A robbery falls under Penal Code (PC) 211 in California. The basic robbery definition is using force or fear to take property from the immediate possession of someone else against their will. It's a serious and violent felony that counts as a strike under the state's Three Strikes Law, regardless of whether it's 1st-degree robbery or 2nd-degree. For more information on felonies and the hearing process
WHAT ARE THE ELEMENTS OF A ROBBERY?
Before we break down the difference in types of charges for first degree vs. second-degree robbery in California, understand that every robbery has the same basic elements.
- Violence or threat of violence;
- Taking someone's possession(s) in their immediate presence and moving it; and
- Using means of force or fear to achieve it.
Note that counts of robbery are calculated not by the number of items you take, but by the number of victims involved in the robbery. While you may typically think of a mugging or bank robbery, a simple robbery scenario looks like this:
Two people meet to complete the sale of an iPhone. The person buying the iPhone decides not to pay and instead punches the seller in the face and leaves with the phone. Or the would-be buyer threatens to punch the seller, leaving them no choice but to give up the phone because they fear their safety. This is now a robbery. Robbery doesn't end until the person who committed the robbery gets to a temporary safe place. So let's talk about that getaway car.
WHAT IF YOU DROVE THE GETAWAY CAR?
As stated above, a robbery doesn't end until the person gets to a temporary place of safety. If you drove the getaway car, you aren't just an accessory after the fact, as you would be in other types of crime, but you are may be charged with robbery.
Continuing from the basic robbery example above, let's say that you're waiting in the parking lot for the person who just used force or fear to take the iPhone. They jump in your car and you drive to your house. You are now involved in a second-degree robbery just like them, assuming you were aware of what was happening. It ended when you got to your house. Especially for juveniles, it can be hard to know what to do if you find yourself in this position, so listening to your own moral compass and standing up for what you feel is right can save you a lot of trouble.
WHAT IS THE DIFFERENCE BETWEEN FIRST & SECOND DEGREE ROBBERY?
California Penal Code 212.5 addresses degrees of robbery. Most robberies are second degree. According to this law, robbery is first-degree only when the following circumstances are met:
- The robbery takes place in a residence, vehicle (commercial or personal) or building.
- The person the robbery was committed against is the driver or passenger of a taxi, Uber, Lyft or other similar transportation and related services.
- The person the robbery was committed against just used an ATM machine.
Every other charge is second degree. The example above involving the robbery of an iPhone is a second-degree robbery case in both scenarios. The main difference between a first and second-degree robbery is the amount of time you could be sentenced to state prison because both are serious felonies and have up to a $10,000 fine attached.
WHAT IS THE MAXIMUM PUNISHMENT FOR A FIRST TIME OFFENDER?
Assuming this is your first offense, a 2nd or 1st-degree robbery sentence is likely to be mitigated, meaning you'll probably receive the lighter end of the three possible terms. First-degree robbery without any other enhancements is 3, 6, or 9 years while second-degree is 2, 3, or 5 years.
However, these enhancements can increase your sentence:
- Using a firearm (even if you don't shoot it, just holding it is enough), in accordance with Penal Code 12022.53.
- Causing great bodily harm/injury, in accordance with Penal Code 12022.7.
- Robbery committed by two or more people at once.
- Already having strikes against you, in accordance with California's Three Strikes sentencing law Penal Code 667(e)(1).
Each of these enhancements has varying degrees of additional time added to the original sentence for robbery. An armed robbery sentence is very serious. Just for carrying a firearm, the enhancement is 10 years. It jumps to 20 years if you intentionally fire it, and 25 years to life if someone gets greatly injured or dies. Great bodily harm/injury is a strike in and of itself, is punishable by an additional 3-6 years, and is handled on a case-by-case basis depending on the severity, the circumstances (often more severe for domestic and sex offenses), and age of the victim.
If you commit robbery with two or more people, you're likely looking at your maximum sentence. For armed robbery, it's often much harsher, especially if the robbery was first-degree. We won't be delving into what constitutes a strike in California on this page, but if you have a previous strike on your record, you're looking at twice the normal sentence. At three strikes, you're looking at the potential of 25 years to life in prison. No matter what the charge, criminal history often carries heavy weight in a case, especially a violent criminal history.
WHAT IF YOU DIDN'T COMMIT THE ROBBERY BUT ARE CHARGED?
When a client asks how to get robbery charges dropped, there are typically several ways to defend them so that they can at least get a mitigating (lighter) sentence instead of an aggravated one. From character references to taking rehabilitative steps, to a legal defense, you should always speak with an attorney before pleading to any case, preferably before the case even begins. See here about the difference a strong, proper defense can make.
A complete defense, in which all charges are dropped, is completely possible if we can prove:
- Mistaken identity.
- The accused was taking back their own property.
- The rights of the accused were violated.
- Insufficient evidence.
Unfortunately, studies have shown that mistaken identity happens more often than not because racial recognition is statistically worse among people of different races. Your alibi is vital here and Proper Defense can help you compile the evidence needed before you even go on record with the police. Whether you were taking back your own property, your rights were violated, or there's insufficient evidence, you can clear your name. Other circumstances, such as intoxication, can help your defense, so be sure to disclose all information at an initial consultation.
WHAT SEPARATES A ROBBERY FROM THEFT OR BURGLARY?
Distinguishing between a robbery vs. burglary and other theft (such as carjacking) isn't always initially clear. They often intersect because the elements involved, especially with burglary (Penal Code 459), can start very similarly to a robbery. The main difference is that the victim is present in a robbery.
For example, what would have been a home burglary with lesser breaking and entering consequences escalates when the owner turns out to be home and you threaten them so as to escape. You can be charged with both robbery and burglary. Let's say you took property from the home first, loaded it in a car, then went back in. The owner came home during this time and you threatened him to get away. These are two separate offenses.
Remember for a burglary to be considered a robbery, the victim must KNOW something was taken from them. And the item does not have to be owned by them, it could be on loan from a friend (such as a mugging in which a borrowed purse is stolen). Whether you're facing breaking and entering charges or robbery in first or second-degree, conducting a California attorney search right away can help you to reduce negative life consequences and get your life back on track.
Contact us today for an initial consultation at (562) 495-7900 or contact us online.