Section 1602 | CALCRIM (Jury Instructions)

[A (store/ [or] business) (employee/
<insert description>)
who is on duty has possession of the (store/ [or] business) owner’s
property.]
[Fear, as used here, means fear of (injury to the person himself or
herself[,]/ [or] injury to the person’s family or property[,]/ [or]
immediate injury to someone else present during the incident or to that
person’s property).]
An act is accomplished by fear if the other person is actually afraid. The
other person’s actual fear may be inferred from the circumstances.
[Property is within a person’s immediate presence if it is sufficiently
within his or her physical control that he or she could keep possession of
it if not prevented by force or fear.]
[An act is done against a person’s will if that person does not consent to
the act. In order to consent, a person must act freely and voluntarily and
know the nature of the act.]
New January 2006; Revised August 2009, October 2010, April 2011, August 2013,
August 2014, March 2017, September 2018, March 2022
BENCH NOTES
Instructional Duty
The court has a sua sponte duty to give an instruction defining the elements of the
crime.
To have the requisite intent for theft, the defendant must either intend to deprive the
owner permanently or to deprive the owner of a major portion of the property’s
value or enjoyment. (See People v. Avery (2002) 27 Cal.4th 49, 57–58 [115
Cal.Rptr.2d 403, 38 P.3d 1].) Select the appropriate language in element 5.
There is no sua sponte duty to define the terms “possession,” “fear,” and “immediate
presence.” (People v. Anderson (1966) 64 Cal.2d 633, 639 [51 Cal.Rptr. 238, 414
P.2d 366] [fear]; People v. Mungia (1991) 234 Cal.App.3d 1703, 1708 [286
Cal.Rptr. 394] [fear].) These definitions are discussed in the Commentary below.
If second degree robbery is the only possible degree of robbery that the jury may
return as their verdict, do not give CALCRIM No. 1602, Robbery: Degrees.
Give the bracketed definition of “against a person’s will” on request.
If there is an issue as to whether the defendant used force or fear during the
commission of the robbery, the court may need to instruct on this point. (See People
v. Estes (1983) 147 Cal.App.3d 23, 28 [194 Cal.Rptr. 909].) See CALCRIM No.
3261, While Committing a Felony: Defined—Escape Rule.
AUTHORITY
•
Elements. Pen. Code, § 211.
CALCRIM No. 1600
ROBBERY AND CARJACKING
1110

RELATED ISSUES
Hotel Room
A hotel room is an “inhabited dwelling house” for purposes of first degree robbery.
(People v. Fleetwood (1985) 171 Cal.App.3d 982, 987–988 [217 Cal.Rptr. 612].)
Robbery in One’s Own Residence
A robbery committed in one’s own residence is still first degree robbery. (Pen. Code,
§ 212.5; People v. Alvarado (1990) 224 Cal.App.3d 1165, 1169 [274 Cal.Rptr. 452]
[defendant robbed two salesmen after bringing them back to his hotel room]; People
v. McCullough (1992) 9 Cal.App.4th 1298, 1300 [12 Cal.Rptr.2d 341].)
SECONDARY SOURCES
2 Witkin & Epstein, California Criminal Law (4th ed. 2012) Crimes Against
Property,