Div. 1
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No. S175351
Date Filed: June 2, 2011
__________________________________________________________________________________

Court: Superior
County: Riverside
Judge: Richard J. Couzens

__________________________________________________________________________________

Counsel:

Richard A. Levy, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala G. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Steve Oetting, Pamela Ratner Sobeck and
James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Richard A. Levy
21535 Hawthorne Blvd., Suite 200
Torrance, CA 90503-6612
(310) 944-3311

James H. Flaherty III
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2196