Friday, February 29, 2008

Robbery Under Cal. Penal Code § 211 Is Generic Robbery for §2L1.2 COV Purposes

United States v. Tellez-Martinez, No. 06-50647 (5th Cir. Feb. 19, 2008; revised Feb. 22, 2008) (per curiam) (King, Higginbotham, Davis)

In United States v. Santiesteban-Hernandez, the Fifth Circuit held that generic "robbery," for crime-of-violence purposes, is a theft under circumstances presenting some immediate danger to another person. The question in Tellez-Martinez is whether California's robbery statute, Cal. Penal Code § 211, fits that definition. The court holds that it does.

The California statute defines robbery 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 of fear." At first blush that might sound pretty close to the generic robbery definition adopted in Santiesteban-Hernandez, except that "fear," for purpoes of the California statute, is defined pretty broadly; it includes "fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery." Most states' robbery statutes don't extend to fear-of-injury-to-property. Thus, under the Taylor/Shepard approach, the California statute would be broader than generic robbery.

However, Santiesteban-Hernandez departed from the Taylor/Shepard approach by defining robbery at such a high level of generality, and Tellez-Hernandez holds that California's robbery statue fits within that abstract definiton:
Like the Texas statute at issue in Santiesteban-Hernandez, the California robbery statute involves the misappropriation of property under circumstances involving danger to the person. Regardless of how the robbery occurs, that danger is inherent in the criminal act. Thus, even when the statute is violated by placing the victim in fear of injury to property, the property has been misappropriated in circumstances “involving [immediate] danger to the person.”

The result is that the court affirms the application of guideline §2L1.2's 16-level COV enhancement to Tellez.

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