Dissenting in part.
I respectfully dissent from the portion of the majority opinion that affirms the judgment as to counts 5 and 6.
The two janitors, Bernardo Lopez (Lopez) and Marcos Camacho (Camacho), did not, under the authorities, have a relationship with the Food 4 Less store sufficient to support a finding that they had constructive possession of the store’s property so as to be deemed victims of the robbery of the store. Parenthetically, eliminating them as victims would reduce defendant’s sentence from 245 years to life to 175 years to life.1
As to the definition of robbery as the “felonious taking of personal property in the possession of another, from his person or immediate presence ... accomplished by means of force or fear” (Pen. Code, § 211), the Supreme Court in People v. Nguyen (2000) 24 Cal.4th 756, 762 [102 Cal.Rptr.2d 548, 14 P.3d 221] (Nguyen) noted that “the theory of constructive possession has been used to expand the concept of possession to include employees and others as robbery victims.” The Supreme Court has not specified a standard regarding what constitutes constructive possession for the purpose of determining if a person is a robbery victim.2
*525The Supreme Court in Nguyen, supra, 24 Cal.4th at pages 762-765, indicated that the requirement of possession or constructive possession imposes a limitation on which persons present at the scene of a robbery may be deemed robbery victims. Although there cannot be a robbery without a person being subject to “force or fear” (Pen. Code, § 211), not every person, nor even every employee, present at the scene of a robbery is a victim of that robbery. Two of the latest cases on the subject adequately express who should be included and who should be excluded as robbery victims.
In People v. Jones (1996) 42 Cal.App.4th 1047, 1054 [50 Cal.Rptr.2d 46] (Jones), tiie court stated that in order to be a robbery victim, a person must have actual possession of the property or act in “some representative capacity with respect to the owner of the property. The person must have express or implied authority over the items taken. [Citation.]” In People v. Frazer (2003) 106 Cal.App.4th 1105, 1115 [131 Cal.Rptr.2d 319] (Frazer) the court proposed the same test as in Jones for constructive possession and explained, “Under this standard, employee status does not alone as a matter of law establish constructive possession. Rather, the record must show indicia of express or implied authority under the particular circumstances of the case. To illustrate, a janitor may well be deemed to have implied authority if all other employees who handle the cash are gone. (People v. Downs [(1952)] 114 Cal.App.2d [758,] 765-766 [251 P.2d 369] [(Downs)).) On the other hand, by virtue of his job title charging him with guarding the premises, a security guard may be deemed to have authority even when other employees who handle the property are present. (People v. Miller [(1977)] 18 Cal.3d [873,] 880-881 [135 Cal.Rptr. 654, 558 P.2d 552].)”
There is no substantial evidence that at the time of the robbery, the janitors, Lopez and Camacho, had the necessary authority or responsibility with respect to the store to be robbery victims. They lacked employment responsibilities that would involve any representative capacity that could confer authority over store funds or property. They did not handle inventory, serve customers, or perform sales. The workers in Frazer, supra, 106 Cal.App.4th at pages 1119-1120, did so and thus were considered to be part of a “retail team” invested with express or implied authority over store property. There is no evidence that at the time of the robbery the janitors, who were not even employees of the store, had any express or implied authority to deal with the store property or to protect it in any way.
This case is distinguishable from Downs, supra, 114 Cal.App.2d at page 760, in which two janitors, who were the only people on company premises *526at the time of a burglary, were deemed to be in constructive possession of the stolen company funds and therefore were robbery victims. The Downs defendants were convicted of robbing the janitors on the basis of the janitors’ constructive possession of company property. (Id. at p. 765.) The Court of Appeal affirmed the convictions, stating, “We regard it as no undue extension of the robbery statute to hold it applicable to any servant or servants left in sole occupation of the premises or particular part thereof by the employer.” (Id. at p. 766, italics added; see Frazer, supra, 106 Cal.App.4th at p. 1115 [“a janitor may well be deemed to have implied authority if all other employees who handle the cash are gone”].)
In contrast, here the janitors were not the only workers on the premises. Store employees with express or implied authority over store funds were present, including an assistant manager. It is true that multiple individuals may have constructive possession of the same property simultaneously. (People v. Miller, supra, 18 Cal.3d at p. 881.) Here, because people with actual authority over the premises and to handle store funds were present, the janitors cannot be considered to have had any implied authority over the premises or store property taken by defendant. Had these other employees not been present, one might infer that the requisite authority had been transferred to the janitors as the only ones present in the premises. That the janitors were employees of another company and not employees of the Food 4 Less is another indication that Lopez and Camacho lacked implied authority over Food 4 Less funds.
Because the record does not contain evidence that Lopez and Camacho had “sufficient representative capacity with respect to the owner of the property, so as to have express or implied authority over the property” (Frazer, supra, 106 Cal.App.4th at p. 1115), they did not have the requisite relationship with the Food 4 Less so as to be in constructive possession of the property stolen by defendant. Accordingly, I would reverse the convictions on counts 5 and 6 because there was insufficient evidence that Lopez and Camacho were victims of the robbery.
Appellant’s petition for review by the Supreme Court was denied November 12, 2003.
If, as I conclude, the conviction for robbing Lopez cannot stand, defendant’s conviction for assaulting Lopez with a firearm would not be stayed pursuant to Penal Code section 654. In the absence of a robbery conviction, Penal Code section 654 would not affect defendant’s sentence for assault with a firearm.
The question of what constitutes constructive possession occurs in California because this state adheres to “the traditional approach that limits victims of robbery to those persons in either actual or constructive possession of the property taken.” (Nguyen, supra, 24 Cal.4th at *525p. 764.) The issue does not arise in many states because they either do not require that the property be taken from the possession of the victim (id. at p. 763, fin. 4; see Model Pen. Code, § 222.1) or they define robbery to include the threat or use of force “against the person of the owner or any person present.” (Nguyen, at p. 763, fin. 4.)