Concept
The Larceny Foundation
Robbery
The Larceny Foundation
Three of robbery's five elements are the elements of larceny: a taking, of the personal property of another, carried out with the intent to permanently deprive the owner of it.1 The reason to build robbery on that base lies in what the other two elements do. Presence and force or intimidation describe the circumstances of a taking, where it happened and how it was accomplished, so they have nothing to describe unless a taking has occurred. Robbery is therefore an aggravated theft in a literal sense, and the analysis proves the theft first and the aggravators second.
Each part of that core gets its own treatment. The first subsection works through what a taking involves and what counts as the personal property of another, because a defendant cannot rob someone of property that is not in the victim's possession to begin with. The second subsection turns to the defendant's state of mind. Robbery adds no separate violent purpose to the mental state; it borrows the theft intent, the intent to permanently deprive, and that subsection examines what the intent demands and how far jurisdictions agree about it.
Taking Another's Property
The first two elements of robbery, a taking of the personal property of another, ask two plain questions about the theft underneath the offense: what the defendant did to the property, and what kind of property it was.3 California's statute, which carries the common-law offense forward, answers both in one phrase by defining robbery as the felonious taking of personal property "in the possession of another."4 That phrase places the victim's protected interest in possession, and the rest of this section works outward from it, beginning with the word "taking."
A taking has two parts. The defendant must first gain possession of the victim's property, which means acquiring control over it, and must then carry it away, a movement of the property that the law calls asportation.5 Both parts are required because robbery rests on a completed theft. Until the defendant has control, the victim has lost nothing, and until the property has moved, the defendant has not removed it from the place where the victim kept it. A struggle over a purse that ends with the victim still holding the purse contains the violence robbery punishes but lacks the theft that the violence is supposed to aggravate, so the conduct is better described as a battery or an attempt than as a completed robbery. The two parts also connect to the next element: the requirement that the property come from the victim's person or immediate presence attaches to the gaining-of-possession half of the taking, not to how far the loot is later carried.6
The second question is whose property it was, and the statutory phrase "in the possession of another" points to possession rather than ownership. The reason follows from what robbery punishes. The dangerous confrontation arises when the person holding the property is made to give it up, and the holder, not the absent title owner, is the person standing in front of the defendant and the person whose resistance must be overcome. In People v. Smith, a California appellate decision from 2009, a store owner hired the defendant to rob the store so the owner could collect insurance proceeds. The defendant argued that the owner's advance consent defeated the robbery charge. The court rejected that argument because the employees from whom the jewelry was taken had a better right to possess it than the defendant did, and they had not consented.7 The owner's consent spoke to title, but the employees were the ones holding the jewelry, and their possession was what the defendant took. People v. Gomez, which involved cash taken from an ATM, shows the same focus, since the court there assumed a possessory interest in the cash and noted that the defendant had not contested it.8 Students lose this element when they start by asking who owns the property, because the question the element asks is who possessed it at the moment of the taking.
The property must also be personal property, meaning movable things, and that limit follows from the two-part taking. Only a movable thing can be possessed and then carried away, and land can be neither carried off nor handed over in a purse or a pocket.9
One more point explains why later materials, and the Model Penal Code in particular, speak of theft in general rather than larceny alone. Older law divided theft into separate crimes such as larceny, embezzlement, and false pretenses, and many modern statutes merge them into one offense. California did so in 1927, and its consolidated theft provision still defines theft by larceny as taking and carrying away the personal property of another.10 The Model Penal Code goes further. It requires neither a separate taking nor asportation and asks instead whether the actor unlawfully took or exercised unlawful control over the property.11 Control corresponds to the first half of the common-law taking, and that difference reappears when the chapter compares the two formulations of robbery.
Intent to Permanently Deprive
The fifth element of robbery is the only one that concerns what the defendant meant to do. The taking must be carried out with the intent to permanently deprive the victim of the property.13 That is the mental state of larceny, carried over unchanged. A defendant who takes property by force while intending to keep it satisfies the element, and a defendant who takes it for some other purpose does not, however frightening the encounter was. The reason follows from the division of labor among the elements. Presence and force or intimidation describe how the taking was accomplished, while the intent shows that the defendant wanted the property itself, as something to keep from its owner for good. Without that intent, the larceny core taught above is missing, and the aggravators have no theft to attach to.
The pair shows which fact carries the element. Students lose it when they let a violent encounter stand in for the intent to keep, because violence proves the force requirement and says nothing about what the defendant planned to do with the property. The same logic explains why a short forcible borrowing, or a forcible taking in the middle of a quarrel, stays outside robbery in most places even though the physical confrontation looks identical to a mugging.
Whether robbery requires this intent at all is the subject of a split. A specific-intent crime is one that requires the defendant to act with a particular purpose beyond the physical act itself, and here that purpose is to deprive the owner of the property for good. A general-intent crime requires only that the defendant intend the physical act. In State v. Mejia the New Jersey Supreme Court, reading a statute that makes robbery turn on force or threats used in the course of committing a theft, noted that most state statutes likewise define robbery as a specific-intent crime.14 A small minority of jurisdictions instead treat robbery as a general-intent crime.
The majority position follows from how robbery is defined. When a statute makes theft part of robbery, the offense takes in theft's mental state along with theft's other features, because a theft cannot be shown without proving the mental state that theft requires. The New Jersey provision shows the mechanism, since it asks whether the force or threat occurred in the course of committing a theft, and the factfinder cannot reach the force question until a theft has been established.15 The minority view rests on a different account of what the offense punishes. If the gravamen of robbery is the force or threat, because that is what endangers the victim, then the defendant's purpose toward the property matters little, and a forcible taking is robbery whether the defendant meant to keep the property or to return it. The majority answer is that force becomes robbery only because it serves a theft. Violence unconnected to theft already has its own offenses, assault and battery, so a rule that dispensed with theft intent would give the robbery label to conduct whose real wrong is the violence alone. In a general-intent jurisdiction, then, the missing purpose to keep in the bicycle prank would not by itself defeat the charge, which is why an exam answer should say which view the jurisdiction follows.
The Model Penal Code follows the majority. It links robbery expressly to theft and separates the two offenses only by requiring the use or threat of force for robbery, so the two crimes share the same mental state.16 The Code's mental state for theft, however, is not the common-law intent to permanently deprive. Its theft provisions drop the word permanently and ask instead whether the actor meant to deprive the owner of a major portion of the property's economic value, which makes the length of the intended deprivation relevant without making it decisive.17 Under that formulation the prank bicycle turns on whether the intended borrowing would strip the owner of a major portion of the bicycle's value, and it is doubtful that one afternoon's ride would. The Code's full version of robbery is taken up later in this chapter.
Because the other elements are often undisputed, intent is frequently where an exam answer earns its points.
On a stem built this way, the force element deserves a sentence and the intent element deserves the analysis, because only the intent element has plausible arguments on both sides.18