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Theft And Robbery FAQ

What is the difference between theft and robbery?

What is a robbery?

What does immediate presence mean?

What type of force is required?

What type of fear?

Will I be charged with first degree or second degree robbery?

What is the punishment for first degree robbery?

Is robbery a strike?

What Is The Difference Between Theft And Robbery?

A Theft becomes a Robbery (Penal Code section 211) when there is the use or threat of force or fear to the person whose property is being taken.  The threat of force and/or fear can take place before, during, and even after the taking of the personal property.

What Is A Robbery?

As defined in the applicable jury instruction, CALCRIM No. 1600: To prove that a person is guilty of Robbery, it must be proven that:

The defendant took property that was not his/her own;

The property was taken from another person’s possession and immediate presence;

The property was taken against that person’s will;

The defendant used force or fear to take the property or to prevent the person from resisting;


When the defendant used force or fear, he/she intended to deprive the owner of the possession permanently, or for an extended period of time.

What Does Immediate Presence Mean?

The property taken does not have to be in the actual possession of the victim. The property can be near- by, such as in another room.  “Immediate presence” means the property is sufficiently within his or her physical control.  An employee can have what is called “constructive possession” over an employer’s property, such as an employee at Target, 7-Eleven, etc.

What Type Of Force Is Required?

Any type of force elevates a Theft to a Robbery. It could be force or the threat of force. It does not have to involve a weapon. It could be a push, a grab or any type of unwanted (beyond what would be necessary to obtain the item) touching used to obtain the property.

What Type Of Fear?

Fear of injury to the person or the person’s family or property or immediate injury to someone else that is present.

Will I Be Charged With First Degree Or Second Degree Robbery?

First degree Robbery as stated in Penal Code section 212.5 states that if the victim is the operator of a bus, taxi, an individual in an inhabited home or any other type of building is first degree. Additionally, the Robbery of any person who is using or immediately after using an ATM is first degree. Any other Robbery is second degree Robbery.  Robbing an individual at gun point would be second degree Robbery,   however, a gun enhancement would be added to increase the time.

What Is The Punishment For First Degree Robbery?

The punishment for first degree Robbery is 3, 4, or 6 years in state prison.  The punishment for second degree Robbery is 2, 3 or 5 years.

Is Robbery A Strike?

Robbery, whether it is first or second degree is a strike and is deemed to be both serious and violent.

Contact The Mattern Law Firm

To schedule a free initial consultation to discuss robbery or burglary charges, call 310-807-1263 or fill out the online contact form.